IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 United States of America.,

 Plaintiff,

 v.

Deandre Cherry,

 Defendant.

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No. 12 CR 415

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Defendant moves to suppress evidence and statements recovered by police following his

arrest on May 31, 2012. The motion challenges the sufficiency of probable cause to arrest him

because the arresting officers relied upon information which lacked sufficient indicia of

reliability either from any prior history with the informant or from verification of the information

received. An evidentiary hearing was held and the parties submitted post hearing briefs. The

Court now rules.

In a similar case, the Seventh Circuit stated that:

Although the police did not know the informant before the initial 

phone call, that alone does not make the informant's information 

unreliable. It means at most that the agents might need to do more 

work to verify the information given by the informant, which the 

agents did that in this case. . . . In fact, before stopping Oliva, the 

agents observed him taking the actions which the informant had 

said to expect. That is exactly the type of corroboration that counts. 

See Navarro, 90 F.3d at 1254 (“[B]ecause the surveillance 

preceding the stop corroborated the information from the informant, 

the law enforcement officers had probable cause for both the arrest 

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and search”); Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 

110 L.Ed.2d 301 (1990) (stating that if “an informant is shown to be 

right about some things, he is probably right about other facts that 

he has alleged, including the claim that the object of the tip is engaged

in criminal activity.”).

Unfortunately for Oliva, “everything transpired as the informant 

described.” . . . The informant told police that his dealer was a 

Hispanic male named Edwin. At the pre-arranged time, agents 

observed a Hispanic male drive to the informant's house, stop briefly,

then park. The Hispanic male got out of the car, with another man,

and walked to the informant's home. . . . The police verified each

piece of the informant's information by observing it happen. When

events unfolded as predicted, the police had all the corroboration

they required. Actual events did not contradict any aspect of the

informant's information. 

U.S. v. Oliva, 385 F.3d 1111, 1114 -1115 (7th Cir. 2004) (certain internal citations omitted).

The case at bar is similar to Oliva in many respects. At the time of the arrest, the

arresting officers had the following information: 1) the cooperating defendant was a drug dealer

who dealt in large quantities of cocaine (Tr. 19-20); 2) he was arrested while attempting to take

possession of 26 kilograms of cocaine; 4) the cooperating defendant told the arresting officers

that he had a prearranged plan to deliver 13 kilograms of the cocaine to Mo (Defendant) and Big

Al; 5) the cooperating defendant was driving a car with a built-in trap for hiding narcotics, which

he was intending to use to deliver the narcotics; 6) the cooperating defendant told the officers

that he intended to deliver the narcotics to Mo at a house on 147th Street near Loomis; 7) the

cooperating defendant told the officers that Mo drove a white Mercedes SUV; 8) the cooperating

defendant had the cell phone number of the party to whom he was to deliver the cocaine and on

the agent's instructions, the cooperating defendant called Mo and changed the meeting place to a

parking lot at the 159th Street and Kedzie in Markham in front of a Boost Mobile Store at 8:00

PM; 9) at 7:50 PM, the cooperating defendant called Mo and informed him he was 10 minutes

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away; 10) at approximately 8:00 PM, surveillance officers confirmed that a white Mercedes

SUV is seen driving around the area of the parking lot; 11) the arresting officers observed the

white Mercedes SUV drive into the parking lot and park, of all places, next to the cooperating

defendant's car; 12) the driver of the white Mercedes SUV is observed exiting his car and

entering the passenger side front seat of the cooperating defendants car; 13) a few minutes later

the cooperating defendant gave the arrest signal by exiting his vehicle, having previously been

instructed to give the signal only after he had shown Mo the sham cocaine stored in the narcotics

trap in the rear passenger side door panel of the automobile. 

Since the amount of cocaine in the cooperating defendant's possession (26 kilograms)

could not have been for personal use, it would be reasonable for the officers to conclude that the

cooperating defendant intended to sell/deliver some or all of that cocaine to others. Given what

they knew at the time, it would also be reasonable for the arresting officers to believe that the

cooperating defendant would have knowledge about persons who could supply and be willing to

purchase kilogram quantities of cocaine. (Tr. 47, 69 -71.) The meeting of the cooperating

defendant and Defendant, Mo, occurred in substantially the manner the cooperating defendant

said it would, where he said it would occur, at the time he said it would occur, and Mo was

driving the make, color and type of automobile the cooperating defendant said he would be

driving. Furthermore, nothing the cooperating defendant said or predicted was contradicted by

their observations.

