U.S. v. Delatorre

• Decision Date: 04 September 2007
• Docket Number: No. 03 CR 90.,03 CR 90.
• Citation: 508 F.Supp.2d 648
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America, Plaintiff, v. Fernando DELATORRE, also known as "Fern," "Fern-Dog," and "Fern-wood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Miguel Martinez, also known as "Big Mike" and "Mizzy," Mariano Morales, also known as "Mar," Arturo Barbosa, also known as "Chipmunk," Harold Crowder, also known as "H-Man," Miguel Rodriguez, also known as "Mental" and "Mento," Steven Perez, also known as "Frantic" and "Big Frantic," Brian Hernandez, Lionel Lechuga, Romel Handley, also known as "Romellie," Christian Guzman, also known as "Mousey," Akeem Horton, and Steven Susinka, Defendants.

508 F.Supp.2d 648

UNITED STATES of America, Plaintiff, v. Fernando DELATORRE, also known as "Fern," "Fern-Dog," and "Fern-wood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Miguel Martinez, also known as "Big Mike" and "Mizzy," Mariano Morales, also known as "Mar," Arturo Barbosa, also known as "Chipmunk," Harold Crowder, also known as "H-Man," Miguel Rodriguez, also known as "Mental" and "Mento," Steven Perez, also known as "Frantic" and "Big Frantic," Brian Hernandez, Lionel Lechuga, Romel Handley, also known as "Romellie," Christian Guzman, also known as "Mousey," Akeem Horton, and Steven Susinka, Defendants.

No. 03 CR 90.

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

September 4, 2007.

COPYRIGHT MATERIAL OMITTED

William Thomas Huyck, Federal Defender Program, Richard S. Kling, Kent College of Law, Illinois Institute of Technology, John M. Beal, Mary M. Rowland, Hughes Socol Piers Resnick & Dym Ltd., Paul Camarena, Thomas C. Brandstrader, Law Office of Thomas C. Brandstrader, John A. Meyer, Robert G. Clarke, Jack P. Rimland, Attorney at Law, Steven Shobat, Attorney at Law, Chicago, IL, Mark Herbert Kusatzky, Attorney at Law, Robert Lee Gevirtz, Gevirtz & Born, Northfield, IL, William O. Walters, William 0. Walters, Attorney at Law, Mt. Prospect, IL, for Defendants.

Steven Perez, Chicago, IL, pro se.

Susan A. Shatz, Attorney at Law, Chicago, IL, pro se.

Patrick C. Pope, John Robert Blakey, United States Attorney's Office, Pretrial Services, Probation Department, Chicago, IL, for Plaintiff.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Defendant Bolivar Benabe ("Benabe") moves this Court to suppress all property seized from his home at 4035 North Sacramento, Chicago, Illinois, and all further evidence derived therefrom and all testimony relating thereto, on the grounds that the information in the application and affidavit for the search warrant was impermissibly "stale", and thus did not establish probable cause. (R. 383, Benabe Mot. to Suppress at 1.) For the reasons that follow, Benabe's motion is denied.

FACTS

On September 27, 2005, Bureau of Alcohol, Tobacco, and Firearms Special Agent Peter J. Vukovich ("Vukovich") submitted a 39-page Application and Affidavit for Search Warrant ("Affidavit") to Magistrate Judge Jeffrey Cole for Benabe's basement apartment at 4035 North Sacramento. The Affidavit sought authorization to seize:

a. Books, records, notes, ledgers, and other records relating to the Insane Deuces street gang, including, but not limited to, gang indicia, membership lists, nickname lists, phone numbers, gang hierarchy, gang laws, lists of firearms in the gang's possession, lists of money in the gang's possession or expended on behalf of the gang, and other gang documentation.

b. Items of personal property indicating membership in the Insane Deuces, including, but not limited to: clothing bearing black and green colors or other symbols of the organization; and documents bearing gang-related graffiti.

c. Photographs, including still photos, negatives, video tapes, film, undeveloped film and the contents therein, and/or slides, containing images of co-conspirators and gang members, with or without assets and/or illegal contraband.

d. Items of personal property that tend to identify the person(s) in residence, occupancy, control, or ownership of the premises that is the subject of this warrant, including, but not limited to, canceled mail, deeds, leases, titles, registration information, rental agreements, photographs, personal telephone books, diaries, utility and telephone bills, tax documentation, identification cards, immigration documentation, birth certificates, and keys.

e. Computer hard drives, Compact Discs, Floppy Disks, and DVD's, memory sticks which may contain any of the above-described information.

