U.S. v. White

• Decision Date: 16 May 1983
• Docket Number: Nos. 82-2022,82-2110,s. 82-2022
• Citation: 706 F.2d 806
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Henry WHITE, Defendant-Appellee. UNITED STATES of America, Plaintiff, v. $38,394 U.S. CURRENCY, Defendant, Henry White, Claimant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 806

706 F.2d 806

UNITED STATES of America, Plaintiff-Appellant, v. Henry WHITE, Defendant-Appellee.

UNITED STATES of America, Plaintiff, v. $38,394 U.S. CURRENCY, Defendant, Henry White, Claimant.

Nos. 82-2022, 82-2110.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 1983.

Decided May 16, 1983.

Katherine Goldwasser, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellant.

Gail A. Niemann, Jenner & Block, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and NEAHER, Senior District Judge. ^*

CUMMINGS, Chief Judge.

This appeal is an outgrowth of our prior opinion reported in 660 F.2d 1178 (1981), where we upheld White's conviction for possession of heroin with intent to distribute. We also upheld the seizure of $38,394 ¹ found in White's apartment because the arresting Drug Enforcement Administration (DEA) agents could reasonably have believed that the money was the fruit of prior heroin sales and consisted in part of pre-recorded government funds. However, we left open the question whether the search of White's apartment was lawful (660 F.2d at 1184 and n. 8) and remanded the case for such a determination.

Since the episode in question is fully described in our prior opinion, we will only repeat facts sufficient for disposition of White's motion for return of the $38,394 under Rule 41(e) of the Federal Rules of Criminal Procedure, which was renewed in the Government's forfeiture suit after we disposed of the prior appeal. The search in question took place on March 11, 1980, when Chicago police officers and DEA agents arrived at the apartment house at 4732 West Washington Street, Chicago. On this occasion, White and co-defendants Rogers and Council were arrested. While all three defendants were in the first-floor apartment, White agreed to waive his Miranda rights. Shortly afterwards on the back porch of that apartment, he gave consent to Sergeant Cline of the Chicago Police Department and DEA agent Gallagher to search his third-floor apartment for heroin.

Thereafter, Cline, Gallagher and other officers knocked on the door of the third-floor apartment and told Zenobia Anderson, who identified herself as White's wife, that White had been arrested on narcotics charges and had consented to a search of the apartment which he and Anderson shared. After they entered the apartment to commence their search, Cline asked Anderson if there was any money, jewelry or any similar expensive item in the apartment. She replied that there was some money in the closet and pointed to a flight bag there. When Cline picked up the bag and asked Anderson how much was in it, she told him $40,000. The bag was then opened in the kitchen and found to contain $42,194 in cash, including the pre-recorded government funds used in prior purchases of heroin by government employees. In the same closet the agents discovered stolen property, narcotics paraphernalia and approximately ten guns.

In its May 28, 1982, memorandum opinion and supplemental opinion of June 9, 1982, 541 F.Supp. 1114, 1119 (N.D.Ill.), the district court held that although White consented to the search of the apartment, the search of the travel bag and the seizure of the currency were unlawful; he therefore granted White's motion for return of the property. The court also dismissed as moot the government's civil forfeiture action under 21 U.S.C. Sec. 881 which permits the government to retain moneys used in exchange for narcotics. We reverse.

Voluntariness of Consent

Defendant has cross-appealed as to the district court's finding that White's consent to search the third-floor apartment was voluntary. Judge Shadur found the following factors persuasive:

First, in addition to permitting the search, White waived his Miranda rights though his co-conspirators did not under identical conditions. Second, the consent took place during a quiet conversation on the back porch. Matters would have been very different had White been asked to consent just after the arrest in the living room, while he was faced by 12 agents, many with guns drawn. Finally, White has a long arrest record and has been in similar situations before. As part of the congeries of factors, those items particularly demonstrate White was able to choose voluntarily whether to let the agents undertake the search. 541 F.Supp. at 1117.

These factors are sufficient to support the district court's conclusion of voluntariness. United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820, 828, 46 L.Ed.2d 598; United States v. Jones, 475 F.2d 723, 730-731 (5th Cir.1973), certiorari denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77.

To support his coercion argument, White relies primarily upon United States v. Gillespie, 650 F.2d 127 (7th Cir.1981) (per curiam), certiorari denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1374. However, there five FBI agents and police officers with drawn shotguns and revolvers confronted Gillespie at his door, stating that they were looking for fugitives. In contrast, White gave his consent with no guns being drawn, while conversing on a back porch with two officers and after waiving his Miranda rights.

Our decision in United States v. Sanchez-Jaramillo, 637 F.2d 1094 (7th Cir.1980), certiorari denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 is also inapt because that defendant's consent was the result of an illegal detention and, as then Judge Tone stressed in his concurring opinion, defendant had been roused out of bed naked in his darkened bedroom by an agent with a flashlight and a gun,...