U.S. v. Patino

• Decision Date: 10 September 1987
• Docket Number: No. 87-1227,87-1227
• Citation: 830 F.2d 1413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Josan Wolf PATINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1413

830 F.2d 1413

UNITED STATES of America, Plaintiff-Appellee, v. Josan Wolf PATINO, Defendant-Appellant.

No. 87-1227.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 1987.

Decided Sept. 10, 1987.

Alan G. Habermehl, Kalal & Habermehl, Madison, Wis., for defendant-appellant.

Grant C. Johnson, Asst. U.S. Atty., and John R. Byrnes, U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before CUMMINGS, and CUDAHY, Circuit Judges, and GRANT, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

Early on the morning of August 14, 1986, Federal Bureau of Investigation agents in Chicago learned that William F. Richard ("Richard") had been positively identified by a witness as the perpetrator of the June 26, 1986, armed robbery of a Wisconsin savings and loan association. The investigators also learned that a neighbor of defendant Josan Wolf Patino ("Patino") had been shown a photograph of Richard and identified him as the person who stayed at Patino's Chicago apartment from time to time and drove an orange pickup truck. These reports confirmed information received eight days earlier on August 6 from a prison inmate, who had furnished reliable information in the past. This inmate had conversed over the telephone with Patino, and the call was recorded. She had told him that she and Richard were involved in a number of armed robberies, including the robbery of a convenience store where a security guard was shot, that Richard was going to stay at her home beginning August 7, and that they would commit one more robbery and then he would leave Chicago. At 9:30 a.m. an agent drove through the neighborhood where Patino lived but he saw neither Richard nor the orange truck.

Later, acting only on the basis of a United States Attorney's "verbal authorization" to arrest Richard, ¹ six FBI agents drove in three cars to Patino's home to arrest Richard. They did not seek a search warrant to enter Patino's apartment-house to search for Richard, as required by Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38. They arrived between 11:20 and 11:30 a.m., but upon not observing Richard or his orange truck they went to lunch and left no one to watch the apartment-house for signs of Richard.

Returning from lunch at about 1:00 p.m., one of the agents drove past Patino's home and saw Richard out front helping another man unload furniture from a van. The agent radioed for backup assistance and three of the agents who had joined him for lunch but were now thirty minutes away responded. The agent did not request a telephone search warrant.

Around 1:40 p.m., the four FBI agents assembled and two agents entered Patino's apartment from the front, with guns drawn, as two agents guarded the rear. Defendant Patino was walking toward the door as the agents entered. One agent pointed a shotgun at her, identified himself as an FBI agent, and asked where Richard was. He repeated the question and Patino pointed over her shoulder towards the bedroom. The agent drew Patino along to keep her in view while the second agent entered the bedroom and arrested Richard. Both Patino and Richard were handcuffed. No weapons of any kind were found in the apartment.

Two agents then took Patino into the bathroom to ask her, out of Richard's presence, to cooperate. They removed her handcuffs and said that they could prove she was involved in four bank robberies and a convenience store robbery. Patino asked to make a "deal," but they told her she was in no position to deal. She agreed to cooperate; Richard was led away by two of the agents to be booked. The remaining two agents read Patino her rights. She indicated she understood them and signed a waiver form at 1:59 p.m. The agents took her statement over a two and a half hour period. Twice Patino left her apartment accompanied by an FBI agent--once to search for her dog and once to take the dog for a walk--but the agents had told her that they would leave if she asked them to do so, and the atmosphere was cordial.

On the next day, August 15, Patino called one agent to tell her that Richard's mother had called and made some vaguely threatening remarks. Patino told the agent that Richard's gun was stored at his brother's house. On August 20, six days after the search of her residence, Chicago Police Department detectives called Patino and arranged for police officers to pick her up and drive her to their station. At the station, she was again advised of her rights and repeated the substance of her August 14 statement.

