in the boxes. . . . To find otherwise would be to invite gencral warrants authorizing

searches of any property owned, rented, or otherwise used by a criminal suspect -- just the

type of broad warrant the Fourth Amendment was designed to foreclose.
id. at 1097-98. Similarly, in the instant case, Agent Burress did not have anything morc than a
gucss that evidence of a crime would be found at Orozco’s Elburn residence. Burress’
invocation of the magic words “based on my training and experience,” without more, is
insufficient to transform this guess into probable cause.
B. Good Faith Reliance

In United States v. Koerth, 312 F.3d 862 (7th Cir. 2002), the Seventh Circuit noted that if
a defendant is successful in establishing the invalidity of a search warrant, the burden then shifts
to the government to establish that the police relied in good faith on the judge’s decision to
accept the affidavit and issue the warrant. /d. at 868. The court further noted that an officer’s
decision to obtain a warrant is prima facie evidence that he was acting in good faith. Zd. Since
Agent Burress did in fact obtain a warrant, the government has met its prima facie proof that its
agents were acting in good faith. The court in Kverth noted that a defendant may rebut this
prima facie proof by presenting evidence that:

(1) the magistrate “wholly abandoned his judicial role,” or otherwise failed in his

duty to “perform his ‘neutral and detached’ function and not serve merely as a

rubber stamp for the police”; Leon, 468 U.S. at 923, 914, 104 S.Ct, 340; or (2) the

officer submitted an affidavit “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Id. at 923, 104 §.Ct. 340.

Id.
Orozco focuses on the second part of the above test, which requires a showing that (1)

“courts have clearly held that a materially similar affidavit previously failed to establish probable

cause under facts that were indistinguishable from those presented in the case at hand” or (2) “the


be kept, based on the nature of the evidence and the type of offense. In the case of drug dealers,
evidence is likely to be found wherc the dealers live.” Jd. at 1399. Essentially, the court held that
a magistrate judge may issue a search warrant based solely on presumptions about the
generalized behavioral patterns of a certain class of criminals.’ This court is not bound by
Angulo-Lopez and declines to adopt its reasoning. As Justice Hannah of the Arkansas Supreme
Court explained, the Ninth Circuit allows issuance of a search warrant “based not upon an
affidavit providing facts to show or infer reasonable cause to believe that contraband or evidence
of a crime will likely be found in the place to be searched, but rather upon an affidavit only
supplying facts to show or infer reasonable cause to believe the suspect is a drug dealer, and the
court by presumption will supply the lacking inference that the affidavit should have supplied,”
Yancey v, Arkansas, 44 §.W.3d 315, 322 (Ark, 2001).

The court finds the reasoning of the Sixth Circuit in United States v. Schultz, 14 F.3d
1093 (6" Cir. 1994), more persuasive. In Schultz, the court held that a search warrant for a
suspect’s safe deposit boxes should not have issued where the only connection between the safe
deposit boxes and the suspect’s alleged criminal activity was the officer’s statement that, “Based
on his training and experience, . . . it is not uncommon for the records, etc. of such [drug]
distribution to be maintained in bank safe deposit boxes.” /d. at 1097. The court stated,

While an officer’s “training and experience” may be considered in determining probable

cause, it cannot substitute for the lack of evidentiary nexus in this case, prior to the

search, between the safe deposit boxes and any criminal activity. [The officer] did not
have anything more than a guess that contraband or evidence of a crime would be found

"Though the Ninth Circuit did not mention it in its discussion of what a magistrate judge may reasonably
infer from an affidavit, the affidavit in support of the warrant in Angulo-Lopez did contain specific information
suggesting that drugs would be found at the residence to be searched. The court noted that “citizen-informants also
stated that the appellant was selling heroin out of his new residence at 4669 Fubrer Street.” 791 F.3d at 1396.

3



affidavit is so plainly deficient that any reasonably well-trained officer would have known that
this affidavit failed to establish probable cause and that he should not have applied for the
warrant.” Jd, Orozco argues that the affidavit submitted by Agent Burress was so plainly
deficient that a reasonable officer would have known that it failed to establish probable cause.
However, Orozco produced no information at the evidentiary hearing to change the court’s
opinion that Agent Burress could have reasonably believed that the facts set forth in the affidavit
were sufficient to support a finding of probable causc. First, as discussed above, the Seventh

Circuit has not clearly and unequivocally held that an officer's “training and experience,”
standing alone, fails to establish a sufficient nexus between the evidence sought and the place to
be searched, Furthermore, in at least two circuits, an officer’s conclusional statements about the
likelihood of finding evidence at a particular location, if such a statements are based on the
officer's “training and experience,” are apparently sufficient to establish a nexus between the
evidence sought and the place to be searched. See Angulo-Lopez, 791 F.2d at 1399; United
States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100 Dollars in

United States Currency, 965 F.2d 868 (10th Cir. 1992). While this court disagrees that such

statements are sufficient to establish probable cause, it was not unreasonable for Agent Burress to

believe that they did.



