United States v. Avila

• Decision Date: 19 July 2022
• Docket Number: 20-cr-605
• Parties: UNITED STATES, v. REFUGIO AVILA,
• Court: U.S. District Court — Northern District of Illinois

UNITED STATES, v. REFUGIO AVILA,

No. 20-cr-605

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

July 19, 2022

MEMORANDUM OPINION AND ORDER

Steven C. Seeger United States District Judge

Officers from the Chicago Police Department arrested Defendant Refugio Avila after they found a gun on his person during a traffic stop. The United States later charged him with unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Avila, in turn, moved to suppress.

For the reasons stated below, the motion to suppress is denied.

Background

This Court presided over an evidentiary hearing on the motion to suppress, and it spanned two days. See 5/6/21 Tr (Dckt. No. 54); 5/7/21 Tr. (Dckt. No. 55); see also 5/6/21 Order (Dckt. No. 43); 5/7/21 Order (Dckt. No. 44). Three witnesses testified, and the transcripts span more than 300 pages. The government called two police officers who effectuated the traffic stop, Officer Anthony Fosco and Officer Robert Cabello. Defendant Avila briefly testified too.

The parties also submitted a number of exhibits. See Gov't. Ex. List (Dckt. No. 42); Def.'s Ex. List (Dckt. No. 41). Most notably, the government presented video from the incident, including footage from body-worn cameras from Officer Fosco and Officer Cabello. See Fosco Video, Gov't. Ex. 1 (Dckt. 42-1); Cabello Video Gov't. Ex. 2 (Dckt. No. 42-2). Avila filed a few declarations to support his motion. See Hernandez Dec. (Dckt. No. 18-5); Avila Dec. (Dckt No. 18-6). The parties also submitted several helpful maps and photos of the area, to set the scene. See, e.g. Gov't. Ex. 3 (Dckt. No. 42); Def.'s Exs. 3, 4, 8, 14-16, 22 (Dckt. No. 41).

The Court finds the following facts based on the evidence in the record, including the testimony, the video from the two bodycams, and the remaining exhibits. See Joint Stipulation of Admitted Exhibits (Dckt. No. 45).

On the afternoon of June 17, 2020, Officers Fosco and Cabello were on duty and on patrol in Chicago's west side. See 5/6/21 Tr., at 18:19-24. They were part of the 10th District, an area that includes North Lawndale and Little Village. See 5/6/21 Tr., at 14:11 - 15:9; 5/7/21 Tr., at 11:4 - 12:2.

Officer Cabello testified about the high crime in the neighborhood. See 5/7/21 Tr., at 48:14-17. “[T]here is a lot of gang problems in our district, a lot of gang-related shootings, stolen cars, robberies. We mostly focus on those types of crimes and make stops if we have suspicion or probable cause.” See 5/6/21 Tr., at 16:21-25. Many shootings involved gang members driving in cars through rival territory to commit acts of violence. See 5/7/21 Tr., at 53:18-23.

Officers Fosco and Cabello were members of a tactical team that focused on high-crime areas inside the district. See 5/6/21 Tr., at 15:10-14. Officer Cabello explained: “A tactical officer is proactive policing. We want to stop crime before it happens. We want to make sure communities are safe. So, in order to do that, we have to be proactive.” See 5/7/21 Tr., at 11:810. He added: “And what we do there is we just saturate that area with as many police officers as we can to be proactive. We do traffic stops, street stops, talk to the community, try to get as much info as we can. And if arrests do come up with it, once again, it's stopping the violence.” See 5/7/21 Tr., at 11:17-21; see also id. at 13:5-14.

That afternoon, they were in the south end of the district, in a gang conflict zone between the Latin Kings and the Satan Disciples. See 5/6/21 Tr., at 17:3-8; 5/7/21 Tr., at 12:23 - 13:1 They were on a so-called “focused patrol,” in an attempt to stem the tide of violence. See 5/6/21 Tr., at 46:21 - 47:9; 5/7/21 Tr., at 13:2-14.

At the time, there was an uptick in shootings in that area between rival gangs. See 5/6/21 Tr., at 17:11-19. The goal was to have high visibility, increase the police presence, and stop violence before it happens. See 5/6/21 Tr., at 17:20 - 18:3, 46:21 - 47:9; 5/7/21 Tr., at 11:11-21.

Traffic stops were part of the focused patrol. See 5/7/21 Tr., at 13:15-17, 52:18-24.

Officer Fosco explained: “And our main goal was to have high visibility. You know, a lot of the shootings involved vehicles going by, so it would kind of be a deterrent if we're in the area making stops, if we have probable cause or, like I said, we're suspicious, street stops. So our goal was just to be in the area for high visibility and corrective policing if the opportunity presents itself.” See 5/6/21 Tr., at 17:21 - 18:3.

The story begins with Officers Fosco and Cabello in an unmarked Ford Explorer on West 25th Street. See 5/6/21 Tr., at 18:19-24. Officer Fosco was the driver, and Officer Cabello was in the front passenger seat. See 5/6/21 Tr., at 22:22-24; see also Fosco Video, at 00:00-10; Cabello Video, at 00:00-10.

