United States v. Roth, 201 F.3d 888, 892 (7th Cir.2000). It may be possible, though, that the magistrate judge was aware from other information that Rosado had been indicted on a criminal charge. Lloyd's second prong, requiring probable cause to believe that the evidence would be found in the place to be searched, see id., is easily satisfied by the affidavit's statement that officers observed the Latin Kings-color clothing in the attic of the residence. See Rubio, 727 F.2d at 793. He acknowledged that the plastic box could not hide a person. The mere fact, or even allegation, of gang membership carries a strong taint of criminality. Giordenello, 357 U.S. at 486, 78 S. Ct. 1245. In the United States Court of Appeals The box contained hundreds of .22 caliber bullets. The affidavit did not assert that Rosado had committed any of these categories of crime, that he had aided or abetted anyone else in doing so, or that his residence was in any way connected to them. U.S. See Rubio, 727 F.2d at 792. See Giordenello v. United States,357 U.S. 480, 485-86, 78 S. Ct. 1245, 2 L. Ed. Information about a group's reputation is legally insufficient to support probable cause that a member of that group is involved in criminal activities. The government next seeks to defend this search under the "plain view" exception to the Fourth Amendment. In this case, the only thing "incriminating" about the box were its measurements, 4" 8" 1.5-2", and the fact that it was made of black plastic. at 918-19, 104 S. Ct. 3405. To whatever extent the Gerstein footnote may have undermined that requirement, I believe that Gates reinstated it when it held that "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Even if such tainted information is presented to the magistrate, the search warrant is nonetheless valid "if the untainted information supporting the warrant, considered alone, is sufficient to establish probable cause." After his arrest in the Trevino homicide, Barragan talked to Milwaukee police detectives at least three times in late September 2004, according to police reports obtained by the Journal Sentinel through the state open records law. 2d 1121, 1144 (E.D.Wis.1998) (Stadtmueller, C.J.). An allegation under 1962(d) that a suspect conspired to violate 1962(c), though, requires evidence that the suspect personally facilitated the activities of those who operated or managed the enterprise. The affidavit asserted that it was believed that a "Latin King Manifesto," a Latin King book of rules and laws, membership lists, telephone numbers, dues lists, and legal papers useful for intimidating witnesses would be found in Rosado's residence. In Rubio itself, the court found that because the suspects, indicted Hell's Angels Club members, pursued legitimate activities through the club, including an auto body shop, and because the affidavit did not establish probable cause to believe that any suspects had committed crimes, there was not sufficient reason to believe that evidence of a pattern of racketeering activity could be found at a given associate's or member's premises. Madrid Summit Declaration issued by NATO Heads of State and Government 2(a) (h), (j) (k).) At 3 p.m., FBI Special Agent Christopher W. Koenig, Sr. submitted to a magistrate judge a nine-page affidavit in support of an application for a search warrant for the residence. Probable cause for arrest, without more, will not justify a search warrant. However, the principal holding of Calandra itself *929 was that a grand jury may issue an indictment based in part or in whole upon evidence that was illegally gathered. "I am only aware of what I receive. Thus, there was probable cause that someone whoever owned the clothing had violated 1962(c). See Franks, 438 U.S. at 155-56, 98 S. Ct. 2674. Having independently reviewed the relevant portions of the transcript of the evidentiary hearing, I adopt Judge Gorence's legal analysis and recommended findings that Marrero was not threatened and did give voluntary consent for a limited protective search. I don't know why it wasn't brought to my attention. The defendants, SANTO LOZOYA, also known as "Saint," HECTOR ROJAS, also known as "Lil Hec," JOSE MARTINEZ, also known as "Ghost," and PEDRO NAVARRO, also known as "Cuba," and others known and unknown, were members and associates of the "Milwaukee Kings" street gang, criminal organization whose members and associates engaged in acts of violence, No decision of the Seventh Circuit has cited Killip, and Rubio has been cited only on other topics. Since the 2005 indictment, 17 more Latin Kings and gang associates have been charged. Eleven members of the Latin King Nation gang in Hayward and Milwaukee have been arrested on charges of conspiring to distribute cocaine and crack cocaine on and near the Lac Courte Oreilles Reservation in Hayward. Four of the defendants were sentenced to life imprisonment and one received a