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United States v. Perez

United States District Court, N.D. Illinois, Eastern Division

February 27, 2018




         For the reasons stated below, Defendant's motion to suppress [65] is denied.


         Rosalinda Perez moves for entry of an order suppressing her statements to law enforcement officials on April 20, 2016. alleging that the Federal Bureau of Investigation (“FBI”): (1) failed to provide her with Miranda warnings prior to custodial interrogation; (2) only provided limited warnings after obtaining statements from her, thus circumventing the purpose of Miranda; and (3) employed coercive measures to obtain involuntary statements from her, all in violation of her constitutional protections. (Def.'s Mot., Dkt. # 65.) The Court held an evidentiary hearing on October 17, 2017 and December 14, 2017. For the reasons stated below, the motion to suppress is denied.


         At the evidentiary hearing, Special Agent Christopher Alan Hedges, a thirteen-year veteran of the FBI, testified that during the summer of 2015, he was investigating drug trafficking at a store named Roma III (also referred to as “The Basement”) on the South Side of Chicago.[1] During the course of the investigation, Agent Hedges acquired evidence that Roma III was being utilized as a heroin distribution point for a Chicago street gang, and that Defendant, the owner and manager of Roma III, was involved. Agent Hedges and others developed a plan to approach Defendant and attempt to gain her cooperation in the investigation in order to gather evidence against other targets. To accomplish this, Agent Hedges testified that he wanted to approach Defendant discreetly so that no one else would know she was cooperating. The plan to flip Defendant included refraining initially from interrogating her and cautioning her to remain silent while Agent Hedges laid out the case against her and explained why she should cooperate. At times, Agent Hedges referred to the plan as a recruitment pitch. According to Agent Hedges, if Defendant refused to cooperate, law enforcement would have arrested her, and a search warrant would have been executed at Roma III.

         The plan to approach Defendant was executed on April 20, 2016, when members of Agent Hedges' team, including Special Agents Alison Foy and Michael Bucaro, conducted surveillance to locate Defendant. Based on information from other members of the team, Agents Foy and Bucaro found Defendant driving in the vicinity of 31st Street and Grove Avenue in Berwyn, Illinois at approximately 8:45 a.m.[2] (12/14/17 Hr'g Tr., Dkt. # 77, at 93-94.) Agent Foy testified that she and Agent Bucaro approached Defendant's car from the opposite direction and pulled their black Crown Victoria in front of Defendant's car, with their covert lights on, but no siren activated. (Id. at 95-96.) After blocking Defendant's ability to continue driving, Agents Foy and Bucaro exited their car with their guns drawn and, using “loud verbal commands, ” ordered Defendant out of her car. (Id. at 96.)[3] According to Agent Foy, the plan involved a felony car stop of Defendant based on the evidence they had regarding her drug-trafficking activities, and pursuant to Agent Foy's training, such stops are effectuated with weapons drawn. (Id. at 97.) After Defendant got out of her car, she complied with Agent Foy's directive to raise her hands. (Id. at 118.) Agent Foy then approached Defendant, re-holstered her gun, and conducted a pat-down search of Defendant to ensure she had no weapons, which she did not. (Id. at 98, 120.) According to Agent Foy, she then told Defendant that there were two agents who wanted to speak with her. (Id. at 98-99.) Agent Foy did not Mirandize or handcuff Defendant, and took her to a minivan located nearby, which was occupied by Agent Hedges and Special Agent Rakow. (Id. at 99-100.) Agent Foy estimated that her interaction with Defendant from the time of the stop to taking her to the minivan lasted less than two minutes, and stated that neither she nor Agent Bucaro used any force or threatened Defendant during their encounter with her. (Id. at 100.) Agent Foy also testified that while Defendant seemed startled and confused, she was not crying or yelling. (Id.)

         Inside the minivan, Agent Hedges, who was wearing a suit and holding a notebook, stated he was sitting in the second-row captain's chair behind the driver's seat while Agent Rakow positioned herself in the third row of seats.[4] When Defendant was brought to the minivan, she entered and sat in the captain's chair next to Agent Hedges, whose weapon was holstered and remained so throughout the entire interview. Agent Hedges testified that while Defendant appeared anxious and confused, she was not crying, and that his demeanor toward Defendant was “professional.” He denied that either he or Agent Rakow yelled at Defendant at any time during their encounter with her, or that Defendant was handcuffed at any point that day. Agent Hedges stated that when Defendant initially entered the minivan, neither he nor Agent Rakow read Defendant her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), because it was not the agents' intention to interrogate or question Defendant at that point.

