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Shortly after the issuance of the search warrant, law enforcement officers executed it and, upon entering 7150 N. Lakeside Drive, found an abundance of evidence which the prosecution hopes to offer into evidence during the trial of this case. That evidence includes an observation of Darryl McNeal inside the residence, cooking powder cocaine into "crack" cocaine; 1 and kilograms of powder cocaine; kilogram of "crack" cocaine and two loaded weapons (which are significant both because of their location in the room where the cocaine was being cooked into "crack" and because of McNeal's alleged status as a convicted felon); and approximately $133,000 in United States currency.
Turning first to the threshold standing issue, the Government contends *950 that McNeal has produced no factual basis upon which the court can conclude that McNeal enjoyed a legitimate expectation of privacy in the residence search. In its brief, the Government argues: "Significantly, defendant never provides sworn testimony acknowledging that he was living there at the time of the search, nor does he come forward with any sworn testimony of any kind that he had any kind of expectation of privacy in the residence." (Govt.'s Resp. in Opp'n to Def.'s Mot. to Suppress and Points and Authorities in Support Thereof ("Govt.'s Resp.") at 4.) The Government correctly notes that a defendant cannot just rely on the government's theory of the case, and here, its theory is clearly that McNeal controlled the Lakeside Drive residence, based on the statement in the search warrant that he controlled the residence and the discovery of him there cooking "crack" during the search. As explained in United States v. Meyer, 157 F.3d 1067, 1079-80 (7th Cir. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1465, 143 L. Ed. 2d 550 (1999), and United States v. Ruth, 65 F.3d 599, 604 (7th Cir. 1995), a defendant must demonstrate from evidence that his/her own reasonable expectation of privacy was intruded upon to successfully mount a Fourth Amendment suppression challenge.
In making this probable cause determination, "a magistrate is given license to draw reasonable inferences concerning where the evidence referred to in the affidavit is likely to be kept, taking into account the nature of the evidence and the offense." United States v. Singleton, 125 F.3d 1097, 1102 (7th Cir.1997), cert. denied sub nom. Cox v. United States, 522 U.S. 1098, 118 S. Ct. 898, 139 L. Ed. 2d 883 (1998); United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996). In addition, a magistrate is "`entitled to take into account' the experiences of trained officers whose affidavits explain the significance of specific types of information." United States v. Lamon, 930 F.2d 1183, 1189 (7th Cir.1991) (finding a substantial basis for probable cause determination based in part on a detective's experience that drug dealers often hide money, drugs, and other incriminating evidence at their permanent residences); see also United States v. Batchelder, 824 F.2d 563, 564 (7th Cir.1987) (stating that magistrate was entitled to take into account agent's experience indicating that individuals who purchased silencers tended to keep them in their residences and for extended periods of time); United States v. Rambis, 686 F.2d 620, 624 (7th Cir.1982) (stating that magistrate could reasonably rely on the facts in the affidavit of experienced FBI agent). The magistrate, however, cannot simply ratify the bare conclusions of another. See Gates, 462 U.S. at 239, 103 S. Ct. 2317; Aguilar v. Texas, 378 U.S. 108, 113-14, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
However, even with Detective Forrest's stated expertise and his opinion regarding drug dealers' propensity for separation of drugs, proceeds and incriminating papers, that information does little, if anything, to link the Lakeside Drive address to evidence of drug trafficking. True enough, a careful drug dealer will keep money and indicia of drug dealing separate from the drugs themselves. This concept comports with common sense. But in this case, why at the Lakeside Drive address? Detective Forrest's opinion does not go so far as to suggest that a drug dealer is more likely to use a residential type structure for concealing such drug related matters than a non-residential structure. Even if the affidavit contained enough information from which it strainingly could be inferred that the Lakeside Drive address was McNeal's residence (which perhaps could be done if Detective Forrest's conclusional statements that it is a residence and that it is under McNeal's control were properly received by Judge Bolden), it does not suggest that a drug dealer is more likely to keep drug related information at his/her residence than at some other location. Detective Forrest opined that records and proceeds of drug transactions commonly are kept at one location while the actual drugs are kept at a different location. Perhaps he could have opined that a drug dealer is more apt to keep the records and proceeds (as opposed to the drugs themselves) at his/her residence, but he did not. Cf. Lamon, 930 F.2d at 1190 (detective's opinion that drug dealers often hide money, drugs, and other incriminating evidence at their permanent residences provided substantial basis for probable cause to search defendant's permanent residence). In the absence of such an opinion, there is no basis for concluding that the things Detective Forrest sought would more likely be kept at the Lakeside Drive residence rather than at some other location. 2ff7e9595c
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