U.S. v. Talkington
| Decision Date | 08 April 1988 |
| Docket Number | No. 87-1672,87-1672 |
| Citation | 843 F.2d 1041 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raymond Leroy TALKINGTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Diana N. Cherry, Metnick & Barewin, Springfield, Ill., for defendant-appellant.
J. William Roberts, Asst. U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Before CUMMINGS, FLAUM and RIPPLE, Circuit Judges.
Raymond Leroy Talkington appeals his conviction for possession of counterfeit obligations of the United States in violation of 18 U.S.C. Sec. 472. The evidence used to convict Mr. Talkington at trial, counterfeit money, was seized by federal and state agents pursuant to a warrantless nighttime search of his home. He contends that the agents who entered his home violated his fourth amendment right to be free from unreasonable searches and seizures. He also contends that the district court committed reversible errors at trial. Because we cannot adjudicate Mr. Talkington's fourth amendment claims on this record, we remand to the district court for further factfinding. See 28 U.S.C. Sec. 2106; United States v. Napue, 834 F.2d 1311, 1328 (7th Cir.1987); United States v. West, 723 F.2d 1, 3 (1st Cir.1983); United States v. Berick, 710 F.2d 1035, 1040 (5th Cir.), cert. denied 464 U.S. 899, 104 S.Ct. 255, 78 L.Ed.2d 241 (1983); United States v. Moore, 529 F.2d 355, 358 (D.C. Cir.1976); Camacho v. United States, 392 F.2d 575, 576 (9th Cir.1968); Von Der Heydt v. Rogers, 251 F.2d 17, 17-18 (D.C. Cir.1958). See generally United States v. Berry, 560 F.2d 861, 865 (7th Cir.1977).
The government charged Mr. Talkington in a seven-count indictment with various offenses relating to the manufacture, dealing and possession of counterfeit money. The government subsequently dismissed two counts prior to trial. Several pretrial motions were filed, including a motion to suppress evidence obtained from a warrantless search of Mr. Talkington's home. At the suppression hearing, the district court ruled that the evidence so obtained was admissible against Mr. Talkington. Trial commenced in January 1987. On January 16, 1987, the jury returned a verdict of not guilty on four counts of the indictment. On the fifth count, however, the jury found Mr. Talkington guilty of possessing $168,240 in counterfeit money. The court conducted a sentencing hearing on April 20, 1987. At that time, the court imposed a sentence of five years imprisonment. The court also ordered restitution in the amount of $3,130 to those parties, including the government, that had received counterfeit currency from Mr. Talkington. The district court, noting that there were substantial grounds on which to appeal the constitutionality of the search, granted Mr. Talkington's request for bail pending appeal. Mr. Talkington then timely filed a notice of appeal.
In the fall of 1986, Mr. Talkington's son, Kevin Flynt Talkington (Flynt), solicited a commercial printer, Michael Pulliam, to print approximately $240,000 in counterfeit money. Subsequently, Flynt and several of his associates passed some of these bills in various southern and mid-western cities. Eventually, one of Flynt's associates, Jeffrey Irving, sold some of the counterfeit currency to a federal agent. Thereafter, Mr. Irving agreed to assist in a joint effort by the Secret Service and the Illinois Department of Criminal Investigation (DCI) to arrest Flynt. Mr. Irving arranged to purchase some of the counterfeit bills from Flynt on September 26, 1986. On that date, Flynt explained to Mr. Irving that he had to go "to his old man's house ... [t]o get the money." Tr. of Jan. 6, 1987 at 53. A surveillance team of agents then observed Flynt drive directly to Mr. Talkington's residence.
By that time, appellant Raymond Talkington also was under suspicion as a conspirator in the counterfeiting scheme. The agents knew that Mr. Talkington had accompanied Flynt to Florida at the time some of the counterfeit bills were passed in Panama City, Florida. They also were aware, through a concealed wire on Mr. Irving, that Flynt would obtain the counterfeit money to be sold to Mr. Irving from Mr. Talkington's home. Accordingly, the agents set up a stakeout at the Talkington residence and requested that a magistrate and an Assistant United States Attorney be placed on call. This request was honored.