(R. 383, Benabe Mot. to Suppress, Ex. 2, Affidavit ¶ 15.)

In the Affidavit, Vukovich stated that based on his "training and experience in firearms and gang-related investigations," he knew that gang members often keep the following in their residences: (1) name and phone lists of others in their organization; (2) ledgers that contain membership lists, gang hierarchy, gang member attendance at meetings, dues paid to the organization by individual gang members, lists of the amount and types of firearms currently possessed by the gang as a whole, and the total amount of money that the gang has at its disposal for purchasing illegal contraband such as firearms and drugs; and (3) photographs of themselves together, places of importance to the organization, and their assets. (Id. ¶ 11.) Vukovich explained that law enforcement has already recovered such items from residences of various other Insane Deuces gang members. (Id. ¶ 12.) Furthermore, the Affidavit stated that based upon Vukovich's knowledge of this investigation, he knew that gang members communicate with each other through computers and email, and use computers to keep gang-related documents. A cooperating witness specifically mentioned a gang meeting in 1999 or 2002 where Benabe's co-defendant, Mariano, Morales, showed gang members how to communicate with each other and recruit people into the Insane Deuces via the computer, and displayed an Insane Deuces website as well as computer photographs and pictures of Insane Deuces emblems and members. (Id. ¶ 13.) Finally, Vukovich stated that:

Based on my training and experience, I know that gang members often keep the above-described documents and items for significant periods of time. Gang members keep these documents and items because the gang is an ongoing enterprise and membership in the gang is for life. In fact, the Insane Deuces bylaws recovered during this investigation make it explicit that gang membership is for life: "Once a member of the Organization, always a member." Gang members also keep these documents and items as a source of pride reflecting their membership in the gang.

(Id. ¶ 17.)

In a section relating to Benabe in particular, the Affidavit stated that there was probable cause to believe Benabe was a member of the Insane Deuces and kept the aforementioned material in his apartment because, among other things:

a. As reflected in the superseding indictment, the grand jury charged that, during the course of the conspiracy, Benabe was the highest ranking member of the Insane Deuces outside of prison and that he was responsible for overseeing the activities of all of the factions of the Insane Deuces.

b. CW1 [cooperating witness] has in formed law enforcement officers that Benabe was the ranking Insane Deuces gang member outside of prison from the late 1990s through late 2003. According to CW1, as the ranking Insane Deuces gang member outside of prison, Benabe was responsible for overseeing all of the gang's operations in Northern Illinois.

c. Benabe attended the June 7, 2002 Junior meeting ... Benabe's voice on the tape has been identified by CW1, who attended and recorded the meeting, by another cooperating gang member who attended the meeting, and by self-identification on the tape.

. . . .

e. Records obtained from the Illinois Department of Corrections ("IDOC") show that Insane Deuces gang member Jorge Carvajal was writing letters to other Insane Deuces gang members regarding Benabe. According to CW1 and other cooperating gang members, Carvajal is the ranking Insane Deuces gang member known as the "Prince." Carvajal was incarcerated from the early 1990s through late 2003. In a letter written by Carvajal and intercepted by IDOC in 1999, Carvajal informed Insane Deuces gang member Brian Torres to contact Benabe regarding Insane Deuces gang issues on the street because Benabe was taking care of things while Carvajal was incarcerated.

(Id. ¶ 34.)

On September 27, 2005, Magistrate Judge Cole issued the search warrant for Benabe's apartment. The warrant was executed on September 28, 2005.

ANALYSIS

Before issuing a search warrant, the magistrate judge must determine whether probable cause exists, such that: "(1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is issued." United States v. Grubbs, 547. U.S. 90, 96, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (emphasis in original). The probable cause determination involves a "practical, common-sense decision whether, given all the circumstances set forth ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Gray, 410 F.3d 338, 344 (7th Cir.2005) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983)).

This Court must give "considerable weight" to the magistrate's determination, and the magistrate should be overruled only when "the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated." United States v. Wiley, 475 F.3d 908, 915 (7th Cir.2007) (quo...