Patino was indicted on counts of armed bank robbery (18 U.S.C. Sec. 2113(a) and (d)). She moved to suppress the two confessions on the basis that they were fruits of an unconstitutional warrantless search of her home. Magistrate Groh recommended denying her motion to suppress, and Judge Crabb adopted his recommendation. Patino subsequently entered a guilty plea to two reduced charges of bank theft (18 U.S.C. Sec. 2113(b)) on the condition that her motion to suppress the confessions be preserved for appellate review. This appeal followed.

The initial question, the constitutionality of the warrantless search of Patino's home for Richard, calls for a straightforward answer because the law is clear. In Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38, the Supreme Court held that absent exigent circumstances or consent, a search warrant is required to enter and search a third person's home for a fugitive named in an arrest warrant. In that case the police, armed with only an arrest warrant naming the fugitive and their own personal determination of probable cause to believe he would be there, searched a third person's home identified by a confidential informant as the fugitive's possible location. The Court held that while an arrest warrant authorizes police officers to seize a suspect in a public place or in his home, it does not authorize them to enter the home of a third person where they believe the suspect may be staying. Because the arrest warrant does not protect the third person's "privacy interest in being free from an unreasonable invasion and search of his home," id. at 213, 101 S.Ct. at 1648, a search of a third person's home based solely on such a warrant is unconstitutional, id. at 212-216, 101 S.Ct. at 1647-50. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (holding warrantless arrest in fugitive's own home unconstitutional absent probable cause and exigent circumstances, but that an arrest warrant founded on probable cause allows entry into the named person's home for the limited purpose of effecting the arrest).

The parties agree that this search can only be justified by an appeal to exigent circumstances. No claim is made that Patino consented to the search. The agents did not have (nor did they ever seek) a search warrant to search Patino's home for Richard. They also did not have an arrest warrant naming Patino, which would have given them under Payton "the limited authority" to enter her house to arrest her, and therefore they cannot justify the search on that basis. In fact, they did not even possess an arrest warrant naming Richard--one was issued prior to the search of Patino's home but they did not know that it was issued. See supra note 1. Of course, the presence of an arrest warrant naming Richard would not alter the constitutionality of the entry of Patino's house without a search warrant because Steagald holds that would be insufficient vis a vis Patino.

As an exception to the Fourth Amendment's warrant requirement, the burden is on the government to show that the warrantless entry is justified by exigent circumstances, and "an objective standard governs the reasonableness of law enforcement officials' belief that exigent circumstances have arisen." United States v. Dowell, 724 F.2d 599, 602 (7th Cir.1984), certiorari denied, 466 U.S. 906, 104 S.Ct. 1683, 80 L.Ed.2d 157, and 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367. The government's claim of exigent circumstances here was premised on the fact that there was a "clear showing of probable cause," viz., prior to the day of the search, the agents had learned from a reliable informant that Richard had robbed a number of insured financial institutions, a manager of one institution had positively identified him as the perpetrator, he was suspected of committing violent crimes, and he was thought to be planning one more armed robbery before fleeing the Chicago area. No doubt these circumstances required quick and decisive action by the FBI agents; yet the resiliency of the Fourth Amendment's warrant requirement is precisely because it is compatible with effective law enforcement. See Steagald, 451 U.S. at 221-22, 101 S.Ct. at 1652-53. We do not quarrel with the district judge's conclusion that immediate action was required, but for purposes of ascertaining the existence of exigent circumstances there is more to this story than just the assembly of the four agents at Patino's apartment-house at 1:40 p.m. As we have previously held: "[W]hen the emergency justification is advanced, we believe it is appropriate to appraise the agents' conduct during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the front door." United States v. Rosselli, 506 F.2d 627, 630 (7th Cir.1974) (footnote omitted) (Stevens, J.).

One fact alone demonstrates the lack of exigent circumstances and the consequent unreasonableness of the entry of Patino's residence without a search warrant. An agent returning alone after the lunch observed Richard outside Patino's apartment-house at about 1:00 p.m., and he called for backup assistance to make the arrest because he thought that Richard might be armed. The magistrate found that these agents were at the time thirty minutes away. The agent at the scene waited for reinforcements before making any attempt to enter Patino's home in search of Richard....