Where roommates have separate rooms, each roommate presumes that he has
exclusive control over his own room. See United States v. Aghedo, 159 F.3d 308, 310
(7th Cir. 1998). We therefore think it reasonable to presume that roommates do not have
actual authority to consent to a search of another roommate’s room unless there are
specific facts that would indicate otherwise. See id. (two roommates in an apartment
might not have authority to consent to a search of the other’s room); United States v.
Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (roommate can at least consent to search of
common areas to which he has access). Thus, we find that Madrigal did not have actual
authority to consent to a search of Montes’ bedroom.

We also find that the circumstances were such that the officers did not reasonably
conclude that Madrigal had apparent authority to consent to a search of Montes’ room.
When the officers entered the apartment, they could clearly see three separate bedrooms.
Upon questioning, Madrigal identified one room as Montes’ and on his signed consent
form, he specifically gave consent to search only his own room. Madrigal gave no
indication that he had authority to consent to a search of any bedroom besides his own.
Therefore, the officers could not have reasonably believed that Madrigal had authority to
consent to a search of all three rooms and once the consent form was signed, they knew
they did not have authority to do so. Therefore the officers never had valid consent to
search Montes’ bedroom.

We also have serious doubts as to whether Madrigal understood enough English
to give the officers valid consent to search the apartment. Although he answered a few
yes or no questions in English and showed a Mexican identification card upon request,

the officers nevertheless felt that Officer Marrero, a Spanish-speaking officer, needed to

19


openly and peaceably walk up the steps of a man’s home with the intent of asking him
some questions, even if that someone is an officer of the law).

We opine that the current situation is similar to the circumstances in United States
v. Conner where the officers, responding to a tip regarding illegal activity, went to the
defendant’s garage to ask him some questions.° Conner, 478 F.2d 1320, 1322-1323 (7th
Cir. 1973). The garage had an apron near an alleyway and from both the alley and apron,
the officers could see into the interior of the garage where the officers observed that a car
was being taken apart. /d. at 1322. The court found that the defendants in the garage had
no reasonable expectation of privacy and that “even if the officers were on the apron,
which was not fenced off from the alley, we think that a mere ‘technical trespass’ did not
transform an otherwise reasonable investigation into an unreasonable search.” Jd. at
1323. Officer Howard’s actions in approaching Montes and asking him to come out of
the garage for questioning were reasonable in light of the suspicious circumstances of the
vehicle switch and the duffel bag transaction. Because Officer Howard merely did what
most visitors would have done to talk with Montes, and because the apron was open and

observable to the public, we find it was not within the protected curtilage of Montes’

® Montes relies heavily on Payton v. New York, which held that a warrantless search of a
home is presumptively unreasonable. Payton, 445 U.S. 573, 586 (1980). Montes
intimates that this holding from Payton limited or overruled Conner. In reality, Payton
and Conner are entirely consistent. Payton dealt with warrantless entries into the home
while Conner addressed whether pathways are protected as part of a home under the
Fourth Amendment. The principle from Conner that certain areas such as pathways and
driveways do not always have Fourth Amendment protection is not inconsistent with the
Payton holding. If a pathway is not part of a home, then Payton does not apply. This is
consistent with subsequent holdings such as United States v. French, where the Seventh
Circuit held that the gravel pathway of a home was not protected under the home’s
curtilage. French, 291 F.3d at 954,

13


extend the case law and instead hold that in order to conduct a protective search, officers
must show specific facts establishing that the indicate the area to be swept harbors
individuals who may pose a danger to the arresting officers. Finding no such facts here,
we grant Montes’ motion to suppress the evidence found in his bedroom during the
protective sweep.’
CONCLUSION
For the reasons stated above, Montes’ motion to suppress is granted in part and

denied in part. (R. 30-1.) We also deny Barrera’s motion to suppress and his motion to

ENTERED: LZ
oe

Judge Ruben Castillo
United States District Court

quash his arrest. (R. 31-1; 31-2.)

Dated: July 28, 2003

However, these cases are based on the theory that there is an immediate danger to the
officers from inside the home that necessitates a protective sweep inside the home for the
officer’s safety before they can leave. That is not the situation here and there was no
indication that any individuals in Montes’ apartment posed a danger to the officers
outside.

? The government also recognizes that protective sweeps are usually only valid when
conducted during an arrest. See United States v. Johnson, 170 F.3d 708, 716 (7th Cir.
1999) (“the protective sweep in Buie [was] conducted pursuant to an arrest for which
there was a warrant.”); Arch, 7 F.3d at 1303 (“Buie assumes that the police already are
lawfully present in the home to arrest its occupant”). The government does not argue in
this case that the search of the apartment was a continuation of Montes’ arrest and thus
must argue that protective sweeps should be admissible even when the sweep is not made
incident to an arrest. We need not address this argument here, however, because the
government has not fulfilled its burden of showing that there were “specific and
articulable facts” that other dangerous persons were in the apartment.

