The Supreme Court applied Coolidge's requirement that an item's incriminating nature must be "immediately apparent" before it can be seized to mean that, absent a search warrant, an object in plain view may be moved, opened, or otherwise intruded upon only if there is probable cause. 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. Luis Trevino was a Latin King, hanging out with fellow gang members on Milwaukee's south side in September 2004 when an argument arose. As discussed above, the magistrate must have probable cause to believe that a search warrant will "aid in the prosecution of a particular offense." See Lloyd, 71 F.3d at 1263. On March 22, 2005, a grand jury sitting in the Western . The problem with relying upon an indictment to supply probable cause for a search warrant is that it asks the magistrate to subordinate his or her own independent judgment to that of the grand jury, see United States v. Rubio, 727 F.2d 786, 795 (9th Cir.1983), and asks the magistrate merely to ratify the bare conclusions of others, rather than to form an independent judgement, in violation of Gates, 462 U.S. at 239, 103 S. Ct. 2317. of Def. FBI spokesman Leonard Peace declined to comment, saying the Barragan case remains open. 33 Latin Kings' members indicted - journaltimes.com Id.[6]. He then opened it. Between June 1993 and February 1994, seven Latin Kings were murdered. "If a bunch of Latin Kings are in a house and someone is being tortured and killed, there is high probability that everyone in that house is part of what is going on," he said. 1961(4). "I would have liked to have known about a lot of this stuff, but I can only work with the information that is provided to me.". In this case, Sergeant Harpole asked Marrero for, and was denied, "full consent to search her residence for people or evidence of any crimes." 3 (a) (b).) Justia Opinion Summary In 2005, Martinez, Vallejo, and 47 others were indicted for crimes committed while they were members of the Milwaukee chapter of the Latin Kings gang organization. The state prosecutor asked to delay the sentencing so Barragan could testify against fellow gang members in that killing as part of a plea bargain. 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 was convicted and sentenced to 78 months. How The Latin Kings Started In Milwaukee - Otosection 'You are going to hear from the worst of the worst,' she said. (Docket # 1027 [hereinafter "Recommendation"].) See McNeese, 901 F.2d at 594. [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. I must assess whether the untainted information supporting the warrant, considered alone, is sufficient to establish probable cause. 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. The Bilingual Program has already been implemented in the 51% of the Secondary Education Institutes and in the 46,6% of the public schools of the Community of Madrid. The affidavit said nothing about the informants' reliability; veracity; or basis of knowledge for these claims. Id. By September 2005, the state's prosecution of cases tied to the Trevino homicide was progressing. 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. In the basement Sergeant Harpole observed, in plain view on a shelf, a black plastic box measuring approximately 4 inches by 8 inches by 1.5 or 2 inches. That gang member ultimately was convicted of killing Trevino. He said that information could have come from the investigating agents, who worked for the FBI and Milwaukee police. On June 19, 1998, a federal grand jury returned an indictment naming 33 defendants, allegedly members of the Latin Kings. See Lloyd, 71 F.3d at 1263. By contrast, a magistrate may not consider illegally gathered evidence in determining whether there is probable cause to support a search warrant. "When this (homicide) broke, this was the one that galvanized everyone, that we needed to do something now, we needed to identify (those responsible) and hold them accountable.". Marshals Service, which specializes in fugitive apprehension. Over 60 Members of Latin Kings Charged - United States Department of A 2007 U.S. Justice Department drug trafficking intelligence report indicated that other members keep stepping up to take positions of authority in the gang. At the same time, federal authorities were closing in on their targets. See 18 U.S.C. It falsely implied that the search was within the scope of the consent for the initial search and the plain view exception, by emphasizing that the discovery was made "during their search for people [and] within plain view," and yet it wholly omitted that officers identified the plastic box as a "gun case" only after exceeding the scope of the consent by moving the box. Middle District of North Carolina (336) 333-5351. Meanwhile, federal authorities had convened a grand jury to develop the federal case. 2d 527 (1983). Bilingual education | Madrid's community 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. There was no hint in that hearing that federal prosecutors were closing in, according to the transcript and Barragan's attorney, Mark Lipscomb. I find that an indictment does not constitute probable cause to issue a search warrant. The Seventh Circuit has not addressed this question. 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. We will take a look at this and see what we can do better in the future.". The affidavit did not assert that Rosado was a Latin King leader, officer, or treasurer, and provided no other reason to believe that his residence would have copies of the organization's manifesto, roster, dues lists, or other material. (Aff. 5.) The magistrate "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause." 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 . Authorities believe he is in Mexico, often moving to blend in and elude capture. Barragan slipped away during the sweep, but law enforcement was still tracking him. 2.) The affidavit must "allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated." "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." The affidavit stated nothing about the informants' reliability, veracity, or basis for knowledge. "I had no idea that he was awaiting sentence and entered that plea. The affidavit then spent one and a half pages, based on discussions with agents with extensive experience in narcotics investigations, summarizing specific behaviors common to drug and narcotics traffickers (such as having large amounts of unexplained cash and engaging in frequent interstate travel), and specific characteristics common to their residences (such as having paraphernalia for packaging, cutting, weighing and distributing cocaine). See id. We face a critical time for our security and international peace and stability. Indeed, if police conduct a search in good faith pursuant to a facially valid warrant, the resulting evidence may not be suppressed due to an absence of probable cause supporting the warrant. Under RICO, it is a crime for a person (1) associated with an enterprise (legal or illegal) (2) to conduct or participate in the conduct of the enterprise's affairs, directly or indirectly, (3) through a pattern of racketeering activity. Nonetheless, the Seventh Circuit has held that the magistrate must have a substantial basis to conclude that a search would uncover evidence of wrongdoing. One of them was Barragan, who was already under federal investigation in the Hirschfield homicide, attempted murder, drug dealing and robbery. They allowed Marrero to follow them at a short distance. See United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir.1995). 