U.S. v. Patino

• Decision Date: 10 November 1988
• Docket Number: No. 88-1681,88-1681
• Citation: 862 F.2d 128
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Josan Wolf PATINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 128

862 F.2d 128

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

No. 88-1681.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1988.

Decided Nov. 10, 1988.

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

John Vauderk, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before POSNER, FLAUM and MANION, Circuit Judges.

MANION, Circuit Judge.

This case comes before this court for the second time to determine the admissibility of a second confession made by defendant Josan Patino six days after an illegal search of her apartment. After finding the search of Patino's apartment unlawful, this court suppressed Patino's first confession, made on the day of the search, as the fruit of the illegal search, but remanded the case to the district court for further proceedings regarding Patino's second confession. United States v. Patino, 830 F.2d 1413 (7th Cir.1987). Patino appeals the district court's denial of her motion to suppress the second confession. We affirm.

I.

In August 1986, William Richard became the object of surveillance conducted by the Chicago office of the FBI as a result of information received from the FBI's Plattsburgh, New York office. The Plattsburgh office had received a tip from an inmate who had provided reliable information in the past that Patino and Richard might have committed a series of armed robberies in Illinois and Wisconsin. With the inmate's consent, the Plattsburgh FBI taped a telephone call between the inmate and Patino during which Patino admitted her involvement in the robberies. The Plattsburgh office sent the Chicago office a teletype setting forth the information obtained from the inmate and subsequently sent a tape recording of the telephone conversation.

The teletype revealed among other things, that Patino and Richard had committed several robberies, including the robberies of two banks in Madison, Wisconsin, and that the pair was considered armed and dangerous. The teletype also revealed their involvement in the shooting of a security guard while robbing a Chicago area Happy Foods supermarket, Richard's plans to move in with Patino on August 7, 1986, and the couple's plans for one more bank robbery in the Chicago area.

Special Agent Doorley of the Chicago FBI office learned that a William Richard had been incarcerated in Wisconsin. An FBI agent obtained a photograph of Richard from his prison file and showed it to an officer of the Mutual Savings and Loan Association of Madison. The officer identified Richard as the person who had robbed that institution. At 9:30 a.m. on August 14, 1986, the same photograph was shown to Patino's neighbor in Chicago who identified Richard as a visitor of Patino.

At about 1:00 p.m. on August 14, 1986, several FBI agents entered Patino's apartment to arrest Richard, whom they had previously observed carrying furniture into the building. The agents had no warrant, either to search Patino's apartment or to arrest Patino or Richard, though they did have an oral authorization for Richard's arrest from an assistant United States Attorney in Madison, Wisconsin.

The agents found Patino in her living room. One of the agents pointed his shotgun at her, identified the group as FBI agents, and asked where Richard was. The agent repeated his question after Patino failed to respond; Patino then pointed over her shoulder toward the bedroom door. The agents apprehended Richard in the bedroom. The agents handcuffed Patino and took her to the bathroom to ask for her cooperation out of Richard's presence. She was told they could prove her involvement in four bank robberies and one convenience store robbery. Patino asked to make a deal; the agents declined and again asked whether she would cooperate. After she agreed, Patino and the agents left the bathroom with Patino holding her hands behind her back to conceal from Richard the fact that her handcuffs had been removed.

Two agents remained behind to talk to Patino after Richard was taken away for processing. The agents read Patino her Miranda rights and told her that they would leave her apartment if she wished. Patino agreed to talk and provided the agents with a signed statement. The interview was conducted in a cordial and non-threatening atmosphere. Twice during the interview Patino left her apartment, once to look for her dog, and a second time to walk her dog.

The following day, August 15, Patino called one of the agents and reported that Richard's mother had called her and made some vaguely threatening remarks. Patino also volunteered that Richard's gun was stored in his brother's basement. Finally, Patino thanked the agents for having been so nice to her on the previous day.