23


hearing as to whether Officer Howard at this point was standing in the alleyway or if he
was on the cement apron extending from the garage. (Jd. at 27.) Officer Howard had
previously testified before two grand juries that he was on the apron when he first
observed Montes, but he later testified at the June 26, 2003 hearing that he was actually
in the alley. (/d. at 31-32.) Officer Howard’s explanation for this inconsistency was that
during the grand jury testimony he was not concerned about being technical regarding his
exact location outside of the garage. (Id. at 73.)

In response to Officer Howard’s request to speak to him, Montes dropped a set of
keys he was holding and walked out of the garage. (/d. at 28.) Montes was no longer
holding the duffel bag. (/d. at 19.) At this point, Officer Howard received Officer
Kosmowski’s radio message informing him of Barrera’s flight. (/d.) Officer Howard
then grabbed the back of Montes’ jacket and held him while he performed a visual sweep
of the front of the garage by walking from side to side to see if anyone else was present in
the garage. (/d. at 74.) Officer Howard did not enter the garage. (/d. at 19.) Officer
Howard saw the duffel bag in the garage while conducting the visual sweep outside the
garage doors. (/d. at 75.) The bag was lying on its side with the opening facing toward
the alley and it looked like it had been thrown down. (Jd.) Protruding from the opening
of the bag was part of a red-tinted brick-shaped package. (/d.) Based on Officer
Howard’s previous experience with narcotics, he believed the package to contain
narcotics. (Id. at 77-78.)

Officer Howard asked Montes his name, where he lived, if the vehicles in the
garage were his and what was in the duffel bag. (/d. at 51.) Montes informed him that

his name was Luis, that he lived on the second floor of the apartment and that the


be called in to translate, We find it curious that Officer Marrero was never called to
testify at the hearing as he undoubtedly could have shed some light on Madrigal’s
understanding of the consent. However, because we have already found that Madrigal
did not have authority to consent to the search of Montes’ bedroom and this motion to
suppress is relevant only to that evidence found in Montes’ bedroom, we need not
definitively decide whether Madrigal understood enough English to consent to a search of
the apartment or his bedroom.
2. Protective Sweep

The government next argues that the cocaine found in Montes’ room should not
be suppressed because it was discovered during a valid protective sweep. The concept of
a protective sweep was first propounded in Maryland v. Buie where the Supreme Court
defined a protective sweep as a “quick and limited search of [the] premises, incident to an
arrest and conducted to protect the safety of police officers and others.” Buie, 494 U.S.
325, 327 (1990). The Court’s reasoning was that when officers are invading a person’s
home to make an arrest, they may find themselves in dangerous situations and thus are
permitted to take reasonable steps to ensure their safety. Jd. at 333-34. A protective
sweep is therefore permissible if the officers have a reasonable belief based on specific
and articulable facts that “the area to be swept harbor[s] an individual posing a danger to
the officer or others.” Jd. In Buie, the officers made an arrest of a suspected armed
robber in the robber’s home. Jd. at 328. The alleged robber was arrested coming out of
the basement and the officers went into the basement to see if there were any other people

who might pose a danger. /d. The Court remanded the case to the district court to

20


Patrick, 959 F.2d 991, 994 (D.C. Cir. 1992) (officers knew that defendant was keeping
weapons in the apartment and the lessee of the apartment had already given written
consent to search the entire apartment). In all of these cases there were specific facts
showing that the officers were entering an area that harbored dangerous individuals who
were known to have weapons.

Such facts are not present here. Neither of the officers at any time during the
surveillance saw any weapons or other indications that Montes or Barerra were violent.
While those in the drug trade may often use weapons, this alone is not sufficient to justify
a protective sweep. See Taylor, 248 F.3d at 514 (agreeing with proposition that a sweep
is not justified solely because the subject of drugs is a dangerous one). Further, the arrest
took place outside of the apartment in the garage and there was no reason to think the
officers were in any immediate danger from the second floor of the apartment. It is too
much of a stretch to say that for their own safety, the officers had to go up to the
apartment from the garage and conduct a protective sweep of the apartment.

The current situation is not one that Buie envisioned. The officers in this case did
not going into the home of a dangerous criminal to make an arrest while in possession of
specific facts showing that other dangerous individuals might be in the apartment.
Asking this Court to hold that whenever an officer arrests a drug offender outside of his
apartment, regardless of whether the person is known to be dangerous or is known to
have weapons, the officer can then go up to the apartment and make a protective search

of the premises would be extending Buie farther than is warranted.'’ We decline to

"We recognize that some circuits have allowed protective sweeps to be made inside the
home when the arrest was made outside the home. See United States v. Arch, 7 F.3d
1300, 1304 (7th Cir. 1993) (collecting cases), cert. denied, 510 U.S. 1139 (1994).

22


the position from which he plainly viewed the gun.” Id. at 316. Such is the case here.
Officer Howard would have been in a position to view the cocaine even without detaining
Montes and thus the detention does not affect the discovery of the cocaine.’°

B. Apartment Search

The government offers two bases to uphold the search that uncovered a gun and
500 grams of cocaine in Montes’ room: (1) an alleged consent from Montes’ roommate to
search the apartment; and (2) Officer Kosmowski’s protective sweep to check and see if
anyone else was in the apartment. We address the consent issue first.

