See McKinney, 919 F.2d at 415. 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. See Giordenello, 357 U.S. at 485-86, 78 S. Ct. 1245. See United States v. Calandra,414 U.S. 338, 342-46, 94 S. Ct. 613, 38 L. Ed. The next week, Barragan showed up in state court in Milwaukee to be sentenced for dumping the corpse from a different gang-related killing. [5] It is also a crime to conspire to violate 1962(c). I agree that this issue is not material, and therefore do not address it. ! He believed this because his police-issue gun also came in a black plastic case about an inch longer and an inch wider, that is, 10 inches by 5 inches. To satisfy 1962(c)'s "associated with an[] enterprise" requirement, the government must introduce "evidence that the various associates function as a continuing unit." (Aff. 2.) The mere fact, or even allegation, of gang membership carries a strong taint of criminality. 9), discussed below) that Rosado's residence had any link to the commission of crimes. "Something more must be demonstrated; otherwise, the Fourth Amendment would offer little protection for those who are innocently associated with a legitimate enterprise, the affairs of which are being conducted by others through a pattern of racketeering activity." The Christian king Alfonso VI of Castile and Len captured the town from the Muslims in 1083, and thereafter a . Approximately 20 to 30 garments were black and gold in color; many of these garments were related to sports teams. 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 arrests are a result of a three-year investigation that has produced 26 drug dealer convictions. 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. IV. As discussed above, the magistrate must have probable cause to believe that a search warrant will "aid in the prosecution of a particular offense." This language utterly failed to inform the magistrate judge that the officials' only reason to suspect that the plastic box was incriminating was that it was 4" 8" 2" and made of black plastic. Count 3 alleged drug offenses, and was the only count with which Rosado was charged. in Supp. 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. [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. The first half-page provided a general introduction and asserted erroneously that a copy of the grand jury's indictment was attached. State legislators considered beefing up the law last year at the request of prosecutors, but the bill failed to pass. 2d 347 (1987), where an officer suspected that expensive stereo components that looked out of place in a squalid apartment might have been stolen, and moved them so that he could read their serial numbers. U.S. There was no hint in that hearing that federal prosecutors were closing in, according to the transcript and Barragan's attorney, Mark Lipscomb. If you leave one root, it will grow back stronger," she said. Nearly 200 schools and more than 1.200 teachers have participated in the . 2d 667 (1978). McGann v. Northeast Illinois Regional Commuter R.R. 2d 525 (1978) (quoting LaFave, "Search and Seizure: `The Course of True Law Has Not Run Smooth,'" U. Ill. L.F. (1966) 255, 260-61 (footnotes omitted)). 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. 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. milwaukee police target latin kings gang. Gonzales said he would have been particularly interested in what Barragan told Milwaukee police detectives after he agreed to plead guilty to aiding a felon for dumping Trevino's body. Barragan is on the U.S. marshals' top fugitives list and has been featured on "America's Most Wanted." 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. The affidavit did not assert that Rosado had engaged in any of the behaviors common to drug and narcotics traffickers; that he had aided or abetted anyone else in such behaviors; or that his residence had any of the characteristics common to drug traffickers' homes. 3.) Officers seeking a search warrant relying on information provided by a confidential informant are under an obligation to take reasonable steps to confirm that information before using it in an affidavit in support of the warrant. This evidence properly allowed the inference that Rosado might be associated with or a member of the Latin Kings. Marshals Service in Milwaukee, (414) 297-3707. shooting Hirschfield at least a dozen times, That charge brings a maximum of 18 months in prison, a vicious and diversified criminal operation in Milwaukee. I must assess whether the untainted information supporting the warrant, considered alone, is sufficient to establish probable cause. Again, he escaped because of mistakes. She said fellow members of the gang who will testify have a reason to lie. [1] Count 1 of the indictment alleged a Latin Kings RICO enterprise. Id. at 918-19, 104 S. Ct. 3405. Id. The affidavit in this case, in contrast to that in Rubio, provided extensive information regarding the alleged criminal activities of the organization, as well as detailed information about the organization's reliance upon criminal acts to further its purposes. Sanchez was picked up later. 