U.S. v. Allard, 78-2533

• Decision Date: 17 July 1979
• Docket Number: No. 78-2533,78-2533
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Wayne ALLARD and Gordon Berg, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1301

600 F.2d 1301

UNITED STATES of America, Plaintiff-Appellant, v. Wayne ALLARD and Gordon Berg, Defendants-Appellees.

No. 78-2533.

United States Court of Appeals Ninth Circuit.

July 17, 1979.

Francis J. Diskin, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellant.

Lawrence B. Finegold, John Henry Browne, Seattle, Wash., on brief; Timothy K. Ford, Sally Gustafson, Seattle, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and GOODWIN, Circuit Judges, and SPENCER WILLIAMS, ^* District Judge.

EUGENE A. WRIGHT, Circuit Judge:

The government appeals the district court's pretrial suppression of evidence taken in the search of a hotel room. 18 U.S.C. § 3731 (1976). We affirm the trial court's findings that the warrantless entry commenced an invalid search and that no exception to the warrant requirement applied.

However, because government agents obtained a warrant subsequent to their entry based on information they possessed prior to entry, we remand to the district court to determine (1) whether the evidence the government seeks to admit was in fact tainted by the illegal entry and (2) whether the affidavit in support of the warrant was sufficient to establish probable cause for the search.

FACTS

Douglas Richmond was arrested on March 10, 1978 for possession of cocaine. He was questioned by Special Agent Flores of the Drug Enforcement Administration (DEA). Richmond identified his source as Wayne Allard, who was to deliver to him another 12 ounces of the drug later that day. Armed with a warrant, Agents Cloke, Bagby, White and Williams went to Richond's residence at 1:30 p. m. and found Allard there. They arrested him, but found no cocaine.

Allard and Berg were registered in room 611 at a Holiday Inn. At 3:30 p. m., two of the DEA agents, White and Bagby, went there to continue their investigation. They sought no warrant.

When they knocked, Berg answered and the agents asked if he knew Allard. He said that he did and one agent asked, "We'd like to talk to you about that a little bit; may we come in?" Berg's answer was, "I suppose I don't have any choice." Once inside, the agents told him that Allard had been arrested for cocaine distribution. They asked about Berg's knowledge and participation in that operation.

The questioning continued for five to ten minutes and the agents then asked Berg's consent to search the room. Agent Bagby testified later that "(Berg) became nervous, agitated, and didn't want to give permission to search the room, even after we explained to him . . . that it would be in his best interest, so to speak."

The agents determined that they would remain, "whatever Mr. Berg did or said." Bagby called Assistant United States Attorney Currie to request a warrant to search room 611 because he had concluded that the agents had probable cause to stay in the room. Special Agent Flores conferred with Currie after the call and agreed to seek the warrant.

In his affidavit for the warrant, Flores said that Richmond had told him at 3:00 or 3:30 that "he thought that Mr. Allard would deliver an additional 12 ounces but did not have it in his immediate possession." Flores and Currie went before a magistrate and, at 5:23 p. m., approximately two hours after the entry into room 611, the warrant was issued.

During that time, the two agents stayed in the hotel room, ¹ and were joined by two others; all were armed. Berg was told that he was not under arrest but Bagby testified that the agents "wouldn't have let him leave, no sir"; "would not have left the room" if asked; and would have "bodily stayed in there" if necessary.

DISCUSSION

The government argues that the initial warrantless entry was not a Fourth Amendment search and that no search occurred until a valid warrant was obtained. It argues alternatively that, if the entry was a search, it was justified either by consent or by exigent circumstances.

The Search.

The entry and occupancy clearly began a Fourth Amendment search. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). In Johnson, the officers believed there were drugs in a hotel room, but did not know the occupant. They knocked, the door was opened, and they asked to be admitted. The occupant stepped back and let them in. The Court held that the entry was the beginning of an illegal search and could not support a warrantless arrest.

An officer gaining access to private living quarters under color of his office . . . must Then have some valid basis in law for the intrusion.

Id. at 17, 68 S.Ct. at 370. (Emphasis added.)

Even with probable cause to believe that a dwelling contains contraband or articles subject to seizure, there can be no search without a warrant, absent one of the recognized exceptions. Jones v. United States,357 U.S. 493, 497, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

The agents in this case, instead of seeking a warrant to search before going to the hotel room, entered first. The warrantless entry was not justified by the probable cause to believe there was contraband in the room. The later warrant could not retroactively authorize the entry.

Consent.

The government asserts that Berg's statement, "I suppose I don't have any choice" was a consent to search. We disagree.

Under Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973):

(W)hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances . . . .

Here, the occupant's statement was not an expression of unequivocal and voluntary consent. From it, the district judge could reasonably have concluded that Berg knew it would be hopeless to refuse entry and that his consent was therefore not freely and intelligently given. His finding of no consent is not clearly erroneous. See United States v. Lemon, 550 F.2d 467, 472 (9th Cir. 1977).

Exigent Circumstances.

Next, it is argued that exigent circumstances and the likelihood that evidence might be destroyed justified the failure to obtain a warrant before entry. The theory is that, if Berg had known that Allard had been arrested, the cocaine in the hotel room would have disappeared.

The district court rejected that argument, finding that it was equally probable that the agents would have had no difficulty in finding the evidence if they had had a warrant. This, too, was not clearly erroneous.

Although the threatened destruction of evidence may create exigent circumstances to justify a warrantless search, United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir.), Cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978); United States v. Curran, 498 F.2d 30, 35 (9th Cir. 1974), the search cannot be justified solely because an agent knows that there is contraband on the premises.

Agents Bagby and White had little reason to suspect that any evidence in the room would be destroyed. They had no facts on which to base a reasonable belief that Berg knew of Allard's arrest or had been instructed to destroy the cocaine. They did not even know in advance that Berg was in the room.

Nor was there testimony that the agents believed exigent circumstances existed. Bagby said that he went to the hotel "to continue our investigation and to see if the person in that room could shed any light on the investigation." ²

Fruit of the Poisonous Tree.

Finally, the government contends that the evidence should not have been suppressed because it did not result from the illegal entry, but from the search pursuant to a legal warrant. ³ In determining whether such evidence should be suppressed, the appropriate test is

"whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."

Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), Quoting Maguire, Evidence of Guilt, 221 (1959). Suppression is inappropriate where "the Government learned of the evidence 'from an independent source.' " 371 U.S. at 487, 83 S.Ct. at 417, Quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

We applied these principles to determine whether evidence was tainted by an illegal search in United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971). Without a warrant, consent or exigent circumstances to justify their actions, customs agents seized for analysis fabric imported by Bacall. They conveyed information garnered from the seizure to French police, asking them to make further investigation. That investigation produced letters from suppliers stating the true value of the fabrics, which led Customs agents to examine Bacall's bank records. The letters and bank checks were admitted in Bacall's trial for misstating the value of goods on Customs invoices.

We acknowledged that the discovery of the letters and checks was not "wholly 'independent' of the unlawful seizure." Id. at 1057. Nevertheless, we held that these items were not tainted by the illegal search, stressing that the "letters and checks were obtained 'without resort to any clue or knowledge gained from the items unlawfully seized,' " Id., ⁴ and that, even if the seizure directed some additional suspicion toward the transactions ultimately investigated, such leads were "De minimis." Id. at 1059.

In two recent opinions, we rejected the proposition that evidence must be suppressed if produced during an investigation which was merely intensified because...