U.S. v. Robeles-Ortega

• Decision Date: 07 November 2003
• Docket Number: No. 02-3365.,02-3365.
• Citation: 348 F.3d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fidel ROBELES-ORTEGA, also known as Fidel Robles-Ortega, also known as Fidel Ortiz-Rolboues, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

348 F.3d 679

UNITED STATES of America, Plaintiff-Appellee, v. Fidel ROBELES-ORTEGA, also known as Fidel Robles-Ortega, also known as Fidel Ortiz-Rolboues, Defendant-Appellant.

No. 02-3365.

United States Court of Appeals, Seventh Circuit.

ARGUED April 7, 2003.

DECIDED November 7, 2003.

Michael Gurland (argued), Office of the United States, Attorney, Chicago, IL, for Plaintiff-Appellee.

Donna J. Kuchler (argued), Waukesha, WI, for Defendant-Appellant.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

The sole issue in this case is whether the district court erred in denying the defendant's motion to suppress the evidence. The facts as recited by the district court are as follows.

On February 14, 2001, agents of the Drug Enforcement Agency (DEA) were monitoring a conversation between its confidential informant (CI), the defendant, and another person in an apartment, in which the CI was negotiating the purchase of seven kilos of cocaine. The CI was supposed to view the cocaine, then leave the apartment and convince the defendant to follow him outside, at which time the DEA agents planned to arrest them. All did not proceed according to that plan. Instead, the defendant quoted a higher price than originally proffered, and the CI left the apartment alone. The CI entered the car and told the agent in the car (who the defendant was told was his nephew), that he had seen the cocaine. The agent and the CI then drove away from the scene.

The actions taken by the DEA agents at that point in time are inexplicable. Rather than obtaining a search warrant based on that information, within two minutes of the CI's departure the agents forcibly entered the apartment by breaking down the door. Approximately five agents entered the apartment with guns drawn, conducting a security sweep of the apartment while the occupants, including a four-year-old child, lay on the floor in the living room. During that sweep, the agents observed a gym bag on the floor in a bedroom which was later found to contain cocaine. The district court credited the agents' testimony that they did not search that bag at the time. Immediately after that sweep, the agents identified Azuzena Tabizon as the leaseholder, and they asked her to go to the kitchen with them. She complied, and they informed her that she was not a suspect, and requested that she sign a written consent for them to search the apartment. She did so, and the agents then searched the apartment and seized the cocaine.

The district court denied the motion to suppress the evidence, concluding that Tabizon's consent was sufficiently voluntary that it was not tainted by the agents' illegal entry. The sole issue on appeal is whether the district court erred in that determination.

The Fourth Amendment prohibition against unreasonable searches and seizures protects persons in their homes against unwarranted intrusions. The exclusionary rule preventing the use of evidence obtained in violation of that amendment protects the Fourth Amendment guarantees by deterring lawless conduct by law enforcement officers and by "`closing the doors of the federal courts to any use of evidence unconstitutionally obtained.'" Brown v. Illinois, 422 U.S. 590, 598, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Therefore, in examining whether the exclusionary rule applies in this case, we are concerned not only with the privacy interests inherent in the Fourth Amendment, but also with considerations of deterrence and judicial integrity. See Brown, 422 U.S. at 598, 95 S.Ct. 2254 and cases cited therein.

The Supreme Court has repeatedly set forth the principles to be applied where the issue is whether the evidence obtained after an illegal arrest or search should be excluded, as has this court. See Brown, 422 U.S. at 597, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The Fourth Amendment exclusionary rule "`extends as well to the indirect as the direct products of unconstitutional conduct'"; therefore, "`[i]n determining whether evidence is tainted by a prior illegality, we must determine whether the evidence was come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" United States v. Valencia, 913 F.2d 378, 382 (7th Cir.1990), quoting Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) and Wong Sun, 371 U.S. at 488, 83 S.Ct. 407. Where the search following the illegal entry is justified based on alleged consent, courts must determine whether that consent was voluntary, and in addition the court must determine whether the illegal entry tainted that consent. The Supreme Court has identified a number of factors relevant to that inquiry, including (1) the temporal proximity of the illegal entry and the consent, (2) the presence of intervening circumstances, and, particularly, (3) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). On appeal of the district court's denial of the motion to suppress, we review the district court's legal conclusions de novo and its findings of fact for clear error. United States v. Yang, 286 F.3d 940, 944 (7th Cir.2002).