prison term of 262 months. Sign up for our free summaries and get the latest delivered directly to you. The Milwaukee branch was established in the mid-1970s and quickly grew to dominate the south side. Meanwhile, federal authorities had convened a grand jury to develop the federal case. Hirschfield's sister, Amy Hirschfield, appreciates the effort that prosecutors and law enforcement made in getting justice for her family. See McKinney, 919 F.2d at 415. Armando Barragan, an indicted Latin Kings leader, was not arrested nearly five years ago because of communication failures and a miscalculation by law enforcement. See Giordenello, 357 U.S. at 485-86, 78 S. Ct. 1245. To be sure, an indictment does supply probable cause for an arrest warrant. "We were worried after the indictment that younger guys were going to be much more violent to establish themselves. v. Mendocino County, 192 F.3d 1283, 1295 (9th Cir.1999). Pursuant to the search warrant, officers conducted a second search of the residence around 7 p.m., and seized incriminating evidence including the black and gold clothing and the gun case with the bullets. Search salary and other information: www.jsonline.com/dataondemand, Got a story tip? Barragan mistook Hirschfield for the man who hit him and ordered subordinate Latin Kings to shoot him, according to the court records. [7] See United States v. Betts, 16 F.3d 748, 755 (7th Cir.1994), overruled on other grounds by United States v. Mills, 122 F.3d 346 (7th Cir. A sentencing date was set, but state prosecutors wanted Barragan to testify first against fellow Latin Kings in the murder. 3.) Depending on the circumstances, the murder may have become part of his case, he said. [7] Another court in this district declined to apply Rubio in an Outlaws Motorcycle Club case, but only on the ground that the search warrant in that case was protected by the Leon good-faith exception. FBI Thirteen Alleged Latin King Members Indicted on Federal It did not assert that Rosado had been indicted for any crime. 1991); United States v. Lewis, 910 F.2d 1367, 1372 (7th Cir.1990) (citations omitted). The indictment was returned under seal yesterday and unsealed today upon the arrests of the defendants. to the Magistrate's August 30, 1999 Recommendation [docket # 1037] at 6 [hereinafter "Br. Id. See Gardner v. Barnett, 175 F.3d 580, 589 (7th Cir. she said. Authorities revved up to take on the Latin Kings. A search warrant affidavit establishes probable cause when it "sets forth facts sufficient to induce a reasonably prudent person to believe that a search thereof will uncover evidence of a crime." Rosado filed timely objections, and the government filed a response. It would take years to complete the case, as agents sifted through more than 100 criminal acts that could qualify under the federal racketeering statute, including shootings, robberies, drug dealing and extortion. 98-M-50. The assertion that it was believed that Latin King writings would be found at Rosado's residence thus did not provide probable cause for a search. Judge Gorence recommended that I find that the initial protective sweep was consensual; that Sergeant Harpole's picking up and opening the black plastic case in the basement exceeded the scope of consent; but that the search warrant was nonetheless based upon probable cause. United States v. McKinney, 919 F.2d 405, 415 (7th Cir.1990). The Apker court relied upon a footnote in Gerstein v. Pugh,420 U.S. 103, 117 n. 19, 95 S. Ct. 854, 43 L. Ed. The magistrate judge issued the requested search warrant. The affidavit made no assertion that Rosado had used a firearm to further violent criminal activity, that he had aided or abetted anyone else in doing so, or that firearms were stored at his residence. [2] According to the inventory of items seized later in the day pursuant to the search warrant, these items included a black and gold Green Bay Packers baseball cap; a gold Milwaukee Brewers shirt; a gold pullover Packers jacket; a gold Packers hooded sweatshirt; a Pittsburgh Penguins sweatshirt; a black and gold Penguins hooded sweatshirt; and a Pittsburgh Penguins jersey. Gonzales said he was never told about the Trevino murder, even though it happened right in the middle of the federal investigation into the Latin Kings. in Supp. The state opened a secret John Doe proceeding to develop those charges, officials said. The prosecution of the Latin Kings in Milwaukee sent dozens of hardcore gang members to prison for decades, some for life, but questions remain about how Barragan - arguably the biggest target - got away. Within the Milwaukee chapter of the gang, there were, at the time of the indictment, four subsets of the Latin Kings: the 19th Street Kings, the Sawyer Kings, the Wild Walker Kings, and the 23rd . "Associational" evidence therefore is needed to establish a RICO violation under 1962(c), and such evidence thus demonstrates one element of a crime. Even so, courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than common-sense, manner. It thus misled the magistrate into believing that the plain view exception requirements were satisfied. Fontanez was arrested in April 2005 in Las Vegas during a traffic stop. See United States v. McNeese, 901 F.2d 585, 594 (7th Cir.1990). Atty., David Robles, Sp. (Tr. I find that an indictment does not constitute probable cause to issue a search warrant. 