U.S. v. Cazares-Olivas

• Decision Date: 29 January 2008
• Docket Number: No. 07-2080.,No. 07-2081.,07-2080.,07-2081.
• Citation: 515 F.3d 726
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco CAZARES-OLIVAS and Israel Aguilera, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

515 F.3d 726

UNITED STATES of America, Plaintiff-Appellee, v. Francisco CAZARES-OLIVAS and Israel Aguilera, Defendants-Appellants.

No. 07-2080.

No. 07-2081.

United States Court of Appeals, Seventh Circuit.

Argued January 10, 2008.

Decided January 29, 2008.

Timothy M. O'Shea (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Jonas Bednarek, Michael Lieberman (argued), Federal Defender Services, Madison, WI, for Defendants-Appellants.

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

EASTERBROOK, Chief Judge.

After they arrested Francisco Cazares-Olivas and Israel Aguilera for drug offenses, federal agents sought a warrant to search the house where, the agents believed, Cazares-Olivas and Aguilera kept their inventory. It was after 11 pm, and the agents feared that if they waited until morning someone else might beat them to the stash. One agent and an Assistant United States Attorney called a federal magistrate judge at 11;37 pm. During a recorded conversation the agent took an oath to tell the truth and laid out facts that, the judge found, established probable cause for a search. The judge questioned the agent, obtained additional information, and eventually wrapped up the conversation this way: "the bottom line is you've got judicial authorization. It is so ordered. You can send your team in right now." The search, begun at 1:47 am and finished at 4:25 am, turned up more than 40 kilograms of cocaine. Cazares-Olivas and Aguilera pleaded guilty to possessing more than five kilograms of cocaine with intent to distribute; each was sentenced to 125 months' imprisonment. Conditional pleas reserved the right to contest the denial of the motion to suppress the evidence found during the search. See Fed.R.Crim.P. 11(a)(2).

Telephonic warrants are authorized by Fed.R.Crim.P. 41. An agent is supposed to fill out a form (called a "proposed duplicate' original warrant") and must "read or otherwise transmit the contents of that document verbatim to the magistrate judge." Rule 41(e)(3)(A). The judge transcribes the information into the "original warrant," which he signs. The agents who proposed this search, however, must not have had a supply of blank warrants handy, and they (along with the Assistant United States Attorney and the magistrate judge) were unacquainted with the steps laid out in the rule. (At oral argument we were told that this was the only time within the last 15 years, if not longer, that a telephonic warrant had been requested in the Western District of Wisconsin.) The agents did not read a "proposed duplicate original warrant" to the judge, who in turn did not prepare an original warrant. He simply put the recording on file and went to bed. As he and the district judge later concluded, when addressing the motion to suppress, this means that no warrant ever issued authorizing the search. 2007 U.S. Dist. LEXIS 12823 (M.J.W.D.Wis. Feb. 22, 2007). The agents had judicial approval, based on probable cause, but they did not have a warrant.

The absence of a warrant is the beginning and ending of the defendants' argument that the evidence must be suppressed. Residential entries are presumptively unreasonable, and thus violate the fourth amendment, unless authorized by a warrant. E.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). There are exceptions—such as a resident's consent, or circumstances that justify action before a warrant can be obtained (e.g., ongoing or impending destruction of evidence)—none of which applies here. Only a need for haste is even in the picture, but the fact that the agents were able to invoke the Rule 41 procedure shows that they did not deem the situation pressing enough to dispense with a warrant. Defendants principally rely on Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), which held that absence from a warrant of the constitutionally particular description of "the place to be searched, and the persons or things to be seized" meant that there was no warrant as a functional matter. 540 U.S. at 559, 124 S.Ct. 1284. If the omission of some language spoils a warrant, defendants inquire, what are we to make of the situation in which nothing has been written down?

What we make of it, like the magistrate judge and the district judge, is that this search occurred without a warrant. We assume (without deciding) that this omission made the search unreasonable and exposed the agents to a suit for damages. But it does not follow that the evidence is inadmissible. The exclusionary rule is used for only a subset of constitutional errors. For two prominent examples, consider United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which holds that evidence seized in good faith, in reliance on a warrant that turns out to be invalid, is admissible, and Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), which holds that evidence is admissible when it would have been discovered inevitably through lawful means. These decisions reflect the view that permitting people to get away with crime is too high a price to pay for errors that either do not play any causal role in the seizure (the inevitable-discovery situation) or stem from negligence rather than disdain for constitutional requirements (the Leon situation). As the Court put it in Nix, "the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, and not a worse, position than they would have been in had no police error or misconduct occurred." 467 U.S. at 443, 104 S.Ct. 2501 (emphasis in original; footnote omitted).

The Court applied this principle in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), to hold that evidence seized during a search that was conducted unreasonably (because the officers failed to request admission and hold off a while before bursting in) is admissible in evidence nevertheless. The Court observed that the same evidence would have been seized had the officers waited patiently at the door: the officers' error affected the time but not the fact of the seizure. Hudson again stressed the high costs of the exclusionary rule and expressed a preference for using awards of damages to deter negligent errors in searches and seizures and compensate anyone injured by these errors. Groh was a suit for damages; we doubt that the Court would have invoked the exclusionary rule when a description of the things to be seized, though missing from the warrant, appeared in an affidavit that was filed with the court in support of the application and was respected when the search occurred. The inevitable-discovery...