United States v. Ramirez

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         For the reasons set forth below, Defendant's motion to suppress [46] is denied. This case remains set for further status hearing on November 5, 2019 at 9:00 a.m.

         I. Background

         After considering the parties' briefs and the live testimony of the officers^[1] and Defendant's girlfriend, and making any necessary credibility determinations, the Court sets forth the following recitation of the facts surrounding the encounter between Defendant and the law enforcement officers that gave rise to the motion to suppress currently before the Court.

         Defendant Artemio Ramirez is charged with conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. 846, and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. 841(a)(1). On May 23, 2017, law enforcement officers observed Defendant meeting with a suspected drug courier. They followed Defendant's vehicle and stopped it behind his apartment building. Subsequently, they searched Defendant's apartment and found his girlfriend and more than 100 kilograms of cocaine, which the Government says Defendant admitted were his.

         Defendant moved [46] to suppress the physical evidence recovered from the search of his apartment, as well as certain statements he made, arguing that (1) the initial stop was unconstitutional because the Government lacked reasonable suspicion, (2) the initial stop was unconstitutional because it occurred without probable cause in the curtilage of the apartment, (3) the initial stop was unconstitutional because the Government prolonged it to investigate unrelated crimes, (4) Defendant's girlfriend's consent to search the apartment was invalid, and (5) the Government obtained statements from Defendant in violation of his Fifth Amendment Rights.

         In early 2017, the Drug Enforcement Agency (“DEA”), working with local law enforcement, was investigating a Mexican drug-trafficking organization with ties to Chicago. [132] at 6. The DEA had a cooperating source (“CS”) in contact with a Mexican drug supplier, who told the CS that a large cocaine shipment had been sent to Chicago. Id. The CS told the drug supplier that he had wholesale customers in Chicago. DEA agents provided the phone number and code name of an undercover officer (“UC”) to play the role of a customer. Id. at 7. The CS provided the DEA with the code name of the supplier's contact in Chicago (“Pancho”), as well as a serial number from a dollar bill, which the UC could use to verify the supplier's identity. Id.

         On May 22, 2017, “Pancho” (later determined to be co-defendant Jesus Soberanis) called the UC and provided the same serial number that the CS had given the DEA. During recorded calls on May 22, the UC asked Soberanis how many kilograms of cocaine were available and what the price was for the cocaine. Id. at 7-8. Soberanis said that he had one kilogram for sale and twenty-four more were available, if the UC liked the cocaine. Soberanis told the UC to “call down south” to Mexico for the price. Id. at 8-9. From this, the DEA agents inferred that Soberanis was a courier and someone else was supplying him with narcotics. Id. The DEA then obtained an order from the Circuit Court of Cook County for GPS location information on Soberanis's phone. Id. at 10, 53. Using the GPS location information, officers began surveilling Soberanis at a location on West Schubert Avenue.

         On May 23, 2017, around 3:33 p.m., the UC called Soberanis and agreed to take one kilogram of cocaine and discuss the remaining twenty-four kilograms later. Soberanis and the UC agreed to meet at a store parking lot at Cicero and Diversey forty-five minutes later to conduct the transaction. A few minutes after that call, law enforcement officers conducting surveillance of Soberanis watched him exit the location on West Schubert Avenue and enter a dark-colored GMC Envoy. They followed Soberanis's vehicle and, monitoring the GPS location of “Pancho's” phone, saw the phone traveling with the Envoy. [132] at 12-13. Officers watched Soberanis drive into a grocery store parking lot on West Grand Avenue and park his vehicle. Officers then saw a man, later determined to be Defendant, walk through a hard rain to Soberanis's Envoy and lean into the open passenger window. Id. at 15, 103. The officers could not see whether Defendant had anything in his hands. Id. at 103. After a few moments, Defendant left, got into a different vehicle, and drove away. Soberanis drove in a different direction. At no point did officers see either man enter the grocery store. Id. at 16. The officers split their surveillance team and followed both Soberanis and Defendant. At approximately 3:40 p.m., Defendant pulled into a residential alley between Oak Park Avenue and Newcastle Avenue. Four officers were following him, each in his own car. As the door of a detached garage on the side of the alley began to open, officers activated their lights and initiated a stop of Defendant.