The officers also knew from their own observations that just prior to the arrest signal,

Defendant was seen to position himself in such a way as to allow him to look into the back of the

cooperating defendant's automobile in a manner that would enable him to view the contents of

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the narcotics trap. (Tr. 76, 87-88, 91.) Upon hearing the police sirens, Defendant attempted to

run into his car and escape before the police could arrest him, evidencing knowledge of guilt.1

These facts taken together are sufficient to establish probable cause to arrest the defendant. 

Defendant also argues that the evidence seized from his vehicle and his subsequent

incriminating statements should be suppressed. A vehicle, of course, may be stopped and

searched without a warrant if there is probable cause to believe that the vehicle contains

contraband or other evidence of illegal activity. United States v. Seymour, 519 F.3d 700, 713

(7th Cir. 2008). The officers claim that heroin was in plain view inside Defendant's car thus

giving them the requisite probable cause to search Defendant's car and seize the heroin. 

The testimony of Officers Brazao, Crawford and O'Reilly was substantially consistent in

describing the manner in which the arrest took place. Brazao and Crawford testified that when

they first saw the satchel in Defendant's car, it was open and the suspect narcotics were in plain

view, as depicted in Government Exhibit 2. O'Reilly does not recall seeing the satchel when he

first looked inside the automobile as he was busy attempting to subdue Defendant and only

glanced in for the purpose of making sure there were no other perpetrators in the automobile.

There was some uncertainty as to how the driver’s side door was opened or who opened it. 

O’Reilly clearly testified that it was Defendant who opened the front driver side door of his

1 Defendant contends that only “unprovoked flight” is proper to assist is establishing probable cause, citing

Marshall ex rel. Gossens v. Teske, 284 F.3d 765 (7th Cir 2002) and Illinois v. Wardlow, 528 U.S. 119 (2000). In

Wardlow, the Supreme Court found that reasonable suspicion existed to stop and frisk a suspect who had fled upon

seeing police officers patrolling in an area known for heavy narcotics trafficking. In other words, fleeing at the mere

sight of police officers approaching is suspicious behavior. In Marshall, the Seventh Circuit stated that Marshall’s

flight likely could not have provided reasonable suspicion even for a stop and frisk, let alone probable cause for an

arrest, because his flight was in response to his observation of masked men with guns running towards him. Any

“sane person” would run away from masked men with guns. Marshall, 284 F.3d at 771. Furthermore, in Marshall,

the defendant ran towards the uniformed police officers, not away from them, to tell them robbers were chasing him.

The officers in the case at bar were all wearing ballistic vests with police insignia, so they could not have been

mistaken for robbers. Moreover, Defendant ran away from them, not towards them. (Tr. 12, 70, 77.) 

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vehicle before he was arrested in an attempt to get into his car. Resolving this issue is not

crucial, however, as under the circumstances, the officers would have had the right to open the

door in order to view the interior of the automobile which was obscured by tinted windows in

order to inspect for weapons or other occupants who might pose a danger. United States v.

Stanfield, 109 F.3d 976, 981 (4th Cir. 1997).2

Officer Castaneda took photographs, Government’s Exhibits 2-9, of the inside of the

automobile and the contents thereof. As between photographs two and three, one showing the

briefcase open with the narcotics in plain view and the other showing the briefcase closed with

the contents hidden, he could not recall which photograph was taken first. According to the time

stamp on the photographs, both were taken in the same minute of time. Castaneda stated that by

the time he got to the car to take photographs, the car was already being searched by agents, and

he took photographs of things that were pointed out to him by other agents. (Tr. 107.) Crawford

further testified that he drove Defendant's car to the Markham police station because it was the

intention of the officers to seize the car for forfeiture proceedings. 

Defendant testified that in cooperation with his friend Al, who was also a drug dealer

dealing mostly in marijuana, he had previously purchased heroin from the cooperating defendant

and had discovered that the heroin was of poor quality. He informed Al, who arranged for an

exchange of the bad heroin for an “equivalent” amount of cocaine. It was to effectuate this

exchange that Defendant set out to meet the cooperating defendant the night he was arrested. 

Defendant testified that in preparation for the exchange, he prepared a zip lock bag with 364

grams of heroin, which he in turn placed inside the black plastic bag depicted in Government

2 Defendant himself testified that the purpose for tinting the windows to his car was to conceal anything he might

have inside the car, including passengers. 

