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United States v. Phillips

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

January 1, 2020

UNITED STATES OF AMERICA
v.
JOHN L. PHILLIPS

          MEMORANDUM OPINION AND ORDER

          Edmond E. Chang United States District Judge

         Law enforcement officers stopped and searched Defendant John Phillips' car without a warrant on two different occasions. Both times, the officers recovered guns and ammunition from the car. Ultimately, Phillips was charged with dealing firearms without a federal firearm license, transferring firearms to out-of-state residents, and being a felon in possession of a firearm. Phillips has moved to suppress all evidence obtained as a result of those searches, arguing that the stops and seizures violated the Fourth Amendment.[1] R. 69, Mot. Suppress 7/9/17 Stop; R. 102, Mot. Suppress 8/24/17 Stop. One of the motions required an evidentiary hearing to resolve, during which the Court heard witness testimony, reviewed video evidence, and received other evidence into the record. R. 153, 12/2/19 Order. For the reasons discussed in this Opinion, the Court denies both motions.

         I. Background

         On July 9, 2017 and then again on August 24, 2017, law enforcement officers stopped Phillips for what the officers believed were traffic-related violations. As a result of both stops, law enforcement obtained firearms and ammunition from Phillips' white 2016 Dodge Challenger. Phillips moves to suppress the evidence obtained during both stops. The factual details of the stops are set forth next and are based on video recordings from squad-car dash cameras; officer body cameras; reports and affidavits of the Chicago Police Department (CPD), the Bureau of Alcohol, Tobacco, and Firearms (ATF), and the Illinois State Police (ISP); and in-court testimony.

         A. July 9, 2017

         On the evening of July 9, 2017, Chicago Police Officers Butkovic and Farias were patrolling the area of 6043 South Throop Street, where there had been earlier reports of gun shots. R. 69-1, Def.'s Exh. 1, Phillips Arrest Report at 2; R. 69, Def.'s Exh. 2, 7/9/17 Squad Car Video. The officers were patrolling this area in case there was any retaliation in response to the shots fired, and to locate possible offenders. Below is a satellite map of the area that the officers were patrolling that night:

         (Image Omitted)

R. 150, Gov.'s Exh. 2, Map.

         As they patrolled the area, the officers drove northbound down the north-south alley located east of the house on 6043 South Throop (in the map, the alley is between Throop and Elizabeth Streets, running parallel to those streets). 7/9/17 Squad Car Video at 00:00-10; see also Map. Both Officers Farias and Butkovic testified that, while driving north through the alley, they approached a vacant lot, across from which they noticed a white Dodge Challenger driving southbound on Throop Street. Butkovic testified that the Challenger caught his attention because it was a high-performance vehicle, and based on his experience, those types of vehicles are commonly used in shootings and are also commonly stolen.[2] When Butkovic first noticed the car, the officers were around halfway down the alley and near a garage, somewhere between 5 to 10 seconds into the squad car video. 7/9/17 Squad Car Video at 00:10.

         After noticing the Challenger, Farias made a left turn into the vacant lot and drove through it toward Throop. 7/9/17 Squad Car Video at 00:11-30. Based on the squad-car video, it took around 19 to 21 seconds to cross the lot. Id. During that time, the officers could not see the Challenger, which had continued southbound down Throop. Then, as the squad car approached the end of the lot, just before turning left on Throop, the officers testified that they saw the Challenger again. Butkovic testified that, as the officers began to turn onto Throop, he saw the Challenger pull up alongside the curb without using a turn signal. According to Butkovic, this occurred at around 30 seconds into the squad-car video. The squad-car video, however, does not show the parking maneuver or the failure to use a turn signal. See 7/9/17 Squad Car Video at 00:30. Instead, the Challenger appears in the squad-car video for the first time at around 32 seconds into the video, at which point the car is already stopped along the left curb line-though its brake lights are still illuminated. 7/9/17 Squad Car Video at 00:32-36. The taillights of the car then flash briefly in the video as the gears are shifted to park. Id. As detailed later in the Opinion, the circumstantial evidence standing alone would be a close call on whether the officers saw the Challenger pull to the curb (without a signal) versus whether the Challenger was already stopped at the curb. But the Court is convinced by Officer Butkovic's in-court testimony: he testified credibly, forthrightly, and calmly throughout both his direct examination and cross examination, and he conceded when he did not remember facts about that night.

