U.S. v. Acosta
| Decision Date | 03 August 2000 |
| Docket Number | No. 98-CR-0104.,98-CR-0104. |
| Citation | 110 F.Supp.2d 918 |
| Parties | UNITED STATES of America, Plaintiff, v. Andrew ACOSTA, Mohammed Ayesh, Doug Beyreis, Christopher Colton, Carlos Diaz, Shaun Dougherty, Jorge Espada, Vernon Fields, Felix Guzman, Jerry Guzman, Bernardo Hernandez, Raul Maldonado, Daniel Martinez, Pedro Martinez, Gamaliel Matos, Natanael Matos, Antonio Mendez, Alvaro Mendoza, Daniel Mendoza, Raciel Mendoza, Raymond Mendoza, Maico Navejar, Larry Olson, Thomas Overland, Raymond Rivera, Juan Roman, Michael Rosado, Mark Turner, Michael Turner, Alejandro Vallejo, Wilfredo Vasquez, Herminio Vega, Robert Weinstock, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Karine, Moreno-Taxman, Asst. U.S. Atty., David Robles, Sp. Asst. U.S. Atty., Milwaukee, WI, for Plaintiff.
Adam Essling, Milwaukee, WI, for Defendants.
Defendant Rosado seeks an order suppressing evidence seized during a June 22, 1998 search of his residence on Fourth and Fourteenth Amendment grounds. Officers initially made a consensual "protective sweep" to look for persons on the premises. They then used information gleaned during this search to support an affidavit, pursuant to which a search warrant was issued. Rosado contends that the protective sweep was nonconsensual, and further contends that the affidavit supporting the search warrant did not establish probable cause.
Magistrate Judge Gorence held an evidentiary hearing on Rosado's motion to suppress on August 16, 1999, and issued a recommendation August 30, 1999. (Docket # 1027 [hereinafter "Recommendation"].) Rosado filed timely objections, and the government filed a response. I review the recommendation de novo. See 28 U.S.C. § 636(b)(1)(B).
On June 19, 1998, a federal grand jury returned an indictment naming 33 defendants, allegedly members of the Latin Kings.1 Count 1 of the indictment alleged a Latin Kings RICO enterprise. Count 3 alleged drug offenses, and was the only count with which Rosado was charged.
Arrest warrants were issued pursuant to the indictment, and on the morning of June 22, 1998 defendants Rosado and Natanael Matos were arrested outside Rosado's residence. After Rosado's arrest, Sergeant Manfred Harpole of the Milwaukee Police Department asked Rosado's live-in girlfriend (now wife) Marilyn Marrero, for "full consent to search her residence for people or evidence of any crimes." (Tr. of 8/16/99 Evid. Hrg. at 16 [hereinafter "Tr."]) (emphasis added). Marrero refused. Sergeant Harpole then requested permission to "limit my search and check just for the safety of our officers for people and any potentially other [sic] Latin King members who were named as in [sic] arrest warrants or any other person who may have been wanted." (Tr. at 17.) At the evidentiary hearing, Sergeant Harpole and Marrero gave conflicting testimony about whether Marrero voluntarily consented to such a search. Sergeant Harpole testified that no promises or threats were made, and no weapons were drawn, while Marrero contended that she allowed the protective search only after being threatened with arrest and incarceration if she refused.
Believing that he had consent, Sergeant Harpole and other officers entered the residence to conduct the "protective sweep." They allowed Marrero to follow them at a short distance. In the upper story, which was a partially converted attic, Sergeant Harpole and FBI Special Agent Zorka Marinovich observed a pile of clothing strewn about. Approximately 20 to 30 garments were black and gold in color; many of these garments were related to sports teams.2 According to law enforcement officials who investigated the Latin Kings, black and gold are the Latin Kings' "official colors."
In the basement Sergeant Harpole observed, in plain view on a shelf, a black plastic box measuring approximately 4 inches by 8 inches by 1.5 or 2 inches. (Tr. 22.) Because the box was of these dimensions and was made of black plastic, Sergeant Harpole believed that it "might be potentially a gun case." (Tr. at 20.) He believed this because his police-issue gun also came in a black plastic case about an inch longer and an inch wider, that is, 10 inches by 5 inches. (Tr. at 22.) Sergeant Harpole conceded that the plastic box was not large enough to hide a person. (Tr. at 35.) He picked up the box, which allowed him for the first time to see the word "Remington" on it. The box was heavy, which led him to think that it likely contained a gun. He then opened it. The box contained hundreds of .22 caliber bullets. Sergeant Harpole then returned the box to the shelf.
