U.S. v. Conrad, Case No. 05 CR 931.

• Decision Date: 24 September 2008
• Docket Number: Case No. 05 CR 931.
• Citation: 578 F.Supp.2d 1016
• Parties: UNITED STATES of America, Plaintiff, v. David CONRAD, Defendant.
• Court: U.S. District Court — Northern District of Illinois

578 F.Supp.2d 1016

UNITED STATES of America, Plaintiff, v. David CONRAD, Defendant.

Case No. 05 CR 931.

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

September 24, 2008.

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AUSA, Matthew Michael Getter, United State's Attorney's Office, Chicago, IL, for Plaintiff.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Before the Court is Defendant David Conrad's motion to suppress all evidence gathered by law enforcement on December 20, 2002. (R. 96-1.) For the reasons below, the Court grants the motion in part.

BACKGROUND

On November 16, 2005, the Government filed an information against David Conrad. On January 23, 2007, a federal grand jury returned a Superseding Indictment ("Indictment") charging Defendant David Conrad with eight counts of possessing, transporting, advertising and distributing child pornography in violation of 18 U.S.C. §§ 2251(c)(1)(A), 2251(d), 2252A(a)(2)(A), 2252A(a)(1), 2252A(a)(5)(B), 2252A(b)(1), and 2252A(b)(2). (R. 32-1.) In particular, the Indictment alleges that on July 12 and 14 and October 24, 2002, Defendant Conrad advertised, received or distributed, transported, and possessed at least six video images containing child pornography. Law enforcement obtained some of the evidence supporting the Indictment on December 20, 2002 after entering the back deck of Roger Conrad's Geneva, Illinois residence, obtaining permission from Roger Conrad to enter the residence based on the agents' representations to Roger Conrad of their observations from the deck, interviewing David Conrad in the residence and transporting David Conrad to his Chicago apartment after the initial interview.

Defendant Conrad has moved to suppress his statements to law enforcement on December 20, 2002, and any evidence obtained that day from his parents' residence in Geneva and from Defendant's Milwaukee Avenue apartment. On a motion to suppress "[e]videntiary hearings are not required as a matter of course; a district court need conduct a hearing only when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues of material fact which will affect the outcome of the motion." United States v. McGaughy, 485 F.3d 965, 969 (7th Cir.2007), citing United States v. Villegas, 388 F.3d 317, 324 (7th Cir.2004); see also United States v. Juarez, 454 F.3d 717, 720 (7th Cir.2006); United States v. Martin, 422 F.3d 597, 602-03 (7th Cir.2005), cert. denied 546 U.S. 1156, 126 S.Ct. 1181, 163 L.Ed.2d 1139 (2006).

In support of his motion, Defendant submitted his own affidavit swearing that the factual events set forth in the motion are true. (R. 96-8.) Because this affidavit and the Federal Bureau of Investigation ("FBI") 302 reports created factual disputes and because they raised a substantial claim, the Court conducted a suppression hearing in order to make evidentiary determinations. That hearing took place on July 28, 29, and 31, 2008. Following the suppression hearing, the parties submitted post-hearing briefs addressing specific issues raised by the Court and addressed in detail below. (R. 170-1, 171-1.) As a general matter, "the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence." United States v. Gillespie, 974 F.2d 796, 800 (7th Cir.1992).

BACKGROUND FACTS

The following witnesses testified at the suppression hearing: FBI Special Agent Scott McDonough, FBI Special Agent Tracie Keegan, FBI Special Agent Susan Beckerman, FBI Special Agent Kevin Ellis, Palos Heights Police Department Sergeant Chuck Hankus, Palos Heights Police Department Sergeant Michael Zalifia, former Kane County Investigator Alejandro Gomez, Roger Conrad, and Elizabeth Conrad. During the hearing, the Court had the opportunity to carefully evaluate the demeanor and credibility of each witness. Both the government and Defendant also introduced numerous documentary exhibits, including photographic exhibits of the Conrads' Geneva residence and deck area.

