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United States v. Mitchell

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

May 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RONNIE R. MITCHELL and SAMMY R. GORDON, Defendants.

          MEMORANDUM ORDER

          REBECCA R. PALLMEYER United States District Judge.

         Defendants Ronnie R. Mitchell and Sammy R. Gordon were arrested on July 7, 2016, after police officers discovered a half kilogram of heroin in a paper shopping bag inside Mitchell's vehicle. Mitchell and Gordon have been charged with knowingly possessing a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The Defendants moved to suppress the evidence obtained during the search of Mitchell's vehicle, all evidence derived from that search, and all statements they made to the police. (Gordon's Motion to Suppress [44]; Mitchell's Motion to Suppress [45]) (adopting the arguments advanced in Gordon's Motion). Defendants contend the police lacked any legal justification to conduct a warrantless search during an investigatory stop of the vehicle. The court conducted an evidentiary hearing on April 3 and June 26, 2017, and, after reviewing additional briefing, initially denied Defendants' Motions to Suppress. (See Order Denying Motions to Suppress [74]; Transcript of Proceedings held on 9/21/17 [83] (“9/21/17 Hearing Tr.”), 2:19-23.) On November 15, 2017, Defendants moved for reconsideration. (Gordon's Motion to Reconsider [85]; Mitchell's Motion to Reconsider [87].)[1]

         For the reasons explained here, the court concludes that the search was lawful only if Mitchell consented to it, and that the evidence offered to date is insufficient to establish that he did. The court therefore grants the Defendants' renewed motions to suppress [85, 87, 91, 92] with respect to the quantity of heroin discovered during the July 7 search.

         FACTUAL BACKGROUND

         Gordon and Mitchell's arrest stemmed from a DEA investigation into heroin distribution in the Chicago area. (Government's Response to Defendants' Motions to Suppress Evidence [49] (“Gov't Resp. Br.”), 1.) Based on information obtained from an unnamed cooperating defendant (“the CD”), the DEA began investigating co-defendant Jaime Valdez-Jacobo in June 2016. (Id.) Before the day of their arrest, Gordon and Mitchell were not known to the surveilling officers. (Id. at 2.) Valdez-Jacobo, the initial subject of the investigation, was not with Gordon and Mitchell at the time of the search, but was also charged. Valdez-Jacobo has pleaded guilty and is not a party to this motion to suppress.

         The sequence of events leading up to the Terry stop and search of Mitchell's vehicle are not disputed. On the morning of July 7, 2016, law enforcement began surveilling two residences-the “LaSalle Street” and “Calhoun Street” Residences-in Aurora, Illinois, which the CD had identified as associated with Valdez-Jacobo. (Id.) The surveillance team assigned to monitor Valdez-Jacobo's activities consisted of between six to eight vehicles manned by DEA agents and local police officers from several Illinois towns. (See Gordon's Motion to Suppress 3.) Although the CD had previously told the DEA that he had purchased several kilograms of heroin from Valdez-Jacobo at the Calhoun Street Residence, the DEA did not have any information to suggest that a drug transaction was set for on any particular day. (Id. at 2- 3.)

         Beginning around 9:00 AM, agents followed Valdez-Jacobo as he drove around in a white Chevy pickup truck. The agents observed Valdez-Jacobo visit the two residences, run errands, and perform roofing work at a job site for several hours. (Id.) Later in the day, between 3:00 and 4:00 PM, the surveillance team followed Valdez-Jacobo as he drove to a strip mall in Schaumburg, Illinois, parked his truck, and waited there for roughly thirty minutes. (Id. at 3-4.) At 4:27, a grey Ford F150 truck and a gold Volvo SUV-driven by Gordon and Mitchell, respectively-entered the parking lot and approached Valdez-Jacobo's truck. (Id. at 4.) All three vehicles then left the parking lot together, with Valdez-Jacobo leading Gordon and Mitchell half a mile down Salem Drive to an apartment complex in Hoffman Estates, Illinois. Valdez-Jacobo parked in the apartment building's parking lot, while Gordon and Mitchell parked their vehicles in the parking lot of an office complex across the street. (Id.)

         Once in the office complex's parking lot, under law enforcement observation, Gordon exited his Ford truck carrying a large, white paper shopping bag and walked over to Mitchell's Volvo SUV. (Id.) The surveilling officers could not see into the shopping bag, nor could they tell whether the bag contained anything. (Id.; see also Transcript of Evidentiary Hearing held on 4/3/17 [57] (“4/3/17 Ev. Hearing Tr.”), 41:17-42:4; Transcript of Evidentiary Hearing held on 6/26/17 [63] (“6/26/17 Ev. Hearing Tr.”) 24:4-16, 62:23-65:16.) Gordon entered Mitchell's SUV with the bag, and Mitchell drove the two of them across the street to the apartment complex where Valdez-Jacobo was waiting. (Gov't Resp. Br. 3.) All three men then exited their vehicles, talked briefly, and entered the apartment complex together. (Id.) The surveillance team did not enter the apartment building, and did not see where the men went once inside.

