United States v. Mujahid

UNITED STATES OF AMERICA

v.ABDULILAH AL MUJAHID

No. 12 CR 801

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Dated: August 6, 2013

Judge Elaine E. Bucklo

MEMORANDUM OPINION AND ORDER

On October 11, 2012, defendant Abdulilah Al Mujahid (also known as Dwayne Timberlake and Robert Bundy) was indicted on two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The charges stem from firearms that were found in a plastic storage bin kept in the back of defendant's ex-girlfriend's closet at 4858 South Vincennes Avenue, Apartment 400, Chicago, IL (the apartment at "4858 South Vincennes"), firearms found in defendant's own apartment at 450 East 49th Street, Apartment 301, Chicago, IL (the apartment at "450 East 49th"), documents recovered from defendant's apartment, and statements defendant made to police while in custody. Defendant argues that this evidence should be suppressed on three grounds: (1) Candace did not have actual or apparent authority to consent to a search of the storage bin; (2) exigent circumstances did not exist to excuse the warrantless search of defendant's apartment, and, if there were exigent circumstances, the scope of the search was unreasonable; and (3) the statements defendant made while incustody were not voluntary and were made without defendant having been read a Miranda warning.¹

I.

A. Credibility of the witnesses

I have carefully and deliberately weighed all the evidence presented in the parties' filings and during the hearing in making the following factual findings. I have evaluated and considered the consistencies and inconsistencies in the testimony. I also closely assessed the demeanor of each witness, including body language, tone of voice, facial expressions, mannerisms and other indicative factors. The credibility of individual testifying witnesses is addressed as needed throughout this opinion, but at the outset, I will discuss the credibility of two non-testifying witnesses who submitted sworn declarations in support of the motion to dismiss.

The declarations of certain non-testifying witnesses, including the sworn affidavit of defendant himself, were not subjected to cross examination. Further, I did not have the opportunity to assess the demeanor of these witnesses while testifying. Given the credibility of the key testifyingwitnesses, including Candace Gregory, Officer Martin Teresi,² Officer Kevin Kilroy, Officer Michael Fleming, and Michael Levinsohn, and the other evidence corroborating their testimony, I have given defendant's declaration substantially less weight than the testimony of Candace or that of Officers Teresi,Fleming, and, to some extent, Kilroy. See United States v. Marzook, 435 F.Supp.2d 708, 752 (N.D. Ill. 2006) (affording substantially less weight to the defendant's sworn declaration in deciding motion to suppress where defendant did not testify during the suppression hearing) (citing United States v. Baker, 78 F.3d 1241, 1243 (7th Cir. 1996); United States v. Carlisle, No. 04-CR-055-C, 2004 WL 1085194, at *7 (W.D. Wis. May 7, 2004) (Crocker, M.J.) (according "slight weight" to the defendant's affidavit and stating that "although the affidavit is admissible in a suppression hearing, [the defendant] declined to subject his assertions to cross-examination or a demeanor check by taking the stand")). I have accorded very little weight to Velvet Cotton's affidavit for the same reason.

B. Background³

Defendant and Candace Gregory ("Candace") met during the summer of 2006. They began dating late that summer and had a child together, Caliph, in 2009. From the beginning of the relationship, defendant was violent toward Candace, and thoughdefendant was in and out of jail, she feared him constantly. Over the course of their relationship, Candace observed that defendant carried firearms on his person most of the time. In fact, defendant had asked Candace to put a gun in her purse for him on at least one occasion.

Defendant maintained a storage unit at a facility at 24th Street and King Drive in Chicago. Candace accompanied defendant to the storage unit and observed defendant placing guns into a blue plastic storage bin inside the storage unit. When Candace accompanied him on these outings, defendant never attempted to hide from her what he was doing, and she was aware that there were firearms inside the blue storage bin.

In late 2007 or early 2008, defendant was in jail, and he asked Candace to clear out his storage unit and take everything to her apartment at 4858 South Vincennes, an apartment she shared with her mother, Claudette Gregory ("Claudette"). Candace agreed. When she was moving defendant's items out of the storage unit, she noticed that the blue storage bin was closed only part-way because there was a large firearm sticking out of the bin on one side. The lid became warped and did not close properly, even after the large gun was no longer protruding from the bin. The bin was never locked and remained partially opened on the side where the lid was warped.