         Officers approached Defendant's car and asked for identification, in English. Officers asked if he lived at the residence, and he answered “no.” [132] at 28-29. When asked why he had a garage door opener for a residence he did not live in, Defendant said he did not live at the address or know who lived there. Defendant then said his cousin lived at the residence, but told officers he did not know his cousin's name. Defendant also said his brother lived in the basement apartment of the residence but told officers he did not know his brother's name. Id. at 30. Defendant spoke with officers in English and appeared to have no trouble understanding the conversation. Id. at 30-31.

         Officers then took Defendant's cell phone and keys, handcuffed him, and put him in one of the officer's vehicles. One officer remained with Defendant, and the other three walked through the back yard and approached the back door of the residence. They encountered a man coming out of the basement residence who identified himself as the landlord of the building. He told the officers that he owned the building and rented the first-floor unit to a Hispanic male missing an ear, a description that matched Defendant, and a woman who was pregnant. Id. at 37-38. While in the landlord's basement unit, officers heard the floor creaking in the first-floor unit above them. Id. at 111.

         Officers then went to the rear entrance of the first-floor apartment. One officer inserted a key from Defendant's key ring into the door to confirm that it fit the lock, then removed the key without using it to open the door. Id. at 39-40. The officers knocked on the door, and Defendant's six-months-pregnant girlfriend answered. They identified themselves as police and asked if anyone else was in the apartment. Defendant's girlfriend said “No, ” and the officers asked if they could check the apartment to confirm her answer; she agreed and moved out of the way of the door.^[2]

         One officer stayed with Defendant's girlfriend near the back door of the apartment while two others conducted a protective sweep of the residence. On the kitchen table, the officers saw a large scale, several rolls of duct tape, plastic baggies, and markers, which they believed were tools of the drug trade. In the main bedroom, the officers opened a closet with a sliding door and a large armoire; in both, officers saw several bricks of a white powdery substance, later identified as cocaine. [132] at 42-43. The officers returned to Defendant's girlfriend, who at that point refused to sign a written consent form authorizing the agents to search the apartment, and asked the officers to leave. Believing that the discovery of the bricks in the apartment permitted a continued search, officers conducted a more thorough search of the residence, recovering additional evidence including more cocaine.

         Shortly after the cocaine was discovered, a Spanish-speaking officer arrived at the apartment. Officers moved Defendant from the patrol car into the apartment, though not the same room as his girlfriend. The Spanish-speaking officer advised Defendant of his Miranda rights, in Spanish, and Defendant said he was unwilling to answer questions. [133] at 26, 28. The officer advised Defendant's girlfriend of her Miranda rights, also in Spanish. Id. at 28-29. She, too, said she was unwilling to answer questions. Id. at 29. Officers brought both Defendant and his girlfriend to the rear of the residence, where they separately began the booking process for each, beginning with Defendant. During the booking process, Defendant said to the officers, in Spanish, “That's all mine.” Id. at 31. An officer asked what was all his, and Defendant said, “The cocaine.” Id. at 32. Defendant was arrested; his girlfriend was not.

         Defendant was charged with conspiracy to possess a controlled substance with intent to distribute, and with possession of a controlled substance with intent to distribute. See [15]. Defendant filed a motion [46] to suppress statements and physical evidence. The Court held two evidentiary hearings on the motion. At the first hearing, Special Agent Donald Wood and Task Force Officer Chris Chmelar testified about the stop of the Defendant and search of his apartment, as well as the investigation preceding their contact with Defendant. See [132] and [133]. Task Force Officer Carlos Huertas also testified about reading Miranda rights to and speaking with Defendant and his girlfriend. See [133]. At the second hearing, Defendant's girlfriend testified about the officer's search of the apartment and the alleged deal that Defendant made with the officers, in which he claimed the cocaine was his in order to keep the officers from arresting his girlfriend. See [92].

         II. ...