were “Torres/Orozco.” Burress stated in his affidavit that based on his investigation he had
discovered that this was Orozco’s residence and, because Orozco was the Caciqua of the Aurora
Latin Kings, a search of the house would uncover “ledgers of drug trafficking activity and
documents pertaining to gang activities, such as membership lists, photographs of gang members,
identified gang clothing, [and] receipts of drug trafficking.” (Aff. { 22.)
DISCUSSION

Orozco submits that the search warrant obtained relating to his residence should be
quashed and that any evidence seized from the search should be suppressed because the affidavit
supplied by Burress did not provide a nexus between any alleged illegal activity or alleged
contraband items and the residence. According to Orozco, because no nexus exists, the affidavit
fails to establish probable cause to support the search and runs afoul of the Fourth Amendment to
the United States Constitution. U.S. Const. Amend. IV (“no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”).

In determining whether a search warrant should be issued,

[t]he task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him,

including the “veracity” and “basis of knowledge” of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place. And the duty of a reviewing court is simply to

ensure that the magistrate had a “substantial basis” for . . . conclud[ing] that

probable cause existed.
United States v. Lamon, 930 F.2d 1183, 1187 (7th Cir. 1991) (ellipsis and bracket in original)

(quoting I/linois v. Gates, 462 U.S. 213, 238-39 (1983)). The affidavit must bring forth “specific

facts and circumstances to allow the judge to reasonably conclude that the items sought to be


1991); see also, Leon, 468 U.S. at 922 n. 23 (whether “a reasonably well trained officer would
have known that the search was illegal despite the magistrate’s authorization”); Koerth, 312 F.3d
at 866 (“Could the officer have reasonably believed that the facts set forth in the affidavit were
sufficient to support a magistrate’s finding of probable cause.”). “[I]n the ordinary case, a law
enforcement officer ‘cannot be expected to question’ the magistrate’s probable cause
determination.” United States v. Sleet, 54 F.3d 303, 307 (7th Cir. 1995) (quoting Illinois v.
Krull, 480 U.S. 340, 349 (1987).

There was a reasonable basis here for an officer to believe that probable cause existed.
The affidavit was filed during the midst of an ongoing investigation into a particular street gang,
and numerous members of the gang stated that Orozco was the “Caciqua” or second in
command. Through his experience, the affiant was aware that gangs such as the Latin Kings
keep detailed records and ledgers of their activities and that these records or ledgers are normally
kept at the home of the “Caciqua.” Moreover, through his investigation Burress learned that
Orozco resided at the residence which was to be searched. Finally, Burress had substantial
evidence that Orozco was involved in ongoing criminal activities, as a number of the other gang
members described drug transactions involving Orozco, even if those transactions presented no
nexus to Orozco’s residence. Based on all these facts, there was a reasonable basis for Burress to
believe that probable cause existed and his reliance on the probable cause determination made by

a detached and neutral magistrate mandates that Orozco’s motion be denied.

9


secondary residence, that the defendant still had drugs remaining there after the sale and that the
defendant also sold drugs from the automobile which was then parked in front of the residence.
dd, at 1188. These activities taken together “suggested a pattern of criminal activity” and
supported a search of the secondary residence. Jd. With respect to the automobile, the affidavit
filed in support of the search warrant did not indicate when drugs where sold out of the car. Id.
at 1188-89. Significanily, the court also noted that the detective’s statement that “drug dealers
often store drugs and drug paraphernalia in their automobiles” was, by itself, insufficient to
establish probable cause because it was nothing more than a statement of a conclusion. /d. at
1189. The court noted, however, that these two factors, combined with the informant’s
discussion of recent drug sales out of the secondary residence where the automobile was parked,
established “a patten of drug trafficking that involved both the house and the automobile” and
did manage to establish probable cause. /d. Finally, with regard to the search of the primary
residence, the court noted that “the specific evidence already seized—along with [the detective’s]
experience that drug dealers often hide money, drugs, and other incriminating evidence at their
permanent residences—provided a substantial basis for a finding of probable cause.” Jd. at 1190.
There is little in the affidavit provided here to support the notion that Orozco’s residence
was involved in drug transactions. While the affidavit provides evidence that Orozco himself
may have been a drug dealer, his residence was never implicated. Some of the alleged drug
transactions were alleged to have been performed through “coded phone contacts” and “face-to-
face meetings near [an informant’s] residence.” (Aff. { 18.) As for others transactions described
by various informants, no location at all was identified. (Aff. § 15,17.) Thus, the court is left

only with statements that Orozco was the “Caciqua” and that, in Agent Burress’ experience, gang


seized are associated with the crime and located in the place indicated.” United States v. Koerth,
312 F.3d 862, 867 (7th Cir. 2002). However, “[i]f evidence is obtained pursuant to a search
warrant unsupported by probable cause, it is nevertheless only suppressed where the magistrate
abandoned his detached and neutral role, or where the officers seeking the warrant were
dishonest or reckless in preparing the affidavit in support of the warrant, or where the officers
could not have reasonably had an objectively reasonable belief in the existence of probable
cause.” United States v. Dumes, 313 F.3d 372, 380-81 (7th Cir. 2002) (citing United States v.
Leon, 468 U.S. 897 (1984)).

