In November, the US Court of Appeals for the 7th Judicial Circuit heard an appeal from a known gang leader in Chicago, who was convicted of drug possession crimes based on evidence he claimed was obtained in an illegal search by Chicago Police and federal agents. The appellate court handed down its decision, based on a three-judge panel, on Dec. 3.
Specifics of the Case
No. 09-1974 … United States of America v. Fernando King, appeal from the United States District Court for the Northern District of Illinois, Eastern Division …
Fernando King, a high-ranking member (his title was “Supreme Inca”) of the Latin Kings street gang, was charged with conspiracy to possess with intent to distribute in excess of five kilograms of cocaine (count one) and attempted possession with intent to distribute 500 grams or more of cocaine (count two), in violation of federal law. The government’s theory of the case was that King and Augustin Zambrano, an even higher-ranking member (a “Corona”) of the Latin Kings, agreed to accept money and drugs from a lower-ranking Latin King who wanted “protection” for his cocaine business. The fly in the ointment was that the Latin King seeking protection, Jesse Guajardo, was secretly working as an informant for the government. After a week-long trial, a jury convicted King on both counts. He was subsequently sentenced to a term of 240 months.
During the trial, King’s lawyer filed a motion to suppress certain evidence, meaning he wanted the judge to throw out the evidence so the jury would never see it or hear about it. Specifically, King moved to suppress a “sham kilogram of cocaine,” which was “given” to King after he had stated his desire to sell it. Although the appeal carried many other challenges to the district court judge’s rulings, we will focus on the sham kilogram of cocaine here in order to keep our discussion brief and limit it strictly to Fourth Amendment considerations. You can read the entire appellate opinion here (a PDF file).
King’s lawyer argued that the district court judge should have suppressed the evidence because the police obtained the evidence in an “illegal” search. Under the Fourth Amendment, you cannot be convicted of a crime if a jury is presented with evidence that police seized using an illegal search. A legal search is usually one in which police have a specific search warrant, they have permission to search the premises, or they reasonably believe, based on their current viewpoint, that life or property are in clear and immediate danger.
For the search that led to the discovery of the sham kilogram of cocaine, police had no warrant. Furthermore, the search was performed at a restaurant outside of normal business hours, so police officers cannot argue that they were just there anyway. This latter fact negates the argument that police sometimes use that they were just casually observing the place and saw something going down.
To obtain the sham kilogram of cocaine, police searched a taqueria (a small taco restaurant) owned by King and Zambrano, where the sham kilogram of cocaine was found hidden in a pipe in the back of the restaurant. Police knew to look there because on Dec. 4, undercover agents gave the cocaine to King at the taqueria during business hours and saw him hide it in the back.
King was arrested the next day, on Dec. 5, and his home was searched using a warrant. In that search, police found gang paraphernalia, like a constitution, and other evidence against King.
But back at the taqueria, at about 9:00 a.m., ATF agent Ron Zitek and two Chicago police officers arrived. The business was not scheduled to open until 11:00 a.m. The men wore plainclothes, bulletproof vests, and badges. After about 45 minutes, a cook named Antonio Cabrera-Lopez arrived and opened the door. The officers followed him inside. An alarm was activated, and Cabrera-Lopez used a code to disable it. Zitek then attempted to talk to Cabrera-Lopez but discovered that he could not speak English very well. So Zitek summoned a Spanish-speaking agent, Carl Jorgensen. While they waited for Jorgensen, the officers stayed in the front customer area of the restaurant.
Jorgensen and another Chicago police officer arrived and spoke to Cabrera-Lopez. According to Jorgensen, Cabrera-Lopez said that he was not the owner, just the cook, but he orally consented to a search of the premises. He did not want to sign a consent form, however, because it was written in English. Cabrera-Lopez testified that his encounter with police was “polite” but changed his story about giving consent to the search: he said he initially agreed to allow the search but later reversed his permission. Agent Zitek then searched the restaurant and recovered the sham kilogram of cocaine in the spot where King had hidden it. At no time did Cabrera-Lopez tell the agents to stop their search or to leave.
Cabrera-Lopez was not the owner of the restaurant but just a worker, and he did not have the authority to grant law officers “permission” to search the premises. Furthermore, since the restaurant had not opened for business, officers were therefore illegally on the premises in the first place, making the “probable cause” right to search moot. This made the search “illegal” and all evidence obtained in that search “inadmissible.” The district judge was wrong in denying the motion to suppress the sham kilogram of cocaine, and a new trial without that evidence should be ordered.
Cabrera-Lopez seemed authoritative enough to grant permission, since he had a key to the restaurant and knew the code to disable the alarm. Police tried to have him sign a consent to search form, but his reason for not signing it was that it was in English, not that he refused to allow the search. Officers had permission to search the premises, and the district judge was correct in denying the motion to suppress the sham kilogram of cocaine.
How Did the Court Rule?
We will edit this post in about a week, adding the ruling from the 7th Circuit Court of Appeals. In the meantime, post your opinion as a comment to this post, after signing up for our blog. Before you write, though, bone up on your Fourth Amendment and pertinent cases. Some of the cases cited by the 7th Circuit were Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) in the Supreme Court of the United States, and United States v. Figueroa-Espana, 511 F.3d 696, 704 (7th Cir. 2007) in the 7th Circuit Court of Appeals.