8. Corp., 8 F.3d 1174, 1180 (7th Cir.1993). On that basis, the affidavit provided probable cause to believe that such a large portion of the Latin Kings' activities were illegitimate that the enterprise could be considered in effect wholly illegitimate. The affidavit next asserted, over a third of a page, that "According to several cooperating informants, Latin King members often use firearms to further their violent criminal activity and it is common for them to store firearms within their residence." "If it was out there and they had the evidence, they should have brought it to me. RICO applies both to formal and informal enterprises, including criminal gangs, see United States v. Korando, 29 F.3d 1114, 1117-18 (7th Cir.1994), and wholly criminal enterprises, see United States v. Turkette,452 U.S. 576, 587, 101 S. Ct. 2524, 69 L. Ed. They communicated with walkie-talkies, wore certain clothes to hide their identities and were always on the hunt for rivals, using gang-owned guns, Gonzales said. At the evidentiary hearing, Sergeant Harpole and Marrero gave conflicting testimony about whether Marrero voluntarily consented to such a search. 2d 1121, 1144 (E.D.Wis.1998) (Stadtmueller, C.J.). milwaukee milwaukee police wednesday promised a crackdown on the latin kings after arresting two members of a violent street gang in connection with the slaying of a miller brewing co. executive. (Aff. 7.) Assistant District Attorney Warren Zier appeared for the state and asked for a delay. 'They needed to know who is with them and who they are at war with on any given day. 1971). See Markling, 7 F.3d at 1316. See also United States v. Ellsworth, 647 F.2d 957, 964 (9th Cir.1981) ("We find no authority for holding, and do not so hold here, that an indictment alone constitutes sufficient probable cause to issue a search warrant."). The affidavit next spent one and a half pages detailing various means and methods that Latin King members had allegedly used "to accomplish some of the objects and purposes of the Latin King enterprise." After Rosado's arrest, Sergeant Manfred Harpole of the Milwaukee Police Department asked Rosado's live-in girlfriend (now wife) Marilyn Marrero, for "full consent to search her residence for people or evidence of any crimes." Between June 1993 and February 1994, seven Latin Kings were murdered. FBI spokesman Leonard Peace declined to comment, saying the Barragan case remains open. See Steagald v. United States,451 U.S. 204, 212, 101 S. Ct. 1642, 68 L. Ed. Barragan was back in state court in early October to be sentenced on his guilty plea in the Trevino case. For this reason, RICO charges under 1962(c) implicate First Amendment interests. In the Vallejo criminal complaint, Barragan was identified as the one who ordered the shooting. 3(a) (b).) Trevino and other Latin Kings accused each other of talking to police, according to police reports. I find that an indictment does not constitute probable cause to issue a search warrant. All five defendants also appeal their sentences. Rosado next contends that the search conducted pursuant to the search warrant issued the evening of the search was unlawful, because the affidavit supporting the warrant did not provide probable cause. Lloyd, 71 F.3d at 1263 (emphasis added). Luis Trevino was a Latin King, hanging out with fellow gang members on Milwaukee's south side in September 2004 when an argument arose. To be sure, these facts may be consistent with a gun case. (Id. Moreover, the magistrate "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause." 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. Trevino's body was stripped naked, washed in bleach, driven to the near north side and dumped in an alley, according to the police reports. See City of Chicago v. Morales,527 U.S. 41, 53, 119 S. Ct. 1849, 144 L. Ed. They asked Hirschfield's family for patience. An investigation that started in 1987 resulted in charges against 33 members.. I. Depending on the circumstances, the murder may have become part of his case, he said. On March 22, 2005, a grand jury sitting in the Western . District of Wisconsin returned an eight-count indictment . The magistrate's determination must be neutral and detached. See Case No. 2d 723 (1964)). Nonetheless, the Seventh Circuit has held that the magistrate must have a substantial basis to conclude that a search would uncover evidence of wrongdoing. The government therefore contends that Sergeant Harpole had probable cause to lift and open the box, based upon his later testimony that he thought the box "might he potentially a gun case.". 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. But the affidavit did not give the magistrate judge any facts from which he could draw the inferences and form the conclusions necessary to a determination of probable cause. 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. Magistrate Judge Gorence held an evidentiary hearing on Rosado's motion to suppress on August 16, 1999, and issued a recommendation August 30, 1999. 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. Following the outbreak of internal gang violence, Luis Felipe and 19 others were charged with murder and racketeering; the indictment process ended in 1995 with 39 Latin Kings and 1 Latin Queen indicted under the RICO Act. *933 Rubio's analysis was accepted, and applied to a different fact pattern, in United States v. Killip, 819 F.2d 1542, 1550 (10th Cir.1987). See Coolidge v. New Hampshire,403 U.S. 443, 456, 91 S. Ct. 2022, 29 L. Ed. See United States v. Butler, 71 F.3d 243, 251 (7th Cir.1995); United States v. Rodriguez, 925 F.2d 1049, 1053-54 (7th Cir. at 326, 107 S. Ct. 1149. Even so, courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than common-sense, manner. A sentencing date was set, but state prosecutors wanted Barragan to testify first against fellow Latin Kings in the murder. [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. 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. You can explore additional available newsletters here. That must have factored in how he was out of custody," Gonzales said. U.S. Turkette, 452 U.S. at 583, 101 S. Ct. 2524. ), cert. jan 31, 2008. by john dobberstein. 