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United States v. Lopez

April 28, 2009

UNITED STATES OF AMERICA
v.
ROGELIO LOPEZ AND MARTIN LOPEZ



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is the joint motion*fn1 (Doc. 993) of defendants Rogelio Lopez ("Rogelio") and Martin Lopez ("Martin")*fn2 to suppress certain evidence procured as the result of an investigatory stop on May 26, 2008. Both defendants contend that police lacked probable cause or reasonable suspicion for the stop, during which officers seized multiple cellular telephones and ten kilograms of cocaine. Rogelio further argues that the cocaine must be suppressed in his case regardless of its admissibility against Martin because he never exercised dominion and control over the drugs. Martin also seeks to suppress a statement that he made to police during custodial interrogation following his arrest. For the reasons that follow, the motion (Doc. 993) will be denied in all respects.

I. Findings of Fact*fn3

The charges against defendants Martin and Rogelio stem from an alleged narcotics transaction that occurred at the end of the Memorial Day holiday on Monday, May 26, 2008.*fn4 That evening, Chicago Police Officers William Fasan ("Officer Fasan") and Peter Kochanny ("Officer Kochanny") were patrolling the area around Pulaski Road for drag-racing activity. (Doc. 986 at 7.)

A. The Initial Stop

At approximately 10:45 p.m., the officers were traveling west on 40th Street in their marked police cruiser toward the intersection of Pulaski Road. (Id. at 10, 35-36, 54; Suppress. Hr'g Ex. D-1.) They had an unobstructed, well-lit view of an adjacent Burger King restaurant and its contiguous parking lot. (Doc. 986 at 10, 13- 14, 108.) They observed a black Pontiac Grand Am*fn5 and a green minivan parked near one another in a remote section of the lot, which was otherwise empty. (Id. at 11, 13, 77-78.) The officers watched as Martin alighted from the minivan and Rogelio and non-defendant Luiz Zuniga ("Zuniga"),*fn6 exited the Grand Am. (Id. at 11-15, 46.) The three individuals glanced in all directions to determine whether anyone was watching them. (Id. at 15-16, 106.) They met one another and conversed briefly but did not shake hands or otherwise extend a customary social greeting. (Id. at 15, 72, 106.) The officers noticed the three individuals' hands come together as if they had passed a small article between them. (Id. at 15, 38, 72, 106.)

The police officers could not see what, if anything, the parties exchanged, but they suspected that Martin, Rogelio, and Zuniga had conducted a hand-to-hand drug transaction. (Id. at 15, 38, 106.) A hand-to-hand transaction occurs when individuals meet to exchange contraband in person, often without social formalities. (Id. at 13-15.) The officers were trained to recognize hand-to-hand transactions and had observed such transactions on numerous prior occasions. (Id. at 14-15, 106.)

The officers drove their police cruiser toward the three individuals to investigate the situation. As they approached, the suspects split up and walked hurriedly toward the opposite vehicles from those in which they had arrived:

Martin moved toward the Grand Am while Rogelio and Zuniga headed for the minivan. (Id. at 18-19, 77, 107.) The officers then noticed that the trio had exchanged car keys rather than narcotics. (Id. at 16, 82, 107.)

This activity greatly increased the officers' suspicion because the area surrounding the intersection of Pulaski Road and 40th Street has a reputation for hosting large-scale drug transactions, including car-switch transfers.*fn7 (Id. at 16-17, 56, 124.) A car switch occurs when two traffickers meet at a predetermined location and swap vehicles, one of which contains a contraband. (Id. at 16-17.) The transactions-typically used to transport large quantities of drugs-allow dealers to exchange products quickly and prevent them from handling controlled substances in public view. (Id.) Officer Fasan, who has patrolled the territory for at least ten years, testified that the area consists primarily of industrial parks and provides convenient access to Interstate 55. (Id. at 10-11, 87-88.) Narcotics traffickers frequently arrange large transfers in the area because they can complete the sales and leave quickly via the interstate. (Id. at 11.) Car-switch drug transactions often take place in the Burger King parking lot and at other nearby locations. (Id. 16-18, 56-57, 123.) Officer John Moravec ("Officer Moravec"), who did not participate in defendants' arrests but questioned them at the police station, corroborated Officer Fasan's testimony, characterizing the five-mile radius around 40th Street and Pulaski Road as "the major area in the City of Chicago" for high-volume trafficking in cocaine, cannabis, and heroin. (Id. at 125 (emphasis added)).

