US v. Anhalt, No. 92 CR 538.

• Decision Date: 19 February 1993
• Docket Number: No. 92 CR 538.
• Citation: 814 F. Supp. 750
• Parties: UNITED STATES of America, Plaintiff, v. Robert ANHALT and Walter Jachimko, Defendants.
• Court: U.S. District Court — Northern District of Illinois

814 F. Supp. 750

UNITED STATES of America, Plaintiff, v. Robert ANHALT and Walter Jachimko, Defendants.

No. 92 CR 538.

United States District Court, N.D. Illinois, E.D.

February 19, 1993.

Daniel George Martin, Federal Defender Program, George Joseph Murtaugh, Jr., Chicago, IL, for Walter Jachimko.

Patrick Sean Layng, U.S. Attorney's Office, Chicago, IL, for U.S.

ORDER

BRIAN BARNETT DUFF, District Judge.

Mr. Walter Jachimko has been indicted for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The indictment is based upon the fruits of a warrantless search of Jachimko's residence conducted on June 30, 1992. Jachimko was arrested at the time of the search. Jachimko has moved to suppress the evidence seized during the search, claiming that the search was conducted without probable cause or consent. The court held a hearing on these claims on December 23, 1992, at which two witnesses testified: DEA Special Agent Scott Courtney and confidential informant Joseph Hendrickson. For the following reasons, Jachimko's motion to suppress is granted.

FINDINGS OF FACT

The court has heard the evidence and has considered the testimony, exhibits, and arguments of counsel. Now fully advised in this matter, the court finds the following facts.

1. The Drug Enforcement Administration (DEA) began an investigation of defendant Robert Anhalt¹ and others, not including defendant Jachimko, in March of 1992. This investigation was triggered by a tip from Joseph Hendrickson, who approached the DEA offering information on individuals engaged in indoor marijuana cultivation.

2. Hendrickson mentioned to the DEA the names of defendant Robert Anhalt and his brother William Anhalt, as well as five other individuals, but never mentioned defendant Jachimko. In fact, the DEA agents assigned to the case never heard Jachimko's name until the night of the arrest, June 30, 1992. A background check on Hendrickson revealed prior convictions for delivery of cocaine and for escape. Hendrickson became a confidential informant ("CI") for the DEA, and received monetary compensation in return for his assistance.

3. The DEA began surveillance of Robert Anhalt in March 1992 in order to find corroboration for Hendrickson's information.

4. On March 24, 1992, Hendrickson arranged a meeting with Robert Anhalt at Robert's residence for the purpose of introducing Robert to DEA undercover agent Jodwalis. William Anhalt was also present at this meeting. Jodwalis told the Anhalts that he was interested in obtaining marijuana plants, and that he had plans for developing a large hydroponic growing operation and wanted Robert Anhalt to be a business partner in the venture. William stated that he had a large growing operation that he would be willing to show Jodwalis the next day.

5. On March 25, 1992, there was a meeting between Jodwalis, Robert, William, and undercover DEA agent Scott Courtney. The agents proposed to purchase plants from the Anhalts and to hire the Anhalts to set up the indoor growing operation and care for the plants. The Anhalts indicated interest at that time, but subsequently told Hendrickson that they were no longer interested in managing the growing operation.

6. The DEA, therefore, scaled back their aspirations, and decided to seek a simple purchase of marijuana plants from the Anhalts. On June 1, 1992, the CI, wearing a recording device, met with Robert at Robert's residence. The CI obtained two sample marijuana plants, and ordered 150 plants at $10 each. A week later, at another DEA monitored meeting, the CI gave Robert $150 as a down payment toward the plants, and arrangements were made for the CI to see the 150 plants that had been ordered on June 30, 1992.

7. On June 30th, DEA agents met with the CI in the vicinity of Robert's residence before he was to meet Robert to view the plants. The CI was given a recording device, which also allowed agents to monitor conversation, and an "Agent Alert button." The purpose of the alert button was to summon the surveilling DEA agents upon its activation. The CI was instructed to press the alert button only if he saw more than one hundred marijuana plants. The CI then went to Robert's residence; he stayed for ten minutes, returned to the meeting place with the agents alone, and then went back to Robert's apartment. The CI still had the recording device and the alert button, and his instructions did not change.