At 3 p.m., FBI Special Agent Christopher W. Koenig, Sr. submitted to a magistrate judge a nine-page affidavit in support of an application for a search warrant for the residence. The first half-page provided a general introduction and asserted — erroneously — that a copy of the grand jury's indictment was attached.3 The affidavit did not assert that Rosado had been indicted.
The affidavit next spent half a page specifying various categories of crimes that "Latin King members" had allegedly committed, and asserted that the Latin Kings were an association-in-fact enterprise under the RICO statute, 18 U.S.C. § 1961(4). (Aff.¶¶ 2, 2(i).) These alleged crimes included murder and homicide, attempted murder and homicide, drug trafficking, firearm offenses, robbery, kidnaping, and others. (Id. ¶ 2.) The affidavit did not assert that Rosado had committed any of these categories of crime, that he had aided or abetted anyone else in doing so, or that his residence was in any way connected to them.
The affidavit then spent over two pages detailing the alleged organizational and management structure of the Latin Kings, providing such details as its having a written "manifesto"; protecting territory from rival gang members through violence and intimidation; marking its territory with graffiti; holding joint meetings called "Nation meetings"; having subchapters with specified leadership and membership levels such as Incas, Caciques, Enforcers, and "Junior Kings"; using violence; and punishing disobedient Latin Kings through beatings, robberies, or death. (Id. ¶¶ 2(a) — (h), (j) — (k).) The affidavit made no assertion that Rosado had any involvement or participation in any of these activities; that he had aided or abetted anyone else in them; or that his residence was in any way related to any of these activities.
The affidavit next spent one and a half pages detailing various means and methods that Latin King members had allegedly used "to accomplish some of the objects and purposes of the Latin King enterprise." (Id. ¶ 3.) The alleged means and methods used to advance the Latin King enterprise included murder of members of rival gangs; murder of suspected government informants; and arson against the person and properties of rival gangs and of potential witnesses against the Latin Kings. (Id. ¶¶ 3(a) — (b).) The affidavit did not assert that Rosado had engaged in any of these activities, that he had aided or abetted anyone else in doing so, or that his residence was in any way related to any of these activities.
The affidavit then spent half a page asserting in the passive voice that:
It is believed that the following items, which are evidence of a RICO enterprise, narcotics trafficking, and other crimes, may be located within the residence:
a. The "Latin King Manifesto" ...;
b. Folders containing the Manifesto of the Latin King Nation — Book of Rules and Laws, and a list of Latin King and Junior Latin King gang members and their telephone numbers;
c. Lists of Latin King and Junior Latin King gang members and numbers consistent with the above document, including a dues list ...;
d. Law enforcement reports relative to criminal cases involving Latin King gang members identifying witnesses to the criminal cases;
e. Correspondence from Latin King gang members to other Latin King members related to testimony, pending cases, police reports related to various individuals, retaliation against witnesses and the location of evidence.
(Id. ¶ 4.) The affidavit did not state who believed that these items would be located within Rosado's residence, and it did not state why it was believed that these items would be located there.
The affidavit then spent one and a half pages, based on discussions with agents with extensive experience in narcotics investigations, summarizing specific behaviors common to drug and narcotics traffickers (such as having large amounts of unexplained cash and engaging in frequent interstate travel), and specific characteristics common to their residences (such as having paraphernalia for packaging, cutting, weighing and distributing cocaine). (Id. ¶ 5.) The affidavit did not assert that Rosado had engaged in any of the behaviors common to drug and narcotics traffickers; that he had aided or abetted anyone else in such behaviors; or that his residence had any of the characteristics common to drug traffickers' homes.
The affidavit next asserted, over a third of a page, that "According to several cooperating informants, Latin King members often use firearms to further their violent criminal activity and it is common for them to store firearms within their residence." (Id. ¶ 6.) The affidavit said nothing about the informants' reliability; veracity; or basis of knowledge for these claims. It said nothing about whether the informants made first-hand observations, or about whether law enforcement officials independently verified any of their claims about firearms. The affidavit made no assertion that Rosado had used a firearm to further violent criminal activity, that he had aided or abetted anyone else in doing so, or that firearms were stored at his residence.
The affidavit next summarized in two-thirds...
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