Shortly afterwards, Agent Doorley informed Detective Barker of the Chicago police that the FBI had identified the persons responsible for the Happy Foods store robbery and that the FBI had obtained a signed statement from Patino admitting her involvement in the robbery. Agent Doorley had previously provided the Chicago police with all of the information at his disposal, including the information contained in the Plattsburgh FBI teletype and the taped telephone conversation between the inmate-informant and Patino. From the record it appears that this information was conveyed to the Chicago police before August 14. Doorley later delivered a copy of Patino's August 14 statement to Barker.

On August 20, 1986, six days after the FBI searched Patino's apartment, the Chicago police called Patino and asked to talk to her at the police station. Two police officers came to Patino's apartment at 3:00 p.m. and drove her to the police station. Once at the station, Patino was interviewed by Assistant State's Attorney Fecarotta. Prior to interviewing Patino, Fecarotta reviewed the police beat report and discussed the case with two Chicago police detectives. The detectives told Fecarotta that Patino was involved with Richard in the attempted armed robbery of the Happy Foods store and in several bank robberies. One of the detectives told Fecarotta that Patino had been the getaway driver for the grocery store robbery.

Before interviewing Patino, Fecarotta informed her that she would be charged with attempted armed robbery. Fecarotta considered Patino to be under arrest, and reviewed a waiver of rights form with her item by item before questioning her. Patino stated that she understood each right and signed the waiver in the presence of Fecarotta and one of the detectives. The district court found that Patino gave her statement to Fecarotta freely and voluntarily. It further found that no threats, promises, or other inducements were made to procure either her confession or the waiver of her right to remain silent.

Patino was indicted by a grand jury on counts of armed robbery. She moved to suppress her two confessions, contending they were the fruits of an unlawful search of her apartment. The district court denied Patino's motion, reasoning that the FBI agents' entry and search of Patino's home was lawful and that the FBI's subsequent interview was lawful as well. Patino later entered a guilty plea to reduced charges on the condition that her motion to suppress the confessions be preserved for appellate review. On appeal, this court reversed as to the August 14 statement, holding the search of Patino's apartment had violated the Fourth Amendment, and that, as a result, the August 14 statement had to be suppressed as the fruit of that unconstitutional search. But the case was remanded to the district court for further proceedings concerning the August 20 statement. U.S. v. Patino, 830 F.2d 1413. On remand the district court denied Patino's motion to suppress.

II.

Patino challenges the admissibility of her second confession on two separate grounds. First, she contends that her August 20 arrest by the Chicago police was unlawful because it was made on the sole basis of unlawfully obtained evidence--her August 14 statement--and that the second confession was the fruit of the arrest. Without her prior statement, Patino argues, the Chicago police lacked probable cause to arrest her, thus making her arrest unlawful. In other words, Patino contends that her arrest was the fruit of her initial confession and that her second confession was the fruit of the arrest. This, the argument goes, bridges the illegal search on August 14 and the August 20 confession, thus making the second confession the fruit of the illegal search.

In advancing this argument Patino overlooks the fact that there was probable cause to arrest her without her first confession. The FBI informed the Chicago police about the contents of the Plattsburgh FBI teletype and the taped telephone conversation between Patino and the inmate-informant, both of which clearly implicated Patino in the bank robberies and in the grocery store robbery and shooting before her arrest on August 20. ¹ Based on this information, the magistrate found that there was probable cause to arrest Patino on August 14 (though she wasn't arrested at that time). Reviewing that determination under a de novo standard of review, United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987), we agree that this information, apart from the August 14 confession, provided a sufficient independent factual basis to establish probable cause to arrest Patino. See United States v. Hairston, 763 F.2d 233, 235 (7th Cir.1985), cert. denied, 474 U.S. 854, 106 S.Ct. 158, 88 L.Ed.2d 131 (1985) (probable cause exists where the facts and circumstances at the time of the arrest and of which the police had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person committed or was committing an offense); United States v. Agostino, 608 F.2d 1035 (5th Cir.1979) (where there has been at least minimal communication between police officers, courts look to the officers' collective...