1. Consent

The government argues that Montes’ roommate Madrigal consented to a search of
the apartment including the bedrooms. The issues are whether Madrigal had actual or
apparent authority to consent to a search of Montes’ bedroom and, if he did, whether
Madrigal understood enough English to give a valid consent for the search. A third party
who has common authority over the premises may consent to a search of the commonly

shared areas in the absence of the non-consenting person. United States v. Matlock, 415

© Although we need not decide the issue, we also find that Officer Howard
conducted a valid Terry stop. Police officers may stop a person and detain him briefly
for questioning upon suspicion that he may be connected with criminal activity. See
Terry v. Ohio, 392 U.S. 1, 30 (1968). The less intrusive a search, the less justification is
required. Brown, 64 F.3d at 1086. Under the circumstances, suspicious activity led
Officer Howard to briefly detain Montes. Officer Howard observed Barrera make a
vehicle switch, a common action in drug transactions, obtain a duffel bag that was half
full, make stops to use his cell phone and then meet with Montes to transfer the duffel
bag. When Officer Howard approached Montes’ garage to question him, Officer
Kosmowski radioed Officer Howard that Barrera had fled. These actions were sufficient
for Officer Howard to temporarily detain Montes on suspicion of drug activity.
Additionally, the intrusiveness of Officer Howard’s actions to Montes were minimal. He
did not frisk Montes and merely held him in front of him while he checked the garage to
see if anyone else was there. Cf. id.

17


expectation of privacy in Montes’ garage or the duffel bag, we find that his Fourth
Amendment rights were not violated and thus Barrera’s motion to suppress is denied.
Il. Montes’ Motion to Suppress

Montes seeks to suppress the five kilograms of cocaine found in the garage as
well as the 500 grams of cocaine and the gun found in his bedroom. Because both sides
have stipulated that Montes rented the garage and the apartment and thus has a
proprietary interest in the property, Montes’ motion does not suffer the same defect as
Barrera’s. For the reasons set forth below, however, we hold that Montes did not have an
expectation of privacy in the contents of the duffel bag because the duffel bag was open
and in plain view in the garage. Conversely, we hold that Montes did have an
expectation of privacy in his bedroom and that the officers violated his Fourth
Amendment rights by searching it.

A. Garage Search

Montes first argues that the cocaine found in the garage must be suppressed
because the officers did not have a search warrant to enter the garage. Central to Montes’
argument are three premises, all of which must be true for his motion to be granted: (1)
garages are protected from warrantless searches under the Fourth Amendment, (2) the
apron extending from the garage also falls under the protection of the Fourth
Amendment; and (3) Officer Howard was standing on the apron when he observed the
package of cocaine in the duffel bag.

Montes’ strongest argument lies in his first premise and the government does not
dispute that a person may have an expectation of privacy in his garage. See Taylor v.

United States, 286 U.S. 1, 6 (1932) (holding that agents could not enter garage without a


Madrigal subsequently signed a consent form to search his room. (/d. at 36-37.) Later,
another roommate, Yunuen Ochoa, arrived and signed a consent form for the search of
his room. (/d. at 42.) The only evidence found in the apartment that is at issue in this
motion is the gun and cocaine found in Montes’ room during the protective sweep by
Officer Kosmowski.

Currently before the Court are Defendants Montes and Barrera’s motions to
suppress the cocaine found in the garage and Montes’ motion to suppress the cocaine and
gun found in his bedroom. Defendants argue that the searches of the garage and the
apartment violated their Fourth Amendment rights against unreasonable searches and
seizures. After careful consideration, we grant Montes’ motion to suppress the cocaine
and gun found in his bedroom and deny his motion to suppress the cocaine found in his
garage. We also deny Barerra’s motion to suppress the cocaine found in Montes’ garage
and Barrera’s apartment.

LEGAL STANDARDS

A defendant who seeks to suppress evidence bears the ultimate burden of proof
and persuasion in making a prima facie showing of illegality. United States v. Randle,
966 F.2d 1209, 1212 (7th Cir. 1992). Additionally, the defendant has the burden of
establishing that his own Fourth Amendment rights were violated by the challenged
seizure. Jd. To establish an illegal search the defendant must demonstrate a personal
expectation of privacy in the place that was searched. Minn. v. Carter, 525 U.S. 83, 88
(1998), Reliance on vague, conclusory allegations is insufficient. Jd. Rather, a

defendant must present “definite, specific, detailed, and nonconjectural” facts to justify


vehicles were not his. (/d.) When Officer Howard asked what was in the duffel bag,
Montes responded “no habla” [sic]. (/d.) Officer Howard then placed Montes under
arrest and seized the duffle bag. (/d. at 27-28.) Officer Kosmowski retumed to the
garage just after the arrest of Montes and saw the duffle bag from outside the garage. (Id.
at 102.) Officer Kosmowski also saw part of the brick-shaped package protruding from
the bag and concluded that it was likely narcotics. (Jd. at 112). The seized packages
tested positive for cocaine.

