United States v. Lopez
| Decision Date | 15 November 1985 |
| Docket Number | No. 85 CR 458.,85 CR 458. |
| Parties | UNITED STATES of America, Plaintiff, v. Fernando LOPEZ and Jico Garcilazo, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Anton R. Valukas, U.S. Atty. by Lawrence E. Rosenthal, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
Ronald A. Bredemann, Flood & Bredemann, Park Ridge, Ill., for defendant Lopez.
Francis A. Nolan, Chicago, Ill., for defendant Garcilazo.
Before the Court is the defendant Lopez's amended motion to quash his arrest and suppress certain evidence. For the reasons stated herein, defendant's motion is granted in part and denied in part.
The parties have stipulated to the following pertinent facts. At approximately 11:50 p.m. on March 12, 1985, Officer Richard Boyle of the Chicago Police Department and Special Agent Frank Tucci of the Federal Drug Enforcement Agency (DEA) observed a male individual deplane from Eastern Airlines, Flight 430. That individual was the defendant Fernando Lopez. Flight 430 originated in Miami, Florida. Lopez carried a black cloth shoulder bag. Officer Boyle and Agent Tucci approached the individual and identified themselves as police officers. Neither Tucci nor Boyle had ever seen Lopez before March 12, 1985, nor had they ever heard his name, nor had they received any reports of any drug shipments arriving from Miami on that flight, nor that an individual would be carrying any contraband on that flight.
For the purposes of this motion, the parties ask that the Court assume that there was a seizure of the shoulder bag and that the seizure was illegal. Inside the shoulder bag, Agent Tucci found approximately one kilogram of a mixture that appeared to contain cocaine. A field test indicated that the mixture did in fact contain cocaine.
Lopez was placed under arrest and processed by the arresting officers. While processing the defendant, the arresting officers made various statements: that, if defendant was turned over to state authorities, he could be prosecuted for delivery of cocaine and receive a minimum sentence of six years in prison without the possibility of probation; and that the minimum bail allowed him in state court would be $50,000, or $5,000 in cash.
On March 12, 1985, subsequent to his arrest and the above statements, Lopez, while being fingerprinted at the O'Hare International Airport office of the DEA, expressed his willingness to cooperate with the DEA. Lopez stated that he had been hired in Miami by a man named Leon and was being paid $1,500 to deliver a kilogram of cocaine to a buyer in Chicago named Paul. Lopez agreed to contact Paul at the telephone number he had been given by Leon, and participate in a controlled delivery of the cocaine to Paul.
On March 28, 1985, as a direct result of Lopez's cooperation with the government, Leon Binkiewicz and Paul Pauluzzi were charged with narcotics violations under 21 U.S.C. §§ 841(a)(1), 843(b) and 846. Both of these individuals subsequently agreed to cooperate with the government. When they were both debriefed by the government, both individuals named Jico Garcilazo as a member of the cocaine distribution system as alleged in the indictment.
During the course of Lopez's cooperation with the government, he was not represented by counsel prior to March 25, 1985. Pursuant to a subpoena served upon him by the government, Lopez was to appear before a Special Grand Jury on March 28, 1985. On March 25, 1985, Lopez met with counsel Patrick Coffey of the Federal Defender Program, who was appointed to represent Lopez in pending Grand Jury proceedings. No charges were filed against Lopez and he had remained at liberty from the point of his arrest on March 12, 1985 until his subsequent arrest on July 18, 1985. By letter dated March 25, 1985, the government, through Assistant U.S. Attorney Scott F. Turow, memorialized the pretrial diversion agreement that it had reached with Lopez and his attorney.
Pursuant to that agreement, the government agreed to stop investigating Lopez further with respect to unlawful possession and distribution of cocaine and to place him on 18 months probation. If the government determined that Lopez had not testified truthfully in the grand jury proceedings and any resulting trials, the letter reserved the government's right to prosecute Lopez at that time for perjury or false statement and for any other crimes he may have committed. In addition, the letter stated the government's position that it would be free to use any statements Lopez has made or will make against him in such a prosecution. A formal pretrial diversion agreement was executed thereafter.
Lopez was debriefed by DEA agents and Assistant U.S. Attorney G. Ferguson on March 26, 27 and 28, and Lopez testified before the Grand Jury on March 28. During the debriefings and testimony, Lopez made inculpatory statements and at all times he was at liberty to consult with his attorney.