2d 564 (1971) (plurality opinion). In other words, where an association is not in effect wholly illegitimate, a search warrant must be supported by some additional nexus between association with the organization and an alleged pattern of racketeering activity. To satisfy 1962(c)'s "associated with an[] enterprise" requirement, the government must introduce "evidence that the various associates function as a continuing unit." Id.[6]. denied ___ U.S. ___, 120 S. Ct. 2688, 147 L. Ed. 2d 99 (1994) (Souter, J., concurring). Just a handful of the 33 people named in the indictments were still at large late Monday. The court there held that the fact of grand jury indictment alone was sufficient to provide the magistrate with probable cause to believe that defendants had engaged in criminal activity, leaving as the only issue for the magistrate to determine for him or herself whether there was probable cause to believe that evidence regarding the crime was likely to be found at the place to be searched. "the . "This case has been significant with significant sentences handed down. Probable cause thus was not present, and the plain view exception does not apply. See 18 U.S.C. The alleged means and methods used to advance the Latin King enterprise included murder of members of rival gangs; murder of suspected government informants; and arson against the person and properties of rival gangs and of potential witnesses against the Latin Kings. Barragan slipped away during the sweep, but law enforcement was still tracking him. Officers seeking to rely on an informant's statements have an obligation to confirm the statements before seeking a search warrant, see Jacobs, 215 F.3d at 768 n. 4, but there is no evidence that officers made any attempt to confirm the assertions here. The indictment was sealed as authorities prepared for a major arrest sweep. The listing of categories of crimes that Latin King members had allegedly committed thus did not provide the magistrate judge with probable cause to believe that evidence was located in the place to be searched or that the evidence sought would aid in the prosecution of a particular offense. 2d 527 (1983). Nos. They were going to build a big case using the Hirschfield homicide as a centerpiece. McGann v. Northeast Illinois Regional Commuter R.R. The affidavit stated that "during their search for people [law enforcement officers] found within plain view a black plastic gun case." Three gang members complied, shooting Hirschfield at least a dozen times, according to federal court records. The summary of common characteristics of narcotics traffickers and their residences gave the magistrate judge no basis to believe that incriminating evidence of narcotics crimes would be found at Rosado's residence. GREENSBORO, NCThirteen alleged members of the Almighty Latin King and Queen Nation (Latin Kings) have been indicted by a federal grand jury in . (Id. See Gates, 462 U.S. at 239, 103 S. Ct. 2317 (quoting Aguilar v. Texas,378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. That gang member ultimately was convicted of killing Trevino. See Lloyd, 71 F.3d at 1263. In the seven years since, more than 1,100 drug dealers and gang members have been prosecuted in federal court in Milwaukee, following the playbook from the 2003 Latin Kings investigation, according to the U.S. attorney's office. x{i@W9y$ KX$%H Hirschfield saw a fight brewing in the gas station parking lot between Barragan and a man named Matthew Toms. As discussed above, officers discovered what proved to be a gun case containing bullets only through a search that violated the scope of the consent they had been given and that did not satisfy the requirements of the plain view exception. "I had no idea that he was awaiting sentence and entered that plea. of Michael A. Rosado's Mot'n to Suppress Evidence Recovered During Search of 5643 North 36th Street [docket # 1011] at 5-7 with Br. You can explore additional available newsletters here. The affidavit next spent half a page specifying various categories of crimes that "Latin King members" had allegedly committed, and asserted that the Latin Kings were an association-in-fact enterprise under the RICO statute, 18 U.S.C. By that time, the 16-year-old Barragan had risen to become the leader - called the "Inca" - of the 19th Street Kings, one of several local branches of the gang, according to federal court documents. 