Following the seizure, the officers went to the second floor apartment and.
knocked on the door. (/d. at 29.) Manuel Madrigal-Martinez (“Madrigal”) answered the
door. (/d.) Officer Howard identified himself as a police officer and asked if Madrigal
lived there and if he knew Montes. (/d. at 81.) Madrigal answered yes to both questions.
Ud.) Officer Howard then informed Madrigal that Montes had been arrested for narcotics
and asked if they could come in and look around. (/d.) Madrigal again answered yes.
(id.)

While Officer Howard stayed with Madrigal, Officer Kosmowski conducted a
protective sweep of the apartment to see if anyone else was present. (Jd. at 82.) The
doors to each of the apartment’s three bedrooms were open when Officer Kosmowski
conducted his sweep. (July 7, 2003 Hr’g Tr. at 152). During the protective sweep,
Officer Howard asked Madrigal to whom the nearest bedroom belonged. (Jd. at 83.)
Madrigal indicated that it was Montes’ bedroom. (/d.) In that bedroom Officer
Kosmowski found 500 grams of cocaine and a gun, both lying on a shelf in the closet.
(Id. at 84.) Officer Howard asked Madrigal who owned the cocaine and gun, to which he

responded “no habla” [sic]. (/d.) A Spanish-speaking officer was then called in and


U.S. 164, 170 (1974). Common authority rests on “mutual use of the property by persons
generally having joint access or control for most purposes.” /d. at 171 n.7. However,
third party consent only applies to those areas of the premises where there is joint control
or access. See United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) (stating that two
friends in apartment might reasonably expect to maintain exclusive access to their own
bedrooms).

For a valid consent, the roommate must have either actual authority to consent to
the search or apparent authority. See JIl. v. Rodriguez, 497 U.S. 177, 188-89 (1990).
Apparent authority is present when facts available to the officer at the moment of consent
would warrant a person of reasonable caution to believe that the consenting party had.
authority over the premises. /d. If the surrounding circumstances make the consenting
party’s authority questionable, the officer has a duty to inquire further as to the third
party’s authority. See id.; Montville v. Lewis, 87 F.3d 900, 903 (7th Cir. 1996). The
government bears the burden of establishing that the third party had the requisite
authority to consent to the search or that the officers reasonably believed he did. See
Duran, 957 F.2d at 503.

Neither side disputes that Madrigal had actual authority to consent to a search of
his own room and the common areas of the apartment. The only dispute is whether there
was actual or apparent authority to search Montes’ bedroom. The government has not
offered any evidence indicating that Madrigal had any kind of shared authority over
Montes’ bedroom. Montes rented the apartment and his name was on the lease.

Madrigal was merely renting a room from Montes and there are no facts showing that

Madrigal was given any kind of permission to use or access Montes’ room.

18


violated because he had no expectation of privacy in a friend’s apartment). Barrera has
not shown that he had any expectation of privacy in Montes’ garage.

Barrera has also not shown that he had an expectation of privacy in the duffel bag.
Notably absent in Barrera’s affidavit is any statement averring that Barrera subjectively
had any expectation of privacy in the bag. See Katz v. United States, 389 U.S 347, 361
(1967) (stating that a person must first exhibit an actual (subjective) expectation of
privacy and, second, the expectation of privacy must be a reasonable one). Even if
Barrera did have a subjective expectation of privacy in the duffel bag, it was not a
reasonable one. Barrera makes no claim to own the duffel bag and does not allege any
proprietary interest in the bag. See U.S. v. Duprey, 895 F.2d 303, 309 (7th Cir. 1989)
(listing factors to determine whether there is a reasonable expectation of privacy in an
area or item), cert. denied, 495 U.S. 906 (1990). He also does not show that he had
exclusive access to the duffel bag. /d. We therefore are left with the fact that he carried
the duffel bag from his apartment and gave it to Montes.’ From all appearances, Barerra
gave up any expectation of privacy he may have had in the bag when he gave it to
Montes. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (defendant who hid drugs in
acquaintance’s purse had no expectation of privacy; “the precipitous nature of the
transaction hardly supports a reasonable inference that petitioner took normal precautions

to maintain his privacy”). Because Barrera has not shown that he had a reasonable

“ Barrera alleges that leaving the duffel bag with Montes created a bailment, but fails to
point to any facts that would support this finding. Moreover, Barrera’s argument rests on
his claim that the bag was “obviously” closed. However, we do not find this claim to be
as obvious as Barrera does and in fact, find just the opposite. As detailed below, we find
that when Officer Howard observed the duffel bag, it was open. Barrera has not fulfilled
his burden of showing he had a reasonable expectation of privacy in the duffel bag.


‘ >
‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

uben Castillo
Ruben than Assigned Judge

CASE NUMBER 03 CR 21 - 1 and 2 DATE 7/28/2003
CASE USA vs. Francisco Barrera - Martinez and Luis Montes
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.}

DOCKET ENTRY:

(0) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) o Answer brief to motion due - Reply to answer brief due

(Co) Oo Ruling/Hearing on set for at .

(5) a Status hearing set for 8/5/2003 at 10:00 A.M..

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on __ set for at .