         Ten minutes later, at approximately 4:40 PM, Mitchell and Gordon left the apartment building without Valdez-Jacobo. (Gordon's Motion to Suppress 5.) Gordon was still carrying the shopping bag, and the officers were still unable to determine what, if anything, the bag contained. (Id.; see also 4/3/17 Ev. Hearing Tr. 45:1-23; 6/27/17 Ev. Hearing Tr. 26:1-20.) Mitchell and Gordon returned to Mitchell's Volvo SUV and drove back across the street to the parking lot where Gordon had left his truck. (Gordon's Motion to Suppress 6.) At this point, suspecting that a drug transaction had just taken place inside the apartment complex, one of the surveillance team's leaders, DEA Special Agent Jason Fisher, ordered agents to approach the vehicle and conduct an investigatory stop. (See 6/26/17 Ev. Hearing Tr. 15:4-11.) Three to four police cars activated their sirens and entered the parking lot, blocking off the Defendants' exit. (4/3/17 Ev. Hearing Tr. 88:2-24; 6/27/17 Ev. Hearing Tr. 44:12-17.) DEA Special Agent David Piña and Buffalo Grove Police Officer Brian Parker were the first to approach Mitchell's vehicle, with Piña on the driver's side and Parker confronting Gordon on the passenger side. (4/3/17 Ev. Hearing Tr. 89:18-21.)

         The parties' agreement on the course of events ends here. Both officers have testified that they “walked” up to the Defendants-who were either in the process of exiting the vehicle or already outside-identified themselves, patted the Defendants down, and asked for identification. (4/3/17 Ev. Hearing Tr. 87:7-88:18; 6/27/17 Ev. Hearing Tr. 44:18-23; see also Gov't Resp. Br. 4.) Piña described Mitchell as being “very compliant” during the encounter, and stated that he moved Mitchell “towards the back of the vehicle so we would not be in the scene.” (6/27/17 Ev. Hearing Tr. 44:22-45:22.) Parker described Gordon, too, as “cooperative and polite” and testified that he moved Gordon away from Mitchell's Volvo towards Parker's own vehicle. (4/3/17 Ev. Hearing Tr. 90:2-21.) Defendant Ronnie Mitchell, however, testified that his initial encounter with the task force officers was not nearly so congenial. Mitchell claimed that both he and Gordon were still inside his Volvo when the officers pulled in behind him. (6/27/17 Ev. Hearing Tr. 75:1-76:13.) According to Mitchell, the officers ran up with their guns drawn and pulled him and Gordon out of the vehicle at gunpoint. (Id.) Both he and Gordon were handcuffed almost immediately and separately led away towards the officers' cars. (Id. at 77:14-78:6.) Agent Piña corroborated at least part of Mitchell's account on cross-examination and admitted that he had “probably” drawn his gun, although he could not speak for the other officers at the scene.[2] (Id. at 59:2-14.) Neither Piña nor Parker, however, could remember whether they placed Mitchell and Gordon in handcuffs right away or after their fellow officers had searched Mitchell's vehicle. (Id. at 45:23-46:7; 4/3/17 Ev. Hearing Tr. 90:22-91:19.)

         Michael Bedalow, a police officer from Justice, Illinois, who was assigned to the task force, conducted the search. Bedalow arrived on the scene just after Piña and Parker, and testified that Piña informed him that Mitchell had consented to having his vehicle searched. (4/3/17 Ev. Hearing Tr. 21:18-24.) Bedalow nevertheless explained his purpose as unrelated to consent; he characterized it as a safety sweep for weapons and other persons: “I approached the vehicle from the passenger side, and I just wanted to make sure that nobody else was in the vehicle. So I opened the passenger side door to make sure nobody else was sitting in the backseat.” (Id. at 22:4-15.) During cross-examination, Bedalow admitted that both Mitchell and Gordon were both by then up to 25 feet away from the car-possibly handcuffed-and that none of the other surveilling officers had mentioned that another person might be in the car. (Id. at 62:24-63:17.) Nevertheless, Bedalow reiterated that “My reason for opening th[e] door was to secure the vehicle, to make sure nobody else was in there and there were no accessible weapons.”[3] (Id. at 49:21-23, 51:15-52:11, 62:6-23.)

