among forty-nine Milwaukee-area Latin Kings indicted Case: 10-2677 Document: 56 Filed: 07/18/2012 Pages: 32 . Corp., 8 F.3d 1174, 1180 (7th Cir.1993). The probable cause determination is based upon the totality of the circumstances. Those state prosecutors did not return calls for comment. 9.). 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. The trial was in recess Friday. Gonzales laid out the picture of a well-oiled outfit that operated under a hierarchy, met every week, collected dues, recruited from all races and demanded loyalty. 2.) Barragan mistook Hirschfield for the man who hit him and ordered subordinate Latin Kings to shoot him, according to the court records. McGann v. Northeast Illinois Regional Commuter R.R. (Id. Trevino and other Latin Kings accused each other of. 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. Latin Kings, who were essentially decapitated by a 33-member indictment in 1998 (just before the Gang Squad was disbanded). The 26-year-old had spent the day before putting a new roof on his aunt's house. 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. In this case, however, the affidavit did not assert, much less provide reason to believe, that Rosado was a narcotics distributor or drug dealer; that he aided or abetted others who were; that he exhibited any traits or behaviors characteristic of narcotics traffickers; or that any characteristics common to narcotics traffickers' residences had been found at his residence. Like Barragan, Jolly was charged with aiding a felon, in a case also involving a killing. The indictment was sealed as authorities prepared for a major arrest sweep. In coming days, swarms of law enforcement officers descended on the city's south side, arresting all but a couple of targets. Gates, 462 U.S. at 234, 103 S. Ct. 2317. Known by his nickname "Mondie," the 23-year-old Spanish-speaking American citizen is believed to be living in Mexico. the Milwaukee Latin Kings had established a foothold on the LCO Reservation and, with LCO Latin Kings members, were distributing large amounts of crack there. Federal and state law enforcement had another shot at Barragan a month later. He said that information could have come from the investigating agents, who worked for the FBI and Milwaukee police. 1961(4). An affidavit must provide "a substantial basis for concluding that a search would uncover evidence of wrongdoing." It thus misled the magistrate into believing that the plain view exception requirements were satisfied. (Aff. 2, 2(i).) at 20.) [3] The original, signed and sealed affidavit is in the court's file, and no indictment is attached to it; no copy of the indictment is loose in the file; and the docket does not reflect that a copy of the indictment was filed. Id. Depending on the circumstances, the murder may have become part of his case, he said. [1] That indictment has since been superceded. 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. In the confusion, Toms slipped away. See id. Even so, courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than common-sense, manner. in Supp. The affidavit asserted that unnamed informants claimed that Latin King members often used firearms to commit violent crimes and stored them at their residences. 1441, 1443 (D.Ariz.1990), applied Rubio's reasoning and found that the search warrant there was valid, because the affidavit established probable cause that the suspect for whose residence the warrant was sought had committed particular offenses. The affidavit then spent half a page asserting in the passive voice that: (Id. When these conditions are satisfied, great deference is to be accorded to the magistrate judge's determination that probable cause exists. 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. Turkette, 452 U.S. at 583, 101 S. Ct. 2524. The national organization of the Latin Kings is known to have chapters in several states, including Illinois, Connecticut, Florida and New York. See Calandra, 414 U.S. at 351-52, 94 S. Ct. 613. "Associational" evidence therefore is needed to establish a RICO violation under 1962(c), and such evidence thus demonstrates one element of a crime. During the four-year investigation, law enforcement developed evidence that the Latin Kings trafficked drugs, conspired to murder more than 10 victims, and committed violent crimes including numerous incidents of robbery, shootings, stabbings and witness intimidation. The Seventh Circuit has not addressed this question. There was no hint in that hearing that federal prosecutors were closing in, according to the transcript and Barragan's attorney, Mark Lipscomb. Officers initially made a consensual "protective sweep" to look for persons on the premises. Johnson v. United States,333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 10-2677 & 10-2933 3 in September 2005 on charges of racketeering, racke-teering conspiracy, narcotics trafficking and conspiracy, and unlawful possession and distribution of firearms. The five-count indictment unsealed Friday alleges Santo Lozoya, Hector Rojas, Jose Martinez and Pedro Navarro all said to be members of the Milwaukee Kings gang committed a combined three . The first half-page provided a general introduction and asserted erroneously that a copy of the grand jury's indictment was attached. The affidavit did not state who believed that these items would be located within Rosado's residence, and it did not state why it was believed that these items would be located there. 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). Middle District of North Carolina (336) 333-5351. A few months later, he agreed to plead guilty. That must have factored in how he was out of custody," Gonzales said. "If it was out there and they had the evidence, they should have brought it to me. 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. Rosado contends that the protective sweep was nonconsensual, and further contends that the affidavit supporting the search warrant did not establish probable cause. 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. By contrast, a magistrate may not consider illegally gathered evidence in determining whether there is probable cause to support a search warrant. "At that point in time, information related to his whereabouts was good," he said. Within days of the killing, Milwaukee homicide detectives were rounding up gang members who were in the house when Trevino was killed. 