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. See Murray, 487 U.S. at 542, 108 S. Ct. 2529. The argument escalated. Because Barragan was regularly showing up in court as part of his plea agreement, Robles said, the agents had confidence he would be at his home when the bust occurred. Probable cause for arrest, without more, will not justify a search warrant. Because of the link between the Latin Kings colors and the clothing observed in the attic, there was probable cause to believe that whoever the clothing belonged to was associated with and participated, directly or indirectly, in the conduct of Latin Kings' affairs. Omitted facts exhibit deliberate falsehood or a reckless disregard for the truth if the affiant has an obvious reason for the omission. Anyone with information about the whereabouts of Armando Barragan is urged to call the U.S. The murder generated big news and triggered what would become the second major federal investigation of the Latin Kings in Milwaukee. of Def. A few days later, the FBI turned the case of hunting down the pair over to the U.S. The magistrate must be provided with sufficient facts from which he or she may draw the inferences and form the conclusions necessary to a determination of probable cause. (Tr. Rosado raised all of these arguments, most of them verbatim, in his motion before Judge Gorence. It doesn't take a genius to figure out all these guys were involved.". of 8/16/99 Evid. The magistrate "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause." Isabel Natividad Daz Ayuso (Spanish pronunciation: [isael di.a auso]; born 17 October 1978) is a Spanish politician and journalist serving as the president of the Community of Madrid since 2019. Ilona Mackey, mother of Hirschfield, the man gunned down at the gas station, doesn't understand how authorities could investigate the Latin Kings for 2 1/2 years but then fail to grab its leader when they had the chance. (`TnUZ7NmZ.m{mvvtL;Ip{_y{=l g>e9xkN};3 e' no pR_z2@`H^1e= C sw.I)Q P;m6k3v%*FEM= '`pAmQG+J\?A{~#zbX.#Ef}$C!`0 'E:!4AKHI$f$4Qc4L&)ebJ4FMkMLM763hzsL~gmvsku^)*,VoaH^?S}'i >e=S?&MkH 0^*R7^_k3Of[c;.^^g. But the Hirschfield homicide showed the gang wasn't destroyed. 'They decided who could live in which neighborhood, what colors people could wear, which way they could cock their hat,' Assistant U.S. Attorney Mario Gonzales said during his opening statement Thursday in a long-awaited trial against two purported members of the south side Milwaukee street gang. Barragan mistook Hirschfield for the man who hit him and ordered subordinate Latin Kings to shoot him, according to the court records. Sergeant Harpole conceded that the plastic box was not large enough to hide a person. 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. Marshals Service, which specializes in fugitive apprehension. 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. He picked up the box, which allowed him for the first time to see the word "Remington" on it. The question presented is thus whether this inference is adequate to establish "probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises." in Supp. Id. *919 *920 *921 Karine, Moreno-Taxman, Asst. 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. Under Coolidge, three requirements must be satisfied before police may seize private possessions in plain view without consent. See United States v. Leon,468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. In 2005, 49 members of the gang and their associates were charged with homicide, attempted homicide, drug dealing, kidnapping, arson, witness intimidation and a string of other crimes dating to 1998. Nonetheless, the affidavit did not even assert, much less give the magistrate judge reason to form an independent judgment, that Rosado had committed crimes; had aided or abetted others in committing crimes; or (with the exception of asserting that a search was likely to find evidence of RICO violations (id. of Objs. It thus misled the magistrate into believing that the plain view exception requirements were satisfied. "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." In other words, there must be a nexus between the item to be seized and criminal behavior. Milwaukee County Assistant District Attorney David Robles, who worked as a special federal prosecutor with Gonzales on the Latin Kings case, said he was aware of Trevino's homicide and that Barragan was charged in it, but he isn't sure when he found out. On that basis, evidence of that person's association with the Latin Kings the Latin Kings-color clothing would help prove the associational element needed to secure a conviction under 1962(c). MILWAUKEE- Forty-nine members of a street gang known as the Almighty Latin King Nation were indicted Wednesday on federal racketeering charges for crimes that include four murders, 38 attempted murders and widespread drug trafficking. The three shooters eventually would be convicted in federal court, two of them getting life in prison. Gang membership is not a crime. BACKGROUND 4 In 2005, a grand jury issued a 38-count indictment in the United States District Court for the Eastern District of Wisconsin, alleging that 49 members of the Milwaukee chapter of the Latin Kings violated RICO. 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. amend. 