Candace moved the blue storage bin into her closet in her bedroom at 4858 South Vincennes. Upon moving it into her closet, Candace pushed it to the back of the closet and put a television stand (a clear plastic storage container with drawers) on top of it. She also placed clothes and other items around the bin in an effort to prevent anyone from finding it or accessing the firearms inside. Defendant was in and out of jail in the intervening years, but the blue storage bin remained in Candace's closet.

In late 2011, defendant was in jail and Candace stored the blue bin in her closet. When he got out of jail in early 2012, defendant moved in with Candace at 4858 South Vincennes. At that point, Candace also shared the apartment with her mother and Caliph. Defendant lived in the same bedroom where Candace was living with their son. After moving in with Candace, defendant accessed and removed guns from the blue storage bin in Candace's presence. Defendant dissembled and reassembled firearms in the bedroom while Candace was present. On one occasion, defendant removed a case containing a gun from the storage bin, and opened the case in front of Candace. Candace identified the gun and the case during the suppression hearing. On an earlier occasion—again in Candace's presence—defendant disassembled a large gun in Candace's bedroom and placed it in the storage bin.Defendant did not take precautions to hide what he was doing from Candace.

In early 2012, defendant also maintained his own apartment in the same complex, at 450 East 49th. The front entrance to defendant's apartment was around the corner from the apartment at 4858 South Vincennes, and the back entrance to defendant's apartment was across from Candace's apartment, separated by a flight of stairs. In February or March 2012, Claudette told defendant that he could no longer stay at her apartment, and defendant moved himself and most of his belongings into his apartment at 450 East 49th. Though defendant lived at 450 East 49th after February or March 2012, he did not remove the blue storage bin from Candace's closet. The bin remained at 4858 South Vincennes until April 13, 2012.

C. Morning of April 13, 2012

On the morning of April 13, 2012, Candace and defendant met to take Caliph, who was two years old at the time, to day care. As they walked to the train, the couple began to argue. Eventually, Candace told defendant that she no longer wanted a relationship with him, and at that time, defendant became physically violent. Defendant punched Candace repeatedly and also struck Caliph, whom Candace was carrying.

After defendant struck Caliph, Candace put him down on the ground. Candace continued to struggle with defendant and feared that he was going to shoot her when he reached his gloved hand toward his back pocket. Candace grabbed his wrist and yelled to a passerby for help. Defendant then grabbed Caliph's hand and walked away with the boy. Candace told defendant not to take Caliph, but he did not stop and left, taking the boy with him.

Candace placed three telephone calls to 911 following the attack. During the first call, Candace reported the physical attack, and during the second call, she stated that defendant had taken Caliph and was getting on a nearby train. By the time police responded to the calls on the scene, defendant and Caliph were gone. Candace described to the police what had happened, and they suggested that she get an order of protection. Candace left the scene and returned home. Within an hour of the attack, Candace twice called Caliph's day care, the Honey Tree Learning Center, to see if defendant had dropped him off. Caliph was not at the day care center.

After the attack, Candace also spoke with attorney Michael Levinsohn, who had represented defendant previously. Candace told Levinsohn that defendant had beaten her up, and they agreed to meet at the Domestic Violence Court at 555 West Harrison in Chicago. Candace's mother, Claudette, accompanied Candace to thecourt. Once there, Levinsohn described the process for obtaining an order of protection, and Candace expressed some trepidation at swearing out a complaint against defendant on account of the fact that he had access to large guns. Levinsohn did not accompany Candace when she obtained two orders of protection against defendant for herself and Caliph, but Levinsohn did contact Officer Martin Teresi, whom he knew from a previous case, on his cell phone around 10 am, regarding the guns. Levinsohn explained to Teresi that defendant had beaten Candace and that she was reluctant to go through with the legal process of obtaining an order of protection because she knew defendant had access to large guns and she was afraid. Levinsohn and Teresi did not discuss Caliph.

Officers Teresi and Kevin Kilroy, along with Sargent Jose Lopez, met Claudette at the Domestic Violence Court. From speaking with Claudette, the officers understood that...