5.) The magistrate must be detached and neutral, see Steagald, 451 U.S. at 212, 101 S. Ct. 1642, but the grand jury's investigative role prevents it from being fully neutral. at 486, 78 S. Ct. 1245. All of the charged conduct arises out of the defendants' participation in the Milwaukee Chapter of the street gang known as the Almighty Latin King Nation ("Latin Kings"). Id. I thus must determine whether, setting aside any consideration of the gun box and its contents, the untainted portions of the *928 affidavit provided probable cause for a search. The 26-year-old had spent the day before putting a new roof on his aunt's house. of Objs."].) This contention is mistaken, because a search warrant requires only probable cause to believe that the evidence sought will aid in the prosecution of a particular *932 offense and that the evidence sought is located in the place to be searched. Similarly, if officers obtain consent or a warrant to search for a stolen television set, "they must limit their activity to that which is necessary to *925 search for such an item; they may not rummage through private documents and personal papers." By 2003, new young leaders, such as Barragan, had moved into top roles of the ruthless gang, leaving a bloody trail of shootings and drug dealing through Milwaukee's south side, according to federal court documents. Kevin Hirschfield and some friends stopped at a Speedway in Cudahy early on April 19, 2003, to buy cigarettes on the way home from a bar. Disclosing only the fact of indictment is not a substitute for providing the magistrate judge with sufficient facts to form his or her own conclusions necessary to a determination of probable cause. %PDF-1.3 Probable cause for a search exists when it is reasonably believed that the evidence sought will aid in the prosecution of a particular offense and the evidence is located in the place to be searched. Barragan was charged with aiding a felon - not the killing itself. I know this will be very critical of us. 2d 54 (1975), which observed that under Calandra, 414 U.S. at 342-46, 94 S. Ct. 613, a magistrate must issue an arrest warrant without further inquiry upon the strength of a properly issued indictment. [2] According to law enforcement *922 officials who investigated the Latin Kings, black and gold are the Latin Kings' "official colors.". The murder generated big news and triggered what would become the second major federal investigation of the Latin Kings in Milwaukee. The probable cause determination is based upon the totality of the circumstances. Omitted facts exhibit deliberate falsehood or a reckless disregard for the truth if the affiant has an obvious reason for the omission. See McNeese, 901 F.2d at 596; United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996) ("a magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept[;] in the case of drug dealers evidence is likely to be found where the dealers live") (quotation marks and citations omitted). He was showing his face publicly.". See Lloyd, 71 F.3d at 1263. Moreover, the magistrate "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause." Trevino, 23, was beaten, then shot in the leg, stabbed and ultimately strangled to death by fellow gang members, according to court records and police reports. He may have married there, making him a Mexican citizen and harder to deport. Federal and state law enforcement have pursued the Latin Kings for more than two decades in Milwaukee. Gonzales, a federal prosecutor for 18 years, said he has never had a defendant elude justice for as long as Barragan has. It said nothing about whether the informants made first-hand observations, or about whether law enforcement officials independently verified any of their claims about firearms. Johnson v. United States,333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. (Tr. 1961(1), (5).[5]. In the Vallejo criminal complaint, Barragan was identified as the one who ordered the shooting. Rosado's Objs. The affidavit summarized many telling characteristics and common behaviors of narcotics traffickers, and indicated that incriminating evidence of narcotics crimes is often to be found in narcotics traffickers' residences. Lloyd, 71 F.3d at 1263 (emphasis added). In this case, Sergeant Harpole asked Marrero for, and was denied, "full consent to search her residence for people or evidence of any crimes." <>stream A month later, FBI special agent Doug Porrini and Milwaukee police detective John Belsha followed Barragan's wife to a hotel where Barragan and his cousin Joey Sanchez, also wanted in the federal case, were hiding, according to federal court documents. 2d 723 (1971). U.S. ), The final half-page of the affidavit concluded that, based upon the above information, Special Agent Koenig had "probable cause to believe that the residence contains evidence of a RICO enterprise and other crimes."
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