Orozco’s argument that the warrant at issue here was not supported by probable cause is
persuasive. The United States itself concedes that the only correlation between any illegal
activity or contraband items and Orozco’s residence was Agent Burress’ experience in knowing
that high ranking gang members, particularly those who serve as the “Caciqua,” oftentimes keep
records of gang activities in their residences. There is, however, no particular factual basis to
support that Orozco kept any such records in his home. In United States v. Lamon, 930 F.3d
1183 (7th Cir. 1991), the court noted that “issuing magistrates are ‘entitled to take into account’
the experience of officers whose affidavits explain the significance of specific types of
information,” but also clarified that “conclusory statements without more do not provide a
substantial basis for finding probable cause.” /d. at 1189.

The court in Lamon dealt with three searches, one dealing with an alleged drug dealer’s
secondary residence, one with his automobile and one concerning his primary residence.

930 F.2d at 1189-90. There was ample basis in the affidavit supporting the search of the

secondary residence, as one informant stated that the defendant had dealt drugs out of this


experience. Neither United States Currency nor Sandoz is binding precedent and to the extent
there is a conflict with Lamon, this court is obligated to follow Lamon.

Of course, a conclusion that evidence was obtained pursuant to a search warrant
unsupported by probable cause does not end the analysis here, as suppression of evidence based
on a warrant later determined to be defective is only necessary in certain limited circumstances.
In Leon, the Court noted that the purpose of the exclusionary rule was to deter police misconduct,
and excluding evidence obtained in good-faith reliance on a probable cause determination made
by a neutral and detached magistrate would in no way serve that purpose. 468 U.S. at 916-22.
The court did list, however, four situations where the exclusionary rule would still warrant
suppression of evidence gained from a warrant unsupported by probable cause. These include
(1) when “‘a magistrate issued the warrant in reliance on a deliberately or recklessly false
affidavit”; (2) when a magistrate has failed to perform her neutral or detached judicial role; (3)
when the warrant is based on an affidavit “so Jacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable”; or (4) when the warrant is facially deficient
in that it does not identify the place to be searched or things to be seized with particularity. Id. at
923. See also, United States v. Medlin, 798 F.2d 407, 409 (10th Cir. 1986); United States v.
Gant, 759 F.2d 484, 487 (Sth Cir. 1985).

There is no basis in the record to support (1), (2) or (4) above and, in any event, Orozco
zeroes in on (3). He argues that the agents involved in this case could not have held an
objectively reasonable belief that probable cause existed. As the Seventh Circuit has noted, this
is a “difficult standard” and requires proof that “a reasonable officer would have known that the

warrant did not support probable cause.” United States v. Fairchild, 940 F.2d 261, 264 (7th Cir.


‘Minute Onter Form (06/97)

United States District Court, Northern District of Illinois

wor Magtate Judge Joan H. Lefkow “than Aste Judge
CASE NUMBER 02 CR 1164 DATE 2/25/2004
CASE USA vs. John Orozco
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
(i) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer briefdue__-
(4) oO Ruling/Hearingon___setfor____at _
(5) oO Status hearingfheld/continued to] [set for/re-set for]on __——sset for at
(6) im] Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_——sat_
7) Oo Trial[set for/re-set for]on___—sat__—.
(8) oO [Bench/Jury trial] [Hearing] held/continuedto___aat
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

(0) ME [Otherdocketentry] Enter Memorandum Opinion and Order. Defendant’s motion to quash search
warrant and suppress evidence [33-1] is denied.

(il) of [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

| Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.
Copy to judge/magistrate judge.
courtroom
MD deputy’s

initials

Date/time received in _
central Clerk's Office sling deputy intils



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

evidence is denied [#32].

ENTER: Dna ka pend

1OAN HUMPHREY LEFKOW
United States District Judge

Dated: FebruaryZAS, 2004

10


records or ledgers are kept in the residences of such individuals. This is nothing more than the
conclusional statements the court rejected in Lamon and is insufficient to establish probable
cause.

The United States argues that other cases have found probable cause in situations similar
to this case. For example, it points to 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), where in response to an argument similar to that which Orozco makes here the court
noted,

In accordance with our prior rulings, we conclude that a sufficient nexus was

established between the evidence sought, i.e., evidence of claimant Fisher’s

involvement with drug trafficking, and his residence. The circumstances

described in the affidavit, indicate that claimant Fisher was a large drug dealer

who had been dealing drugs over the years. This information combined with the

opinion of Officer Fugate, an officer experienced in drug investigations, that drug

dealers frequently keep records or notations of their transactions where they have

ready access, provides a sufficient nexus for a reasonable person to conclude that

drug records would be maintained at the claimant’s home which was also his

alleged place of business.

