Opinion
No. 01 CR 141
February 20, 2002
ORDER
On May 17, 2001, defendants, Jose Ruben Herrera-Corral ("Ruben"), and Fidel Robles-Ortega ("Fidel"), were indicted for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 846, and 18 U.S.C. § 2. Defendants have filed a motion to suppress evidence seized on the day of their arrest. On January 14, 2002, this court issued an order in which it concluded that defendants have standing to challenge the February 14, 2001 entry of an apartment located at 3506-8 South Winchester in Chicago ("Chicago apartment") by agents of the Drug Enforcement Agency ("DEA"). In addition, the court held that the agents' entry into the apartment was illegal. The remaining issue for this court to decide is whether consent to search the apartment, obtained after the illegal entry, can legitimate the admission of the disputed evidence. For the following reasons, defendants' motion is denied.
On February 14, 2001, agents illegally entered the Chicago apartment and performed a protective sweep, during which they discovered a gym bag full of cocaine at least partially hidden under a bed in one of the apartment's two bedrooms. After the protective sweep, the agents spoke with Azuzena Tabizon, a leaseholder of the apartment. Tabizon was not a suspect at the time, and is not a defendant in this case. At the suppression hearing, she testified that she had not seen the gym bag full of cocaine before the agents entered her apartment. (There is a dispute, however, as to whether she provided this information to the agents.) Tabizon gave the agents both verbal and written consent to search the entire apartment. Agents then conducted a search of the apartment and seized the gym bag full of cocaine. The government argues that Tabizon's consent was voluntary and thus the search of the apartment and seizure of the gym bag did not violate the Fourth Amendment, regardless of whether the initial entry was illegal or whether agents discovered the evidence before Tabizon's consent. Defendants argue that Tabizon's consent was not voluntary, and that the scope of her consent did not extend to the gym bag.
Police may search premises without a warrant if "someone with actual or apparent authority consents to the search or seizure." United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998). "A third party with common authority over the premises sought to be searched may provide such consent." Id. "However, the prosecution must show that the consent was given freely and voluntarily." United States v. Valencia, 913 F.2d 378, 381 (7th Cir. 1990). Defendants do not dispute that Tabizon had actual authority to consent to a search of the entire premises. The remaining issue can be separated into two separate inquiries: (1) whether the seizure of the gym bag was illegal despite Tabizon's consent to search the apartment; and (2) whether Tabizon's consent was "tainted" by the agents' illegal entry. See id. at 382.
The government has offered another ground on which it argues this court should have found that the agents' entry was legal, citing Segura v. United States, 468 U.S. 796 (1984), for the proposition that officers may secure a premises with probable cause while a warrant is being obtained. The court need not agree or disagree with the government on this issue, as it holds that Tabizon's consent to search the Chicago apartment rendered the seizure of the disputed evidence legal under the Fourth Amendment.
I. Seizure of the Gym Bag
Although Tabizon had authority to consent to a search, there is a question as to whether that consent extended to the gym bag under the bed. "Generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container." United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000). Defendants argue that the agents knew that Tabizon had "absolutely no authority over the bag," and therefore her consent could not have extended to the bag. (Mem. Support Defs.' Mot. Suppress Evidence at 5.) The government argues that Tabizon had apparent authority to consent to a search of the gym bag. In addition, the government argues that the contents of the bag were in plain view during the search of the bedroom.
In Melgar, the Seventh Circuit considered how to fashion a rule governing the scope of a third party's consent. "[T]he real question for closed container searches is which way the risk of uncertainty should run." Melgar, 227 F.3d at 1041. The Seventh Circuit rejected an argument that would have required the police to have positive knowledge that the closed container is under the authority of the person giving consent. Id. In that case, a woman renting a hotel room consented to a police search of that room, and the police found a woman's purse between the mattress and box springs of one of the beds. Although the purse did not belong to the woman who gave consent, the court upheld the search because "the police had no reason to know that the floral purse they found under the mattress did not belong to [her]." Id. Further, the Seventh Circuit noted that "[a] contrary rule would impose an impossible burden on the police. It would mean that they could never search closed containers within a dwelling (including hotel rooms) without asking the person whose consent is being given ex ante about every item they might encounter." Id. at 1042.