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. See Giordenello, 357 U.S. at 485-86, 78 S. Ct. 1245. The affidavit made no assertion that Rosado had any involvement or participation in any of these activities; that he had aided or abetted anyone else in them; or that his residence was in any way related to any of these activities. Federal prosecutors have indicted large numbers of Latin Kings several times over the past two decades for drug peddling and homicides, including 49 people in a 2005 case. Two weeks later, Barragan and a few dozen other Latin Kings were indicted. McKinney, 919 F.2d at 415 (emphasis added). By September 2005, the state's prosecution of cases tied to the Trevino homicide was progressing. Middle District of North Carolina (336) 333-5351. 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). 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. If the government has evidence of criminal activity to present to the grand jury, there is nothing to prevent it from disclosing such evidence to the magistrate judge so that he or she can exercise independent judgment. See Rubio, 727 F.2d at 795. Thus, Sergeant Harpole had "actual consent," Dichiarinte, 445 F.2d at 129, to search for people and nothing else. See Warden v. Hayden,387 U.S. 294, 306-07, 87 S. Ct. 1642, 18 L. Ed. (Aff. 2, 2(i).) Authorities revved up to take on the Latin Kings. In the confusion, Toms slipped away. They allowed Marrero to follow them at a short distance. Thus, a mere inference of gang membership, without more, provides no basis for concluding that a search would uncover evidence of wrongdoing. Barragan was charged with aiding a felon - not the killing itself. 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. of Objs. 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"). I also adopt Judge Gorence's finding that Sergeant Harpole exceeded the scope of Marrero's consent when he opened the black plastic box. Gonzales, the federal prosecutor, said he would have been very suspicious of Barragan's account that he was a bystander. United States v. Markling, 7 F.3d 1309, 1316 (7th Cir.1993). for Women, Inc. v. Scheidler,510 U.S. 249, 264, 114 S. Ct. 798, 127 L. Ed. 2d 960 (2000). See Rubio, 727 F.2d at 793. It did not state whether the informants made first-hand observations, or whether law enforcement officials independently verified some or all of their claims about firearms. The facts of this case are not even close to cases in which the Seventh Circuit has found probable cause to believe that incriminating evidence found in plain view was present: shotgun shells found in a bank robbery case, see United States v. Bruce, 109 F.3d 323, 329 (7th Cir.1997); an empty ammunition box found in a search for drugs, see United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir.1994); a large amount of money found in a defendant's car after a drug transaction, see United States v. Cervantes, 19 F.3d 1151, 1153 (7th Cir.1994); a gun silencer found while searching for drugs, see United States v. Carmany, 901 F.2d 76, 78 (7th Cir.1990); money and maps found in a bank robbery case, see United States v. Walton, 814 F.2d 376, 380 (7th Cir.1987). Sergeant Harpole then returned the box to the shelf. I am not an independent investigative agency," he said. Luis Trevino was a Latin King, hanging out with fellow gang members on Milwaukee's south side in September 2004 when an argument arose. (Id. On that basis, even after setting aside the tainted evidence regarding the gun case, the search warrant for Rosado's residence was supported by probable cause. 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. ", Milwaukee police spokeswoman Anne E. Schwartz said, "The Milwaukee Police Department successfully investigated a homicide and identified a suspect who was involved in the crime. See United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir.1995). It's unclear what the fight was about at the gas station that night in April 2003, but Toms landed the first punch, nailing Barragan in the face, according to the documents. Search salary and other information: www.jsonline.com/dataondemand, Got a story tip? "When I go back and look at that time, I see complete despair on the part of the family," said Milwaukee District Attorney John Chisholm, who was an assistant district attorney at the time. See id., 438 U.S. at 164 n. 6, 98 S. Ct. 2674. "I am only aware of what I receive. The third of these requirements is that the incriminating nature of the object seized must be "immediately apparent." See Lloyd, 71 F.3d at 1263. I review the recommendation de novo. [6] Killip's reasoning is repeated verbatim in United States v. Gruber,994 F. Supp. The affidavit recited that Latin King members had been indicted for many serious crimes. He identified several people in the house but left out one, the report said. (Tr. See United States v. McNeese, 901 F.2d 585, 594 (7th Cir.1990). The affidavit asserted that unnamed informants claimed that Latin King members often used firearms to commit violent crimes and stored them at their residences. Belsha called for police backup, with instructions that the request not be broadcast over Milwaukee police radios, Gonzales said. See Murray, 487 U.S. at 542, 108 S. Ct. 2529; Markling, 7 F.3d at 1316. The affidavit detailed many categories of crimes that law enforcement officers alleged that Latin King members had committed, and also alleged that many of these crimes were committed in furtherance of the Latin Kings enterprise itself. MILWAUKEE (AP) Thirty-three people described as members of Milwaukee's Latin Kings street gang were indicted Monday on charges alleging involvement in nine murders, 21 attempted murders. The name Majerit first appears in ad 932, when the Christian king Ramiro II of Len razed the town's walls, but there are traces of earlier (even prehistoric) habitation. 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. I therefore do not discuss 1962(d) separately.