         According to Agent Hedges, Defendant was informed that the agents did not expect her to say anything initially, but that they just wanted her to listen to the facts about their investigation and the evidence they had against her. She was then told that the FBI had been conducting a long-term investigation into the Black P. Stone Nation (“BPSN”) street gang, and had evidence that she was involved in drug-trafficking activities with the gang. Specifically, Agents Hedges and Rakow told Defendant that they had evidence that heroin had been purchased at her store, and that she had participated in certain financial crimes. The agents informed Defendant of the charges she faced and the possible prison sentence she could receive if convicted, and that in exchange for her cooperation, she could potentially receive leniency with respect to both. Agent Hedges testified that they never threatened or lied to Defendant. Defendant was allowed to make telephone calls to her son and daughter, after which the agents told Defendant that they wanted her to cooperate in the investigation as an informant. Defendant agreed to have a conversation about being a cooperator.

         Agent Hedges testified that after Defendant stated she was interested in discussing cooperating with law enforcement, he read her the FBI advice-of-rights (FD-395) form and then gave it to her to read. After Defendant had finished reviewing the form, Agent Hedges asked Defendant if she understood and whether “everything made sense, ” to which Defendant responded “yes.” Defendant then waived her rights and Agent Hedges asked her to sign the form. Agent Hedges testified that he asked her to sign the form only once and that neither he nor Agent Rakow forced Defendant to sign the form.

         Thereafter, the agents questioned Defendant about her criminal activities for approximately three hours. In summary, Defendant described starting as a cashier at Roma III and becoming a manager, and then owner, of the store when the original owner, Florencio “Jose” Marin, who was involved in drug trafficking, passed away. At that time, Jose's drug supplier approached Defendant and offered to continue the drug-trafficking arrangement with her. Defendant agreed and thereafter engaged in purchasing and selling both heroin and cocaine to certain individuals, one of whom was an informant for the FBI. During the agents' conversation with Defendant in the minivan, she consented to the search of her phone and her vehicle. (Consent to Search, Gov't Ex. 4, Dkt. # 68-5.) In the days that followed, Defendant apparently had second thoughts about her agreement to cooperate; in a meeting at the FBI's offices on April 27, 2016, she announced that she thought she needed to talk to a lawyer. At that point, according to Agent Hedges, all questioning of Defendant stopped, and no further attempts were made to induce her to cooperate.[5]

         On cross-examination, Agent Hedges testified that the stop of Defendant's car on April 20, 2016 was not a traffic stop for a driving violation, but rather a planned stop to provide an opportunity to speak alone with Defendant about her potential cooperation with the government. Agent Hedges did not participate in the initial stop of Defendant's car, which was pre-planned, and according to Agent Hedges, Defendant was caught by surprise by the stop. The decision to take Defendant into custody if she refused to cooperate was approved by the U.S. Attorney's Office. While Agent Hedges and his team knew that Defendant occasionally took a young child to school in the mornings, they were not aware that she did so every day, but had observed her taking the same route back to her house on several previous occasions. The law enforcement officers did not want to stop her while she had a child in the car and did not do so. Although Agent Hedges testified that their intent was to discreetly discuss cooperation with Defendant, defense counsel's cross-examination established that Defendant was stopped on a public street in a residential neighborhood in Berwyn. Agent Hedges did not observe the actual stop of Defendant's automobile by the other members of the team, and his and Agent Rakow's conversation with Defendant in the minivan was not recorded. Defendant was dressed in her pajamas at the time of the stop. Agent Hedges acknowledged that he had recommended to Defendant that, for her own safety, she keep her agreement to cooperate confidential.[6]


         Voluntariness of a confession depends on whether it is “the product of a rational intellect and free will and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant's free will.” United States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004). Factors relevant to determining whether a confession was coerced include the suspect's age, intelligence, education, mental state; whether she received Miranda warnings; the length and environment of the interrogation, ...

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