7) mi Trial[set for/re-set for] on at

(8) oO [Bench/Jury trial] [Hearing] held/continued to at

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

OOFRCP4(m) [Local Rule 41.1 OIFRCP41(a)(1) OI FRCP41(a)(2).

ao i [Other docket entry} | Suppression hearing concluded. Enter Memorandum Opinion and Order.
Defendant Montes’ motion to suppress is granted in part and denied in part. Defendant Barrera’s motion
to suppress and motion to quash his arrest are denied. Government’s response to Defendant Montes’
motion to sever is due on or before 8/1/03. The Court will rule on 8/5/03 at 10:00 a.m. From today’s date
until 8/5/03 is excluded pursuant to 18 U.S.C. 3161(h)(1)(F) and 18 U.S.C. 3161(h)(8)(A)(B). (X-E and
X-T).

al) [For further detail see order attached to the original minute order.]

No notices required

No notices required, advised in open court.

umber of notices

Notices mailed by judge’s staff.

Notified counsel by telephone,

Y | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge,

RO
initials

courtroom id
deputy’s

JUL 2 9 2003

dave docket

cate mailed notice

‘Date/time received in
central Clerk's Office

‘mailing deputy initials



definitively decide whether Officer Howard was on the apron or in the alley when he
observed the package of cocaine.

The relevant question in determining whether an area, in this case the garage
apron, falls under the protected curtilage of a home is “whether the area in question is so
intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of
Fourth Amendment protection.” United States v. Dunn, 480 U.S. 294, 301 (1987). Four
factors have been used to determine whether an area should be considered part of a
home’s protected curtilage: (1) the proximity of the area to the home; (2) whether the
area is included within an enclosure surrounding the home; (3) the nature of the uses to
which the area is put; and (4) the steps taken by the resident to protect the area from
observation by passersby. Jd. at 301. The Supreme Court in Dunn, for example, held
that the area surrounding a barn was not protected because it was some distance from the
house, the area was not enclosed and the defendant did little to protect the area from
observation. /d. at 302-303. Thus, police officers did not violate the defendant’s Fourth
Amendment rights by standing on the area near the open barn and looking into the barn’s
interior. Jd. at 305.

We find this same analysis applies to the apron extending from Montes’ garage.
The only factor that favors finding the apron to be protected is its proximity to the garage,
which we have assumed is protected. However, proximity to the home is not alone
sufficient to qualify the area for Fourth Amendment protection. See United States v.
French, 291 F.3d 945, 952 (7th Cir. 2002) (stating that the proximity of the area to the
house does not alone establish that the area is within the home’s curtilage, but is just one

of the factors to be considered). In this case, the other three factors weigh against finding

11


warrant); U.S. v. Oaxaca, 323 F.3d 1154, 1157 (9th Cir. 2000) (holding that a garage is
protected by the Fourth Amendment). Assuming that Montes’ garage was protected by
the Fourth Amendment does not resolve the dispute, however, because Officer Howard
did not enter the interior of the garage until after he had seen the package of cocaine
partially protruding from the bag.> The primary issue then is whether Officer Howard
was standing on the apron when he observed the duffel bag, and if he was, whether the
apron extending from the garage was protected as part of the garage.

We first address whether Officer Howard was standing on the garage apron or in
the alley when he first observed the duffel bag. Officer Howard testified in two previous
grand juries that he was standing on the apron. (June 6, 2003 Hr’g Tr. at 31-32.) He
acknowledged that he understood the distinction between the alley and the apron during
that grand jury testimony. (/d. at 89.) However, Officer Howard testified at the June 6,
2003 hearing that he was actually standing in the alley when he first observed the duffel
bag, not the apron. (/d.) Officer Howard’s explanation of this inconsistency was that in
his prior grand jury testimony, he was not concerned about the distinction between the
alley and apron. (Jd. at 73.) We are not entirely persuaded by this explanation, however,
and find Officer Howard’s testimony self-contradictory at best. We conclude that it is
more likely than not that Officer Howard did not keep track of whether he was standing
on the apron or in the alley when he observed the duffel bug. However, because we find

that the apron was not protected under the Fourth Amendment in this case, we need not

5 Whether Officer Howard reasonably believed the partially protruding package was
narcotics is hardly subject to dispute. Officer Howard has fifteen years of law
enforcement experience and seven years as a DEA officer; based on the suspicious
circumstances and his experience in drug enforcement, we do not doubt that Officer
Howard reasonably believed the brick-shaped package contained narcotics.

10


relief. United States v. Hamm, 786 F.2d 804, 807 (7th Cir. 1986). See also United States
v. Felix-Felix, 275 F.3d 627, 633 (7th Cir. 2001).

ANALYSIS
I. Barrera’s Motion to Suppress

Barrera seeks to suppress the five kilograms of cocaine found in the duffel bag in
Montes’ garage. He has not, however, fulfilled his burden of showing he had an
expectation of privacy in either Montes’ garage or in the duffel bag itself. To claim the
protection of the Fourth Amendment, a defendant must demonstrate a reasonable
expectation of privacy in the place that was searched. Carter, 525 U.S. at 88. “A person
who is aggrieved by an illegal search and seizure only through the introduction of
damaging evidence secured by a search of a third person’s premises or property has not
had any of his Fourth Amendment rights infringed.” Rakas v. IIL, 439 U.S. 128, 134
(1978); Alderman v. United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights
are personal rights which . . . may not be vicariously asserted.”).