After debriefing Leon Binkiewicz and Paul Pauluzzi, the DEA agents recontacted Lopez, who denied knowing that Jico Garcilazo was involved in the conspiracy. Pursuant to his plea agreement, Binkiewicz cooperated with the government and met with Lopez on July 10, 1985. At the time of this conversation between Binkiewicz and Lopez, the government believed that Lopez had knowledge of the role played by Garcilazo in the alleged conspiracy.
On July 16, 1985, Lopez returned to Chicago at the government's request in order to testify again before the Grand Jury. At this time the government knew that Lopez had knowledge concerning Garcilazo and, in fact, Lopez was the target for the Grand Jury investigation. On July 17, Lopez was questioned by DEA agents and Assistant U.S. Attorney Ferguson. Lopez was not informed that he was the target of an investigation, nor that the DEA or the government believed that he had in fact breached any portion of his pretrial diversion agreement. Patrick Coffey, Lopez's attorney was not informed of this interview. At the interview, Lopez again made inculpatory statements and denied knowing that Garcilazo was a member of the alleged conspiracy, which was then a subject of the investigation before the Grand Jury. On July 18, 1985, Lopez testified before the Grand Jury.
After testifying before the Grand Jury, Lopez was escorted by a DEA agent to the office of Assistant U.S. Attorney Ferguson. After waiting there for approximately 45 minutes, at approximately 4:00 p.m., Lopez was confronted by Assistant U.S. Attorney Larry Rosenthal, Ferguson, and DEA Agents Tucci and William Furay. Lopez was told by Rosenthal that he had "blown it," that he was going to jail, and that he would lose his job. Further, Rosenthal told Lopez that the only way he would get any further consideration was to tell the truth, cooperate with the government and stop lying. This exchange lasted for approximately one-half hour, at which time Lopez made inculpatory statements. The other individuals left Lopez in Ferguson's office with a DEA agent. Lopez also made inculpatory statements to the DEA agent and admitted that he had lied before the Grand Jury.
Subsequent to his second Grand Jury appearance, Lopez was not informed of his Miranda rights nor informed that he was in the government's custody. Immediately after making inculpatory statements to the DEA agent, Lopez was taken to the United States Marshal's office, where he was fingerprinted, processed, and placed in incarceration. After Lopez made the inculpatory statements to the DEA agent and before being fingerprinted and processed, Federal Defender Coffey was contacted and allowed to speak to Lopez.
Prior to making any inculpatory statements before the Grand Jury on July 18, 1985, Lopez was not in custody. However, he was the subject of an obstruction of justice investigation at that time. He was not informed that he was the subject of that investigation, nor was his attorney informed of that fact prior to his testimony before the Grand Jury. The first time that Coffey was notified of Lopez's presence in Chicago was after his arrest on July 18, 1985. Prior to that arrest, no agent of the government attempted in any way to prevent Lopez from contacting Coffey.
For the purposes of this motion to suppress, the parties agreed that this Court should assume that the seizure of the shoulder bag from defendant Lopez on March 12, 1985 was an illegal seizure. In support of his motion to quash his arrest and suppress the evidence gained therefrom, the defendant Lopez sets forth three grounds: (A) all of his statements should be suppressed as the fruit of his illegal arrest; (B) his testimony before the Grand Jury on July 18, 1985 should be suppressed because he and his attorney were not informed that he was the target of an investigation; and (C) his statements made subsequent to his Grand Jury testimony on July 18, 1985 should be suppressed because they were the product of a custodial interrogation performed without notifying his counsel or giving him his Miranda warnings.
Defendant Lopez argues that all of his statements made after his illegal arrest and the illegal seizure should be suppressed as the fruit of an illegal arrest and seizure. He contends that the statement made to the DEA agent at the time of his arrest on March 12, 1985 should be suppressed because it was the direct product of his illegal arrest and no intervening fact or event occurred which would purge the statement of the primary taint of the illegal arrest. Lopez also asserts that his incriminating acts and statements made between March 12 and 14, when he cooperated with the DEA agents to complete the sale of the cocaine, should be suppressed. In its brief in opposition to defendant's motion, the government does not contest the exclusion of the statements made from March 12 through March 14.
Assuming the illegality of the...
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