# Petition — Cruz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1128%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1071 ## Text upreme Court, U. &,~ FILED } QCT 22 1979 ee ; Hiegae M BIDAK, JR, CLERR In THE Supreme Court of the Anited States Ocroser Term, 1979 No. 79-650 HERMINIO CRUZ, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ALLAN A. ACKERMAN, ESQ. 100 North LaSalle Street Suite 611 Chicago, Illinois 60602 (312) 332-2863 Attorney for Petitioner, Herminio Cruz. Midwest Law Printing Co., Chicago 60601, Financial 6-3988 TABLE OF CONTENTS PAGE OPINION BELOW i JURISDICTION 2 QUESTIONS PRESENTED 2 CONSTITUTIONAL PROVISIONS AND STAT- UTES INVOLVED 4 STATEMENT OF THE CASE 13 (A) Overview 13 (B) Proceedings Below 14 INTRODUCTION TO ARGUMENT 22 REASONS FOR GRANTING THE WRIT 28 CONCLUSION | 44 GROUP APPENDIX A la APPENDIX B 7a GROUP APPENDIX C 8a GROUP APPENDIX D 13a APPENDIX E.... l4a LIST OF AUTHORITIES Cases Alderman v. U.S., 394 U.S. 257 (1960) 27, 43 Brewer v. Williams, 480 U.S. 387 (1977) 32, 33 Brown v. U.S., 411 U.S. 223 (1973) aa ae Fare v. Michael, ...... US. ......, 99 S.Ct. 2560 (1979) ........ | 2, 29, 30 Franks v. Delaware, 438 U.S. ......, 98 S.Ct. 2674 (1978) 24, 25, 38, 39 Government of Canal Zone v. Gomez, 566 F.2d 1289 (C.A. 5, 1978) 28 Jones v. U.S., 362 U.S. 257 (1960) 27, 40 Lego v. Twomey, 404 U.S. 477 (1972) 36 Massachusetts v. White, 436 U.S. ....., 99 C.St. 712 (1978) 26, 40 Michigan v. Mosley, 423 U.S. 96 (1975) 30 Nash v. Estelle, 597 F.2d 513 (C.A. 5, 1979) .......... 22, 23, 24 North Carolina v. Butler, ...... US. ......, 99 S.Ct. 1755 (1979) 2, 28, 29 Rakas v. Illinois, ...... US. ......, 99 S.Ct. 421 (1978) .... 27, 43 Schneble v. Florida, 405 U.S. 27 (1972) ..... 34 Simmons v. U.S., 390 U.S. 377 (1968) oe eee eens 27 Thompson v. Wainwright, 601 F.2d 768 (C.A. 5, 1979) 23, 24 US. v. Barry, 518 F.2d 342 (C.A. 2, 1975), ............-....2.20--- 37 U.S. v. Carmichael, 489 F.2d 983 (C.A. 7, 1973) (en banc) 39 US. v. Christian, 571 F.2d 64 (C.A. 1, 1978) ................ 31, 32 USS. v. Cruz, 568 F.2d 781 (C.A. 1, 1978) 13 US. v. Cruz, 594 F.2d 268 (C.A. 1, 1978) 2.0.02... .eeeeee 13 US. v. Esparza, 546 F.2d 841 (C.A. 9, 1976) ................ 38, 39 U.S. v. Genser, 582 F.2d 292 (C.A. 8, 1978) .............--00--- 27 U.S. v. Hernandez, 574 F.2d 1362 (C.A. 5, 1978) ........ 30, 31 U.S. v. Holbert, 578 F.2d 128 (C.A. 5, 1978) ..................-- 35 US. v. Mazzelli, 595 F.2d 1157 (C.A. 9, 1979) ................ 43 US. v. Priest, 409 F.2d 491 (C.A. 5, 1969) 2, 28 U.S. v. Rasor, 599 F.2d 1330 (C.A. 5, 1979) 40 US. v. Salvucci, 599 F.2d 1094 (C.A. 1, 1979) ................-- 26, 27, 41, 42, 43 Other Authorities Constitution of the United States: IIE, Gitta eclahcte snes ttipctehineentinscnsvniimmnictnnnini 4 Amendment V a Our Statement of the Case, ante, delineates transcriptual and record references as to the above representations. wllariaa = “Nevertheless, an affidavit must present to the magistrate sufficient facts to allow him _ in- dependently to determine whether probable cause to arrest exists. The protection of the Fourth Amendment lies in requiring that this inquiry be made “by a neutral and detached magistrate in- stead of ... by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Thus, the affidavit must inform the magistrate of all the essential facts with sufficient clarity to enable him to exercise his independent judgment. United States v. Anderson, 453 F.2d 174 (9th Cir., 1971). Half-truths and mis- representations as well as conclusory allegations can reduce the function of a magistrate to that of a rubber stamp upon the law enforcement officer’s personal determination of probable cause. Cf., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).” (546 F.2d at 8438, 844) In U.S. v. Carmichael, 489 F.2d 983 (C.A. 7, 1973) (en banc), the Court variously mandated suppression when: “However, we conclude that if deliberate govern- ment perjury should ever be shown, the Court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing” (489 F.2d at 989).* Petitioner suggests that excising paragraphs 2-3 and 8-9 of the instant affidavit ... in accordance with Franks leaves an _ insufficient Fourth Amendment “probable cause” basis for the warrant.?’ 26 Carmichael was cited with approval in Franks v. Dela- ware, 98 S.Ct. at 2678, n. 4. 