In this case, the issue of whether Tabizon had apparent authority over the gym bag is a difficult one. On one hand, the gym bag had no markings indicating that it did not belong to Tabizon. Cf. United States v. Rodriguez, 888 F.2d 519, 524 (7th Cir. 1989) (holding that a spouse's consent to search a room in a union hall where her husband was sleeping did not extend to her husband's briefcase, which had the word "Mike" on the outside). On the other hand, there is evidence that the agents knew from the informant's prior entry that there was a container of cocaine under the bed, and the agents stated explicitly that they did not suspect Tabizon in the illegal transaction. This is some evidence that the agents knew that the bag under the bag did not belong to Tabizon. See, e.g., United States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993) (holding that a woman's purse clearly did not belong to a male driver). However, the court need not resolve this issue, because the cocaine inside the gym bag is admissible under the "plain view" doctrine. See United States v. Boyd, 180 F.3d 967, 976 (8th Cir. 1999) (where police discovered a container with items associated with illegal drug use protruding from it during a legal protective sweep, the items were admissible at trial under the plain view doctrine).
Under the plain view doctrine, police may seize an item if the police are lawfully in a position to observe the item and its incriminating character is immediately apparent. Horton v. California, 496 U.S. 128, 136-37 (1990). "An example of the applicability of the `plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character." Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion). In this case, two officers testified that the gym bag was protruding from underneath the bed. One of them testified that the bag was open enough so that he could see brown tape-wrapped packages inside, indicating that the bag contained narcotics. There is no evidence contradicting the testimony that the bag was open or that it contained tape-wrapped packages. There is a dispute about whether the bag was completely hidden under the bed or whether it was only partially hidden. However, assuming Tabizon's consent to search the bedroom was valid, the agents could lawfully move the bed or look under the bed. Therefore, even if the bag was completely hidden under the bed, the agents were lawfully in a position to observe the gym bag after Tabizon's consent. Furthermore, accepting the officer's testimony that the bag was open, the court is satisfied that the incriminating character of the cocaine was immediately apparent to the officers. See Boyd, 180 F.3d at 976 (applying plain view doctrine where police discovered an "open black bag with a scale, some currency, and a clear plastic bag with white powder in it"). Therefore, if Tabizon's consent was voluntary, the evidence should be admitted.
In addition, both Tabizon and the daughter of one of the defendants testified that after the protective sweep of the Chicago apartment, agents carried the gym bag out of the bedroom where it was found. Tabizon testified that the agents then showed her the bag, telling her that cocaine was inside. The court rejects this testimony. Two officers independently testified that the gym bag did not leave the bedroom until Tabizon's consent was obtained. In light of the similarities in the officers' testimony and the fact that Tabizon and the defendant's daughter had an interest in helping defendants, the court finds the officers' testimony to be sufficiently credible to carry the government's burden.
II. Taint of the Consent/Voluntariness
"Whether a person has voluntarily consented to a search is a factual question to be determined by examining all the circumstances surrounding the consent." Valencia, 913 F.2d at 381. In this case, one of the circumstances surrounding Tabizon's consent was the fact that the agents had forcibly and illegally entered the Chicago apartment moments before her consent. The court must consider whether the consent was obtained by "exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Valencia, 913 F.2d at 382 (quoting Segura v. United States, 468 U.S. 796, 804 (1984)).
In Valencia, the Seventh Circuit agreed with the district court that an allegedly illegal entry into the defendant's apartment by police officers did not taint his subsequent consent to search the apartment. In its holding, the court relied on three distinct facts. First, "[m]ore than an hour passed between the initial entry and Valencia's subsequent consent." Id. Second, the court held that the police "did not exploit the initial entry," because the police discovered no evidence or information that they could have used to influence the defendant to consent to a search. Id. Finally, the court held that the mere presence of police officers was not so coercive that it rendered the defendant's consent involuntary. See id.
While this case differs from Valencia in some important respects, the preponderance of the evidence establishes that Tabizon's consent was sufficiently voluntary so that it was not tainted by the agents' illegal entry. First, this case differs from Valencia because only a few minutes passed between the agents' initial entry and Tabizon's consent. However, the evidence suggests that enough time had passed to lessen substantially the impact of the illegal entry on Tabizon before she consented. Officer DeCanter testified that after Tabizon told the agents that the apartment was hers, he and another agent asked her to join them in the kitchen. The three of them sat and talked at the kitchen table. They were the only people in the room during the conversation and Officer DeCanter and the other agent did not have any weapons at the time. Officer DeCanter testified that at first, Tabizon seemed nervous, polite, and cooperative. Then, he and the other agent showed her their credentials and told her that she was not in any trouble. He testified that at that point Tabizon appeared to relax. Significantly, in contrast to Valencia, in this case Tabizon was not a suspect in custody when she gave her consent. See United States v. Liss, 103 F.3d 617, 621-22 (7th Cir. 1997) ("[A] non-custodial voluntary consent should be seen as an independent intervening event . . . which thus serves as a break in any causal chain stemming from an illegal search.").
