United States v. Blakey

607 F.2d 779 (7th Cir. 1979)

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Nature of the Case

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Facts

James Blakey and Louis Berry (Ds) were Chicago police officers. A shop operated by Leo Dyer was under surveillance. Microphones had been planted inside the shop and a wiretap had been placed on the shop's telephone. The FBI and the Chicago Police Department were investigating suspected police corruption. Dyer was believed to be engaged in the illegal sale of narcotics and stolen property and in 'paying off' Chicago police officers. Three men identifying themselves as police officers entered the shop, ostensibly to search for narcotics pursuant to a search warrant. two of the men were Ds. Neither officer was assigned to the district in which the shop was located, and both officers were off-duty on that day, and no search warrant had been issued to either officer. The three officers searched Dyer and several other persons there with him. Dyer was directed to place the contents of his pockets on top of a freezer; among the items placed there was a large roll of currency and Dyer's keys. During the search, Alphonzo Pitman, the son of one of the women in the shop with Dyer, knocked on the door. Pitman looked in the window and saw one of the officers counting Dyer's money and that Berry came to the door and identified himself as a police officer. Pitman's mother and the other woman in the shop were released. The officers began searching the shop. Two guns were found, one of which, a shotgun, was fired inside the shop by one of the officers. One of the women who had left the shop, looked through the shop's window and saw Dyer's roll of money still on the freezer and also saw a foil packet containing heroin found during the search. Ds then called Dyer to the rear of the shop; one of them picked up Dyer's roll of money and carried it into the rear with him. The two officers and Dyer remained in the rear for fifteen minutes when the third officer joined them; all three officers emerged approximately one minute later and began filling paper bags with merchandise from the shop. Pitman ran after them, to retrieve Dyer's keys, which had been next to the money on the freezer; Blakey gave Pitman the keys. Dyer died of natural causes prior to trial and was unavailable for cross-examination as to his recorded statements. At trial, Ds claimed that the merchandise was paid for and was not a bribe. P offered recorded conversations made about 23 minutes after Ds left the shop as evidence of Dyer’s present sense impression of his interaction with Ds. The court admitted the recording. Ds were convicted and appealed on grounds that the statements were not contemporaneous.