27 If a challenged affidavit is insufficient because it in- corporated a flawed confession . .. then how can an affidavit (Footnote continued on following page) —40— We further suggest that taking the affidavit as it stands there is still insufficient probable cause. In U.S. v. Rasor, 599 F.2d 1830 (C.A. 5, 1979), the Court set aside a federal drug conviction where the affidavit was in part based on an informer’s tip but where... “the information must raise more than a reasonable suspicion in the magistrate’s mind” (599 F.2d at 1332). There is not a shred of independent evidence or infor- mation which could lead to the “probable cause” that there were drugs in the private premises searched. No one said there was “more drugs” in that home after Jose DeLeon [and not Rafael Rivera] left that home during the afternoon hours of December 16, 1976. Under such circumstances we ask this court to be alert to the type of abuses that are visited on the “affidavit-system” by over- zealous agents. This is such a case. 2A. The court below found that petitioner was not an “aggrieved person”. Thus “standing” was denied under 18 U.S.C. § 2510 (11) (Slip Op. 3, n.1). However, under Rule 41(e) of the Fed.R.Crim.Proc., . . . petitioner was and is a “person aggrieved” by virtue of the definitions contained in Rule 41(e).28 It borders on metaphysical to believe that consti- tutional law can proscribe “standing” to an aggrieved person but GRANT STANDING TO A PERSON AGGRIEVED. A distinction absent a difference. Peti- tioner is a citizen subjected to the vice of an arguably improper search under both the Fourth Amendment 27 continued survive this court’s scrutiny where the “confidential in- formant” is_a non-installed ne . . . Massachusetts v. White, ..... US. ....., 99 S.Ct. 712 (1978). 28 As announced by this Court in Jones v. U.S., 362 U.S. 257, at 261-62 (1960). oe and Rule 41(e), Fed.R.Crim.Proc. Neither the trial court nor the Court of Appeals challenged petitioner’s “stand- ing” to contest the legality of the affidavit on Fourth Amendment grounds. Yet, in a totally inconsistent manner, both courts said that petitioner was not an “aggrieved person”. The trial court recognizing the dilemma ... on the question of standing stated: “T regard this as a substantial question and certain- ly not one which has been raised frivolously by the defense. It is one that is not without difficulty”. (Tr. 77) The trial court, while denying petitioner “access” to the “Title III materials” [after denying petitioner stand- ing to attack paras #2 and #8 of the affidavit sensitive- ly stated: “I am the first to say that I could well be wrong, and I know that I will not be the final word on this matter.” (Tr. 80) Presumptively where the statute denies standing unless the attacking party is “an aggrieved person” but the rule grants standing to a “person aggrieved”. . . then the rule and not the statute applies.” In U.S. v. Salvucci, 599 F.2d 1094 (C.A. 1, 1979), the Court affirmed the suppression of Articles seized pur- suant to the execution of a search warrant. The Court held that the affidavit failed to state sufficient probable cause for the issuance of the warrant. However, the - Court went further and declared that both defendants in that case had “standing” to seek suppression even though the articles seized were in an apartment where at least one of the defendants had no nexus. In Salvucci, the Court granted both defendants standing to object as follows: In Jones, the Supreme Court held that a defendant has automatic standing to challenge the legality of a 29 Rule 41 v. 18 U.S.C. § 2510(11). ad — search or seizure if charged with a crime that in- cludes, as an essential element of the offense charg- ed, possession of the seized evidence at the time of the contested search and seizure. The Court offered a twofold rationale in support of this rule: (1) the unfairness of requiring the defendant to assert a proprietary or possessory interest in the premises searched or the items seized when his statements could later be used at trial to prove a crime of possession; and (2) the vice of prosecutorial self- contradiction, that is, allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes. Jd. at 261-65, 80 S.Ct. 725; Brown v. United States, supra 411 U.S. at 229, 93 S.Ct. 1565. (599 F.2d at 1097) ) The Salvucci Court attempted to delineate the “stand- ing dilemma” but declined to offer total resolution. Rather, the Court while recognizing both the dilemma and the split of authority