U.S. v. Bell

• Decision Date: 31 August 2007
• Docket Number: No. 05-4288.,05-4288.
• Citation: 500 F.3d 609
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

500 F.3d 609

UNITED STATES of America, Plaintiff-Appellee, v. Francis BELL, Defendant-Appellant.

No. 05-4288.

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2007.

Decided August 31, 2007.

Rehearing and Suggestion for Rehearing En Banc Denied October 17, 2007.

Amarjeet Singh Bhachu (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Matthew A. Zapf, Chad A. Blumenfield (argued), Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Chicago, IL, for Defendant-Appellant.

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

ROVNER, Circuit Judge.

Francis Bell, the ransom collector in a deadly kidnapping, sought to suppress evidence of drugs found in his hotel room safe during the course of the kidnapping investigation. The district court denied the motion to suppress finding that the search fell under the exigent circumstances exception to the Fourth Amendment prohibition on warrantless searches. We affirm.

I.

On February 21, 2004, kidnappers lured businessman Jesus Colon from his place of business and soon thereafter called his wife, Norma Morales, demanding $100,000 in ransom in exchange for his safe return. Morales called the Chicago Police Department to report the crime and a team of law enforcement officers from the Chicago Police Department and the Drug Enforcement Administration ("DEA") dove into action. The next day, the kidnappers called Morales and instructed her to leave the ransom money at the Logan Square subway station in Chicago. Henry Harris, a task officer and group supervisor with the DEA led a team of twenty officers to the area in and around the subway station. DEA Special Agent William Warren disguised himself as a CTA repairman working near where Morales left the ransom bag. A short time before 9:30 p.m., the defendant, Bell, entered the station and picked up the bag. Warren called out to Bell, informed him that he was a police officer, and ordered him to stop. Bell threw the bag in Warren's direction and ran. After a chase and a prolonged struggle, Warren and a fellow officer took Bell into custody.

The officers read Bell his rights, and immediately began to question him. Bell claimed he was homeless and that someone had offered him $500 to pick up a bag from the subway station and throw it over a fence. When asked why he had a low-range two-way radio with him, he initially did not have an explanation, but later explained that he had been instructed to place the radio inside the bag before he threw it over the fence. Upon searching Bell's wallet, the police found approximately $1000 in cash and two key cards from an unspecified Holiday Inn hotel. The officers took Bell to the Area 3 Chicago police station at around ten o'clock that night.

Warren and the other officers initially focused their investigation on the area immediately surrounding the Logan Square subway station, canvassing the area looking for witnesses and possible confederates. They arrested four suspects in the vicinity of the subway station and took them to the police station for questioning. They were simultaneously guarding the victim's house, monitoring and tracking phone calls to the house, and tracking phone calls made on Bell's cellular telephone. The officers were working throughout the night because they believed that the threat to Colon's life was credible and possibly imminent. The kidnappers had threatened to kill Colon if his wife contacted the police and they were clearly conducting counter-surveillance. When Colon's wife left the house to deliver the ransom, the kidnappers called to ask her why she was not alone. After Bell's arrest, the kidnappers called again to ask why the ransom had not been delivered to the subway station as demanded.

In the mean time, the officers continued to question Bell and he continued to deny all knowledge of the kidnapping, maintaining his story that he was homeless and that someone had offered him $500 to pick up a bag. Bell gave different versions of the story. In one version he was supposed to bring the ransom back to a person. In another, he was instructed to throw it over a fence. The officers doubted the veracity of Bell's tale. They considered that, although Bell claimed to be homeless, his clothing did not appear to be that of a homeless person, he was carrying $1000 in cash, and he had a cellular telephone at the time of his arrest.