In applying the above factors, the district court relied extensively on this court's decision in United States v. Valencia, 913 F.2d 378, 381 (7th Cir.1990). In Valencia, officers were conducting surveillance on two individuals who were in the process of negotiating a narcotics transaction. One of the suspects indicated that he was going to speak with his "money man," and shortly thereafter he entered Valencia's apartment. Id. at 380. After he departed from that apartment, the officers observed a man, Valencia, leave the apartment. Id. They directed other officers to find and stop Valencia, and proceeded to the apartment. Id. They rang the apartment doorbell, and when a woman opened the door, the officers entered the apartment without her consent and secured it. Id. at 381. Meanwhile, other officers stopped Valencia and attempted to question him but were hampered by Valencia's limited English. Id. An officer arranged for a Spanish-speaking officer to meet them at Valencia's apartment, and drove Valencia home in Valencia's own car. Id. (The court held that this sequence of events was not an unlawful detention, and therefore that did not impact on the issue of whether the subsequent search was lawful. Id. at 382-83) Once Valencia returned to his apartment, he was read his Miranda rights in Spanish, and he answered questions, including volunteering that there was some marijuana in his kitchen, and $8,000-$10,000 and a .357 magnum revolver in his bedroom. Id. at 381. The officers found those items as indicated and asked him if he would consent to the search of his apartment, explaining that he did not have to do so. Id. He consented, and the officers discovered $316,000 and another handgun. Id.

The Valencia court first determined that he had voluntarily consented to the search. The court noted that he was never threatened in any manner and that he remained calm throughout the process. Id. The court further noted that the most significant factor was that he was given his Miranda warnings and knew that he did not have to consent to the search, but did so anyway. Id. Therefore, the court upheld the district court's determination that his consent was voluntary. Id.

The Valencia court then turned to the issue of whether that consent was nevertheless tainted by the illegal entry. The court held that the consent was not tainted by that illegal entry. First, the court noted that the consent was obtained more than an hour after entry. Id. at 382. Second, the court state that the agents had not discovered any evidence in that illegal entry that they could use to coerce his consent, and that they therefore did not exploit the initial entry to obtain that consent. Id. Finally, they determined that the officers' mere presence did not coerce his consent, because the district court had held that his consent was voluntary. Id.

That situation is markedly different from the circumstance presented here. In Valencia, the defendant was not even at home when the illegal entry was made, and therefore the force and nature of the intrusion would not have tainted his consent. The consent was provided hours after the illegal entry, by a person who was not present at the time of the entry, and with no indication that the police had discovered any evidence during that illegal entry. In the present case, the agents literally broke down the door and entered with a strong show of force, brandishing their guns and having the occupants lay on the floor. Immediately after this incident, they removed Tabizon to the kitchen, and obtained her consent the search. The impact of the illegal entry on Tabizon's consent is simply dramatically different from the impact present in Valencia.

The district court acknowledged that only a few minutes had passed between the agents' initial entry and Tabizon's consent, but held that "the evidence suggests that enough time had passed to lessen substantially the impact of the illegal entry on Tabizon before she consented." Op. at 6. That evidence was that they adjourned to another room, that she was told she was not a suspect, that they relinquished their weapons before joining her at the kitchen table, and that she was read and understood the consent form. According to the court, "[t]his testimony suggests that the time that passed after the initial entry, along with Tabizon's realization that she was not suspected of wrongdoing, vitiated the possibility that Tabizon was coerced by the initial entry." Op. at 7. That, however, is not the proper application of that factor. The question is whether the causal connection between the illegality and the consent was broken, and...