left the questions of standing to the further resolution of this court as follows: The Supreme Court itself has questioned, but unfor- tunately not decided, whether the second prong of the Jones rationale, prosecutorial self-contradiction, alone justifies the continued vitality of the doctrine of automatic standing. See Rakas v. Illinois, supra ain USS. at ....., n.4, 99 S.Ct. 421; Brown v. United States, supra, 411 U.S. at 228, 229, 93 S.Ct. 1565. Since the Supreme Court first questioned the vitali- ty of this doctrine in Brown, there has been a split of authority as to whether the doctrine survives. Compare United States v. Riquelmy, 572 F.2d 947, 950-51 (2d Cir. 1978), and United States v. Boston, 510 F.2d 35, 37-38 (9th Cir. 1974), cert. denied, 421 U.S. 990, 95 S.Ct. 1994, 44 L.Ed.2d 480 (1975) (doc- trine survives) with United States v. Delguyd, 542 F.2d 346, 350 (6th Cir. 1976) (doctrine does not sur- vive). Until the Supreme Court rules on this ques- tion, we are not prepared to hold that the automatic standing rule of Jones has been implicitly overruled oe i ~ a a TEN a te = by Simmons. That is an issue which the Supreme Court must resolve. (599 F.2d at 1097-98, emphasis ours) In U.S. v. Mazzelli, 595 F.2d 1157 (C.A. 9, 1979), the Court affirmed suppression of drugs found in a suitcase where the singular question presented related to the standing of the non-possessory defendant to seek sup- pression of the drugs found in that suitcase. The majori- ty of the Mazzelli Court held that the non-possessory defendant had standing and affirmed the suppression stating: The Supreme Court’s latest discussion of standing to suppress the fruits of an unlawful search and seizure is found in Rakas v. Illinois, ..... SINS iscise OO S.Ct. 421, 58 L.Ed.2d 387 (1978). That case reex- amined the second portion of Jones dealing with standing based on an interest in the premises searched and the standards that should apply in such cases. However, in substance it reaffirmed the proposition recognized in Jones that a possessory in- terest in that which was seized confers standing. The court first emphasizes the failure of the petitioner to assert a claim of ownership over the items seized ..... USS. at ....., n.1, 99 S.Ct. 421. To us this implicitly recognizes that a possessory interest in the evidence seized confers standing to challenge the seizure. This implicit recognition is later ex- plicitly noted. After suggesting that a “casual visito:” should not be able to contest the lawfulness of a search, the Court states: “This is not to say that such visitors could not contest the lawfulness of the seizure of evidence or the search if their own property were seized during the search.” 7d. at ....., 99 S.Ct. at 430. (595 F.2d at 1160)% 30 Judge Bonsal, dissenting in Mazzelli, urged that, in combination, Alderman v. U.S., 394 U.S. 165 (1969) and Rakas v. Illinois, ante, must be interpreted to deny standing to the non-possessory defendant. Within the parameters of this question (consolidated Question 3) we have hopefully demonstrated the excep- tional importance of this argument. It is inconsistent, if not impossible, to believe that this court has ever intend- ed that a person charged with a possessory offense can- not be an “aggrieved person” for the purpose of allowing that defendant to attack a search warrant/affidavit which has not only material misrepresentations but, also, reference to a confidential informant ... that happens to be an electronic eavesdropping device(s) which the report from the United States Court Commis- sion finds was never installed. CONCLUSION In light of the exceptional importance of each of the questions presented within this petition it is respectfully prayed that this petition for writ of certiorari be granted and that this court reverse the conviction and sentence and remand this case for a new trial or, indict- ment dismissal under this Court’s supervisory powers, 28 U.S.C. § 2106. Respectfully submitted, ALLAN A. ACKERMAN, ESQ. 100 North LaSalle Street Suite 611 Chicago, Illinois 60602 (312) 332-2863 Attorney for Petitioner, Herminio Cruz. APPENDICES : a GROUP APPENDIX A—Decision below, U.S. ». Cruz, poids F.2d ..... (C.A. 7, 1979). APPENDIX B—Order denying rehearing dated Octo- ber 2, 1979. x GROUP APPENDIX C—Search warrant and affidavit used by the D.E.A. to search private premises in Chicago at about 9:45 p.m. on Decerhber 16, 