Warren arrived at the police station at around 11:00 p.m. and took over the interrogation of Bell. Searching for new leads, Warren turned back to Bell's wallet hoping to find a number, an address, or something else that might eventually lead him to Colon. At around 11:30 p.m., Warren asked Bell about the hotel key cards. Bell told Warren that he and his girlfriend had been staying at a Holiday Inn near O'Hare airport, but had checked out. Doubting this claim, Warren began calling Holiday Inn hotels located near O'Hare and asking for Francis Bell's room. At some point, Warren telephoned the Holiday Inn at 8201 West Higgins Road in Chicago and when he asked to be put through to Francis Bell's room, the desk clerk connected him to a room. Hoping that Colon would be in that hotel room, Warren and DEA agent George Ohlin left Area 3 almost immediately and drove to the Holiday Inn. The desk clerk noted in her log that the officers arrived at the hotel at 1:30 a.m. After viewing a picture of Bell, the clerk confirmed that he had been staying at the hotel for an extended period of time and had been paying for the room in cash. Upon the request of the officers, the clerk was able to "read the key" to determine that it was assigned to Room 204 at the hotel. The clerk recorded all of this activity in the hotel log. When officers knocked on the door of room 204, Bell's girlfriend opened the door and identified Bell from a photograph, stated that she was his girlfriend, and gave the officers permission to search the room. The kidnapping victim, Colon, was not in the room, nor did the officers find any evidence that he had ever been there. Instead, they found plastic wrappings with powder residue which were similar to wrappings that Warren had seen used to wrap kilogram quantities of cocaine. They also found a locked safe about the size of a breadbox (or, perhaps, in this day and age, a reference to a toaster-oven would be more familiar). The girlfriend told the agents that Bell might have been using the room to sell narcotics and that she believed that there might be narcotics in the safe, but she did not have access to it.

The agents returned to the desk clerk and obtained the access code for the safe. Inside they found a scale, plastic bags, a quantity of powder that tested positive for cocaine, and a pill bottle. The label on the pill bottle contained the name and address of an unknown woman, but a trip to that woman's address was fruitless, as was a search of the automobile Bell had parked in the Holiday Inn parking lot.

In the district court, the officers testified that prior to searching the safe they had telephoned the police station where Bell was being held and the officers at the station had obtained Bell's written consent to conduct a complete search of the room. Bell signed the consent form at 2:15 p.m. The officers testified that they arrived at the hotel at 2:00 a.m. and did not search the safe until 2:30 a.m.

The district court, however, discredited this testimony and determined that Bell signed the consent form after the officers had already searched the room. Warren testified that he discovered that a Francis Bell had a room at a Holiday Inn on Higgins Road near O'Hare airport at approximately 1:00 a.m. and left the police station almost immediately. Taking judicial notice of the locations of the police station, the Holiday Inn, the nearest highway between the two, and the condition of traffic at 1:00 a.m., the district court determined that the officers would have arrived at the hotel sometime around 1:30 a.m. In fact, after all of the officers had finished their testimony, a Holiday Inn employee testified that a contemporaneous hotel log indicated that the officers had indeed arrived at the hotel at 1:30 a.m. The district court did not believe that the officers would have arrived at the hotel at 1:30 a.m. and not have searched the safe until after 2:15 a.m. It was the police, after all, who maintained that they were facing direly exigent circumstances. Mr. Colon could have been killed (and indeed was barbarically killed around this same time) at any moment.

Bell was indicted for possession with the intent to distribute a controlled substance and filed a motion to suppress the evidence recovered in the safe. Bell entered a conditional guilty plea pursuant to Federal Rule of Criminal procedure 11(a)(2) specifically reserving his right to have an appellate court review the adverse determination on the motion to suppress. In that motion he argued that his consent to search had not been voluntarily obtained and that the search of the safe violated his Fourth Amendment rights. The district court ruled against Bell on both issues finding that his account of coercion was not credible. The district court also concluded that although Bell had not signed the consent form prior to the time of the search, the warrantless search of the safe fell under the exigent circumstances exception to the Fourth Amendment prohibitions on searches without warrants. The district court sentenced Bell to 300 months' imprisonment. Bell timely appealed only the question of the warrantless search of the safe. The propriety of warrantless searches is reviewed without deference. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

II.

The Fourth Amendment "protects the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile." Hoffa v. United...