IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

United States of America,

 v.

Deandre Cherry,

 Defendant.

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No. 12 CR 415

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

For the reasons stated below, Defendant’s motion to reconsider [92] is denied. 

STATEMENT

Defendant seeks reconsideration of the Court’s order denying his motion to suppress 

evidence in light of the recent Seventh Circuit Court decision in United States v. Glover, 755 

F.3d 811 (7th Cir. 2014). The Court finds the Glover decision inapposite. Glover involved an 

application for a search warrant that omitted any mention of the extensive information the 

submitting officer had regarding the credibility of the unnamed informant upon whose 

information the warrant application relied. The Glover court found that the complete omission 

of such information regarding the informant’s credibility sufficient to raise an inference that the 

officer acted in reckless disregard for the truth, warranting a Franks hearing. Id. at 817-18, 820. 

But that procedural scenario could not be more different from the case at bar. Here, there has 

been no evidence whatsoever that any information was intentionally withheld by the law 

enforcement officers. Furthermore, the Court was not limited to a one-sided presentation of facts 

in an affidavit, but instead had the advantage of a complete evidentiary hearing in which both 
sides had an opportunity to present and cross-examine witnesses. This Court was able to observe 

the witnesses and make its own credibility determinations. Moreover, the Court was fully aware 

of and took into account the fact that the cooperating individual was personally involved in the 

possession and delivery of large amounts of controlled substances. Not only was the car that he 

drove specifically modified with hidden compartments to store narcotics, but officers also 

testified that the cooperating individual had a criminal background and had strong incentives to 

cooperate with law enforcement. Information from such an individual must, of course, be 

considered with caution, but unlike in Glover, the Court was completely aware of this. There is 

nothing new here for the Court to consider.

Defendant argues that the recorded statements made by the cooperating individual while 

Defendant was in his car prove that the cooperating individual’s information was unreliable and 

that he did not follow instructions. Defendant further contends that those statements show that 

Defendant did not intend to take possession of the cocaine nor attempted to flee when law 

enforcement officers announced themselves. These arguments are based upon a recently 

“enhanced” version of the recordings which was not presented to the Court during the 

suppression hearing and which neither the Court nor the government has since reviewed. That 

the cooperating individual made statements while in the vehicle that the arresting officers did not 

hear is not of great importance, since any such information was unknown to the officers at the 

time of the arrest and search. At any rate, nothing in the quotes contained in Defendant’s motion 

for reconsideration undermines the Court’s prior ruling. The officers’ reliance in part on the 

cooperating individual’s pre-arrest signal was reasonable given the totality of the circumstances 

of which they were aware at the time. 

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Defendant makes a detailed argument regarding the inconsistencies in the testimony of 

the various officers regarding the distance between the two cars. But this argument has already 

been made and the Court considered and resolved this issue. The testimony in this regard was

somewhat inconsistent, but not fatally so. After reviewing all of the evidence, the Court was 

satisfied that Defendant exited the cooperating individual’s automobile and attempted to enter his 

own car when the police announced their presence and came running at him. Whether Defendant 

ran towards his vehicle or turned and stepped towards his vehicle is of little consequence, even 

as to Officer O’Reilly’s credibility. The new evidence seems to corroborate that Defendant got 

out of the cooperating individual’s automobile and was immediately confronted by sirens and 

officers shouting at him, “Don’t move. Don’t move . . . Don’t fuckin’ do it.” Don’t do what? 

Likely, the officers were referring to his attempt to get into his automobile when they announced 

themselves. At any rate, the question of flight is but one of the several factors the Court 

considered in denying Defendant’s motion to suppress. Defendant simply is attempting to 

reargue the same essential facts. 1

Photographs taken by one of the arresting officers with his personal camera were 

introduced during the evidentiary hearing on the motion to suppress. Defendant now argues that 

the government agents may have retained the metadata for the photographs introduced at the 

suppression hearing then intentionally destroyed it after questions regarding the sequencing of 

the photographs was raised during the motion to suppress.

Defendant asserts that:

The inability of defense counsel to examine this data violates Mr. Cherry’s Fifth 

Amendment right to Due Process, his Sixth Amendment right to confront the 

1 In its original order, the Court made explicit findings detailing what the evidence showed the 

officers knew at the time of the initial arrest and further articulated why that information was 

sufficient to establish probable cause. 

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witnesses and evidence against him, and may also be a violation of his right to 

exculpatory information under Brady v. Maryland and its progeny.

(Dkt. # 84, at 7-8.) The Court finds nothing in the record to support this contention; indeed, it 

appears to be mere speculation. No evidence supports Defendant’s position (nor is it likely) that 

after the motion to suppress, during which metadata was not even mentioned, law enforcement 

officers anticipated that such information would someday be requested and intentionally 

destroyed it in order to deprive Defendant of the evidence. 

As pointed out in the Court’s original order, probable cause to search the automobile 

existed based both on the plain view of the heroin at the top of the briefcase inside Defendant’s 

automobile, and as a search incident to Defendant’s arrest. Finally, as previously pointed out, 

the narcotics would inevitably have been discovered during the inventory search of the 

automobile that was being impounded for forfeiture proceedings. For these reasons, Defendant’s 

motion for reconsideration is denied. 

SO ORDERED. ENTER: May 6, 2015

 RONALD A. GUZMÁN

 United States District Judge

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