U.S. v. Barrera-Martinez

Decision Date28 July 2003
Docket NumberNo. 03 CR 21.,03 CR 21.
Citation274 F.Supp.2d 950
CourtU.S. District Court — Northern District of Illinois

Jennifer S. Vollen, John R. DeLeon, Attorney at Law, Joseph R. Lopez, Joseph R. Lopez, Ltd., Chicago, IL, Patrick Alan Tuite, Arnstein & Lehr, Chicago, IL, for defendants.

John F. Stinneford, United States Attorney's Office, Chicago, IL, for U.S.


CASTILLO, District Judge.

Defendants Francisco Barrera-Martinez ("Barrera") and Luis Montes ("Montes") are charged with knowingly and intentionally possessing a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Both defendants have filed motions to suppress evidence found in Montes' garage and bedroom alleging that the drugs were obtained through an illegal search and seizure in violation of the Fourth Amendment. Montes' motion to suppress is granted in part and denied in part. (R. 30-1.) Because we find that the cocaine seized in Montes' garage was not the result of an illegal search, we deny Months' motion to suppress this evidence. (R. 30-1.) However, because the officers did not have valid consent to search Months' bedroom and improperly conducted a protective sweep, we grant Montes' motion to suppress the evidence found in his bedroom. (R. 30-1.) We also deny Barrera's motion to suppress and his motion to quash his arrest.1 (R. 31-1; 31-2.)


On January 10, 2003, three DEA agents, Officers Ken Howard, John Kosmowski, and Special Agent Ken Weidner2 were conducting surveillance on an unrelated matter at North Riverside Mall in North Riverside, Illinois. (June 6, 2003 Hr'g Tr. at 10.) While conducting the surveillance, Officer Howard noticed defendant Barrera arrive in a "sedan-type" vehicle, briefly enter and exit the mall and then enter a different vehicle, a white GMC Yukon sports utility vehicle. (Id. at 10-11.) Based on fifteen years of law enforcement experience and seven years as a DEA officer, Officer Howard recognized this as a "vehicle switch," which drug traffickers commonly use during narcotic transactions to avoid detection by law enforcement. (Id. at 60-61.) Officer Howard, along with the two other officers, decided to follow Barrera. (Id. at 61.)

The officers followed Barrera to an apartment at 6239 West 26th Street in Berwyn, Illinois. (Id. at 45.) Barrera parked his car and entered an alleyway behind the apartment. (Id. at 63.) Barrera reappeared from the rear door of the apartment into the alleyway carrying a khaki duffel bag with both arms. (Id. at 65.) Barrera then put the duffel bag down and retrieved the Yukon. (Id. at 66.) Barrera drove the Yukon into the alley and loaded the duffel bag into the vehicle. (Id. at 67.) At one point while Barrera was in the alley, Officer Howard observed him talking on his cell phone. (Id. at 69.)

After placing the duffel bag in the Yukon, Barrera drove to an empty parking lot near 26th Street and Ridgeland Avenue and made a telephone call. (Id. at 95.) While Barrera was on the telephone, Officer Kosmowski saw defendant Months in a nearby garage located in an alley. (Id. at 108.) Barrera then drove to Months' garage, retrieved the duffel bag from the Yukon and gave it to Months. (Id. at 95.) The duffel bag was approximately half full of something, (id. at 12), and contained a drawstring on top, (id. at 108). Officer Kosmowski testified that the drawstring at the top of the bag was open. (Id.) Montes then took the duffel bag into the garage. (Id.) Both sides stipulated that Months rented the garage and the nearby apartment. (Id. at 8.)

Barrera, in the meantime, got into his Yukon and drove away. (Id. at 71.) Officer Howard asked Officer Kosmowski to follow Barrera and stop him. (Id.) Barrera drove a short distance and parked in an empty parking lot. (Id. at 98.) Officer Kosmowski followed and parked directly behind him. (Id.) Barrera then exited the Yukon, dropped his keys to the ground, jumped a fence in front of him and fled. (Id. at 100.) As Barrera dropped his keys, Officer Kosmowski got out of his vehicle and shouted, "Stop. Police." (Id. at 101.) When Barrera continued to flee, Kosmowski radioed the other agents and informed them of Barrera's flight. (Id. at 110.) Barrera was subsequently arrested nearby by a Berwyn police officer.3 (Id. at 101.)

Meanwhile, Officer Howard approached Montes' garage. (Id. at 18.) Inside, Officer Howard observed two vehicles side by side and Montes standing near a side door of the garage. (Id. at 17-18.) Officer Howard announced to Montes that he was a police officer and asked to speak to him. (Id. at 18.) There was a question at the suppression hearing as to whether Officer Howard at this point was standing in the alleyway or if he was on the cement apron extending from the garage. (Id. at 27.) Officer Howard had previously testified before two grand juries that he was on the apron when he first observed Montes, but he later testified at the June 26, 2003 hearing that he was actually in the alley. (Id. at 31-32.) Officer Howard's explanation for this inconsistency was that during the grand jury testimony he was not concerned about being technical regarding his exact location outside of the garage. (Id. at 73.)