1976. GROUP APPENDIX D—REPORT OF THE DIREC- TOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS on Applications for Orders Authorizing or Approving the Inter- ception of Wire or Oral Communications. This report shows that the wiretap was “NI” meaning “never installed”, APPENDIX E—R. 53 original record. —la— GROUP APPENDIX A in the United States Court of Appeals For the Seventh Cirrnit Nos. 78-1257, 78-2178 UNITED STATES OF AMERICA, Plaintiff-A ppellee, HERMINIO CRUZ, Defendant-A ppellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76-CR 1285-1—John F. Grady, Judge. ARGUED APRIL 5, 1979—DECIDED AUGUST 17, 1979 Before PELL and BAUER, Circuit Judges, and HOFF- MAN,* Senior District Judge. PER CURIAM. Appellant Herminio Cruz was charged in a single-count indictment with possession with intent to distribute approximately nine pounds of a mixture containing heroin, in violation of Title 21, United States Code, § 841(a)(1). The jury returned a verdict of guilty. Cruz was fined $25,000 and sentenced to fifteen years in custody of the Attorney General of the United tates. * The Honorable Walter E. Hoffman, Senior United States District Judge, Eastern District of Virginia, sitting by designation. —2a— The seizure of the heroin resulted from the execution of a warrant directing the search of a residence owned by Cruz. Evidence introduced at trial indicated that Cruz’s estranged wife and their children lived in the building, and that Cruz occupied a first floor bedroom in which he kept clothing and other personal effects. During the search a brown paper bag containing $29,000 in cash was found on the bed in the first floor bedroom. A small scale and a coffee grinder which contained traces of heroin were found in the kitchen. The heroin was discovered hidden in the hollow portions of a cinder block wall in the basement. Cruz was present at the time of the search. After being arrested and transported to the headquarters of the Drug Enforce- ment Agency, Cruz allegedly admitted that the heroin found in the basement was his, and further stated that he had obtained the heroin from a Mexican male known variously as “Chencho” and “E] Colorado”. At trial Cruz denied admitting that the heroin was his and contended that he was not informed of his rights after his arrest. DEA agents testified that Cruz was informed of his rights during his transportation to headquarters, and also during the processing of his arrest prior to questioning by the agents. Following his conviction Cruz filed several post-trial motions, alleging that the deputy marshal in charge of the jury during its deliberations had made improper comments to the jurors concerning the jury instructions, and alleging that the heroin introduced into evidence at trial was taken into the jury room in violation of the court’s order. Three jurors selected at random and the deputy marshal were deposed concerning these allega- cig ey court subsequently denied appellant’s motions or relief. Appellant raises five areas in which it is alleged that error occurred during trial: (1) the denial of appellant’s motion to quash the search warrant; (2) the admission of appellant’s alleged confession into evidence; (3) the nature of the reasonable doubt instruction to the jury; (4) the nature of the prosecutor’s closing argument; and (5) the denial of the post-trial motions. We find —3sa— appellant’s contentions to be without merit, and accord- ingly affirm the conviction. The search warrant executed on appellant’s residence was issued in reliance on the affidavit of one of the agents invoived in the investigation. The affidavit thoroughly detailed the progress of the overall con- spiracy investigation, which began on the east coast, moved to Chicago, and culminated in an arrest in the Hartford, Connecticut airport and the recovery of a kilogram of heroin. That portion of the affidavit material to establishing probable cause to search the Cruz residence misidentified the individual who drove to the residence to pick up the heroin which was later recovered in Hartford. That mistake in identity was understandable under the circumstances and was not material to the determination of probable cause. The facts do not support the appellant’s contention that the misstatement in the affidavit was reckless or inten- tionally untruthful. The district court properly denied appellant’s motion to quash the search warrant.! At the time appellant