U.S. v. Hanhardt

• Citation: 155 F.Supp.2d 840
• Decision Date: 11 July 2001
• Docket Number: No. 00 CR 0853.,00 CR 0853.
• Parties: UNITED STATES of America, v. William A. HANHARDT; Joseph N. Basinski; Paul J. Schiro, Sam Destefano, Guy Altobello and William R. Brown, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

155 F.Supp.2d 840

UNITED STATES of America, v. William A. HANHARDT; Joseph N. Basinski; Paul J. Schiro, Sam Destefano, Guy Altobello and William R. Brown, Defendants.

No. 00 CR 0853.

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

July 11, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John J. Scully, John F. Podliska, U.S. Attys. Office, Chicago, IL, for United States.

Andrew Theodore Staes, Jeffrey Neal Cole, Cole & Staes, Ltd., Chicago, IL, John T. Theis, Law Offices of John T. Theis, Chicago, IL, for Joseph N. Basinski.

OPINION AND ORDER

NORGLE, District Judge.

Before the court is the motion of Defendant Joseph Basinski to suppress evidence obtained from a search of his briefcase. This evidence was previously suppressed in a case involving alleged witness retaliation and obstruction of justice because the Government searched the briefcase without a warrant. See United States v. Basinski, 226 F.3d 829, 833-39 (7th Cir.2000). Since then, the Government has obtained a search warrant, re-searched the briefcase, and indicated its intent to offer the same evidence against Basinski in the case at bar. For the following reasons, Basinski's motion to suppress is denied.¹

I. BACKGROUND²

The prosecution at bar arises out of an alleged conspiracy to commit jewelry thefts. During the Government's lengthy investigation of this alleged conspiracy, it learned that in 1997 Basinski had given a briefcase to his friend, William Friedman, with instructions to burn the briefcase and its contents. Friedman ignored Basinski's orders, and in February 1999, told the FBI about the briefcase. On February 23, 1999, Government agents went with Friedman to where he had hidden the briefcase. Without obtaining a search warrant, Government agents seized the briefcase, pried it open, and found the evidence at issue. At all times thereafter, the Government has retained possession of Basinski's briefcase and its contents because he has never sought their return.

When Basinski learned of Friedman's betrayal, Basinski allegedly went to Friedman's home and attacked him. As a result, Basinski was charged with retaliating against a witness and obstruction of justice in violation of 18 U.S.C. §§ 1513(b), 1503(a). These charges were brought in case number 99 CR 196, which was assigned to Judge Coar. In that case, Basinski moved to suppress any evidence obtained from the warrantless search of his briefcase. Judge Coar granted Basinski's motion, which was affirmed by the Seventh Circuit on September 5, 2000. Basinski, 226 F.3d at 833-39.

On October 19, 2000, Basinski and five Co-Defendants were indicted in this case, number 00 CR 853, which alleges a conspiracy to commit jewelry thefts across the United States. Three months later, on January 18, 2001, the Government dismissed the retaliation and obstruction charges against Basinski in case number 99 CR 196.

Six days after dismissing case number 99 CR 196, on January 24, 2001, the Government submitted to Chief Judge Aspen an application for a search warrant to research Basinski's briefcase in case number 00 CR 853. The application was supported by a memorandum of law, an affidavit from an FBI agent, and exhibits that included earlier search warrants and affidavits from the investigation that led to case number 00 CR 853. All of the facts stated in the FBI agent's affidavit, as well as those found in the supporting exhibits, were in existence prior to February 23, 1999, the date of the illegal search of Basinski's briefcase.

The Government's supporting legal memorandum informed Chief Judge Aspen of the February 23, 1999 warrantless search of the briefcase, and the Seventh Circuit's opinion affirming the suppression of the evidence obtained therefrom. The memorandum asserted that a warrant was appropriate under the independent source doctrine found in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) and its progeny. The Government pointed out that it was relying exclusively on facts and evidence available prior to February 23, 1999, and therefore, the independent source doctrine allowed issuance of a warrant. On January 24, 2001, Chief Judge Aspen issued the warrant. The Government served the warrant on Friedman, and re-searched the briefcase.

