the defendant that there is a genuine basis for granting the relief sought and that real factual
issues warrant an evidentiary hearing. 142 F, Supp. 2d at 1051 (“There is nothing in Randle or
its Seventh Circuit progeny that requires anything more than a sufficiently detailed written
motion.”). And as the court in Oliver addressed, the concern that the court would be
overwhelmed by meritless evidentiary hearings is muted insofar as (1) many motions fall short of
the mark even if what is alleged is true; (2) some motions raise legal issues only; and (3) some
motions are conclusional or “bare-bones.” /d. at 1050-5], Diaz’s version of the events does not
fall under any of these categories. Indeed, if Diaz’s evidence is conclusional, then the
government’s must be also. The United States presents a number of facts supporting its response
which are unsupported by any affidavit, including that the officers involved in the arrest had been
aware of Diaz’s criminal history for many years when they saw him in possession of the
handgun.

Accordingly, since the parties present markedly different circumstances surrounding
Diaz’s arrest, the court will hold an evidentiary hearing on Diaz’s motion to quash arrest and
suppress evidence. See United States v. Kunda, No. 01 CR 118, 2001 WL 1543519, at *3 (N.D.
Ill. Dec. 3, 2001) (“Where the government and the defendant present ‘markedly different
versions of the events,’ the court may order an evidentiary hearing.”) (quoting United States v.
Sims, 808 F. Supp. 596, 605 (N.D. Ill. 1992)), Ruling on Diaz’s motion will be deferred until
such hearing has been held. The status hearing set for May 26, 2004 stands and a date for an
evidentiary hearing will be set at that time.

ENTER: Sean Mfifitor~—

“JOAN HUMPHREY LEFKOW
United States District Judge

Dated: May 12, 2004



The facts set forth by Diaz are certainly both disputed and material. Whether the officers
saw Diaz (1) holding the gun; (2) placing the gun in a paper bag; and (3) walk into a recessed
gangway with the gun and walk out again without it are all material in determining whether
either probable cause or reasonable suspicion existed to arrest and/or search Diaz. Moreover, the
court does not view Diaz’s allegations as vague or conclusional. He states that he never had a
gun and was merely standing on the street corner when arrested. It is difficult to see how much
more definite, specific and detailed Diaz could get, and the United States does not point to
specific facts that are lacking. Diaz’s version of the events was certainly well within his personal
knowledge.

Nevertheless, the United States argues that Diaz has not met his burden for an evidentiary
hearing insofar as he does not provide an affidavit with personal knowledge. Some judges in this
district have apparently required such affidavits to be filed before an evidentiary hearing may be
held. E.g., United States v. Johnson, No. 96 CR 379, 1997 WL 124269, at *1 (N.D. TIl, March
18, 1997); United States vy. Mallard, No. 93 CR 566, 1994 WL 22958, at *2 (N.D. IIL. Jan. 25,
1994); United States v. Robinzine, No. 93 CR 486, 1993 WL 443394, at *3 (N.D. IL Oct, 29,
1993), Others have not. E.g., United States v. Oliver, 142 F. Supp. 2d 1047, 1050 (N.D. Ill.
2001); United States v. McNeal, 853 F. Supp. 1047, 1051-52 (N.D. Ill. 1994). The Seventh
Circuit has never held that an affidavit is required for a defendant to make the requisite showing
necessary for an evidentiary hearing.

After considering the above cases, and in light of the facts present here, the court does not
believe that Diaz was required to present an affidavit in order for a suppression hearing to be

held. As the court in Oliver noted, the Seventh Circuit in Randle only required a submission by



Minute Order Porm (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge ‘ Sitting Judge if Othe:
anor Magistrate Judge Joan H. Lefkow than Assigued judge
CASE NUMBER 03 CR 935 DATE 5/12/2004
CASE USA vs. Sergio Diaz
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) stale briefly the nature

of the motion being presented.)

MOTION:

DOCKET ENTRY:

q) QO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion duc___. Reply to answer briefdue____.