Officers Fasin and Kochanny initiated an investigatory stop based upon their suspicion that Martin, Rogelio, and Zuniga had conducted a car-switch drug transaction. They verified that Martin and Rogelio had swapped vehicle keys*fn8 and requested identification from all three individuals. (Id. at 19, 82.) Rogelio produce a California driver's license while Zuniga supplied a Mexican consular identification card. (Id. at 55.) Martin produced an Illinois driver's license that did not match the minivan's registration, which bore his name but was titled in Michigan. (Id. at 19-20.) The lack of parity between Martin's license and registration further piqued Officer Fasan's suspicion because individuals who relocate to Illinois must transfer their vehicle registration within thirty days after changing domicile. (Id. at 20); see also 625 ILL. COMP. STAT. 5/3-801(a). When Officer Fasan asked Martin to explain the discrepancy between his licence and registration, Martin provided no response. (Doc. 986 at 65.)

The officers concluded that defendants' conduct bore indicia of drug trafficking. They knew that drug dealers frequently possess firearms in connection with their trafficking activity, and they performed a preliminary pat-down search of the suspects' outer clothing to ensure their safety. (Id. at 21, 110, 119-20.) Officer Kochanny removed a phone clipped to Martin's belt during this search, and Officer Fasan discovered at least two bulky items in Rogelio's pockets that he removed and identified as cellular phones.*fn9 (Id. at 22, 42, 102.) The officers removed a total of five or six phones from the three suspects. (Id. at 22.) The officers confiscated the phones because, in their experience, arrestees sometimes carry blunt objects similar in size and shape to cellular phones that can be used as weapons. (Id. at 102.) Phones can also be used to conceal knives, shanks, or other implements with which a suspect could injure an officer. (Id. at 21-22, 102.) Removal of the phones again heightened the officers' suspicion because drug dealers frequently carry several phones to conceal the calls required to arrange drug transactions. (Id. at 22.)

B. The Search of the Minivan

The officers questioned the individuals about the car switch, and Rogelio stated that he was borrowing the minivan from Martin to take his family on vacation. (Id. at 23, 111.) This explanation struck the officers as disingenuous because the car swap occurred late at night in a commercial parking lot at the end of the Memorial Day weekend. (Id.) In the officers' experience, vacationers who borrow automobiles typically exchange the vehicles at home during daylight hours in advance of a holiday rather than after it. (Id.)

Officer Fasan requested Martin and Rogelio's consent to search the minivan in light of his much-aroused suspicion. Both defendants granted oral consent to search the minivan, through Rogelio informed the officers that the van did not belong to him. (Id. at 24-25, 45-46, 103, 199-200.) The investigatory stop had been in progress for less than five minutes at the time Officer Fasan solicited consent. (Id. at 24.) Neither he nor Officer Kochanny had not drawn their weapons, and all questioning had occurred in normal, conversational tones. (Id.) Officer Fasan placed Martin, Rogelio, and Zuniga in the rear of his police cruiser while Officer Kochanny searched the minivan. (Id. at 25.) Officer Kochanny entered the minivan through the driver's door and immediately noticed a large amount of sound-deadening foam strewn across the floor behind the driver's seat.*fn10 (Id. at 96.) Manufacturers install such foam inside the exterior walls of automobiles to minimize road noise in the passenger cabin, and the foam can only be removed by opening the interior walls of the vehicle. (Id. at 96-97.) Officer Kochanny inspected the door panels and opened the jack compartment, where he discovered a black brick that he suspected to contain narcotics. (Id. at 97.) Officer Kochanny called Officer Fasan's attention to the drugs, and the officers arrested all three individuals. (Id. at 27.) Officer Fasan immediately read them their rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and both Martin and Rogelio indicated that they understood the Miranda warnings. (Doc. 986 at 27-28.) Police seized a total of ten kilograms of cocaine from the minivan.*fn11

C. Custodial Interrogation

The officers called for backup and transported Martin, Rogelio, and Zuniga to the police station, where the suspects were separately interviewed. (Id. at 30.) Officer Fasan again read them Miranda warnings, and both Martin and Rogelio again stated that they understood their rights. (Id. at 28-30.) Officer Moravec questioned Martin, who declined to cooperate but stated that "he was in fear of his life or his family's lives." (Id. at 31; see also id. at 123.) Rogelio invoked his right to remain silent. (Id. at 126.)

Neither Martin or Rogelio requested representation from counsel at any point during the evening. (Id. at 31, 98, 123.) Police conducted all discussions in English. Although Martin and Rogelio speak Spanish, both defendants understood and conversed fluently in English. (Id. at 79-81.) ...


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