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United States v. Hammonds

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

October 31, 2019

UNITED STATES OF AMERICA
v.
TERRANCE HAMMONDS

          MEMORANDUM OPINION AND ORDER

          Andrea R. Wood, United States District Judge.

         Defendant Terrance Hammonds (“Hammonds”) has been charged along with five co-defendants in a twenty-two count Superseding Indictment for his role in an alleged drug-trafficking conspiracy. Hammonds has been charged in two of the counts: Count One, for conspiring to possess with intent to distribute and distribute more than one kilogram of a mixture containing heroin, in violation of 21 U.S.C. § 846; and Count Sixteen, for possessing with intent to distribute a quantity of a mixture and substance containing heroin, in violation of 21 U.S.C. § 841(a)(1). Hammonds was arrested after police officers discovered heroin in his possession during what the Government describes as a consensual encounter. Hammonds has moved to suppress the heroin and any other evidence obtained as a result of his arrest. (Dkt. No. 213.) For the reasons explained below, the Court grants the motion.

         BACKGROUND

         The Court held an evidentiary hearing regarding the instant motion on February 26, 2019. At the hearing, two Chicago Police Department officers, Detective Brian Leahy and Officer Roberto Del Cid, testified. The Government also introduced into evidence a satellite map of the area where Officer Del Cid stopped Hammonds. The following summarizes the evidence adduced at the hearing.

         On the evening of Friday, March 3, 2017, Detective Leahy was on patrol in an unmarked squad car near the intersection of Division Street and Cicero Avenue on the west side of the City of Chicago when he observed a red Nissan Altima exiting an alley onto Division Street. Detective Leahy recognized the driver of the vehicle as Charles Pinkins, an individual Detective Leahy believed to be the leader and heroin supplier of the Big Money Family, a faction of the Conservative Vice Lords street gang. Detective Leahy and Officer Del Cid believed that Pinkins used a house located a few hundred feet down the alley at 4827 West Crystal Street as a base for heroin distribution. Approximately one month earlier, Hammonds's brother, Terrell Hammonds, had been arrested by other members of the officers' investigative team after they observed Terrell Hammonds leaving the house and engaging in a hand-to-hand transaction with an individual later stopped with heroin. The arresting officers also found heroin on Terrell Hammonds's person at the time of his arrest. Detective Leahy and Officer Del Cid believed that both Terrell Hammonds and Terrance Hammonds lived at 4827 West Crystal Street.

         Detective Leahy sent a radio message to Officers Del Cid and Scott Korhonen, who were also working on the same investigation that night, notifying them where he had observed Pinkins. Officers Del Cid and Korhonen drove in that direction in an unmarked Ford Explorer. While both officers were in plain clothes, they also wore police vests that displayed a star and the words “Chicago Police, ” and they had their firearms visible at their side in their holsters. While stopped at a red light at the intersection, the officers observed two individuals walking away from each other at the mouth of the alley from Cicero Avenue onto Division Street. After the light changed, the officers drove in the direction of one of the individuals, who was walking on the sidewalk next to a gas station. As the officers' car passed the individual, Officer Del Cid recognized him as Hammonds. Officer Del Cid observed Hammonds, after seeing the officers, remove an object from his pocket and place it in his mouth.

         Officer Korhonen, who was driving, turned into the gas station in front of Hammonds, stopping the car about fifteen feet away from him. Officer Del Cid left the vehicle while Officer Korhonen remained behind. Approaching Hammonds, Officer Del Cid ordered Hammonds to stop and began asking him questions. Hammonds was unable to respond as he attempted to swallow an object in his mouth. Officer Del Cid then told Hammonds to spit out the object in his mouth. While Officer Del Cid was attempting to question Hammonds, Officer Korhonen parked the car and walked over. He also told Hammonds to spit out what was in his mouth. Hammonds finally spat out the item in question, which Officer Del Cid immediately recognized as a bag of heroin.

         Approximately one minute after Detective Leahy placed the original radio call, he returned to find Officers Del Cid and Korhonen with Hammonds in the parking lot of the gas station. The officers told Detective Leahy they had recovered heroin from Hammonds. Hammonds was then arrested and transported to the police station.

         DISCUSSION

         The Superseding Indictment charges Hammonds with conspiring to possess with intent to distribute one kilogram or more of a mixture and substance containing heroin (Count One) and possession with intent to distribute a mixture or substance containing of heroin (Count Sixteen). Hammonds has moved to suppress the evidence obtained from what he claims was an illegal search and seizure on March 3, 2017. The Government, for its part, contends that the encounter between Hammonds and Officers Del Cid and Korhonen was consensual or, in the alternative, that it was an investigatory stop supported by reasonable suspicion.

         I. The Encounter Was Non-Consensual

         The Fourth Amendment protects individuals from unreasonable searches and seizures. If law enforcement violates the Fourth Amendment to obtain evidence, that evidence cannot be used against the subject of the illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347 (1974). Hammonds asserts that the officers illegally seized him when they stopped and questioned him; the Government counters that the interaction was consensual, or in the alternative, that the interaction was an investigative stop justified by the officers' reasonable suspicion that Hammonds had engaged in drug trafficking.

         The Seventh Circuit recognizes three types of police-citizen encounters: a consensual encounter, an investigatory stop, and an arrest. A consensual encounter between a private citizen and a police officer is not a seizure because it involves no restraint on liberty; therefore, when such an encounter occurs, “the degree of suspicion required [by the officer] is zero.” United States v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995). Approaching a person to ask a question he is free to refuse to answer, for instance, involves such a limited curtailment of liberty that no suspicion is required. United States v. Burton, 441 F.3d 509, 511 (7th Cir. 2006). But an encounter is consensual only if “a reasonable person would feel free to disregard the police and go about his business.” United States v. Yusuff, 96 F.3d 982, 985 (7th Cir. 1996) (citing California v. Hodari D., 499 U.S. 621, 628 (1991)); see also Florida v. Bostick, 501 U.S. 429, 437 (1991). “[T]he crucial test is whether, taking in to account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotation marks omitted).[1] The second type of encounter is an investigatory or Terry stop.[2] An “officer may conduct a brief, non-intrusive detention of a person if the officer has specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime.” United States v. Scheets, 188 F.3d 829, 837 (7th Cir. 1999). The third type of encounter is an arrest, which “is characterized by highly intrusive or lengthy search or detention.” United States v. Black, 675 F.2d 129, 133 (7th Cir. 1982). An arrest must be based on probable cause, which exists when facts known to the officer at the time of the arrest are enough for a reasonably cautious person to believe that the arrestee has committed or is committing a crime. Id.

         Here, the Government contends that the encounter between the officers and Hammonds was a consensual one. But there is a difference between a non-coercive field interview and the interaction that took place between the officers and Hammonds. The officers did not simply walk up to Hammonds on the sidewalk to see if he was willing to answer a few questions. Rather, Officer Korhonen turned the officers' vehicle into Hammonds's path. While Officer Del Cid testified that Hammonds was not actually blocked by the officers because he could have turned around and walked the other direction, the Court doubts a reasonable person in Hammonds's position would have believed that he could have ended the encounter in that manner taking into account the surrounding circumstances. According to the testimony at the evidentiary hearing, immediately after the officers stopped their car, Officer Del Cid stepped out, instructed Hammonds to stop, and immediately began asking him a series of questions. Officer Del Cid repeatedly told ...


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