The unmarked vehicle was not equipped with a camera. See 5/6/21 Tr., at 19:3-4; 5/7/21 Tr., at 20:1-10. But each officer wore a bodycam, and they captured the eventual traffic stop.^[1]See 5/6/21 Tr., at 18:25 - 19:2; Fosco Video, Gov't. Ex. 1 (Dckt. No. 42-1); Fosco Video, Def.'s Ex. 9 (Dckt. No. 41-9); Cabello Video, Gov't. Ex. 2 (Dckt. No. 42-2); Cabello Video, Def.'s Ex. 10 (Dckt. No. 41-10).

They were parked on 25th Street (which runs east-west), at the corner of 25th and South Western Avenue (which runs north-south). The car was facing east on 25th, just before the intersection with Western Avenue.^[2] See 5/6/21 Tr., at 55:11 - 57:2, 59:12-14; Def.'s Ex. 16 (Dckt. No. 41-16); Def.'s Ex. 22 (Dckt. No. 41-22).

The officers were parked across the street from Las Islitas Seafood & Mexican Restaurant, which is located on the northwest corner of 25th and Western. So, from the driver's perspective, the restaurant was to their back left. At some point, Officer Cabello exited the patrol car, entered Las Islitas, and got a drink for his partner. See 5/6/21 Tr., at 56:3-10; 5/7/21 Tr., at 29:2-6, 58:4-10. Officer Fosco remained behind the wheel.

Defendant Avila wasn't far away. In fact, he was in the parking lot of the restaurant, sitting in the passenger seat of a Dodge Journey minivan driven by his girlfriend, Fatima Hernandez. Hernandez was in the restaurant, getting food to go. See 5/7/21 Tr., at 140:6 -148:20 (testimony of Avila). Avila saw the officers in the car, and he saw one of them get out and walk into the restaurant.^[3] Id.

There is conflicting evidence in the record about whether Officer Cabello spotted Avila in the car. Avila testified that the officer looked directly at him, albeit through sunglasses (so Avila couldn't see his eyes). See 5/7/21 Tr., at 152:15 - 153:6, 155:8-24 (Dckt. No. 55). He testified that the officer looked him over, and stared him down. “He's like - we locked eye contact, me and him, you know, because it was - man, he was just staring me down. He was stalking me. He was like - he wasn't even looking where he was walking because he had his head turned looking at me, you know, the whole time he walked inside towards like - inside the restaurant.” See 5/7/21 Tr., at 144:7-12 (Dckt. No. 55); see also id. at 145:9-19, 147:6-12. Avila testified that the officer stared at him before going into the restaurant, and did so again after leaving the restaurant. But Officer Cabello testified that he didn't see anyone outside the restaurant - and he didn't see Avila, in particular. See 5/7/21 Tr., at 29:24 - 30:3, 31:13-16, 64:10-16.

Officer Cabello returned to the squad car, with a Coke in hand (his partner wanted a horchata), and sat in the passenger seat. See 5/6/21 Tr., at 62:13-16. The officers then drove off. Officer Fosco testified that Officer Cabello didn't say anything about spotting a member of the Satan Disciples in the parking lot. See 5/6/21 Tr., at 60:20 - 62:10.

They left, but they didn't go far. They basically ended up on the other side of Las Islitas. So, they went from sitting south of the restaurant (on 25th) to sitting northeast of the restaurant (on Western).

That is, the officers went around the block and ended up on Western Avenue, facing south. They stopped and parked on Western Avenue, just a little north of Las Islitas, with the parking lot of the restaurant in full view. So, they went from parked on 25th, facing east, to parked on Western, facing south. See 5/6/21 Tr., at 128:10-18.

If you're a visual person, take a look at the map. A helpful exhibit shows where they started on 25th (Position 1), and where they ended up on Western (Position 2). See Def.'s Ex. 22; see also 5/6/21 Tr., at 62:20 - 63:18; see also Def.'s Ex. 15 (showing the new parking spot on Western); 5/7/21 Tr., at 69:9-23.^[4] The officers weren't sure how, exactly, they got on Western, meaning what route they took. See 5/6/21 Tr., at 63:19 - 64:3, 68:20 - 69:2; 5/7/21 Tr., at 65:14-21. But it is consistent with driving east on 25th Street, crossing Western, turning left, driving north a block or two, turning left again, driving west, turning left again onto Western, and then driving south a block or so until stopping when the parking lot of Las Islitas was visible. Another possible option is a U-turn on Western. (But Avila testified that they crossed Western, heading east. See 5/7/21 Tr., 147:23-24.)

The main point is that the officers were parked on 25th, facing east, when Officer Cabello bought a Coke. But when he returned to the vehicle, the officers drove to another location nearby, either by circling the block or doing a U-turn. They ended up parked on Western, facing south. From that spot, they could see the parking lot from a different vantage point. See Def.'s Exs. 14, 15 (showing the view of the parking lot from the location of the squad car on Western).

At the hearing, the officers could not offer an explanation why exactly, they drove around the...