was processed following his arrest he refused to sign a printed form waiving his right to remain silent and his right to counsel. In effect he argues that this renders any communication made by him at that time an involuntary communication. Most recently the Supreme Court has held that, while an express written or oral statement of waiver is usually strong proof of the validity of that waiver, it is not inevitably either necessary or sufficient to establish waiver. North Carolina v. Butler, ..... US. ....., 47 L.W. 4454, 4455 (April 24, 1979). Thus, a refusal to sign a waiver form is a relevant factor in determining whether an individual knowingly and intelligently waived his privilege, but it is not a controlling one. United States v. Gardner, 516 F.2d 334, 341 (7th Cir. 1975). Prior to questioning Cruz a government agent purportedly in- ' A wiretap involved in the investigation on the east coast was totally immaterial to the search of Cruz’s residence Furthermore, Cruz was not a party to an _ intercepted conversation or a person against whom the interception was directed, as defined in Title 18 U.S.C. § 2510(11). —4da— formed him of his rights in Spanish, asked him if he understood his rights, and handed him the waiver form. Cruz refused to sign the waiver unless his lawyer was present. Thereupon the agents advised him that they would like to ask him some questions, that he was entitled to have his lawyer present, that he did not have to answer any questions unless his lawyer was present, and that he could stop the questioning at any time for the purpose of consulting with an attorney.? At that time Cruz was asked about the heroin found in his home, and, according to the agents’ testimony, admitted it was his. At trial Cruz denied being informed of his rights at any time, and denied admitting ownership of the heroin. Faced with two totally conflicting versions of the events surrounding the alleged confession, the court resolved the issues of fact concerning the voluntariness of the confession against appellant, and found that appellant was not denied access to an attorney. The district court correctly denied appellant’s motion to suppress, and properly submitted the issue of the voluntariness of the statement to the jury. This circuit has described the giving of a reasonable doubt instruction as “playing with fire,” and has expressed strong reservations about whether such in- struction should be given at all in light of the difficulty in defining reasonable doubt. United States v. Shaffner, 524 F.2d 1021, 1023 (7th Cir. 1975). Be that as it may, the instruction given by the court in the case at bar was without error. The instruction essentially defined rea- sonable doubt as “a doubt founded on reason,” a doubt that is not “purely speculative.” The court properly refused to add a “two hypotheses” instruction, since such an instruction is usually reserved for a case bottomed on purely circumstantial evidence. United States v. Shaff- ner, supra. 2 In North Carolina v. Butler, supra, the respondent, who ssessed an eleventh grade education, was handed an ‘Advice of Rights” form which he read and refused to sign. He was told that he need neither speak nor sign the form, but that the agents would like him to talk to them. The respondent replied that he would talk but would not sign any form. He then proceeded to make inculpatory statements. a ttn tS Stee 1 DE Bas —ja— Appellant contends that the government offered a series of facts not in evidence in that part of its closing argument which focused on appellant’s alleged con- struction and control of the cache where the heroin was discovered. There were at least some facts in evidence which would provide a basis for the government’s argument. The appellant made no objection to these statements either during or after the argument. The statements do not provide grounds for reversal. Finally, it is urged that the court erred when it denied appellant’s motions for a new trial. It is alleged that the deputy marshal delivered the instructions to the jury, pointed to the instruction which listed the elements of the crime charged, and stated words to the effect that “here is the main thing an are to consider that the judge = read to you.” The only evidence to support this allegation is a statement purportedly made by the foreman of the jury in a telephone conversation with the United States attorney, a statement which the foreman could not remember making when he was deposed two months later. After reviewing the evidence the district court held that it was highly unlikely that the deputy marshal made the alleged statement to the jury. The appellant also alleged that the heroin introduced into evidence at trial was improperly taken into the jury room when the jury retired to deliberate. The only evidence to support this allegation was testimony of the deputy marshal and one of the jurors. The DEA agent in charge of the heroin exhibit testified categorically that the heroin was in his custody at all times and that it was not taken into the jury room.