64 F.3d 1083 (7th Cir. 1995), 95-1421, United States v. Brown

Docket Nº:95-1421.
Citation:64 F.3d 1083
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tyrond BROWN, Defendant-Appellant.
Case Date:August 31, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1083

64 F.3d 1083 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Tyrond BROWN, Defendant-Appellant.

No. 95-1421.

United States Court of Appeals, Seventh Circuit

August 31, 1995

Argued Aug. 1, 1995.

Page 1084

Steven M. Biskupic, Asst. U.S. Atty., Office of the United States Attorney, Milwaukee, WI, for plaintiff-appellee.

Martin E. Kohler, and Michael F. Hart (argued) Milwaukee, WI, for defendant-appellant.

Before POSNER, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

A cocaine buy-and-bust led the Drug Enforcement Administration to Tyrond Brown. An agent bought crack cocaine from Chris Johnson, who was immediately arrested. Johnson agreed to finger his source, "Ty," who was expecting payment, and a series of calls on portable telephones ensued. The agents drove Johnson to the agreed place, where they found at the curb a man meeting Johnson's description of his source. Johnson's enthusiasm for the venture waned; he refused to tell the agents whether this was indeed "Ty." So the officers debouched and asked the pedestrian to participate in an experiment. Could they press the redial button on the phone he was carrying? He said yes, they did, and Johnson's telephone rang. The agents arrested the man, who turned out to be Tyrond Brown. He pleaded guilty to a cocaine offense and was sentenced to 76 months' imprisonment. One reason Brown capitulated is that the prosecutor had more than a phone connection and Johnson's word to go on. Agents seized crack cocaine and $18,000 from Brown's apartment. Brown asked the court to suppress this evidence. After the court declined, 861 F.Supp. 1415 (E.D.Wis.1994), Brown entered a conditional plea of guilty, Fed.R.Crim.P. 11(a)(2), reserving the right to contest that ruling on appeal. The validity of the seizure therefore is the only question before us.

When arrested, Johnson had been driving someone else's car. He disclaimed any knowledge of its ownership, saying that a friend had lent it to him. The glove compartment of this car contained a rental agreement for a different auto; the customer was a Fannie Bonds, who gave her residence as Apartment 203 of an address in Brown Deer, Wisconsin. According to state records, Bonds also owned the car Johnson was driving. The agents found Brown standing immediately south of that address. When they asked him where he lived, he pointed to the northeast. (So the district judge concluded, and this finding is not clearly erroneous.) He claimed to have been standing on the street only because he was locked out of his own apartment. What was the role of Fannie Bonds? Was she another conspirator? Or was she perhaps a victim of auto theft--or worse? The doorbell for Apartment 203 bore the name of Bonds but not Brown. The agents searched Brown incident to the arrest, see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and found a set of keys. One of the agents knocked on the door of Apartment 203 and, receiving no answer, tried the key; it worked. Agents looked quickly in every room and saw what appeared to be cocaine on a night stand; they also saw two sturdy safes. They left the cocaine there and closed the door. One agent set off to secure a search warrant; two others stayed to guard the apartment. While they were waiting, Bonds appeared. She turned out to be

Page 1085

Brown's mother. According to one agent, Bonds consented to a search of the apartment. The district judge, adopting a magistrate judge's findings on this issue, concluded that Bonds's consent was ineffective--but it made no difference, because the agent did not seize anything until the warrant arrived.

Brown acknowledges that the warrant was supported by probable cause, but he argues that the initial warrantless entry spoiled the eventual seizure. (The application for the warrant recited that the agents had seen the cocaine and safes.) The district court concluded that the initial entry violated the Constitution but declined to suppress the evidence. First, the court held, by pointing to the northeast Brown disclaimed any interest in the apartment, so the search violated only Bonds's rights. Second, the court concluded that the agents had probable cause before the initial entry into Apartment 203, making it likely that they would get a warrant anyway; the inevitable-discovery doctrine of Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), therefore disentitled Brown to the remedy of suppression.

The district court's principal reason is mistaken and the second is questionable. Let us assume that Brown lied to the agents about his habitation. That does not affect that fact that he did live in Apartment 203. Everyone has a legitimate expectation of privacy in his residence. Ours is not like the case of a courier who disclaims interest in a drug-filled suitcase, or a suspect who throws drugs on the street and flees. People are free to expose their belongings to the public, or to throw them away; seizing abandoned suitcases from baggage carousels does not invade anyone's privacy interest. The privacy interest in a dwelling is not so easily extinguished, see Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), and a misleading response to an officer's question is a far cry from a consent to search. Brown therefore has rights under the fourth amendment enforceable in this prosecution. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

As for inevitable discovery: what makes a discovery "inevitable" is not probable cause alone, as the district judge thought, but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search. Otherwise the requirement of a warrant for a residential entry will never be enforced by the exclusionary rule. A warrant requirement matters only when the police have probable cause, because otherwise they can't get one. (Under the second clause of the fourth amendment, "no Warrants shall issue, but upon probable cause".) To say that a warrant is required for a search is to say that the police must get judicial approval before acting. Yet if probable cause means that discovery is inevitable, then the prior-approval requirement has been nullified. An argument can be made that probable cause is enough to make a daylight search reasonable, that the second clause of the fourth amendment disfavors warrants, and that those "who have viewed the fourth amendment primarily as a requirement that searches be covered by warrants, have stood the amendment on its head." Telford Taylor, Two Studies in Constitutional Interpretation 46-47 (1969). See also Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv.L.Rev. 757, 762-70, 801-11 (1994). But this is not the Supreme Court's current understanding. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), overruling United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

Although some language in United States v. Buchanan, 910 F.2d 1571 (7th Cir.1990), can be read to say that probable cause alone makes discovery under a warrant "inevitable," that language was a response to the parties' arguments and does not enlarge the inevitable-discovery doctrine. Buchanan's principal argument on appeal was that the warrant had not been supported by probable cause; his willingness to let the case turn on the answer to that question does not imply that for all future cases probable cause establishes inevitable discovery. See United States v. Johnson, 22 F.3d 674, 684 (6th Cir.1994). We need not decide whether these agents inevitably would have obtained

Page 1086

a warrant without the quick search of the premises--as they well might, had Brown told them that he lived in Apartment 203 and that Bonds is his mother--because we conclude that the agents' once-over did not violate Brown's rights given the facts as the agents reasonably supposed them to be.

Special Agent Melick testified that the officers entered Apartment 203 because they were concerned about...

To continue reading