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Exhibit 8, along with 4 packets of mixed heroin. In another plastic bag, Defendant placed 14

grams of crack cocaine, which he intended to sell that night to his friend, Mike, who was waiting

for him outside of his home in Harvey. Defendant then tied up the plastic bag and put it in the

bottom of his briefcase. Defendant placed several car titles on top of the plastic bag as

camouflage, and placed the briefcase on the floor of the front passenger seat of the car. 

Defendant denies ever having the briefcase and/or black bag open in his vehicle. Thus, the

testimony of the police officers and that of Defendant with respect to the precise condition and

location of the narcotics within his automobile is in direct conflict.3

The Court finds the testimony of the police officers credible in that it was substantially

consistent and, when taken in the context of the entire record, makes sense. The Court finds

Defendant's testimony lacking in several significant respects. First, Defendant testified he did

not expect the cooperating defendant to accept the drugs, but only to inform him that he would

have to take the drugs to another location for delivery. But this makes little sense. If the

meeting with the cooperating defendant was only to inform Defendant that he should drop off

the poor quality heroin and/or pick up the replacement cocaine at some other place, there was

simply no need for such a dangerous face-to-face meeting at night in a parking lot. That

information could easily have been provided over the phone with little exposure to anyone. 

Next, Defendant declared that he was shocked when the cooperating defendant informed him

that he had been riding around with bricks of cocaine in his vehicle, yet he himself was driving

around with cocaine, heroin and large amounts of money in his vehicle. The cooperating

defendant at least had a secret trap built into his automobile in which to hide the cocaine. It is

3 There appears to be no dispute that after his arrest, Defendant was informed of his Miranda rights and agreed to

give a statement.

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common practice for narcotics and other illegal substances to be transported in automobiles with

such traps. Nothing about that should have shocked Defendant. 

Defendant’s elaborate explanation as to why he would never drive around with heroin in

plain view simply misses the point. He was not arrested driving en route to the exchange. He

was arrested after he had parked his vehicle and while he was in the process of verifying that the

replacement cocaine was available for exchange. When Defendant set out for the exchange, the

heroin, by his own testimony, was packed in a ziplock bag which was placed inside a black

plastic bag that had been tied shut, positioned at the bottom of a locked briefcase and covered

with layers of camouflaging documents and cocaine. In order to perform the actual exchange,

Defendant had to dig the heroin out of its hiding place and untie the black bag at some point. If

he expected to do this exchange alone at night in a parking lot, one would expect Defendant to

want to do so as quickly as possible. He had to know that he was at his most vulnerable, either

to being set up or to being ripped off, at the point of the actual exchange. Indeed, by his own

testimony, Defendant was nervous about meeting at a parking lot. The way to reduce his

exposure would be to minimize the time required for the exchange and leave the area as quickly

as possible. The speed of the transaction would be enhanced if he took the heroin out from the

bottom of the briefcase and inside the black bag sometime before going to the cooperating

defendant’s vehicle. Once Defendant verified that the cooperating defendant had the cocaine for

the exchange, he could return to his automobile, grab the heroin and make the exchange. This is

precisely what the officers describe they observed when they looked through the open door and

windows of the defendant's car -- cocaine at the top of the briefcase where it could be quickly

reached and transferred to the cooperating defendant’s vehicle. The briefcase itself was

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unlocked and ready to receive the replacement cocaine. For these reasons, the Court concludes

that the evidence supports a finding that the drugs were in plain view, thus providing probable

cause for searching the vehicle. 

The government argues in the alternative that the narcotics would inevitably have been

discovered by lawful means and thus they are not subject to being suppressed. Nix v.Williams,

467 U.S. 431, 444 (1984); United States v. Gravens, 129 F.3d 974, 979 (7th Cir. 1997). The

Court agrees. Once Defendant was arrested, his car had to be secured. It is highly unlikely that

federal agents would leave the car abandoned in a public parking lot. (Tr. 14-15.) Indeed, Agent

Crawford testified that he drove Defendant's vehicle to the Markham police station for

safekeeping because it had been determined that the automobile was to be forfeited. (Tr. 66.) 

Under such circumstances, it is likely that, if the automobile had not been searched at the scene,

an inventory search would have been completed at the police station in order to discover any

dangerous items, document the contents of the automobile for safekeeping and protect the police

from any accusations of theft or negligence. Such a search would have uncovered the cocaine

and money recovered at the scene of the arrest.

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For all of the above reasons, the motion to suppress the evidence and Defendant’s

subsequent statements is denied. 

Dated: April 11, 2013

SO ORDERED ENTER:

 ---------------------------------------------

 RONALD A. GUZMÁN

 District Judge

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