Defendant David Conrad submitted an affidavit to support his version of the events. His affidavit, however, was once sentence stating "I, David E. Conrad, hereby swear and affirm that all of the information contained in my motion to suppress is true and accurate as I recall and understand it." Defendant Conrad did not testify, and thus his assertions were not subjected to cross examination. Nor did Defendant provide the Court with the opportunity to assess the demeanor of his assertions while testifying. Given the credibility of the law enforcement officers who testified about their interactions with Defendant in the Geneva, Illinois home, and in the car on the way to Defendant's Chicago apartment, the Court affords Defendant's affidavit substantially less weight than the testimony of Agent Keegan and Sergeant Zaglifa. See, e.g., United States v. Baker, 78 F.3d 1241, 1243 (7th Cir.1996) ("Baker's Fourth Amendment claims rest on his version of the facts. The district court, however, determined after a suppression hearing that Baker's version was not credible. Instead, the court chose to credit [Officer] Brophy's view of what happened. That determination—to credit Brophy's version rather than Baker's— cannot be clearly erroneous."); United States v. Carlisle, No. 04-CR-055-C, 2004 WL 1085194, at *7 (W.D.Wis. May 7, 2004) ("[Defendant] claims that things were even worse than this, but I have accorded slight weight to his affidavit. First, although the affidavit is admissible in a suppression hearing, [Defendant] declined to subject his assertions to cross-examination or a demeanor check by taking the stand."); United States v. Frank, 8 F.Supp.2d 284, 291 n. 2 (S.D.N.Y.1998) ("[s]ince Frank did not testify at the hearing, and was not subject to cross-examination, the Court was unable to form an opinion as to his credibility or the truthfulness of his allegations"). Similarly, Agent McDonough interacted extensively with Defendant at Defendant's apartment in Chicago, Illinois. The Court addresses the specifics below, but the Court affords Defendant's one sentence affidavit substantially less weight than Agent McDonough's credible testimony that is corroborated by documents and other testimony.

The Court makes the following factual findings based on the evidence presented at the suppression hearing, as well as the other evidence submitted during the briefing on the motion to suppress. Although the parties disputed many factual issues surrounding the events on December 20, the Court only addresses those necessary to resolve the pending motion to suppress.

I. Roger's Machinery

On December 18, 2002, the FBI obtained a valid search warrant for Roger's Machinery Sales shop ("Roger's Machinery"). The warrant was based on information collected by law enforcement, including undercover work by Sergeant Zaglifa, reflecting that someone using an Internet Protocol ("IP") address registered to Roger's Machinery had engaged in the distribution of child pornography. Two days later, on December 20, 2002, the FBI positioned a team of agents at Roger's Machinery and another team of agents at the Geneva, Illinois home of Roger Conrad, the owner of Roger's Machinery. The FBI executed the search warrant at Roger's Machinery in the early morning hours, but their search yielded no child pornography. Roger Conrad was on vacation at the time of the search, but employees provided the FBI with Roger Conrad's phone number where he could be reached. During the course of the search of Roger's Machinery, FBI Special Agent Scott McDonough telephoned Roger Conrad, but much of the substance of that conversation is disputed. It is beyond dispute that Agent McDonough asked Roger Conrad the whereabouts of Roger's son, Defendant David Conrad, and that Roger Conrad told the FBI that David Conrad was most likely at the family residence in Geneva. The Government contends that at the time the search of Roger's Machinery was executed, Roger Conrad's son, David Conrad—not Roger—was the primary suspect in the child pornography investigation.

II. Conrad Family Home in Geneva, Illinois

At the same time the FBI was searching Roger's Machinery, a team of law enforcement officials attempted to make contact with the occupants of Roger Conrad's family home in Geneva, Illinois (hereinafter "the Geneva Residence"). The evidence revealed that the agents called the telephone line in the Geneva Residence and knocked on the door multiple times, but no one answered. Specifically, commencing at approximately 7:00 am, law enforcement agents knocked on the door and rang the doorbell five separate times at 30 minute intervals. At approximately 9:00 am, Special Agent McDonough talked to Roger Conrad on the telephone. Special Agent McDonough informed Roger Conrad that FBI agents were at his Geneva Residence looking for his son, David Conrad. When Agent McDonough inquired about David Conrad being at the Geneva Residence, it is undisputed that Roger Conrad asked the agents to look in the driveway and see what cars were present. In response, the agents looked in the driveway and Agent McDonough communicated to Roger Conrad that a black Porsche was in the driveway. Roger Conrad then informed the agents that the black Porsche belonged to David Conrad and that he was at the Geneva Residence because his vehicle was there. At some point, Roger Conrad gave the agents David Conrad's cell phone number and the phone number to the Geneva Residence and told them to call. The agents were never able to reach David Conrad on the telephone. It is also undisputed that Roger Conrad did not give any law enforcement agents permission to go to the back of his Geneva residence or to enter the back deck at the Geneva Residence.

After receiving this information, the law...