         Officers Farias and Butkovic then initiated a traffic stop at around 9:53 p.m., pulling up alongside and then behind the Challenger. 7/9/17 Squad Car Video at 00:36-1:02. After pulling up behind the Challenger, Farias approached the driver's side of the car and asked the driver to lower his window. R. 69, Def.'s Exh. 3, Farias Body Camera Video at 00:30-42. Inside the car were two men: Phillips, the driver; and Byron Moore, who was sitting in the passenger seat. Id. at 00:46. Farias then asked Phillips for his license and proof of insurance. Id. at 00:47-48. As Phillips looked for those documents, Phillips asked Farias why he had been stopped. Id. at 00:48-58. Farias told Phillips that he failed to use a turn signal as he pulled into the parking spot. Id. at 00:59-01:05. Phillips did not dispute Farias' claim and continued to look for the license and insurance card. Id. at 01:05-09. Phillips told Farias that Phillips and Moore were in the area after the mother of Moore's child notified them about the gun shots in the area. Id. at 01:23-28. During the conversation with Farias, Phillips was generally calm and responsive. Id.

         Meanwhile, Officer Butkovic stood on the passenger side of the Challenger. 7/9/17 Squad Car Video at 1:10-3:14. After receiving and reviewing Phillips' driver information, Farias then joined Butkovic on the passenger side of the car and asked Moore for identification. Farias Body Camera at 02:40. After asking Phillips and Moore a few more questions, the officers returned to their car to run a name check on both individuals, at which time they discovered that Moore had an outstanding arrest warrant. Id. at 05:17-06:53; R. 90-1, Gov.'s Exh. 1, Moore Arrest Warrant.[3] So the officers asked Moore to step out of the car, patted him down, and then arrested him. Farias Body Camera Video at 07:23-08:11; R. 90, Gov.'s Exh. 4, Butkovic Body Camera Video at 07:50-08:42. Farias then asked Phillips to step out of the car to talk to him. Farias Body Camera Video at 08:24-26. Meanwhile, Butkovic searched Moore and found a loaded magazine in his pocket. Butkovic Body Camera Video at 10:12- 30. After being notified about the magazine, Farias also placed Phillips in handcuffs and conducted a pat down. Farias Body Camera Video at 10:48-11:50. Farias then proceeded to search the car; this search happened at around 10:03 p.m., which was 10 minutes after the officers' initially approached Phillips and Moore. Id. at 11:50-15:48. Farias eventually found ammunition and two firearms in the car. Id.; Def.'s Exh. 1, Phillips Arrest Report at 2. Phillips was issued a citation for two traffic violations: (1) failure to signal while changing lanes, Municipal Code of Chicago § 9-40-200(a); and (2) failure to dim lights while parked, Municipal Code of Chicago § 9-76-090(a)). Id.

         B. August 24, 2017

         The second traffic stop happened almost two months later, on August 24, 2017, and was done in connection with the ATF's investigation of Phillips.[4] In the summer of 2017, the ATF was investigating Phillips for the unlawful trafficking of firearms from Kentucky to Chicago. R. 110-1, Gov.'s Exh. 1, Warrant Application, Vachy Warrant Affidavit ¶ 4. As detailed next, the ATF believed that Phillips, who is a convicted felon, and his co-defendant, Christopher Henderson, were buying guns in Kentucky and reselling them in Chicago. Id. The ATF further believed that Phillips and Henderson used a 2016 white Dodge Challenger registered to Phillips with license plate number Z249675 to get to and from Kentucky and to transport the firearms. Id. ¶¶ 5-6. During the course of the investigation, ATF agents interviewed dozens of private gun sellers about firearm sales that took place in Kentucky. R. 1, Complaint, Vachy Complaint Affidavit ¶¶ 47-96. Those sellers identified Phillips and Henderson as the buyers who purchased firearms from them. Id. ¶¶ 68, 74, 79, 84. Many also identified the Challenger as the car used during the gun deals. Vachy Warrant Affidavit ¶¶ 11, 14, 16, 19, 20.

         In light of this information, on August 10, 2017, the ATF obtained a court order authorizing the placement of a GPS tracking device on the Challenger. See Warrant Application. The ATF installed the tracker on the car. R. 141-1, Gov.'s Exh. 8, Report of Investigation No. 22. At that point in the investigation, the ATF had gathered information linking the Challenger to at least seven unlawful firearm deals that occurred between January 17, 2017 and July 6, 2017. Vachy Affidavit ¶¶ 8-22. In addition to that information, the ATF knew about the guns recovered during Phillips' July 9, 2017 traffic stop and had traced parts of one of those guns back to Kentucky. Id. ¶¶ 17-18.