See

Minute Order Fegm (0697)

United States District Court, Northern District of Mlinois

‘resameatnge | Som. tehow | Steet
CASE NUMBER 02 CR 1164 DATE 5/20/2004
CASE USA vs. John Orozco
TITLE

[Un the following box (a) indicate the patty filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: ‘of the motion being presented,]

DOCKET ENTRY:

(i) a Filed motion of [ use listing in “Motion” box above.)

(2) Qa Brief in support of motion due

(3) Qo Answer brief to motion due____- Reply to answer briefduc___

(4) oO Ruling/Hearingon____ssetfor_ ss at_

(5) qQ Status hearing[held/continued to] (set for/re-set for]on set for__—_at

(6) a Pretrial conference[held/continued to] [set for/re-sct for]on___—ssetfor at

(7) go Trial{set for/re-setforJon___—at_

(8) a (Bench/Jury trial] [Hearing] held/continuedto_____at

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

DOFRCP4(m) OLocal Rule 41.1 COFRCP41(a\(1) 0 FROP41(a)(2).

qo) [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, defendant’s motion [#32] to quash search warrant and suppress
evidence is denied.

gi) ff {For further detail see order attached to the original minute order.|

‘No notices required, udvised in open court.

No notices required.

o | Notices mailed by judge's staff,
Nolified counsel by telephone.

Docketing to mail notices,
Mail AO 450 form.

Copy to judge/magistrate judge,

courtroom cad wudd
MD deputy’s
initials

Date/time received in -
egntral Clerk's Office. nailing deputy initiaks



CONCLUSION

For the reasons stated above, Orozco’s motion to quash search warrant and suppress

evidence is denied [#32].

ENTER: Q@27 (Hq Kegf ha —
(JOAN HUMPHREY LEFKOW
United States District Judge

Dated: May 20, 2004



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
vs. ) No. 02 CR 1164
) Judge Joan H. Lefkow
JOHN OROZCO, ) 2
)
Defendant. ) OCKE TI ED
) May 23 2004

MEMORANDUM OPINION AND ORDER

On February 24, 2004, this court denied the motion of defendant, John Orozco
(“Orozco”), to suppress evidence seized pursuant to a search warrant exccuted at his residence.
The court held that, though the scarch warrant was not supported by probable cause, the motion
to suppress would be denicd because the officer executing the warrant relied in good faith on the
probable cause determination of the magistrate judge. See United States v. Leon, 468 U.S. 897,
916-22 (1984). Orozco moved for reconsideration of that decision, requesting that a hearing be
held so that he could more fully develop the evidence. The court granted Orozco’s motion and
held an evidentiary hearing on May 7, 2004.

A. Probable Cause

Alt the hearing, the government requested that the court reconsider its initial holding that
the search warrant was unsupported by probable cause. The court denies the motion to
reconsider, but takes this opportunity to clarify its rationale. The government concedes that the
only information linking any illegal activity or contraband items and Orozco’s residence was
(1) informant testimony that the Orozco was the second in command, or “Caciqua,” of the local

y?

Latin Kings street gang and (2) the statement of Agent Burress, the FB] Agent who filed the



affidavit accompanying the warrant request, that based on his “training and experience” high
ranking gang members, particularly those who serve as the “Caciqua,” often keep records of gang
activitics in their residences. The government argues that, according to the Seventh Circuit’s
holding in United States v, Lamon, 930 F.2d 1183 (7th Cir. 1991), this information was sufficient
to establish probable cause to search Orozco’s residence. The court disagrees. In Lamon, the
officer's affidavit for the search warrant contained several picces of specific information
justifying a search of the suspect’s automobile. The affidavit included information that, on one
unspecified occasion, the suspect had sold drugs from his automobile and that the suspect
recently had sold drugs out of the house in front of which he parked his automobile. /d. at 1185,
1189. The court noted, “Taken together, these picces of information suggested a pattern of drug
trafficking that involved both the house and the automobile,” fd, at 1189. The court then added,
Furthermore, [the officer] indicated that, based on his nine years of experience in
Milwaukee’s Drug Enforcement Unit, he knew that drug dealer often store drugs and drug
paraphemalia in their automobiles. Although conclusory statements without more do not
provide a substantial basis for finding probable cause, issuing magistrates are ‘entitled to
take into account’ the experience of officers whose affidavits explain the significance of
specific types of information.
Id, The court did not hold that an officer's “training and experience,” standing alone, is a
sufficient basis for a finding of probable cause; it held only that issuing magistrates are entitled to
take such information into account,
In United States v. Angulo-Lopez, 791 F.2d 1394 (9" Cir. 1986), another case cited by the
government, the court went a step further than the Seventh Circuit did in Lamon, holding that

magistrate judges are not only ‘entitled to take into account’ an officer’s training and experience,

but that “[a] magistrate is entitled to draw reasonable inferences about where evidence is likely to