United States v. Smith
Decision Date | 26 September 2014 |
Docket Number | Case No. 13-cr-738 |
Parties | UNITED STATES OF AMERICA, Plaintiff, v. LADELL SMITH, Defendant. |
Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Defendant Ladell Smith, a convicted felon, is charged with possession with intent to distribute 500 grams or more of cocaine and 100 grams or more of heroin in violation of 21 U.S.C. §841(a)(1), and possession of a firearm in violation of 18 U.S.C. §924(c)(1)(A) and §922(g). Smith now moves to suppress evidence seized from his Chevrolet Impala [29].1 On September 8 and 9, 2014, this Court held an evidentiary hearing and, for the following reasons, the motion is now respectfully denied.
On February 18, 2013, Cook County Municipal Judge Kathleen Ann Panozzo issued a search warrant authorizing law enforcement officers to search 317 E 25th St, 1st Floor West, Chicago, Illinois for a black semiautomatic pistol, ammunition, magazines and all other contraband. The Chicago Police Department Sixth District Tactical Team executed the warrant on February 22, 2013, at approximately 9:41 a.m. Smith was found inside the apartment and read his Miranda warnings. Smith's fiancé, Wahneeta Preston, who was seven months pregnant at the time, as well as their two children were also in the apartment. Officers found cocaine, heroin, marijuana, a digital scale, a 9 mm live round of ammunition, more than $20,000 cash and a bullet-proof vest inside the apartment. (Dkt. #24-1, Ex A, Incident Report.)
A canine drug sniffing unit was dispatched to the scene and examined the exterior of two cars parked in or around the vicinity of the apartment building. The dog gave a positive alert for the presence of narcotics to a Chevrolet Impala registered to Smith and parked outside and downthe street from Smith's apartment. The dog gave a negative result for the second car, a Nissan Maxima. The parties dispute whether the Maxima was parked in the garage or on the street, and no photographs of the Maxima were taken. Smith disputes that a canine drug sniffing unit was even present on the scene. Smith executed a written consent to search his Impala but alleges that he did so only after officers threatened to arrest his fiancé and take their children away.
Officers subsequently searched the Impala and found 1,138 grams of cocaine, 758.6 grams of heroin and a Glock, Model 27, .40 caliber semi-automatic pistol, bearing serial number LHK648. Smith was subsequently arrested. Smith now moves to suppress the items seized from his Impala arguing that the warrant did not include any vehicles within proximity of the apartment building, that Smith's written consent was not freely and voluntarily given and officers lacked probable cause to search the car. The Court held an evidentiary hearing on September 8 and 9, 2014.
The Fourth Amendment generally requires law enforcement to secure a warrant, particularly describing the place to be searched and the person or things to be seized, before conducting a search. U.S. Const. amend. IV; Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442 (1999). Indeed, a warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-established exceptions. Arizona v. Gant, 556 U.S. 332 (2009). Where an individual's home or vehicle is searched without a warrant, the government must show by a preponderance of the evidence that the search fell within one of the recognized exceptions to the warrant requirement. United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000).
The parties do not dispute that the February 18 warrant was limited to Smith's apartment and did not extend to any vehicles registered to Smith or found near the vicinity of the premises to be searched. Smith challenges the warrantless search of his Impala on two grounds: 1) Smith's consent to search was not freely given, and 2) officers lacked probable cause to search the car.
At the evidentiary hearing, Officer Eric White testified he learned from a confidential informant that Smith, a convicted felon, had a handgun inside his residence. White also testified that the informant stated Smith was a mid-level drug dealer and owned two cars - a blueChevrolet Impala that had a secret compartment used to stash drugs, and a blue or black Nissan Maxima, which was primarily driven by Ms. Preston.
White's partner, Officer Sean McDermott, testified that he and White drove with the informant to Smith's residence prior to executing the warrant, at which time the informant identified Smith's Impala. White testified that officers also ran the license plates of both cars and recalled the Impala was registered to Smith, and the Maxima was registered to Smith or Ms. Preston. On cross examination, White admitted that he did not write a report about having received information about Smith's Impala from the informant.