In response to Officer Howard's request to speak to him, Montes dropped a set of keys he was holding and walked out of the garage. (Id. at 28.) Montes was no longer holding the duffel bag. (Id. at 19.) At this point, Officer Howard received Officer Kosmowski's radio message informing him of Barrera's flight. (Id.) Officer Howard then grabbed the back of Montes' jacket and held him while he performed a visual sweep of the front of the garage by walking from side to side to see if anyone else was present in the garage. (Id. at 74.) Officer Howard did not enter the garage. (Id. at 19.) Officer Howard saw the duffel bag in the garage while conducting the visual sweep outside the garage doors. (Id. at 75.) The bag was lying on its side with the opening facing toward the alley and it looked like it had been thrown down. (Id.) Protruding from the opening of the bag was part of a red-tinted brickshaped package. (Id.) Based on Officer Howard's previous experience with narcotics, he believed the package to contain narcotics. (Id. at 77-78.)

Officer Howard asked Montes his name, where he lived, if the vehicles in the garage were his and what was in the duffel bag. (Id. at 51.) Montes informed him that his name was Luis, that he lived on the second floor of the apartment and that the vehicles were not his. (Id.) When Officer Howard asked what was in the duffel bag, Montes responded "no habla" [sic]. (Id.) Officer Howard then placed Montes under arrest and seized the duffle bag. (Id. at 27-28.) Officer Kosmowski returned to the garage just after the arrest of Montes and saw the duffle bag from outside the garage. (Id. at 102.) Officer Kosmowski also saw part of the brick-shaped package protruding from the bag and concluded that it was likely narcotics. (Id. at 112). The seized packages tested positive for cocaine.

Following the seizure, the officers went to the second floor apartment and knocked on the door. (Id. at 29.) Manuel Madrigal-Martinez ("Madrigal") answered the door. (Id.) Officer Howard identified himself as a police officer and asked if Madrigal lived there and if he knew Months. (Id. at 81.) Madrigal answered yes to both questions. (Id.) Officer Howard then informed Madrigal that Months had been arrested for narcotics and asked if they could come in and look around. (Id.) Madrigal again answered yes. (Id.)

While Officer Howard stayed with Madrigal, Officer Kosmowski conducted a protective sweep of the apartment to see if anyone else was present. (Id. at 82.) The doors to each of the apartment's three bedrooms were open when Officer Kosmowski conducted his sweep. (July 7, 2003 Hr'g Tr. at 152). During the protective sweep, Officer Howard asked Madrigal to whom the nearest bedroom belonged. (Id. at 83.) Madrigal indicated that it was Months' bedroom. (Id.) In that bedroom Officer Kosmowski found 500 grams of cocaine and a gun, both lying on a shelf in the closet. (Id. at 84.) Officer Howard asked Madrigal who owned the cocaine and gun, to which he responded "no habla" [sic]. (Id.) A Spanish-speaking officer was then called in and Madrigal subsequently signed a consent form to search his room. (Id. at 36-37.) Later, another roommate, Yunuen Ochoa, arrived and signed a consent form for the search of his room. (Id. at 42.) The only evidence found in the apartment that is at issue in this motion is the gun and cocaine found in Months' room during the protective sweep by Officer Kosmowski.

Currently before the Court are Defendants Months and Barrera's motions to suppress the cocaine found in the garage and Months' motion to suppress the co-caine and gun found in his bedroom. Defendants argue that the searches of the garage and the apartment violated their Fourth Amendment rights against unreasonable searches and seizures. After careful consideration, we grant Months' motion to suppress the cocaine and gun found in his bedroom and deny his motion to suppress the cocaine found in his garage. We also deny Barrera's motion to suppress the cocaine found in Months' garage and Barrera's apartment.


A defendant who seeks to suppress evidence bears the ultimate burden of proof and persuasion in making a prima facie showing of illegality. United States v. Randle, 966 F.2d 1209, 1212 (7th Cir. 1992). Additionally, the defendant has the burden of establishing that his own Fourth Amendment rights were violated by the challenged seizure. Id. To establish an illegal search the defendant must demonstrate a personal expectation of privacy in the place that was searched. Minn. v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Reliance on vague,...

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10 cases
  • In re D.C.
    • United States
    • California Court of Appeals
    • September 24, 2010
    ...authority to consent to search of their bedroom]; U.S. v. Almeida-Perez (8th Cir.2008) 549 F.3d 1162, 1172; U.S. v. Barrera-Martinez (N.D.Ill.2003) 274 F.Supp.2d 950, 962 [when adult roommates have separate rooms, exclusive control is presumed].) California courts, however, have come to a d......
  • People v. Miller
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    • United States Appellate Court of Illinois
    • March 26, 2004
    ...duffel bag that was being jointly used by the defendant and the individual who consented to its search. In United States v. Barrera-Martinez, 274 F.Supp.2d 950, 956 (N.D.Ill. 2003), the court held that the defendant did not have a reasonable expectation of privacy in a duffel bag where he n......
  • United States v. Contreras
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 19, 2016
    ...in a garage does not automatically allow an officer to make a protective sweep of the residence. United States v. Barrera–Martinez, 274 F.Supp.2d 950, 964 (N.D.Ill.2003). But in addition to having no binding precedent on this court, in Barrera–Martinez, the arrest took place in a garage out......
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    ......2793, 111 L.Ed.2d 148. (1990) (explaining the difference between actual and apparent. authority); United States v. Barrera-Martinez , 274. F.Supp.2d 950, 962 (N.D. Ill. 2003) (holding that roommates. have actual authority to consent to a search of common areas,. ......
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