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United States v. Parker

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

July 16, 2019

UNITED STATES OF AMERICA,
v.
IVAN PARKER, Defendant.

          OPINION AND ORDER

          SARA L. ELLIS UNITED STATES DISTRICT JUDGE.

         The government alleges that Defendant Ivan Parker robbed over $100, 000 from an ATM technician who was servicing an ATM in the field. After the technician identified Parker from a photo lineup, the FBI executed a search warrant at Parker's apartment, where they discovered evidence in the form of proceeds from the robbery. They subsequently executed a second search warrant at Parker's sister's home and recovered more proceeds from the robbery. Parker first moves the Court to suppress the technician's identification of Parker as unreliable. Second, Parker moves the Court to suppress the fruits of the searches arguing that the supporting affidavits lacked probable cause and the good faith exception does not apply in this case. Third, Parker asks in the alternative for an evidentiary hearing to develop the record. Because the police did not use suggestive procedures during the photo lineup, the Court denies Parker's motion to suppress the identification. Because the first search warrant was supported by probable cause, and because Parker lacks standing to challenge the second search warrant, the Court likewise denies Parker's motion to suppress the searches. Lastly, because an evidentiary hearing is unnecessary, the Court denies Parker's request for a hearing.

         BACKGROUND[1]

         On July 27, 2018, shortly before 7 a.m., Peter Sarnecki, an ATM technician, walked into 3856 West 26th Street, Chicago, Illinois, to service a Chase Bank ATM. Sarnecki, who works for Loomis Armored U.S., was armed and also carried a black bag with him that contained cash for balancing the ATM. There were several customers present as Sarnecki began working on one of the ATMs located in the northeast side of the vestibule. Soon, Sarnecki was alone in the vestibule with another man. The man approached Sarnecki and stated, “I don't want to hurt you, but, ” and pointed a gun towards Sarnecki's head. Doc. 54-1 ¶ 8. Sarnecki attempted to push the gun away, and the man pepper-sprayed Sarnecki in the face. The man then grabbed the black bag containing the cash and ran out of the building, heading north on Springfield Avenue. Sarnecki briefly attempted to follow the man but stopped pursuing the man once he turned into an alley. The bag contained approximately $106, 335.

         The FBI collected surveillance videos from Chase Bank, the armored vehicle Sarnecki had used, as well as several businesses and residents in the surrounding area. The different videos allowed agents to piece together the direction in which the man fled, eventually leading them to an apartment building located at 4246 West Cermak Road, Chicago, Illinois.

         Agents interviewed the building owner at 4246 West Cermak (“the Building Owner”). The Building Owner stated that the exterior door provides access to the entire building, including apartments at 4244 through 4250 West Cermak. The FBI showed the Building Owner a still photo of the suspect from one of the surveillance videos they had collected. The Building Owner stated that the man resembled Parker and that the Building Owner had seen Parker when he and a woman had agreed to rent Unit 2ER at 4244 West Cermak (the “Chicago Apartment”). The Building Owner also provided a picture of Parker's state identification as well as Parker's phone number. The FBI searched law enforcement databases and found that Parker's phone number was associated with a utility service at the Chicago Apartment.

         FBI agents also interviewed Sarnecki as part of their investigation. Sarnecki described the man who robbed him as being in his late twenties to early thirties and approximately 6'0” to 6'2”. Sarnecki also described the clothes that the man was wearing. FBI agents conducted a double-blind sequential photo lineup, consisting of six headshots of African American men with short hair and similar facial hair. Sarnecki viewed the lineup twice without identifying anyone. He then indicated that photo number three-Parker's photo-looked like the man who robbed him, although he was not 100% sure. Sarnecki explained that the incident happened very quickly, and he had only seen the man out of the corner of his eye before the robbery occurred. He also stated that he had seen surveillance photos in the Chicago Sun Times and that the person in those photos was the man who committed the robbery.

         Based on this information, the FBI applied for a warrant to search the Chicago Apartment. In addition to documenting the investigation already described, the agent who prepared the warrant application stated that he had “viewed Parker's booking photographs and state identification card, and Parker matches the general physical attributes of the [suspect].” Doc. 54-1 ¶ 23. Parker also had a tattoo on his right neck, and this matched an area on the suspect's neck that was covered by a white material during the robbery. The affidavit further stated that Parker had a felony criminal history involving firearms, assault, and drug convictions.

         A magistrate judge issued the warrant to search the Chicago Apartment (“Chicago Warrant”) on August 10, 2018. That same day, agents executed the warrant and found approximately $7, 010 in cash, in addition to jewelry, pepper spray, a gun, and drugs. Parker was not in the apartment, although agents later found him in a different unit in the building.

         The government charged Parker with robbery on August 13, 2018. On August 15, 2018, the Court ordered Parker detained without bond pending trial. While Parker was detained, the FBI subpoenaed Parker's jail calls. In a recording from August 17, 2018, Parker called his sister to ask whether another man brought her “a lot” of money, referring to “50” or $50, 000 at one point during the call. Doc. 54-2 ¶¶ 27-29, 34-36. Based on this information, the FBI applied for a second warrant to search Parker's sister's apartment, located in Joliet, Illinois (“Joliet Warrant”). A magistrate judge issued the Joliet Warrant on September 13, 2018. While executing the warrant, agents found approximately $24, 000 in cash.

         ANALYSIS

         I. Motion to Suppress Identification

         Police identification procedures violate due process if they are “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” United States v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009) (quoting United States v. Williams, 522 F.3d 809, 810 (7th Cir. 2008)). To determine if Sarnecki's identification violated Parker's constitutional rights, the Court applies a two-step analysis. Parker must first establish that the FBI used “unnecessarily suggestive” procedures to obtain the identification. Perry v. New Hampshire, 565 U.S. 228, 248, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). Second, the Court considers whether the identification is reliable under the totality of circumstances. Id. at 239- 240, 248.

         Parker does not make any argument that the FBI's procedures were “suggestive and unnecessary.” Id. at 239. Nor does the evidence support such a conclusion. The photo array contained six pictures. See United States v. Carter, 410 F.3d 942, 948 (7th Cir. 2005) (“Six is a sufficient number of photos for such a line-up.”). The FBI used a double-blind procedure. Hart v. Mannina, 798 F.3d 578, 588 n.1 (7th Cir. 2015) (explaining double-blind administration of lineups is the preferred method). The FBI agent also instructed Sarnecki that the culprit's photo may or may not be included in the array. See United States v. Johnson, 745 F.3d 227, 228 (7th Cir. 2014) (“Careful officers tell a witness that a photo spread does not necessarily include any suspect[.]”). They proceeded to show the photos sequentially, consistent with best practices. Id. (explaining that a “sequential display is preferable because it forces the witness to compare each photograph against memory, rather than one photograph against another”). Additionally, the photos depicted six African American men with short hair and similar facial hair, whose attributes were sufficiently comparable to avoid highlighting any particular subject. See United States v. ...


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