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Salazar v. Roberson

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

September 14, 2019

RUBEN SALAZAR (#M-47357), Petitioner,
v.
KESS ROBERSON, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE

         Ruben Salazar has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction and sentence in the Circuit Court of Cook County for narcotics offenses. Salazar, his brother Sotero Salazar (the Court will refer to the brother as Sotero for clarity's sake), and five other men were charged on multiple counts of possession of cannabis with intent to deliver. Both Salazars challenged on Fourth Amendment grounds law enforcement's seizure of evidence that was used against them. The state trial judge denied the motion after an evidentiary hearing. Both Salazars then waived a jury and proceeded to a bench trial. They were convicted on all charges. The trial judge sentenced Salazar to a 14-year prison term and sentenced Sotero to a 15-year term. Their convictions and sentences were affirmed on appeal. People v. Salazar, 2017 IL App (1st) 143471-U, 2017 WL 531178.

         In his habeas corpus petition, Salazar challenges the denial of his motion to suppress evidence; the sufficiency of the evidence to convict him; and the severity of his prison sentence. The Court takes the relevant facts from the state appellate court's decision, which are presumed correct under 28 U.S.C. § 2254(e)(1).

         Background

         1. The motion to suppress

         The Salazars jointly moved the trial court to quash their arrests and suppress evidence, specifically the cannabis upon which their convictions were based. As indicated earlier, the trial judge held an evidentiary hearing on the motion.

         At the hearing, Chicago police officer Patrick Keating testified that in August 2011, he received information from a confidential informant regarding a shipment of cannabis arriving in Chicago via semi-truck over the weekend of August 20-21, 2011. He was given the license plate number of a cargo van to be used in the distribution of the cannabis, as well as its possible location. The vehicle was located on August 20, and police began surveillance. On August 21, Keating and other officers followed the van as it traveled to several locations, including a warehouse located at 1038 South Kolmar in Chicago. Based on the surveilling officers' observations, Keating believed the shipment of cannabis would be coming to the warehouse. A larger investigatory team was positioned near the warehouse property to conduct surveillance. In total, Keating observed six cargo vans that came to and were parked on the warehouse property.

         About 9:15 p.m. on August 21, 2011, officers observed persons later identified as Salazar and Sotero arrive at the warehouse property. While there, Sotero began moving a Bobcat vehicle and a forklift to various locations. About 9:30 p.m., a police officer not involved in the investigation made a stop outside the warehouse property and illuminated the warehouse yard with his spotlight. When this happened, the warehouse yard light was turned off, the Salazars walked to the front entrance to observe, and then they left the property. Salazar did not return until about 7:35 a.m. the next day, August 22.

         At approximately 3:15 a.m. on August 22, the police observed Sotero and four other people (not including Salazar) return to the warehouse in two separate vehicles. Sotero appeared to call a meeting, motioning with his hands and appearing to give instructions. Ten minutes after this meeting, a semi-truck stopped in front of the outer wall of the warehouse property, and Sotero directed the driver to back up into the warehouse yard. He moved the forklift closer to the rear of the semi-truck, and the group worked together to pull large self-storage pods out from the truck trailer. Keating testified that this appeared to be done in an unsafe and reckless manner-in the dark, using flashlights, with no one using safety equipment. Six storage pods were removed from the trailer and placed inside a building. The semi-truck then left, and the individuals convened for a meeting and then left the warehouse.

         About 7:35 a.m., Ruben Salazar returned to the warehouse property, as did Sotero and others. A total of about seven or eight men were present. After everyone arrived, one of the six cargo vans backed up into the building on the warehouse lot, everyone went inside, and the door was shut. Salazar and Sotero then left the building and remained on the yard, talking and looking around. The cargo van was driven out of the building and parked along the property fence line, and a second cargo van was backed into the building. Salazar and Sotero went inside again and later exited.

         When this second van left the warehouse property, the officers decided to conduct an investigatory stop. Officer Thomas Cunningham testified that he intended to stop the van far from the warehouse entrance so as not to tip off those who were still at the warehouse property. Cunningham testified that as he approached the van, he could smell the odor of marijuana. However, another patrol unit mistook which van to stop and attempted to stop another, different van. That stop ended up involving police sirens and squealing tires. Sotero noticed the commotion, went to the warehouse fence line, and then began to alert everybody within the warehouse, yelling “policia, policia.” The warehouse building door slid open, and people started running out.

         Officer Keating testified that he was located near railroad tracks outside the warehouse property and that when the warehouse door was opened, he observed two green cellophane-wrapped bales within the warehouse building. Based on his experience, he believed these bales contained cannabis. Salazar attempted to flee by jumping a fence at the north end of the warehouse property but was intercepted and placed under arrest by Keating; this occurred as other officers entered the warehouse property.

         Keating testified that he took Salazar to the location where the traffic stop had taken place and then went inside the warehouse property. The door to the warehouse was open as other officers went inside to secure the scene and see if additional people were hiding. Keating testified that as he approached the warehouse, he could smell a strong odor of cannabis coming from inside the warehouse. In the warehouse, officers observed six storage pods, all unlocked and opened. One cargo van was also inside with its back door open. One bale of cannabis was on the floor adjacent to the van, and other bales were inside the van.

         The Salazars argued that their Fourth Amendment rights were violated because the officers entered the warehouse property and the warehouse itself without consent or a warrant. They also argued that the officers had probable cause and ample time to obtain a warrant but did not do so. They contended that there were no exigent circumstances authorizing law enforcement to enter the property because the officers had created the claimed exigency by frightening those who were present, causing them to flee. Lastly, they argued that although Keating had observed some bales from outside the warehouse property, the plain vie doctrine did justify the officers' warrantless entry onto the property or into the warehouse.

         The trial court denied the motion to suppress. The court concluded that the officers did not create the exigency and that the lights and sirens that had caused the people on the property to flee had resulted from miscommunication rather than a deliberate effort to cause them to flee. The court also concluded that the police did not have probable cause that would ...


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