People v. McRregory

2019 IL App (1st) 173101

131 N.E.3d 1147

433 Ill.Dec. 302

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Homer MCRREGORY, Defendant-Appellee.

No. 1-17-3101

Appellate Court of Illinois, First District, SECOND DIVISION.

June 25, 2019

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Michael M. Glick, Lindsey Beyer Payne, and Erin M. O’Connell, Assistant Attorneys General, of counsel), for the People.

Richard C. Kloak, of Chicago, for appellee.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 The State appeals from the Cook County circuit court's grant of defendant Homer McGregory's motion to suppress evidence, arguing that the trial court erred in concluding that the eight-month delay between the seizure of defendant's property and the obtention of a search warrant to search the contents of that property rendered the seizure unreasonable. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On May 13, 2013, the Chicago Police Department (CPD) executed a search warrant on defendant's home in search of drugs and weapons. While there, the executing officers found and seized computers and other equipment often associated with the manufacture of fraudulent credit cards. The equipment remained in the possession of the CPD until November 1, 2013, at which time Agent Gustav Woerner of the United States Secret Service took possession of it as part of an investigation into defendant in connection with a credit card fraud scheme. In January 2014, Woerner obtained a search warrant to examine the contents of the computers and equipment, which revealed credit card numbers and other evidence of identity theft. Thereafter, defendant was charged with identity theft ( 720 ILCS 5/16-30(a)(2) (West 2012)).¹

¶ 4 Defendant filed a motion to suppress evidence, arguing that the initial seizure of the equipment was unreasonable, as was the delay between its seizure and the obtention of the warrant to search the contents of the equipment. In response, the State argued that the seizure of the equipment was reasonable, because it was in plain view at the time that the CPD executed its search warrant for narcotics and weapons on May 13, 2013. As for the delay between the seizure of the equipment and the obtention of the search warrant for the contents of the equipment, the State argued that it was not unreasonable, because the officers were diligent in obtaining the search warrant and defendant did not request the return of the equipment, did not allege any harm to his possessory interest in the equipment, and did not argue that he needed the equipment for legitimate reasons.

¶ 5 At the evidentiary hearing on defendant's motion to suppress, two witnesses testified. First, Officer Vaneond Chinchilla of the CPD testified that he was present on May 13, 2013, when the search warrant for narcotics and weapons was executed at defendant's home. The officers did not find any guns or drugs in defendant's home, but they did find four laptops, a credit card duplicator, a strip reader, several computers, an embossing machine, and credit cards and identification cards bearing names other than defendant's. Based on his training and experience, Chinchilla believed the equipment to be used to make credit cards to steal people's identity. Defendant stated that he bought the equipment online and that some of the machines worked 30% of the time. At the time the equipment was seized, defendant did not tell Chinchilla that he wanted the equipment back, and Chinchilla did not give defendant a receipt for the equipment. After the seizure of the equipment, defendant never contacted Chinchilla to request the return of the equipment.

¶ 6 Next Agent David Woerner, formerly of the United States Secret Service, testified that while employed with the Secret Service, his duties consisted of providing protection to the president of the United States and other dignitaries and investigating financial crimes, such as identity theft, credit card fraud, and bank fraud. When these duties conflicted, his protection duties took precedence.

¶ 7 In 2013, Woerner was conducting an investigation into defendant based on a tip from an informant that defendant was involved in credit card and tax fraud. The informant also told Woerner that the CPD had executed a warrant on defendant's home. Woerner contacted the CPD and was told that officers had recovered credit card manufacturing equipment from defendant's home, i.e. , laptops, embossing machine, credit card reader reencoder, etc. In mid-May or June 2013, Woerner viewed the equipment seized from defendant's home, which was then being stored at the CPD's Homan Square facility. Woerner did not take possession of the equipment at that time, because he did not have the paperwork ready to carry out a transfer of chain of custody.