8. The anticipated pattern of the evening, however, did change. The CI and Robert left Robert's residence in a car, and they were followed by surveilling DEA agents. They drove to 4900 West Newport in Chicago, a location which had never been under DEA surveillance during the investigation. Agent Courtney testified that at the time the agents approached 4900 West Newport, they had no idea who lived there, or how many units were in the building. They did not know of any violations of any law taking place at that address.

9. After arriving at 4900 West Newport, Robert knocked on a basement window, and, according to the CI, Robert and the CI were admitted by Walter Jachimko through the front door, into what turned out to be Jachimko's home.

10. About twenty minutes later, the agent alert button was activated. Agents knocked on the side door, Jachimko opened the door, and then tried to close it when the agents announced themselves as police. A scuffle ensued, and Jachimko was arrested. Robert was arrested on the front lawn, after exiting the residence through the front door. Marijuana plants were seized after a search of the apartment.

Several feature of the investigation that culminated in the challenged search are worthy of comment.

11. At no time during the investigation of the Anhalt brothers, from March to June of 1992, did the DEA contact the United States Attorney's office regarding the preparation of search or arrest warrants for any of the targets of the investigation. No warrants were sought as to Jachimko, of course, since the DEA was unaware of his existence until the arrest took place on June 30, 1992.

12. Although the CI was equipped with a recording device on June 30, 1992, the tapes of the conversations he had with Robert Anhalt and Jachimko are inexplicably blank. According to Agent Courtney, another DEA agent monitored the conversation of the CI and Robert as they drove to 4900 West Newport. This agent did not prepare a report about those conversations at the time, and no record of those conversations exists. The tapes from the arrest itself, from the recording device worn by the CI, are also blank.

13. The transmission device worn by the CI was also not functioning when the CI entered Jachimko's apartment; according to Hendrickson, when he gave the verbal signal for the agents to enter ("Do you want me to pay you now?"), there was no response. The CI then activated the alert button.

Finally, there is the matter of the CI, Hendrickson, himself.

14. Not surprisingly, he had had prior encounters with drugs and law enforcement. The court reiterates that Hendrickson contacted the DEA and volunteered to provide information on Robert Anhalt. He was not recruited. More importantly, in terms of his credibility, Hendrickson testified that he had not used cocaine or any other drug since 1987.² A United States Probation Department special report on Hendrickson indicates that a random urine screen submitted on June 29, 1992, the day before the events in question, showed a positive result for cocaine use.³ Having observed Hendrickson on the witness stand, this court finds that Hendrickson was not only not a credible witness, but that he in all probability perjured himself before the court.

DISCUSSION

This case presents an interesting variation on the "second entry" or "consent once removed" doctrine developed by the Seventh Circuit in a trio of cases: United States v. Janik, 723 F.2d 537 (7th Cir.1983); United States v. Paul, 808 F.2d 645 (7th Cir.1986); and United States v. Diaz, 814 F.2d 454 (7th Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 166, 98 L.Ed.2d 120 (1987). Although the circumstances surrounding Jachimko's arrest and the search of his home are similar to the situations in which a "second entry" is permissible under the Fourth Amendment, there are also important differences.

The defendant in Janik told a friend that he had purchased a submachine gun, and later invited the friend, who happened to be a Chicago police officer, to see the gun. In the meantime, the friend had contacted the Bureau of Alcohol, Tobacco and Firearms and a group of law enforcement officials gathered outside Janik's apartment when the friend went on the arranged viewing visit. Janik, 723 F.2d at 541. After seeing the gun, the friend unsuccessfully tried to contact the arrest team by radio from Janik's bathroom. He then stepped into the lobby to radio the team, which swept in, searched the apartment after Janik signed a consent form authorizing a search, and seized the submachine gun as well as a sawed off shotgun. Id. The legality of the search was upheld, the court noting that the friend, whom the defendant knew to be a police officer, was expressly invited and that "the fact that the friend got help from other officers in removing the submachine gun can make no difference." Id. at 547-48.

United States v. Paul, 808 F.2d at 648, expanded Janik to cover consensual entries made by confidential informants, rather than law enforcement personnel. In Paul, a confidential informant named Moore arranged to buy a bale of marijuana from Paul for $44,000. Three telephone conversations between Moore and Paul were taped by Illinois officers cooperating with federal drug agents. Id. at 646. In these conversations, the time and place of the purchase were established. Not wanting to entrust Moore with such a large sum of money, the agents equipped him with an alert button which he was to activate when he saw marijuana at Paul's home, where the...