Barrera has no proprietary interest in Montes’ garage nor does he allege any
special relationship to the garage that would give him an expectation of privacy. Cf.
Mina. y. Olson, 495 U.S. 91, 100 (1990) (holding that an overnight social guest had an
expectation of privacy in the place he was staying). Temporary visitors, such as Barrera,
do not develop reasonable expectations of privacy on someone else’s property. Carter,
525 U.S. at 91 (holding that the defendants who were packaging cocaine at someone
else’s apartment for a few hours did not have an expectation of privacy in the apartment);

Randle, 966 F.2d at 1213 (holding that defendant’s Fourth Amendment rights were not


determine if the protective sweep was based on specific facts indicating that the basement
harbored an individual posing a danger to those on the arrest scene. Jd. at 336.

The government argues that narcotics transactions often involve dangerous
individuals and that when the officers approached the second floor of the apartment, they
did not know if there were any other individuals involved in the drug transaction. We do
not think these facts alone, however, give rise to the necessity of a protective search. In
the Seventh Circuit cases that have allowed protective searches, the officers knew the
individuals involved had weapons or had reason to believe other people were present who
might pose a danger to the police officers. See United States v. Burrows, 48 F.3d 1011,
1017 (7th Cir. 1995) (protective sweep allowed where defendant had committed violent
crime with a firearm, had a history of violent criminal activity and officers were refused
entrance but heard movement inside the apartment), cert. denied, 515 U.S. 1168 (1995);
United States v, Barker, 27 F.3d 1287, 1289 (7th Cir. 1994) (protective sweep allowed
where officer arrested defendant in home and saw weapons on the premises).

In addition, the government’s cited cases are all distinguishable from the instant
facts because those cases involved different justifications for the protective search as well
as specific facts indicating the suspect was armed and dangerous. United States v.
Dickerson, 975 F.2d 1245, 1246 (7th Cir. 1992) (defendant was a suspected armed robber
and voluntarily allowed the officers into his home), cert. denied, 507 U.S. 932 (1993);
United States v. Taylor, 248 F.3d 506, 510, 514 (6th Cir. 2001) (defendant was a murder
suspect who had sold illegal weapons, was part of the Michigan militia, and when
officers knocked on his door, they heard scuffling sounds inside suggesting that more

than one person was in the apartment), cert. denied, 534 U.S. 981 (2001); United States v.

21


Barrera was on the telephone, Officer Kosmowski saw defendant Montes in a nearby
garage located in an alley. (/d. at 108.) Barrera then drove to Montes’ garage, retrieved
the duffel bag from the Yukon and gave it to Montes. (/d. at 95.) The duffel bag was
approximately half full of something, (id. at 12), and contained a drawstring on top, (id.
at 108), Officer Kosmowski testified that the drawstring at the top of the bag was open.
(Id.) Montes then took the duffel bag into the garage. (/d.) Both sides stipulated that
Montes rented the garage and the nearby apartment. (Jd. at 8.)

Barrera, in the meantime, got into his Yukon and drove away. (Id. at 71.) Officer
Howard asked Officer Kosmowski to follow Barrera and stop him. (/d.) Barrera drove a
short distance and parked in an empty parking lot. (dd. at 98.) Officer Kosmowski
followed and parked directly behind him. (/d.) Barrera then exited the Yukon, dropped
his keys to the ground, jumped a fence in front of him and fled. (/d. at 100.) As Barrera
dropped his keys, Officer Kosmowski got out of his vehicle and shouted, “Stop. Police.”
(Ud. at 101.) When Barrera continued to flee, Kosmowski radioed the other agents and
informed them of Barrera’s flight. (/d. at 110.) Barrera was subsequently arrested
nearby by a Berwyn police officer.’ (/d. at 101.)

Meanwhile, Officer Howard approached Montes’ garage. (/d. at 18.) Inside,
Officer Howard observed two vehicles side by side and Montes standing near a side door
of the garage. (/d. at 17-18.) Officer Howard announced to Montes that he was a police

officer and asked to speak to him. (/d. at 18.) There was a question at the suppression

> The circumstances of Barrera’s arrest are not clear. Barrera filed an unsigned affidavit
alleging that he thought Officer Kosmowski was a robber and thus sought out the Berwyn
police officer voluntarily. The government disputes this portion of Barrera’s affidavit but
neither side gave testimony on it. (June 23, 2003 Hr’g Tr. at 121.)


garage. Thus, if Officer Howard did in fact step onto the apron, he did not violate
Montes’ Fourth Amendment rights.’

Having found that Officer Howard viewed the duffel bag from an area not
protected by the Fourth Amendment, the plain view doctrine then allowed Officer
Howard to retrieve the cocaine. See United States v. Rivera, 825 F.2d 152, 157 (7th Cir.
1987), cert. denied, 484 U.S. 979 (1987). In making this finding, the Court specifically
credits Officer Howard’s testimony that the duffel bag was open and that one of the
packages of cocaine was partially showing. We believe that what likely happened is that
when Officer Howard pulled up to the garage to talk with Montes, Montes was surprised
by the officer’s unexpected arrival and dropped or threw down the bag. The bag then fell
on its side facing the garage entrance and the packages of cocaine fell forward leaving
one of the packages exposed to plain view. Based on Officer Howard’s experience, he
immediately recognized the brick-shaped package as narcotics.