¶ 8 At the same time that Woerner was investigating defendant, the Internal Revenue Service (IRS) was conducting a similar investigation into defendant. It took some time for the two agencies to determine which of them would take possession of the equipment. During that time, Woerner did not take any steps to obtain a search warrant for the equipment, because he did not want to duplicate or be a nuisance in the IRS's investigation. After it was determined in September 2013 that the IRS would not pursue its investigation of defendant, Woerner proceeded with attempting to gain possession of the equipment. He was notified that the equipment had been moved from the Homan Square facility. It was not clear where the equipment had been moved to, so Woerner requested assistance from Patty Dolton, the CPD's "TASC force officer assigned with the [Secret Service]."²

¶ 9 During the time that he was trying to locate the equipment, Woerner continued to pursue other avenues of investigation against defendant, namely, maintaining contact with the informant, conducting standard database searches, and conducting limited surveillance. During this time, Woerner was also working on three to four federal cases and two to three state cases. He was the only agent assigned to work on these cases. In addition, during 2013, Woerner worked a number of protection assignments, including at the Obama residence in Chicago, which required weeklong assignments. Because of budget issues at the time, Secret Service agents worked a "flex day schedule," which meant that if an agent worked on a weekend, he or she would have to take time off during the week to compensate. When he was not working on another one of his cases and was not working a protection assignment, Woerner was working on his investigation into defendant.

¶ 10 On October 31, 2013, Dolton finally notified Woerner that the equipment had been moved to a bulk storage facility. The following day, on November 1, 2013, Woerner took possession of the equipment. After he had possession of the equipment, Woerner began work on drafting the affidavit in support of a search warrant, which required verifying the machines' serial numbers and identifying all the types of documents the Secret Service sought to recover from the equipment. Woerner testified that he could not have begun his work on the affidavit and complaint for search warrant prior to having possession of the equipment, because he would not have been able to access the necessary information. For example, he testified that he could not have gotten the necessary information during his initial viewing of the equipment, because he would have had to contact banks to verify whether the seized credit cards belonged to the identified individuals and because he would have had to have taken apart some of the machinery to obtain the serial numbers. This was not something Woerner could have done in a warehouse setting. In addition, it was Secret Service policy that any property for which an agent was going to seek a search warrant first had to be in Secret Service custody. Woerner could not delegate the preparation of the application for the search warrant to another agent, because all the other agents had the same busy schedule as him.

¶ 11 In January 2014, Woerner presented his application for search warrant to the trial court. He was not able to do it sooner, because of the difficulty coordinating his, the trial court's, and the State's schedules. Upon execution of the search warrant, Woerner found evidence of credit card numbers and identity theft on the equipment.

¶ 12 To Woerner's knowledge, defendant never asked him or anyone else with the Secret Service for the return of the equipment. Woerner was aware, however, that at the time the equipment was initially seized, defendant requested that the equipment not be taken.

¶ 13 In his argument at the hearing, defendant glossed over his contention that the initial seizure of the equipment was unreasonable. Instead, defendant focused on the reasonableness of the delay in obtaining a search warrant for the contents of the equipment, arguing that the State did not offer a reasonable explanation for the eight-month delay³ in obtaining the warrant. The trial court agreed with defendant, finding that the primary issue in the case was the reasonableness of the delay in obtaining the search warrant and that the eight-month delay in this case was not reasonable. Accordingly, the trial court granted defendant's motion to suppress as it pertained to the evidence downloaded from the equipment; all other evidence was to be admitted.

¶ 14 Thereafter, the State filed a timely certificate of impairment and notice of appeal.

¶ 15 II. ANALYSIS

¶ 16 On appeal, the State argues that the trial court erred in granting defendant's motion to suppress evidence, because the delay in obtaining the search warrant was not unreasonable under the circumstances. In the alternative, the State argues that the exclusionary rule should not be applied in this case. We do not find the State's contentions persuasive and affirm the trial court's decision.

¶ 17 There is no...