‘ Assuming arguendo that the heroin was taken into the jury room, the court held that there could have been no possible prejudice to the appellant. The fact that a given quantity of heroin was 8 Two other jurors who were deposed had no recollection of the deputy marshal making this statement, and the deputy marshal denied making the statement. 4 The foreman of the jury and the other juror who was deposed had no recollection of the heroin being in the jury room. The court made a finding of fact that the heroin exhibit was never taken into the jury room. —6ba— seized from appellant’s residence was never in issue in this case, and there were no prejudicial markings on the exhibits themselves. We find that the district court properly denied appellant’s post-trial! motions. The conviction of the appellant is affirmed. AFFIRMED A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit 5 We were told in argument that Cruz was also tried in the District of Massachusetts on a conspiracy to distribute heroin in violation of 21 U.S.C. § 846. In ap roceedings in Massachusetts, Cruz raised the double jeopardy question by reason of his being convicted “in another district” [Northern District of Illinois] of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) on the basis of the same conduct underlying the indictment in Massachusetts. In United States of America v. Herminio Cruz, 586 F.2d 781 (1 Cir. 1978), the court affirmed the action of the District Court in denying the motion to dismiss on double jeopardy ounds. Cruz was represented in the United States Court of ing for the First Circuit by the same counsel appearing ve ore us. We agree with the conclusions reached by the First ircuit. + hiked Denia ancl” —fa— APPENDIX B UNITED STATES COUR' OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 October 2, 1979. Before Hon. Wilbur F. Pell, Circuit Judge Hon. William J. Bauer, Circuit Judge Hon. Walter E. Hoffman, Senior District Judge* United States Of America, Plaintiff-Appellee, Nos. 78-1257, 78-2178 vs. Herminio Cruz, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Kastern Division. No. 76-CR-1285-7—John F. Grady, Judge. On consideration of the petition for rehearing and sug- gestion for rehearing en banc filed in the above-entitled cause by Herminio Cruz, defendant-appellant, no judge in active service has requested a vote thereon, and all of the judges on the original panel have voted to deny a rehear- ing. Accordingly, It Is Ordered that the aforesaid petition for rehearing be, and the same is hereby, Denied. — 8a— GROUP APPENDIX C UNITED STATES DISTRICT COURT For The Northern District of Illinois, Eastern Division Magistrate’s Docket No. .................... Case No. 76M247 United States of America VS. Single family dwelling, 2514 West Haddon Avenue, Chicago, Illinois (see below for description). AFFIDAVIT F‘or SEARCH WARRANT Before James T. Balog, 219 South Dearborn Street, Chi- cago, Illinois. The undersigned being duly sworn deposes and says: That he (has reason to believe) that (on the premises known as) the two story residence with basement, the sev- enth building west of Campbell Avenue, on the north side of Haddon Avenue, facing in a southerly direction, which building is covered with brown and yellow simulated brick siding, having three red awnings with blue trim on the front thereof, said building having concrete stairs curving and rising to aluminum and wooden doors entering the front of said building, having a peaked, green shingle roof, com- monly known as 2514 West Haddon, Chicago, in the North- ern District of Illinois, Eastern Division, there is now be- ing concealed certain property, namely heroin and other controlled substances, United States Currency, weighing scales, packaging materials, books, papers and