Discovering the narcotics in plain view, however, does not itself justify Officer
Howard entering the garage and seizing the duffel bag. In addition to seeing the narcotics
in plain view, Officer Howard must also have had a lawful right of access to the duffel
bag. See Horton v. Cal., 496 U.S. 128, 137 (1990) (“not only must the officer be lawfully

located in a place from which the object can be plainly seen, but he or she must also have

7 Additionally, we find that the duffel bag and cocaine package were visible from the
public alleyway as well as the apron. The time was 3:45 in the afternoon and Officer
Howard testified that there was plenty of sunlight to see into the interior of the garage.
(June 26, 2003 Hr’g Tr. at 87.) The duffel bag was approximately five feet, (id. at 103),
from the garage opening and there were no shadows being cast on the bag from the
vehicles in the garage, (id. at 87). Because the contents of the duffel bag were in plain
view of the public alleyway, this further supports the finding that Montes had no
expectation in the privacy of the duffel bag.

14



garage. We find that Officer Howard’s belief that exigent circumstances required him to
seize the bag of cocaine out of fear for his own safety and for the security of the evidence
was reasonable. (/d.) This finding is further supported by Officer Howard’s limited
intrusion into the garage. Officer Howard merely walked into an open garage to seize the
duffel bag of cocaine that was sitting in plain view. Officer Howard’s actions were
reasonable under the circumstances.”

Finally, because we find that the discovery of the cocaine was not a result of
Montes’ detention but was in plain view, we need not address whether or not his
detention was valid. Where an officer would have discovered the evidence independently
of any illegal actions, the evidence will not be excluded. See Murray v. United States,
487 U.S. 533, 539 (1988); Nix v. Williams, 467 U.S. 431, 448 (1984) (stating that where
the evidence would have been discovered without the police error or misconduct, the
evidence is admissible). We find the current facts analogous to those in United States v.
Willis, where a police officer made an investigatory stop of the defendant near a vehicle
and observed a gun inside the car. Willis, 37 F.3d 313, 316 (7th Cir. 1994). The
defendant argued that his detention was illegal and that the gun found in the car should be
suppressed. Jd. at 315. The court rejected this argument stating that even if the initial

stop was unjustified, the officer “did not need to rely on the investigative stop to attain

° Montes argues that the better course of action for Officer Howard would have been to
secure the scene and obtain a search warrant for the garage. While this alternative may
have been preferable, the relevant inquiry for suppression is whether Officer Howard
reasonably believed that exigent circumstances required the immediate seizure of the
cocaine. See Rivera, 248 F.3d at 680. We find that Officer Howard’s belief that the
circumstances warranted seizure was reasonable and thus uphold the seizure of the
cocaine. See Brown, 64 F.3d at 1086 (“An officer on the beat must be allowed latitude to
make snap judgments, subject to the requirement of reasonableness”).

16



RELEVANT FACTS

On January 10, 2003, three DEA agents, Officers Ken Howard, John Kosmowski,
and Special Agent Ken Weidner® were conducting surveillance on an unrelated matter at
North Riverside Mall in North Riverside, Illinois. (June 6, 2003 Hr’g Tr. at 10.) While
conducting the surveillance, Officer Howard noticed defendant Barrera arrive in a
“sedan-type” vehicle, briefly enter and exit the mall and then enter a different vehicle, a
white GMC Yukon sports utility vehicle. (/d. at 10-11.) Based on fificen years of law
enforcement experience and seven years as a DEA officer, Officer Howard recognized
this as a “vehicle switch,” which drug traffickers commonly use during narcotic
transactions to avoid detection by law enforcement. (/d. at 60-61.) Officer Howard,
along with the two other officers, decided to follow Barrera. (Id. at 61.)

The officers followed Barrera to an apartment at 6239 West 26" Street in Berwyn,
Illinois. (/d. at 45.) Barrera parked his car and entered an alleyway behind the
apartment. (/d. at 63.) Barrera reappeared from the rear door of the apartment into the
alleyway carrying a khaki duffel bag with both arms. (Jd. at 65.) Barrera then put the
duffel bag down and retrieved the Yukon. (/d. at 66.) Barrera drove the Yukon into the
alley and loaded the duffel bag into the vehicle. (/d. at 67.) At one point while Barrera
was in the alley, Officer Howard observed him talking on his cell phone. (id. at 69.)