Id. at 874. Moreover, the United States directs the court’s attention to United States v. Sandoz,
784 F. Supp. 777 (D. Or. 1992). In that case a sufficient basis to search a defendant’s residence
was found where the evidence showed that the defendant was a distributor of cocaine and that
based on a police officer’s experience “evidence of the distribution of controlled substances will
be found in the residences and vehicles of a distributor of cocaine ....” Jd. at 781.

One has a hard time reconciling the findings of probable cause in these cases with the

Seventh Circuit’s rejection in Lamon of conclusional statements concerning only an officer’s


cocaine shipments in semi-tractor trailer truck loads and sends the money back to Mexico in the
same trucks. (Aff. 9 13, 16-17.)

4. That a search warrant was executed on October 22, 2002 at the residence of Ramirez,
who was identified by several individuals as the number one officer of the local Latin Kings
street gang. The search of Ramirez’s residence uncovered a list of gang members, and included
on that list was the name “Big Turtle.” (Aff. 7 14.)

5. That according to Jose X. Hernandez, another admitted member of the Latin Kings
who has been indicted and is cooperating with federal authorities, Orozco was the second in
command or “Caciqua” of the local Latin Kings street gang. Hernandez informed law
enforcement officers of his belief that Orozco sold approximately 100 kilograms of cocaine over
a period of time. Hernandez further stated that Orozco also sells marijuana in amounts
approaching 100 pounds at a time. Finally, Hernandez confirmed that Orozco is known amongst
the Latin Kings as “Big Turtle.” (Aff. 15.)

6. That according to Jose Oliva, who has been indicted and is cooperating with federal
authorities, he received cocaine at various times from Orozco during the first six months of 2002.
Oliva also stated that “Big Turtle” holds the rank of “Caciqua” or second in command of the
Aurora Latin Kings. (Aff. § 18.)

The above evidence was submitted by Agent Burress in support of an application to
search a one story, white ranch-style house with an attached two car garage. The house was
marked 1N367 and located on Pouley road in Elburn, Illinois. Public records indicated that the
house was owned by Corina Torres, who Burress claims was married to Orozco. The United

States Postal Service in Elbum, Illinois further stated that persons receiving mail at the house


explained that he had previously served as a Special Agent with the Tennessee Bureau of
Investigation, thereby giving him nearly ten years of experience investigating illegal possession,
distribution and/or manufacture of controlled substances and street gangs. (Aff. J 1-3.)

2. That based on his training and experience in drug and gang related investigations,
persons involved in the street gang the “Latin Kings” are involved in the importation and
distribution of controlled substances. Moreover, individuals associated with these types of street
gangs keep detailed records/ledgers of their members, dues and transactions involving the
amounts and types of drugs sold, the prices charged and monies received for those drugs and the
names of the persons the drugs are to be distributed to. These documents and records were said
to often be kept in the residences of higher ranking gang members, specifically the “Caciqua,” or
number two person in charge of the gang. Agent Burress also explained that he was involved in
an ongoing investigation into the Latin Kings street gang in Aurora, Illinois called “Round Two.”
(Aff. ff 5-10.)

3. That according to Juan Francisco Corral, an admitted member of the Latin Kings who
has been indicted and is cooperating with federal investigators, Andres Ramirez A/K/A “Oso” or
“Inca” is the leader of the Aurora Latin Kings street gang while Orozco, A/K/A “Big Turtle”
served as the Caciqua or second in command. Corral also stated in later interviews that Jorge
Alanis, A/K/A “Sharkey” is a close associate of Orozco’s and that Alanis received large amounts
of cocaine from Orozco. Corral further explained that he purchased 11 kilograms of cocaine
from Orozco on or about June 24, 2002 and that he knew Orozco as “Big Turtle” since 1989.
Corral explained that Orozco owns a large ranch near Durango, Mexico as well as other

businesses such as bars and strip clubs in that area. He is alleged to receive marijuana and


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, )
)
Defendant. )
)

MEMORANDUM OPINION AND ORDER

Defendant, John Orozco (“Orozco”) 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 Orozco’s motion to quash the search warrant executed at his
residence and to suppress evidence directly and indirectly gained therefrom. For the reasons
stated below, the motion is denied.

BACKGROUND

The firearm that forms the basis of the charge leveled against Orozco was seized in a
search of his residence that took place on December 5, 2002. In support of that search, on
December 3, 2002, FBI Special Agent Ken A. Burress (“Agent Burress”) filed an application and
supporting affidavit with Magistrate Judge Arlander Keys for permission to search Orozco’s
home located at 1N367 Pouley Road in unincorporated Elburn, Illinois. Magistrate Judge Keys
granted the application and issued the search warrant as requested. In his affidavit, Agent Buress
stated the following:

1. That he had been employed as an FBI Special Agent for over four years and had

received specialized training and had made numerous narcotics arrests. Agent Burress also