documents a IES te SANs ig BE AERO Nien te 4 Chk eel. Cet at ae Oi ate lla Bind Bia RA Yi a a —9Jaq— relating to narcotics distribution, which are contraband, fruits, instrumentalities and evidence relating to the crime of possession with intent to distribute and distribution of controlled substances; in violation of Title 21, United States Code, Section 84-1(a) (1). And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: (See attached affidavit) Additional affidavit suppressed. /s/ Joseph P. Peckos Special Agent, Drug Enforcement Administration Sworn to before me and subscribed in my presence, De- cember 16, 1976. /s/ James T. Balog United States Magistrate 76M247 December 1(5, 1976 State of Illinois County of Cook—ss: AFFIDAVIT Joseph P. Peckos, Special Agent, Drug Enforcement Ad- ministration, being duly sworn on oath, deposes and states: 1. Affiant has been an agent of the Drug Enforcement Administration for five (5) years during which time he has engaged in numerous investigations relating to vio- lations of federal drug laws, including but not limited to those proscribing possession with intent to distribute and distribution of controlled substances. 2. On this date December 16, 1976, affiant was informed by Drug Enforcement Administration (DEA) Special Agent Harold Anderson that a Confidential Informant of —10a— the Hartford, Connecticut Office of DEA assigned num- ber 5826-0029 informed Agent Anderson that on December 15, 1976 Rafael Kercado-Rivera was informed that six (6) kilograms of heroin were available in Chicago, Illi- nois at $28,000 per kilogram. 3 Agent Anderson further informed affiant that the con- fidential informant learned that Daisy Gonzales made reservations to fly to Chicago, Illinois on December 16, 1976 on Trans World Airlines, flight number 175 arriving at Chicago O’Hare International Airport at 11:00 a.m. C.S.T. 4. Affiant has been further informed that DEA agents observed Daisy Gonzales leave her home in Holyoke, Mas- sachusetts during the morning hours of December 16, 1976 and travel to Bradley Field, Hartford, Connecticut where she was observed boarding flight number 175 of Trans World Airlines carrying a tan leather Escort suitcase and wearing black slacks, black turtleneck sweater, black cap and a white coat. 5. Affiant has been informed by Special Agent Robert Scheuler that he observed Daisy Gonzales arrive at Chi- cago O’Hare International Airport on Trans World Air- lines flight number 175 at 11:00 a.m. C.S.T. Daisy Gonzales was observed to take a taxi to the Taco Loco Restaurant, 1601 North Western Avenue, Chicago, which she entered carrying the tan leather Escort suitcase. 6 Agent Scheuler further informed affiant that at approxi- mately 12:15 p.m., an individual identified as Rafael Ker- ecado-Rivera met with Daisy Gonzales at the Taco Loco Restaurant. Agent Harold Anderson further informed af- fiant that United Airlines manifests reflected that pas- senger ‘‘R. Rivera’’ travelled on flight 123 from Bradley International Airport, Hartford, Connecticut arriving at Chicago O’Hare International Airport at 7:45 a.m. C.S.T. 7. At approximately 12:45 p.m. DEA agents observed Rafael Kercado-Rivera and Daisy Gonzales leave the Taco ee a ee RA ee ae Pe Oe he ors ae eee —lla— Loco Restaurant carrying the tan leather Escort suitcase, enter an automobile and drive to 3561 West Belden, Chi- cago where they entered at approximately 1:00 p.m. Rafael Kercado-Rivera was observed carrying the tan leather suit- case into the residence at the aforementioned address by Agent Scheuler. 8. At 1:30 pm. DEA agents observed Rafael Kercado- Rivera leave 3561 West Belden carrying a brown paper bag, enter an automobile and drive to the two story brown and yellow residence at 2514 West Haddon, Chicago which resi- dence Rafael Kercado-Rivera entered through the front door carrying the aforementioned brown paper bag. 9. At approximately 2:05 p.m. Agent Scheuler observed Rafael Kercado-Rivera leave the residence at 2514 West Haddon, Chicago carrying a white paper bag which he placed on the floor of the back seat of the vehicle he en- tered. Kercado-Rivera was then followed to the rear of 3561 West Belden where he was observed to park the auto- mobile in the garage. 