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. At the same time, federal authorities were closing in on their targets. I must assess whether the untainted information supporting the warrant, considered alone, is sufficient to establish probable cause. The next week, Barragan showed up in state court in Milwaukee to be sentenced for dumping the corpse from a different gang-related killing. 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. As a preliminary matter, Rosado emphasizes that he was not named in the indictment's RICO count. The magistrate judge issued the requested search warrant. The affidavit accused the Latin Kings of being an association-in-fact enterprise under the RICO statute, 18 U.S.C. U.S. See United States v. Leon,468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. See Mendocino Envtl. An investigation that started in 1987 resulted in charges against 33 members.. 2d 527 (1983). 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. United States District Court, E.D. [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. Thus, a mere inference of gang membership, without more, provides no basis for concluding that a search would uncover evidence of wrongdoing. 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. "It is amazing that they actually had him in court, knew he was involved in a murder and he got away.". To protect RICO suspects' right to freedom of association, search warrants issued on the strength of suspected 1962(c) violations must be narrowly drawn. In the one report released by police, Barragan admitted he had earlier lied to detectives. You already receive all suggested Justia Opinion Summary Newsletters. Where the affidavit relies upon one or more informants, the magistrate judge must undertake "a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip." milwaukee police target latin kings gang. See Markling, 7 F.3d at 1316. Lloyd, 71 F.3d at 1263 (emphasis added). State legislators considered beefing up the law last year at the request of prosecutors, but the bill failed to pass. (Tr. Reliability is based upon the informant's veracity and basis of knowledge. ", 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. At the evidentiary hearing, Sergeant Harpole and Marrero gave conflicting testimony about whether Marrero voluntarily consented to such a search. E-mail us at watchdog@jsonline.com. Id. You can explore additional available newsletters here. at 918-19, 104 S. Ct. 3405. 1962(d). The rule is straightforward: United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir. 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. 2(a) (h), (j) (k).) denied ___ U.S. ___, 120 S. Ct. 2688, 147 L. Ed. Fontanez was arrested in April 2005 in Las Vegas during a traffic stop. (Id. Lloyd, 71 F.3d at 1263 (emphasis added). It must provide "a substantial basis for concluding that a search would uncover evidence of wrongdoing." She worries about the danger that Barragan presents as he remains on the run. Because the discovery of the gun case and bullets was tainted, they cannot be considered in assessing the magistrate's decision to issue a warrant for a second search. amend. 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 . No decision of the Seventh Circuit has cited Killip, and Rubio has been cited only on other topics. (`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. Because Gates was issued two months after Apker, the Apker court necessarily could not consider it. In 1997, six years earlier, a decade-long investigation led to the indictment of 33 Latin Kings. 2d 561 (1974). [3] The affidavit did not assert that Rosado had been indicted. I find that an indictment does not constitute probable cause to issue a search warrant. All five defendants also appeal their sentences. See United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir.1995). 2 0 obj Information obtained during a first, unlawful, search may not affect a magistrate's decision to issue a warrant for a second search. 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. 2d 782 (1967). 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. This site is protected by reCAPTCHA and the Google, Eastern District of Wisconsin US Federal District Court. Gonzales said he recently found a note in the warrant file written before the bust that indicated agents believed Barragan may have been behind bars on the day the roundup was to occur. Barragan downplayed his role in the Trevino homicide, saying he was just in the house to witnesses the homicide but took no role - except to help wash the body in bleach, drive it to the north side and dump it. That gang member ultimately was convicted of killing Trevino. It is unclear if detectives wrote up reports on the two earlier interviews, but typically reports are done for such interviews. 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. Because the box was of these dimensions and was made of black plastic, Sergeant Harpole believed that it "might be potentially a gun case." (Aff. 2(i) 2(k); 3.) "It is like pulling up a weed. I. See National Org. Arrest warrants were issued pursuant to the indictment, and on the morning of June 22, 1998 defendants Rosado and Natanael Matos were arrested outside Rosado's residence. 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. 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. 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. The Training Plan in Foreign Languages created 2.340 job positions during the 2016-2017 period. 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. IV. 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. Gang membership is not a crime. It may be possible, though, that the magistrate judge was aware from other information that Rosado had been indicted on a criminal charge. The affidavit next summarized in two-thirds of a page the consensual "protective sweep" search conducted at the residence earlier in the day and what was found: The affidavit then summarized, based upon law enforcement officers' surveillance *924 and observations, half a page of reasons for believing that Rosado lived at the residence. See Lloyd, 71 F.3d at 1263. 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. See Leon, 468 U.S. at 914, 104 S. Ct. 3405 (citing Franks). I know this will be very critical of us. See Gardner v. Barnett, 175 F.3d 580, 589 (7th Cir. at 662. See Murray, 487 U.S. at 542, 108 S. Ct. 2529; Markling, 7 F.3d at 1316. at 22.) 8. "They had him and actually let him go?" Latin Kings leader Armando Barragan is one of the nation's most wanted fugitives, charged with ordering the execution of Kevin Hirschfield, who tried to stop a fight at a Cudahy gas station in 2003. 