U.S. v. Valencia

• Citation: 913 F.2d 378
• Decision Date: 31 October 1990
• Docket Number: 89-2369,Nos. 89-1648,s. 89-1648
• Parties: 31 Fed. R. Evid. Serv. 426 UNITED STATES of America, Plaintiff-Appellee, v. Luis James VALENCIA and Sergio Aguero, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 378

913 F.2d 378

31 Fed. R. Evid. Serv. 426

UNITED STATES of America, Plaintiff-Appellee, v. Luis James VALENCIA and Sergio Aguero, Defendants-Appellants.

Nos. 89-1648, 89-2369.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 1990.

Decided Sept. 13, 1990.

As Amended Oct. 31, 1990.

R. Jeffrey Wagner, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Marna M. Tess-Mattner, Thomas E. Brown, Gimbel, Reilly, Guerin & Brown, Russell L. Stewart, Milwaukee, Wis., and Ari M. Trubitt, Kreiter & Associates, Chicago, Ill., for defendants-appellants.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

A jury convicted Luis Valencia and Sergio Aguero for conspiring to possess, with the intent to distribute, cocaine. See 21 U.S.C. Secs. 841(a)(1) and 846. The district court sentenced both defendants under the Sentencing Guidelines. Valencia received a prison term of 235 months, and Aguero received a term of 145 months. Valencia and Aguero appeal their convictions and sentences.

I. VALENCIA

A. Motion to Suppress

Valencia argues that we must reverse his conviction because the district court erred in denying his motion to suppress evidence found in a warrantless search of his apartment. Following a hearing on Valencia's motion, the district court found the following pertinent facts. Early in November 1988, Joe Hummel, who had been arrested in Florida for possession of cocaine, agreed to act as an informant for the Drug Enforcement Administration. Hummel told DEA Agent Steve Collins that he had been involved in cocaine transactions with Andres Zuniga. Zuniga had recently contacted Hummel and had told Hummel about Colombian contacts in Milwaukee who wished to purchase cocaine. Hummel subsequently set up a deal with Zuniga to deliver 15 kilograms of cocaine to Milwaukee.

On November 19, Hummel and Collins (who was posing as the cocaine's owner) traveled from Florida to Milwaukee. The next day, Zuniga and Aguero met Collins at the motel where he was staying. Zuniga told Collins that his "money man" would pay $250,000 for the cocaine, but with one catch: Zuniga's "money man" wanted Collins to front one kilogram of cocaine so that he could check the cocaine's quality. Collins responded that he would not release any cocaine until he received advance payment. Zuniga then told Collins he would talk to his "money man."

Zuniga and Aguero left the hotel and went to a shopping mall where Aguero placed a call on a pay telephone. After making the call, Aguero and Zuniga went to Aguero's apartment, and then back to the motel. At the motel, Collins, at Aguero's request, showed Aguero a kilogram of cocaine. Aguero tested the cocaine and indicated that he approved of its quality. Aguero then told Collins that his "money man" lived on Milwaukee's south side, approximately one-hour's round trip from the motel. Aguero told Collins that although he and the "money man" usually received a kilogram of cocaine in advance before releasing any funds, Aguero would go and see his "money man" to determine if he could get enough money to purchase a kilogram. Aguero stated that he was not permitted even to take Zuniga with him to the meeting.

Zuniga and Aguero left the motel at approximately 2:35 p.m. Aguero dropped Zuniga off at a restaurant, drove to an apartment building at 3415 South 113th Street in Milwaukee, and went into apartment 2. About 45-50 minutes later (around 3:55 p.m.), Aguero left apartment 2. He picked up Zuniga from the restaurant where he had dropped Zuniga off, and drove to the motel. Back at the motel, Aguero told Collins that he had seen the "money man" at his residence but the "money man" had refused to release any money until Collins fronted one kilogram of cocaine. At that point, agents arrested Aguero and Zuniga.