10. At approximately 2:25 p.m. Agent Scheuler observed Daisy Gonzales, Rafael Kercado-Riverr end an unknown male drive from the alley behind 3561 West Belden to the intersection of Leavitt and Milwaukee Avenue, Chicago where Daisy Gonzales and Rafael Kercado-Rivera left their vehicle and entered a taxicab. Rafael Kercado-Rivera was observed carrying the tan leather suitcase. 11. The taxi was followed to O’Hare International Airport where affiant observed Daisy Gonzales purchase a ticket to Hartford, Connecticut on Trans World Airlines flight 82. Daisy Gonzales checked the tan Escort leather suitcase to which was affixed baggage Claim number 229767 and boarded flight 82. Rafael Kercado-Rivera was also ob- served boarding flight 82. Daisy Gonzales was wearing a tan leather coat, a white cap and black slacks and had long blond hair. —13a— GROUP APPENDIX D —12a— 4 12. Affiant was informed at 7:45 p.m. that DEA Group | 3 q : Supervisor Edward Noon arrested Daisy Gonzales in pos- i 3 ii] ' aps session of a tan leather Escort suitcase at Hartford, Con- | F H necticut. A search of said suitcase revealed a white paper : Ss ah cae ae ATV NES: Ps oe ae bag containing approximately one kilogram of a brown l] ak over na es eee are ae t powdery substance. Special Agent Sloboda conducted a field j 33 : =} test on said substance and observed a positive reaction for 3 ifs 7? 8 .e 8 #20 38 RE 3 | an opiate. The white bag bore the address 1443 N. Wells, | h . . ie i Old Town, Chicago. t Je ef : . ; ; § i ‘ a ap e : iif 13. Affiant has personally observed the premises described ‘ i { | ttt ae, ses 2 8 ze 8% §° li above and commonly known as 2514 West Haddon Avenue, ) 3 8 ls . ” 98: Chicago, Illinois. sf i i 53 3 8 oe § Si 0 £8 4% 91 i /s/ Joseph P. Peckos H . : , . = : ; - ‘i Special Agent, vs . | i ht $2 g & 2 3 s° 3 8 S28 & iit Drug Enforcement Administration ; gehe tet p | il rai iil iid Waiid i ade} /s/ Joseph P. Peckos . GHG TH Gaba da a di bilig Special Agent, i; Drug Enforcement Administration | i} i | } Subscribed and sworn to before me ‘ 353 zs | iy 3 | eis. ! ee day of December 1976. i H | V2 TCE Ped di iit a AiG AH idd aoofe ddd da be i i dee ead a: 3 #2 8 88 $s 3 ERS | 3 -6- —l4a— APPENDIX E $11.16 Extra Judicial Statements or Conduct— Generally Evidence relating to any statement, or act or omission, claimed to have been made or done by a defendant outside of court, or after a crime has been committed, should al- ways be considered with caution and weighed with great care; and all such evidence should be disregarded entirely, unless the evidence in the case convinces the jury beyond a reasonable doubt that the statement or act or omission was knowingly made or done. A statement or act or omission is ‘‘knowingly’’ made or done, if done voluntarily and intentionally, and not be- cause of mistake or accident or other innocent reason. In determining whether any statement or act or omis- sion claimed to have been made by a defendant outside of court, and after a crime has been committed, was knowingly made or done, the jury should consider the age, sex, train- ing, education, occupation, and physical and mental condi- tion of the defendant, and his treatment while in custody or under interrogation, as shown by the evidence in the case; and also all other circumstances in evidence surround- ing the making of the statement or act or omission, in- cluding whether, before the statement or act or omission was made or done, the defendant knew or had been told and understood that he was not obligated or required to make or do the statement or act or omission claimed to have been made or done by him; that any statement or act or omission which he might make or do could be used against him in court; that he was entitled to the assistance of counsel before making any statement, either oral or in writing, or before doing any act or omission; and that if he was without money or means to retain counsel of his ba ee en wey ee —15a— own choice, an attorney would be appointed to advise and represent him free of cost or obligation. If the evidence in the case does not convince beyond a reasonable doubt that a confession was made voluntarily and intentionally you should disregard it entirely. On the other hand, if the evidence in the case does show beyond a reasonable doubt that a confession was in fact voluntarily and intentionally made by a defendant, you may consider it as evidence in the case against the defendant who volun- tarily and intentionally made the confession. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1128%3A1. Public record. Not legal advice.