         Once in the car, Bedalow saw the white shopping bag resting on the floor behind the front passenger seat. (4/3/17 Ev. Hearing Tr. 22:18-19.) Bedalow claimed that the top of the bag was open, and that he was able to look down into the bag and see a brick-shaped object wrapped in black electrical tape and clear plastic wrap. (Id. at 22:19-25.) Other officers took the following pictures at the scene:

         (Image Omitted)

         (Ex. 1 to Gordon's Motion to Reconsider [85-1]; Government's Ex. 4 at 6/27/17 Ev. Hearing.) Based on his experience, and given the context of the investigation into Valdez-Jacobo's activities, Bedalow concluded that this object likely contained heroin. (4/3/17 Ev. Hearing Tr. 23:2-17.) Bedalow called out to his fellow officers that the vehicle was “positive for narcotics.” (Id. at 23:22; see also Id. at 92:13-15, 6/26/17 Ev. Hearing Tr. 45:24-46:3.) Later on, other unknown officers removed the bag from the vehicle and discovered that the wrapped package contained 577 grams of a white powdery substance. (Affidavit of Special Agent Eric Collins in Support of the Amended Criminal Complaint [1] (“Collins Aff.”), ¶ 20.) A field test confirmed that substance to be heroin. (Id.)

         In support of the criminal complaint initiating this case, DEA Special Agent Erik Collins submitted an affidavit in which he justified the search of Mitchell's vehicle on two independent grounds. Collins, like Agent Fisher, was a leader of the surveillance team but was not present for the stop. He prepared the relevant sections of his affidavit from contemporaneous notes he took during his conversations with the other officers. (Id. at ¶ 5; Transcript of Preliminary Hearing held on 7/27/16 [43] (“7/27/16 Prelim. Hearing Tr.”), 48:6-9.) First, Collins asserted that the officers observed the shopping bag on the floorboard of the vehicle by looking through the rear passenger side window as they approached. (Collins Aff. ¶ 19.) Though the affidavit makes no mention of the condition of the windows, undisputed evidence shows that the rear passenger window of Mitchell's SUV was both rolled up at the time and tinted. (See Government's Ex. 2 at 6/27/17 Ev. Hearing.) Collins's affidavit nevertheless asserts that officers were able to look through the tinted window, down into the open top of the shopping bag, and spot the wrapped object resting at the bottom. (Collins Aff. ¶ 19.) The Government repeated this explanation several times up until the time of the evidentiary hearing. (See, e.g., 7/27/16 Prelim. Hearing Tr. 23:20-21, 40:20-41:4; Gov't Resp. Br. 3-4.) At the hearing, however, all of the testifying officers denied having spotted the shopping bag or brick of heroin through the window, and none could explain how Agent Collins came to believe that course of events.[4](See 4/3/17 Ev. Hearing Tr. 62:10-18, 70:7-18, 119:6-124:15.) The Government has since effectively withdrawn any argument that the search was justified by the officers' “plain view” of the heroin through the vehicle's window.

         The Government now justifies the search only on the second ground stated in Collins's affidavit: that Mitchell consented. (See Collins Aff. ¶ 20.) Agent Piña testified that he asked Mitchell for consent to search Mitchell's Volvo, and that Mitchell responded “yes.” (6/26/17 Ev. Hearing Tr. 44:24-45:22.) Piña was not wearing a body camera or other recording device, nor did he have Mitchell sign a consent form at the scene. (Id. at 59:18-60:6.) None of the other officers heard this conversation. After purportedly receiving consent from Mitchell, Piña claims that “I told my other law enforcement partners that were there, I said, hey, we have consent.” (Id. at 45:19-20.) Although Officer Parker was nearby dealing with Gordon, he testified that he did not hear Piña or anyone else announce that Mitchell had consented to a search, and only became aware of the search after it had occurred. (4/3/17 Ev. Hearing Tr. 91:3-15.) Officer Bedalow also did not hear Mitchell say anything during his interaction with Piña. As noted, however, Bedalow testified that as he approached the scene after Piña and Parker's initial contact with the Defendants, Piña “related to [Bedalow] that we had consent to search the vehicle.” (Id. at 21:1-22, 49:11-20.)

         Mitchell firmly denies that he ever gave the officers permission to search his vehicle-or even that the officers asked him for it. (6/26/17 Ev. Hearing Tr. 76:22-78:14, 85:20-25.) He also claims that Piña never declared “we have consent” to the other officers present, nor said this to Bedalow directly, as Bedalow testified. (Id. at 86:8-10.) Rather, Mitchell states, Bedalow and the fourth officer at the scene, DEA Special Agent Mike Cierniak, simply entered Mitchell's Volvo and began a search after Piña had forcibly removed and handcuffed him. (Id. at 77:4-25, 80:14-84:8.)

         During Mitchell's cross-examination at the evidentiary hearing, the prosecutor asked Mitchell whether he objected to officers' search once he saw that it was underway. (Id. at 84:9- 10.) Mitchell responded evasively to these questions:

Q. When you saw this officer go into your car, did you object to the search of the car?
A. What can I tell the agents?
Q. That's not my question. I am asking, did you object to the ...

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