The morning the warrant was executed, White and McDermott each testified that they observed both cars parked outside the premises. Officers knocked and announced their authority, and forced entry into the apartment with a battering ram. White testified that Smith was in the living room and ran to the back bedroom. Ms. Preston (who was seven months pregnant at the time) and their two children were also in the bedroom. White testified that Smith was handcuffed in the bedroom and taken to the living room where he was read his Miranda warnings. White briefly questioned Smith while Ms. Preston and the children stayed in the bedroom.
Photographs show, and White testified to seeing, glass mixing cups, bags of drugs, a digital scale and packaging material in plain view in the kitchen, bathroom and bedroom. Photographs also show that two pit bulls were chained to the back door near the kitchen area.
After executing the warrant, White testified that he went outside to smoke a cigarette, explaining that he needed to calm his nerves before he conducted an exterior search. During this time, Ms. Preston had moved the pit bulls to the bathroom. White came inside and instructed officers to handcuff Ms. Preston because he intended to arrest her based on the drugs and paraphernalia he saw throughout the apartment and due to concerns about the safety of the children. No one called the Department of Children and Family Services ("DCFS"), but Animal Control was called early on to remove the pit bulls.2
White testified that Ms. Preston was calm and quiet, and was brought into the living room. White stated that he neither yelled at nor threatened Smith or Ms. Preston at any time. Atthat time, White went to search the garage and testified that there was no car parked in the space "1W" assigned to Smith's unit. At some point, Ms. Preston's handcuffs were removed in order to help Animal Control corral the pit bulls, and she even chased one of the dogs that had gotten loose and ran down the alley. White did not recall if Ms. Preston was put in a police car in the alley, but once the dogs were handled she was brought inside and handcuffed again.
When officers had finished searching the apartment, White called a canine drug-sniffing unit to the scene. Jill Maderak, a Chicago Police Department dispatcher, testified that according to the event query for February 22, a canine unit was dispatched to the scene at 10:33 a.m. and cleared at 1:30 p.m., meaning that the unit was at that time available for another job. On cross, Maderak could not determine based on an entry in the event query whether the unit was en route to or from the scene at 12:52 p.m.
Officer Paul Wallace, of the canine unit, testified that he arrived at the scene with his canine partner, Redd, and White directed him to perform a sniff test for the Impala and Maxima parked on the street. Wallace testified that he commonly writes down the vehicle description and license plate in a small, personal notebook. Wallace's notes for February 22 suggest that he conducted a sniff test for the Impala, which was parked at approximately 306 E 25th Street at 11:15 a.m. and a sniff test for the Maxima parked at 316 E 25th Street at 11:22 a.m.
Wallace and White testified that the canine gave a positive alert to narcotics for the Impala and a negative alert for the Maxima. Wallace's written report contained several errors, including identifying the premises as 317 W 25th Street and references to a hostage situation. Wallace acknowledged his typos and explained he failed to remove erroneous information from prior reports or templates.
White testified that, after the positive alert, he went back inside to get the keys in order to search the car. At that time, Sargent Petrowski was allegedly talking to Smith about signing the consent to search form. White testified that neither he nor Petrowski yelled at Smith nor threatened Smith if he refused to sign the form. White did not remember mentioning DCFS to Smith or Ms. Preston at any time while during the search. According to White, Smith was calm and cooperative and his consent appeared to be entirely voluntary. Officers subsequently searched the Impala, including the hidden compartment in the dashboard, and recovered cocaine, heroin, and a firearm.
McDermott's testimony generally corroborated White's testimony that Ms. Preston was placed in and out of handcuffs, the canine alerted to narcotics in the Impala, Smith was calm and officers did not threaten him at any time during the search. McDermott testified that Petrowksi obtained Smith's written consent, but White's and McDermott's signature appear on the form. Officer Brenden Roberts testified he was present for most of Petrowski's discussion with Smith regarding the consent form. Roberts testified that Petrowski did not mention DCFS or threaten Smith at any time.
Petrowski did not testify at the hearing despite counsel for Smith's intention to call him. The government stated that...
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