(4) im} Ruling/Hearingon___set for at.

(5) o Status hearing[held/continucd to] [set for/re-set for]on___—ssetfor__— at

(6) a) Pretrial conference{held/continued to] [set for/re-set for]on__—ssetfor_— at.

(7) oO Trial(set for/re-set for]on at

(8) o [Bench/Sury trial] [Hearing] held/continued to ___at

(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 OO FRCP41{a)(1) O FRCP41(a)(2).

ao «of [Other docket entry] Enter Memorandum Opinion and Order, Evidentiary hearing on defendant’s
motion to quash arrest and suppress evidence will be set at the previously scheduled status hearing on
5/26/04.

(ij) ff [For further detail sce order attached to the original minute order,]

No notices required, advised in open court,
2

No notices required,

Notices mailed by judge's staft,
Notified counsel by telephone,
Docketing to muil notices.
Mail AO 450 form. —4
Copy to judge/magistrule judge.

courtroom
MD deputy’s
initials

Date/time reccived in
central Clerk’s Office ruling deputy inMals



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
vs. ) No. 03 CR 935
) Judge Joan H. Lefkow
SERGIO DIAZ, )
)
Defendant. )
Ha)
a

May;

* tind

MEMORANDUM OPINION AND ORDER

Defendant, Sergio Diaz (“Diaz”), has been indicted by the United States of America
(“United States”) on a single charge of being a felon in possession of a firearm. See 18 U.S.C.

§ 922(g)(1). Before the court is Diaz’s motion to quash arrest and suppress evidence, In
conjunction with this motion Diaz requests an evidentiary hearing. For the reasons stated below,
the court agrees to hold an evidentiary hearing and defers ruling on Diaz’s motion to quash arrest
and suppress evidence until such hearing has been completed.

Diaz sceks to quash his arrest and suppress evidence on grounds that his arrest was
without a valid search or arrest warrant and was without probable cause. In order for a
suppression hearing to be held on such a motion, Diaz has the initial burden of presenting
“definite, specific, detailed, and nonconjectural” facts that are both material and disputed. United
States v, Rodriguez, 69 F.3d 136, 141 (7th Cir. 1995) (citations omitted). This burden cannot be
satisfied by mere vague or conclusional allegations. See United States v. Randle, 966 F.2d 1209,

1212 (7th Cir, 1992).

24



Under the United States’ version of the facts in this case, Chicago Police Officcrs Bob
Vargas and Jesse Sandoval were on patrol in an unmarked car during a crowded festival when a
citizen approached and told them that he had seen a heavyset man wearing a red shirt holding a
gun near 1651 S, Throop Street. At around this time, the officers allegedly spotted a man in a red
shirt (which was Diaz) about a block away and began surveillance. According to the United
States, Officer Vargas saw Diaz standing on the sidewalk holding a large handgun. As Officer
Vargas watched, Diaz allegedly put the handgun in a brown paper bag and closed the bag to fit
around the shape of the gun. Officer Sandoval did not see the entire gun but did see its butt
protruding from the bag. Both officers observed Diaz walk down into a recessed gangway in
front of the residence at 1651 S, Throop. When he emerged from the gangway, Diaz did not
have the paper bag. At this point the officers approached Diaz and the two men with him, All
three were arrested. Officer Sandoval went into the gangway where Diaz had taken the paper bag
and retrieved a brown paper bag containing a steel blue .357 magnum revolver with four live
rounds of ammunition.

In his motion Diaz presents a much different account of the events that took place. He
maintains that he never possessed the firearm, specifically denying that he ever placed it in his
hand or in a paper bag. He also claims that he did not walk into the gangway and did not place
any gun under a vaulted sidewalk. According to Diaz, he was standing on the sidewalk and was
violating no law when he was arrested by the Chicago Police Officers. Morcover, Diaz also

claims that one of the two other men arrested, Angel Montemayor, states that Diaz was not in

possession of the firearm.