The Government indicated its intent to offer the contents of the briefcase against Basinski and the other Co-Defendants at trial in this case. Basinski objected to this, and stated that his position was that the Government had the burden to seek relief from the Seventh Circuit's order, instead of Basinski having the burden to file another motion to suppress. (See Tr. of May 7, 2001, pp. 4-7.) The court rejected Basinski's view, and ruled that it was Basinski's burden to move to suppress the briefcase. The court stated:

If the government announces, as it has, that it does intend to offer the so-called Basinski briefcase and its contents, and apparently Judge Aspen as part of other hearings has made a determination of probable cause, at least there is a good-faith basis for the government to offer it here, notwithstanding what the Seventh Circuit may have said in Basinski.

And if you tell me there is a Supreme Court case on point which permits the government to do that, I accept your representation.

And procedurally, then, it would be the burden of any aggrieved party who would have standing to move to suppress the briefcase, the Basinski briefcase, and its contents in this case.

(Tr. of May 7, 2001, pg. 8.) Notwithstanding the court's ruling, Basinski remained firm in his position that it was the Government's burden to seek relief from the Seventh Circuit's order. On June 4, 2001, Basinski filed a legal memoranda styled as "Position of Joseph Basinski Regarding Compliance with the Seventh Circuit's Order of Suppression of Evidence," which put forth argument against the Government's introduction of the evidence. On June 8, 2001, the court conducted another hearing, where Basinski reiterated his position that it was the Government's burden to seek relief from the Seventh Circuit's order. (See Tr. of June 8, 2001, pp. 14-16.) After some discussion with the court, Basinski stated that he would re-file his position paper as a motion to suppress. (See id.) Basinski did so the same day, making only minor changes to the memoranda. After briefing, the motion to suppress is ripe for ruling.

II. DISCUSSION

This case focuses on the independent source doctrine, and the applicability of collateral estoppel to the Seventh Circuit's order affirming suppression in 99 CR 196. Basinski submits two arguments in support of his motion to suppress: (1) the independent source doctrine does not apply to the facts of this case; and (2) the decision of the Seventh Circuit in United States v. Basinski bars this suppression litigation under the doctrine of collateral estoppel. The Government takes the opposite view on both of these issues.

Before reaching the merits of these issues, a couple of preliminary matters need to be resolved. The Government spends a portion of its brief arguing that the affidavit and supporting exhibits submitted to Chief Judge Aspen demonstrate probable cause to issue the search warrant. Basinski, however, does not contest the existence of probable cause to seize and search the briefcase. (See Reply, pg. 1.) Thus, the existence of probable cause is not in dispute. And, even if it were, this court also finds that the materials submitted to Chief Judge Aspen provide an ample basis on which to find probable cause. The supporting materials outline a portion of the Government's lengthy investigation of the alleged jewelry theft conspiracy and include information from both named and confidential informants, all of which demonstrate probable cause to believe that Basinski's briefcase contained evidence of criminal activity.

Next, the Government argues that Basinski did not have an objectively reasonable expectation of privacy in the briefcase. This argument is unnecessary because the Government has obtained a search warrant, based on probable cause, to search the briefcase. Thus, there is no need for the court to decide whether Basinski had a subjective expectation of privacy that was objectively reasonable. Cf. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). These issues aside, the court examines Basinski's motion.

A. The Independent Source Doctrine:

The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The starting point for Fourth Amendment analysis is that a search or seizure is "generally considered unreasonable unless the government obtains a warrant issued upon probable cause." Basinski, 226 F.3d at 833 (citing cases). Here, Basinski contends that the Seventh Circuit's order finding illegal the February 23, 1999 warrantless search of his briefcase ends the issue. Basinski argues that the same evidence found in the subsequent re-search of the briefcase pursuant to the January 24, 2001 warrant issued by Chief Judge Aspen cannot be admitted against him at trial in this case. The Government counters that the second search was performed with a warrant supported by probable cause, and that the probable cause determination was made independent of any information found in the briefcase during the February 23, 1999 warrantless search. As discussed below, the court agrees with the Government.

The independent source doctrine traces its beginning to Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). In Silverthorne, Justice Holmes wrote that...