3.) the milwaukee journal sentinel. I review the recommendation de novo. You're all set! To satisfy 1962(c)'s "associated with an[] enterprise" requirement, the government must introduce "evidence that the various associates function as a continuing unit." 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. Having posted bail earlier, Barragan walked free that day. In addition, the affidavit appears to have been calculated to mislead. (Tr. 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). I first consider whether evidence of gang membership, standing alone, is sufficient to create probable cause; and then whether evidence of association with a RICOaccused *931 enterprise, standing alone, is sufficient. Gates, 462 U.S. at 239, 103 S. Ct. 2317. 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." 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. She said fellow members of the gang who will testify have a reason to lie. Luis Trevino was a Latin King, hanging out with fellow gang members on Milwaukee's south side in September 2004 when an argument arose. The box was heavy, which led him to think that it likely contained a gun. I must thus consider whether the fact of Rosado's indictment, standing alone, could supply probable cause for a search of his residence. The Latin Kings were more than a gang; it was a way of life for members who freely used violence against rivals, brought terror to neighborhoods and acted as a kind of rogue government, a federal prosecutor said this week. Atty., David Robles, Sp. The indictment was returned under seal yesterday and unsealed today upon the arrests of the defendants. Count One of the indictment alleged that Hill . 636(b) (1) (B). For this reason, RICO charges under 1962(c) implicate First Amendment interests. A sentencing date was set, but state prosecutors wanted Barragan to testify first against fellow Latin Kings in the murder. Sergeant Harpole then requested permission to "limit my search and check just for the safety of our officers for people and any potentially other [sic] Latin King members who were named as in [sic] arrest warrants or any other person who may have been wanted." Rosado first contends that the initial protective sweep was without consent or a warrant, and therefore violated the Fourth Amendment. 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"). Guarnero was one of the 49 individuals indicted. 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." 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. 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. No deference is due to a magistrate judge's determination that probable cause exists where the affidavit on which that determination was based contains a knowing or reckless falsehood. 2d 99 (1994) (Souter, J., concurring). See Murray, 487 U.S. at 542, 108 S. Ct. 2529. 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). 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. 4.) Rosado objects that the totality of the evidence indicates Marrero's consent was not freely given for these reasons: She was told that she would be taken into custody if she did not consent; she observed Rosado, her live-in boyfriend and the father of her children, being arrested; at least two officers present at the scene were wearing "raid" gear; she was asked twice for permission to search the house for persons; she did not give written consent for a search; she was not informed that she had the right to refuse a search; she was nervous and had never been in a similar situation; and she had her two young children at home with her. There is no requirement that, before the government may apply for a search warrant, it must already have sufficient evidence to yield an indictment against a given suspect, much less that a grand jury must have completed its deliberations and issued an indictment. Tello and Hill were among forty-nine Milwaukee-area Latin Kings indicted in September 2005 on charges of racketeering, racketeering conspiracy, narcotics trafficking and conspiracy, and unlawful possession and distribution of firearms. State prosecutors would charge suspects to give federal prosecutors enough time to build a major racketeering case. Thus, there was probable cause that someone whoever owned the clothing had violated 1962(c). Under the plan, the FBI and Milwaukee police would become the lead law enforcement agencies investigating the Latin Kings. of Objs. 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. ), rev'd on rehr'g en banc, 199 F.3d 915 (7th Cir.1999). 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. Marshals Service, which specializes in fugitive apprehension. See United States v. O'Neill,27 F. Supp. 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. 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." Three gang members complied, shooting Hirschfield at least a dozen times, according to federal court records. Armando Barragan, an indicted Latin Kings leader, was not arrested nearly five years ago because of communication failures and a miscalculation by law enforcement. 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.". to the Magistrate's August 30, 1999 Recommendation [docket # 1037] at 6 [hereinafter "Br. We face a critical time for our security and international peace and stability. The magistrate "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause." See Gates, 462 U.S. at 236, 103 S. Ct. 2317. No copy of the indictment was attached (despite its assertion to the contrary). 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. See Case No. He tried to kill rival gang members the previous year, according to those documents. Probable cause for arrest, without more, will not justify a search warrant. The warrantless search of the contents of the box thus may not be defended as consensual. 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. See Lloyd, 71 F.3d at 1263. According to the affidavit, Latin King members not only committed serious criminal acts, including murder and arson, but committed predicate acts for the purpose of benefitting the enterprise, including the murder of rival gang members; the murder of suspected government informants; and arson against the person and properties of rival gangs and potential adverse witnesses. I also adopt Judge Gorence's finding that Sergeant Harpole exceeded the scope of Marrero's consent when he opened the black plastic box. 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. 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.
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