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. (Id. "Hindsight being 20/20, if we thought he was going to run as far and as successfully as he has, we would have picked him up that day (in court)," Gonzales said. "He knows what he is doing. at 17.) Police said he had 49 kilograms of cocaine with a street value of $7.3 million. 2d 38 (1981). Marrero refused. Thus, even though the presence of Latin Kings-color clothing in Rosado's attic might allow probable cause to believe that Rosado was a Latin King member, it would not, without more, allow the inference that Rosado had committed a crime. They then used information gleaned during this search to support an affidavit, pursuant to which a search warrant was issued. The next week, Barragan showed up in state court in Milwaukee to be sentenced for dumping the corpse from a different gang-related killing. The charges result from a continuing effort by the Attorney General's "Gangs, Guns and Drugs" initiative targeting violent street gangs . The Milwaukee chapter of the gang was founded in the mid-1980s and over time came to control a large territory on the city's south side. Sergeant Harpole conceded that the plastic box was not large enough to hide a person. "That was not a great moment," Gonzales said. See McKinney, 919 F.2d at 415. The right of free association is impinged upon even by laws prohibiting gang membership plus certain kinds of conduct, for example, gang membership plus loitering. 'They would come up here and sell out their own mother if they have to.'. See Calandra, 414 U.S. at 351-52, 94 S. Ct. 613. (Id. Officers initially made a consensual "protective sweep" to look for persons on the premises. 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. No decision of the Seventh Circuit has cited Killip, and Rubio has been cited only on other topics. 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." As in the gas station homicide, Barragan was in the middle of this homicide, according to state and federal court documents. They asked Hirschfield's family for patience. Gang membership is not a crime. "It sounds like somebody was cooking a deal with him. It doesn't take a genius to figure out all these guys were involved.". for Women, Inc. v. Scheidler,510 U.S. 249, 264, 114 S. Ct. 798, 127 L. Ed. In the one report released by police, Barragan admitted he had earlier lied to detectives. In 1997, six years earlier, a decade-long investigation led to the indictment of 33 Latin Kings. The box was heavy, which led him to think that it likely contained a gun. ?|i/mu9R)bG]yz1bp?\_^W.|. In addition, there must be probable cause to believe that evidence of the particular criminal behavior has been secreted in specific premises. That may have contributed to the confusion. "Associational" evidence therefore is needed to establish a RICO violation under 1962(c), and such evidence thus demonstrates one element of a crime. Nos. Even though Special Agent Koenig may have been personally ignorant of the falsehood, government agents may not insulate deliberate misstatements merely by relaying them through another officer. Wisconsin. The case would mark a new level of cooperation between federal and state officials in tackling violent, drug-dealing gangs. I review the recommendation de novo. at 918-19, 104 S. Ct. 3405. Even so, courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than common-sense, manner. Barragan mistook Hirschfield for the man who hit him and ordered subordinate Latin Kings to shoot him, according to the court records. Where an affidavit provides reason to believe that a particular person is a narcotics distributor, the affidavit's further generalization that such distributors often keep drugs, implements of distribution, records, and proceeds in their residences is sufficient to provide probable cause to believe that the *930 person's premises would contain evidence. Id. If you leave one root, it will grow back stronger," she said. in Supp. See Markling, 7 F.3d at 1316. Gates, 462 U.S. at 234, 103 S. Ct. 2317. State prosecutors would charge suspects to give federal prosecutors enough time to build a major racketeering case. This is comparable to Arizona v. Hicks,480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 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. The indictment was sealed as authorities prepared for a major arrest sweep. He is looking into what happened. 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. Under the plan, the FBI and Milwaukee police would become the lead law enforcement agencies investigating the Latin Kings. 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. of Objs. The indictment was returned under seal yesterday and unsealed today upon the arrests of the defendants. <>stream 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. [1] That indictment has since been superceded. 2 0 obj "It is like pulling up a weed. The rule is straightforward: United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir. Because the box was of these dimensions and was made of black plastic, Sergeant Harpole believed that it "might be potentially a gun case." The magistrate judge's assessment of the informant's reliability should consider: (1) whether the informant made first-hand observations; (2) the degree of detail provided by the informant; (3) whether a law enforcement official independently verified some or all of the informant's information; and (4) whether the informant accompanied the officer to the probable cause hearing and is available to give testimony before the judge issuing the warrant. From January 1999 to August 1999, Spring made reg- Other recent cases where defendants eluded justice because of failures in the system: LZ Jolly, a purported gang leader, was charged in the execution of a man and was on the run for years. of Objs. See Mendocino Envtl. I agree that this issue is not material, and therefore do not address it. To be sure, an indictment does supply probable cause for an arrest warrant. That's exactly what happened," says Gary Graika, an anti-gang program director at the Latino Community Center. IV. NOW THEREFORE, IT IS HEREBY ORDERED that the magistrate judge's recommendation (Docket # 1027) is *934 ADOPTED, and that defendant Rosado's motion (docket # 785) is DENIED.