After placing the duffel bag in the Yukon, Barrera drove to an empty parking lot

near 26" Street and Ridgeland Avenue and made a telephone call. (/d. at 95.) While

? DEA Special Agent Ken Weidner did not testify at the June 26, 2003 hearing and his
whereabouts on January 10 are not clear from the other officers’ testimony. Because it
appears Agent Weidner did not play any significant role in the events relevant to this
motion, the facts set forth here focus primarily on Officers Howard and Kosmowski.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

) No. 03 CR 21

ve y

) Judge Ruben Castillo
FRANCISCO BARRERA-MARTINEZ ) DOCK TED
and LUIS MONTES )

WL 2 9 2009
MEMORANDUM OPINION AND ORDER

Defendants Francisco Barrera-Martinez (“Barrera”) and Luis Montes (“Montes”)
are charged with knowingly and intentionally possessing a controlled substance with the
intent to distribute in violation of 21 U.S.C. § 841(a)(1). Both defendants have filed
motions to suppress evidence found in Montes’ garage and bedroom alleging that the
drugs were obtained through an illegal search and seizure in violation of the Fourth
Amendment. Montes’ motion to suppress is granted in part and denied in part. (R. 30-1.)
Because we find that the cocaine seized in Montes’ garage was not the result of an illegal
search, we deny Montes’ motion to suppress this evidence. (R. 30-1.) However, because
the officers did not have valid consent to search Montes’ bedroom and improperly
conducted a protective sweep, we grant Montes’ motion to suppress the evidence found
in his bedroom. (R. 30-1.) We also deny Barrera’s motion to suppress and his motion to

quash his arrest.’ (R. 31-1; 31-2.)

' Barrera also seeks to quash his arrest, (R. 31-2), and te suppress evidence found in his
apartment at 6239 W. 26" Street, (R. 31-1). Barrera, however, makes no substantive
argument to support these motions. Furthermore, because we find that the duffel bag was
properly seized, the search warrant issued for Barrera’s apartment pursuant to the seizure

also was proper. Both motions, (R. 31-1; 31-2), are denied. 5h


a reasonable expectation of privacy in the garage apron. The apron is not enclosed in any
way and in fact naturally adjoins a public alleyway. Anyone walking in the alley can
observe what is happening on the apron. Additionally, Montes made no effort to conceal
the apron from outside observation, although this is not unusual because garage aprons
are not normally used for intimate activities of the home and thus are not normally
enclosed.

The circumstances of the encounter also support our finding that the garage apron
is not protected by the Fourth Amendment in this case. When Officer Howard saw the
suspicious delivery of the duffel bag, he approached Montes’ garage. The garage was
open and the apron and interior of the garage could easily be observed from the alley.
Any visitor who wanted to talk with someone in an open garage would naturally go to the
garage apron to get the person’s attention. This is analogous to going up someone’s front
steps to knock on the door. Where the circumstances would invite a visitor to use normal
means such as a porch, pathway or front steps to pay a visit or talk to the owner of the
property, there is no expectation of privacy in those paths. See French, 291 F.3d at 954
(reasonable for an officer to walk up gravel driveway and walkway to talk to defendant
working on car outside); United States v. Morrow, 541 F.2d 1229, 1232 (7th Cir. 1976)
(no violation of Fourth Amendment where officer walked up driveway and looked in
garage door window), cert. denied, 430 U.S. 933 (1977); United States v. Daoust, 916
F.2d 757, 758 (1st Cir. 1990) (a policeman seeking to talk to the occupant of a home may
follow a path to the rear of the house to try and find someone home); Davis v. United

States, 327 F.2d 301, 303 (9th Cir. 1964) (stating there is no rule making it illegal to

12


a lawful right of access to the object itself’). While Officer Howard viewed the duffel
bag from a lawful vantage point, this alone did not give him the authority to enter
Montes’ garage without exigent circumstances. See Payton, 445 U.S. at 585-86
(warrantless entries into homes are presumptively unreasonable).

One exigent circumstance arises when an officer objectively believes that
evidence may be destroyed or removed before a warrant can be secured. See United
States y. Rivera, 248 F.3d 677, 680 (7th Cir. 2001), cert. denied, 534 U.S. 923 (2001);
United States v. Robles, 37 F.3d 1260, 1263 (7th Cir. 1994) (exigent circumstances
existed to enter home and seize incriminating evidence in plain view out of fear that
evidence would be destroyed). Another exigent circumstance occurs when an officer has
reason to fear for his own safety or the safety of another. United States v. Brown, 64 F.3d
1083, 1086 (7th Cir. 1995).

We find that Officer Howard reasonably believed exigent circumstances required
him to seize the cocaine.* Officer Howard had just interrupted a narcotics transaction.
The number of persons involved was unknown and at least one suspect, Barerra, had not
been placed in custody. From Officer Howard’s experience in narcotics, he knew that
narcotics transactions could be dangerous. (July 7, 2003 Hr’g Tr. at 157.) He was in an

unfamiliar alley with a duffel bag containing cocaine packages sitting in plain view in the

8 Officer Howard did not create exigent circumstances as argued by Montes. Lawfully
investigating suspicious activity does not indicate that the officer is manufacturing
exigent circumstances. See United States v. MacDonald, 916 F.2d 766, 772 (2d Cir.
1990) (holding that when law enforcement agents act in an entirely lawful manner, they
do not impermissibly create exigent circumstances). Officer Howard lawfully
approached Montes from a public alleyway and inquired about Montes’ suspicious
activities. Officer Howard’s lawful actions did not illegally manufacture the exigent
circumstances that led to the seizure of the cocaine.

15