The agents then asked for Tabizon's consent to search the apartment, and Tabizon agreed. Officer DeCanter testified that he then pulled out the consent-to search form and told Tabizon that he would read it aloud, and that she should stop him if she had questions. Officer DeCanter then read the form aloud while holding the form so that Tabizon could see it, and Tabizon did not ask any questions. When he was finished reading the form, Officer DeCanter asked Tabizon if she understood it. She answered that she did. Officer DeCanter testified that he and the other agent then watched Tabizon sign the form, after which the agents searched the apartment. This 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.
With respect to the second Valencia factor, the facts are disputed. Tabizon testified that agents showed her the gym bag, telling her that cocaine was inside, and that if she signed the form, they would leave. If true, these circumstances would suggest exploitation of the illegal entry to induce consent. However, the court finds the facts to be otherwise. Two officers testified that the gym bag did not move from the bedroom until Tabizon's consent was obtained. Officer DeCanter testified specifically that he did not threaten Tabizon in any way. He also testified that it is his standard practice to read the consent form aloud so that the person who signs the form understands it completely. In light of Officer DeCanter's experience investigating narcotics trafficking and requesting consent to search premises, the court finds his testimony to be credible. Moreover, Tabizon had never seen the gym bag before February 14, 2001 and was told that she was not suspected of any wrongdoing. Therefore, it is unlikely that agents used the gym bag to coerce her consent.
Finally, the agents' presence in the apartment did not have such a coercive effect that Tabizon's consent was not voluntary. The record does indicate that the agents entered the apartment forcibly and were armed when they entered. However, Officer DeCanter testified that he had no weapons when he spoke with Tabizon in the kitchen, and that she visibly relaxed once she was told that she was not a suspect. Furthermore, the consent-to-search form that Tabizon signed states: "I have not been threatened, nor forced in any way," and "I freely consent to this search." (Gov.'s Ex. 2.) Tabizon testified that she did not read the form and that she did not understand what it was, perhaps implying that she could not understand the English language. However, it is apparent that Tabizon understands the English language enough to know the meaning of the simple sentences printed on the consent form. When an agent earlier asked, in English, whose apartment it was, Tabizon answered him, in English. In addition, the government submitted the lease application for the Chicago apartment, which Tabizon completed in English. The court concludes that Tabizon read and understood the consent form that she signed, and that the agents' presence was not coercive.
Defendants suggest that because the agents discovered the gym bag before Tabizon consented to a search of the same area where the bag was seized, the seizure of the bag was illegal. In United States v. Gillespie, 650 F.2d 127 (7th Cir. 1981), police officers illegally searched the defendant's home and discovered evidence. The Seventh Circuit held that the defendant's subsequent consent to search the home could not legitimate the seizure of the evidence. Id. at 129. Gillespie, however, has been substantially limited by Liss, 103 F.3d 617, in which the court held that a consent to search can "purge" evidence discovered in an illegal search from "taint." Even though evidence would not have come to light but for an illegal search, such evidence will not be suppressed if voluntary consent to the search is subsequently given. It is irrelevant that agents discovered the gym bag before Tabizon consented to the search, so long as Tabizon's consent was not illegally coerced by the agents. The Seventh Circuit in Liss noted, however, that police might impermissibly exploit illegally-obtained knowledge to coerce an individual into providing consent, especially "where the illegal search and subsequent consent search were of the same location." Id. at 621. This is because "the defendant's consent could be influenced by the belief that there is no reason to withhold consent because the officers had already searched the location." Id. However, as this court has already found, the preponderance of the evidence in this case establishes that the agents did not use the gym bag to coerce Tabizon into consenting to the search. More importantly, however, the agents told Tabizon that she was not a suspect. Therefore, unlike the defendant in Gillespie, Tabizon was unlikely to have been motivated to consent by what the agents might have already found in her apartment.
There is some question as to when agents actually "seized" the gym bag: during the protective sweep or after Tabizon's consent. However, the difference is minimal. Even if agents illegally seized the gym bag during the protective sweep, this does not render the evidence inadmissible. "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then . . . the evidence should be received." Nix v. Williams, 467 U.S. 431, 444 (1984). In this case it is clear that the Nix "inevitable discovery" exception to the exclusionary rule would apply because Tabizon in fact voluntarily consented to a search of the apartment.
In light of all of these facts, the court holds that Tabizon's voluntary consent was "sufficiently independent of the allegedly illegal initial entry that the two events were `so attenuated as to dissipate [any] taint' from the entry." Valencia, 913 F.2d at 382 (quoting Segura, 468 U.S. at 805). Therefore, the agents' search of the bedroom and seizure of the gym bag underneath the bed were validated by Tabizon's voluntary consent. The evidence should not be suppressed. Defendants' motion is denied.