In the meantime, surveillance officers had seen Valencia leave apartment 2 about ten minutes after Aguero had left. After Aguero and Zuniga had been arrested, DEA Agent Jerry Snyder, who supervised the Milwaukee DEA office and was overseeing this case, directed Milwaukee police officers to find and stop Valencia. Snyder also directed Milwaukee police officers at the scene of Valencia's apartment to enter it, secure it, and remain in it until they received further orders. At about 4:45 p.m., a police officer rang the apartment's doorbell. Patricia Perez, who lived with Valencia, opened the door. Other officers, without Perez's consent, then entered the apartment and looked through the apartment's rooms and closets to make sure nobody else was there.

While Valencia's apartment was being "secured," other officers found and stopped Valencia. Snyder was notified that Valencia had been stopped, and he went to the scene. Valencia was with his two children, at least one of whom spoke English. Valencia himself spoke little English. Snyder was able to speak with Valencia to some extent through the child, but found that communication was difficult, so he arranged to have a Spanish-speaking Milwaukee police officer, Johnny Santiago, go to Valencia's apartment. Snyder then drove Valencia, in Valencia's automobile, to his apartment.

When Snyder and Valencia arrived at the apartment, other police officers had already been there for about one hour. However, beyond their brief inspection to ensure that nobody else was in the apartment, the officers had not searched the apartment or seized any property from it. Santiago read Valencia his Miranda rights in Spanish; Valencia stated he understood those rights. Santiago proceeded to ask Valencia questions from Snyder. During the questioning, Valencia appeared calm, and the officers took no threatening actions. In response to Santiago's questions, Valencia volunteered that there was some marijuana in his kitchen, and $8,000 to $10,000 and a .357 magnum revolver in his bedroom. The officers found these items in the locations Valencia indicated. Santiago then asked Valencia whether he would consent to a search of his apartment, explaining to Valencia that he did not have to consent to the search. Valencia indicated that he understood he did not have to consent but told the officers to go ahead and search. During the search, police officers discovered $316,000 and another handgun.

At trial, the government introduced the evidence the agents discovered while searching Valencia's apartment. Valencia argues that the district court should have suppressed this evidence for three reasons. First, Valencia contends that his consent was not voluntary. Second, Valencia contends that the initial entry into his apartment was illegal, and that his consent resulted from, and was thus tainted by, this illegal entry. Finally, Valencia contends that his consent directly resulted from his stop and detention, which he contends constituted an illegal arrest without probable cause.

Police may search premises without a warrant if a party who possesses authority over the premises consents to the search. See Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). However, the prosecution must show that the consent was given freely and voluntarily. Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045. Whether a person has voluntarily consented to a search is a factual question to be determined by examining all the circumstances surrounding the consent. Id. at 227, 93 S.Ct. at 2047-48; United States v. Marin, 761 F.2d 426, 433 (7th Cir.1985). We will overturn a district court's finding that a consent to search was voluntary only if that finding was clearly erroneous. See id.; United States v. Colonia, 870 F.2d 1319, 1324 (7th Cir.1989).

The district court did not clearly err in finding Valencia voluntarily consented. Valencia had been detained only a short time before he consented. The officers and agents in his apartment did not threaten him in any way, and Valencia remained calm during the entire proceeding. He never refused to allow the search. Finally, and perhaps most significantly, Valencia was given Miranda warnings and informed that he did not have to consent to any search, and he indicated that he understood those rights. See United States v. Morgan, 725 F.2d 56, 58 (7th Cir.1984). Given these circumstances, the district court could properly find that Valencia voluntarily consented to the search.

The next issue is whether the allegedly illegal initial entry into Valencia's apartment by Milwaukee police officers "tainted" Valencia's subsequent consent. The police who initially entered Valencia's apartment discovered no evidence as a direct result of that entry. But the Fourth Amendment's exclusionary rule " 'extends as well to the indirect as the direct products' of unconstitutional conduct." Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984) (quoting Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963)). In 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.' " Id. (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417-18) (emphasis added in Segura ).

If the initial entry was not illegal, the question of taint becomes irrelevant. The district court did not, however, decide whether the initial entry violated the Fourth Amendment and neither do we. Even assuming the initial entry was illegal, we agree with the district court that that entry did not taint Valencia's subsequent consent. More than an hour passed between the initial entry and Valencia's subsequent consent. The agents did not exploit the initial entry. The police found no evidence as a result of that entry, and discovered no information that they used (or could use) to influence Valencia to consent...