The two-person surveillance team at the Talkington home observed Flynt enter and later depart. Shortly after Flynt's departure from the Talkington home (where he had presumably collected the counterfeit money for the sale to Mr. Irving), DCI agent Lonnie Satore observed a small fire, approximately one and one-half feet in circumference with flames two to three feet high, in the Talkington backyard. He could not determine who was standing at the fire or what was being burned. Agent Satore communicated his observation about the fire to fellow DCI agent John Hand. Together, the agents drove past the fire and then Agent Hand moved closer on foot. Nevertheless, they still were unable to identify either who was standing at the fire or what the individual was burning. Agent Satore then radioed Secret Service Agent Jack Fox for further direction. Although there appears to be some conflicting evidence as to when he received the information, Agent Fox testified that, at the time Agent Satore radioed him, he knew of prior allegations that money had been burned. The record, however, shows only (1) that Agent Fox knew a single counterfeit twenty dollar bill had been burned by an informant, tr. of Dec. 23, 1986 at 243, and (2) that either the same informant or an associate of Flynt stated to Flynt to "burn that money I had last night." Id. at 248. There is no evidence linking the prior burnings to Mr. Talkington or the Talkington residence. Nevertheless, Agent Fox instructed Agent Satore to continue his surveillance and that he would dispatch further agents to the scene. Some ten to fifteen minutes later, according to Agent Satore's testimony, the agents linked up at the Talkington residence. After a discussion, the agents burst through the front door. Despite the help of an Assistant United States Attorney at the command post and a magistrate on call, the agents did not secure, or even attempt to secure, a search warrant.
Upon entry into the Talkington home, the agents--at least five in number and with guns drawn--conducted a "sweep search" to determine if other individuals were in the residence. After they assured themselves that only Mr. and Mrs. Talkington 1 were home, they instructed the Talkingtons to sit in the living room. A short time later, Secret Service Agent Thomas Canavit observed Mr. Talkington make a furtive movement to the chair cushion on which he was seated. Agent Canavit investigated and found a roll of counterfeit money. At this point, the testimony of the agents and Mrs. Talkington is unclear as to the exact sequence of events. As best we can tell, Mr. Talkington briefly conferred with Mrs. Talkington. An agent then called Mr. Talkington to the kitchen. As he was walking into the kitchen, two key events transpired. One, as Mrs. Talkington testified, uncontrovertedly, Secret Service Agent Eric Pingolt Tr. of Dec. 23, 1986 at 13. (She then testified that Agent Pingolt threatened her with a body search at least four or five times.) 2 Two, Mr. Talkington, according to Agent Canavit, Tr. of Dec. 22, 1986 at 183. Shortly thereafter, at 9:15 p.m., Mr. Talkington signed a waiver of Miranda rights form. Ten minutes later, he signed a consent to search form. He then led the agents to five grocery bags containing a large quantity of counterfeit money. The agents also uncovered in Mr. Talkington's bedroom a Florida newspaper that discussed the discovery of counterfeit money in Panama City, Florida.
At 10:06 p.m., Mrs. Talkington signed a waiver of Miranda rights form. The record contains no evidence that she signed a consent to search form. Nevertheless, a female postal inspector conducted a body cavity search. Finally, the agents arrested Mr. Talkington at approximately 12:20 a.m. Mrs. Talkington was never arrested. Indeed, at oral argument, we were informed that she was never under suspicion.
The fourth amendment safeguards an individual's right to be free from warrantless intrusions into his home. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Warrantless searches, accordingly, are presumptively unreasonable, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). "One such exception is the exigent circumstances doctrine which recognizes that [a] 'warrantless entry by criminal law enforcement officials may be legal when there is a compelling need for official action and no time to secure a warrant.' " United States v. Rivera, 825 F.2d 152, 156 (7th Cir.) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978)), cert. denied, --- U.S. ----, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). Accordingly, the doctrine applies to situations where the nature of the evidence is evanescent and the agents fear its imminent destruction. Ker v. California, 374 U.S. 23, 39-40, 83 S.Ct. 1623, 1632-33, 10 L.Ed.2d 726 (1963); Rivera, 825 F.2d at 156. "As an exception to the Fourth Amendment's warrant requirement, the burden is on the government to show that the warrantless...
To continue reading
Request your trial
-
US v. Rodriguez
...that Spellacy obtained Mr. Rodriguez's voluntary consent to search and that that consent was not coerced. Compare United States v. Talkington, 843 F.2d 1041 (7th Cir.1988) (coercion question remanded for an evidentiary hearing when government agents burst into the home, at night, with weapo......
-
U.S. v. James
...their reasonable belief that the occupants would attempt to destroy evidence of cocaine trafficking); see also United States v. Talkington, 843 F.2d 1041, 1044 (7th Cir.1988) (exigent circumstances doctrine "applies to situations where the nature of the evidence is evanescent and the agents......
-
U.S. v. Jerez
...six and nine officers, some with their weapons drawn, and escorted to an office some distance away. Id.; see also United States v. Talkington, 843 F.2d 1041 (7th Cir.1988) (consent involuntary because police had their weapons drawn, behaved in a loud and abusive fashion, lied, and threatene......
-
Potts v. City of Philadelphia
...porch that night. The mere presence of a number of police officers is not sufficient to establish coercion. See United States v. Talkington, 843 F.2d 1041, 1049 (7th Cir. 1988) (the presence of several officers at the time consent is requested is not per se coercive). Potts does not point t......