         Here are details of the facts that the ATF had about the Challenger at the time:

• On January 17, 2017, Individual C acted as a straw buyer for Phillips by purchasing two pistols for Phillips from a gun store in Kentucky. Individual C said that Phillips drove the buyer to the gun store and paid the buyer $200 to purchase firearms on Phillips' behalf. When shown a photograph of the Challenger, Individual C identified it as resembling the car that Phillips used to drive Individual C to the gun store. Vachy Warrant Affidavit ¶ 12.
• On February 16, 2017, Individual B sold a pistol to Henderson in Kentucky. Before the deal, Individual B received an email informing him that Henderson would be arriving to the deal in a “white Challenger.” Individual B stated that Henderson did arrive in a Dodge Challenger. CPD recovered the pistol during the execution of a search warrant in Chicago on March 28, 2017. Id. ¶¶ 8-9, 11.
• On February 16, 2017, Individual D sold a pistol to Henderson in Kentucky. Individual D believed that Henderson arrived at the deal in a white Dodge Challenger. When shown a photograph of the Challenger, Individual D identified it as the car that Henderson drove to the deal. CPD recovered this pistol from a car in Chicago on May 17, 2017. Id. ¶¶ 13-14.
• On March 16, 2017, Individual I sold a pistol to Henderson in Kentucky. Individual I believed that Henderson arrived in a newer model white Dodge Charger. When shown a photograph of Phillips' Challenger, Individual I identified the car as a Dodge Challenger, but insisted that Henderson arrived in a Charger. In a later interview, Individual I described the car as a white, late model American “muscle car.” CPD recovered the pistol that Individual I sold to Henderson from a car in Chicago on May 6, 2017. Id. ¶ 22; R. 141-2, Gov.'s Exh. 9, Report of Investigation No. 2; R. 141-3, Gov.'s Exh. 10, Report of Investigation No. 13.
• On May 6, 2017, Individual G sold a pistol to Henderson in Kentucky. Before the deal, Individual G received a text message saying that the buyer would arrive to the deal in a “white Challenger.” Individual G said that Henderson did arrive in a white Dodge Challenger, and that Individual G observed Henderson place the pistol in the trunk of the car. CPD recovered a firearm containing the slide and barrel from that pistol from the Challenger during the July 9, 2017 traffic stop. Vachy Warrant Affidavit ¶ 20; R. 141-4, Gov.'s Exh. 11, Report of Investigation No. 21.
• On May 28, 2017, Individual E sold a pistol to someone who identified himself as “Chris Hendridge” in Kentucky. [5] Individual E stated that “Hendridge” drove a white Dodge Challenger to the deal. When shown a photograph of the Challenger, Individual E identified it as the car used for the deal. CPD recovered that pistol from a gangway in Chicago on June 10, 2017. Vachy Warrant Affidavit ¶¶ 15-16.
• On July 6, 2017, Individual F sold a pistol to Henderson in Kentucky. Individual F stated that Henderson arrived at the deal in a white Dodge Challenger. When shown a photograph of the Challenger, Individual F identified it as the car Henderson drove to the deal. CPD recovered a firearm containing the frame from this pistol from the Challenger during the July 9, 2017 traffic stop. Id. ¶¶ 17-19.
• In August 2017, ATF learned that the Indiana State Police conducted an unrelated traffic stop of the Challenger on January 24, 2017. The trooper identified Henderson as the driver of the car, and Phillips as the front seat passenger. After obtaining consent to search the Challenger, the trooper found a book bag containing between $5, 000 and $10, 000 in cash. According to the trooper, Henderson and Phillips gave conflicting accounts about the owner of the cash. R. 110-6, Gov.'s Exh. 6, Report of Investigation No. 35.

         On August 22, 2017, the tracking device showed that the Challenger left Illinois, stopped twice in Indiana, and then arrived in Louisville, Kentucky on that same day. R. 110-2, Gov.'s Exh. 2, Report of Investigation No. 34 ¶¶ 1-2. Surveillance video footage showed that Phillips drove the Challenger and that co-defendant Henderson accompanied Phillips as the passenger in a red Nissan Sentra. Id. ¶ 3. Two days later, while conducting surveillance, law enforcement saw the Challenger parked in the parking lot of a Louisville hospital at 7:00 a.m. R. 141-4, Gov.'s Exh. 12, Report of Investigation No. 30 ¶ 1. At around 10:32 a.m., agents saw Phillips leave the hospital and walk towards the Challenger. Id. ¶ 2. When he got to the Challenger, Phillips opened the passenger door and then looked around the area. Id. Two minutes later, a gray Chevrolet Impala entered the hospital parking lot and parked in front of the Challenger. Id. ¶ 3. An unidentified man got out of the Impala and approached Phillips. Id. Phillips removed something from the Challenger and placed it in the front ...


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