United States v. Fidel Robeles-Ortega, Also Known as Fidel Robles-Ortega, Also Known as Fidel Ortiz-Rolboues
348 F.3d 679
7th Cir.
2003
Check Treatment
Docket

*1 III. CONCLUSION above, we Affirm stated

For the reasons and Enforce judgment district court’s arbitration award. America,

UNITED STATES

Plaintiff-Appellee, ROBELES-ORTEGA, also known

Fidel Robles-Ortega, also known

as Fidel Ortiz-Rolboues, Defendant-

as Fidel

Appellant.

No. 02-3365. Appeals, Court

United States

Seventh Circuit. April

Argued 7, 2003. Nov.

Decided dissenting

Bauer, filed Judge,

opinion. *2 BAUER, ROVNER,

Before WILLIAMS, Judges. Circuit ROVNER, ILANA DIAMOND Judge. issue in this case sole is whether the
district court in denying erred the defen- motion dant’s the evidence. facts recited are as follows. February agents

On (DEA) Drug Agency Enforcement monitoring a conversation its con- (Cl), defendant, fidential informant apartment, another purchase which the Cl was negotiating the of seven kilos of cocaine. The Cl was supposed cocaine, to view the then leave the apartment and convince the defendant outside, him follow at which time the DEA agents planned to arrest them. All did proceed according plan. Instead, quoted higher defendant price than originally proffered, and the Cl left the apartment alone. The Cl entered (who the car agent and told car nephew), defendant was told was his had seen agent the cocaine. The Cl away then drove from the scene. agents

The actions taken the DEA point in time inexplicable. Rather obtaining than a search warrant based on information, within two minutes departure Cl’s agents forcibly apartment by breaking down the door. Approximately agents five entered the apartment drawn, with guns conducting a security sweep while the occupants, four-year-old child, including a lay firing on the floor During room. (argued), Michael Gurland Office sweep, agents gym bag observed a IL, Attorney, Chicago, United for the floor which bedroom was later Plaintiff-Appellee. found contain cocaine. The district Waukesha, Donna J. (argued), Kuchler testimony court credited the agents’ WI, Defendant-Appellant. bag search that at the time. 2254, 45 L.Ed.2d 416 sweep, after that Immediately exclusionary rule Tabizon as lease- Fourth Amendment Azuzena identified “ holder, go to the they asked her to ‘extends as well to indirect as complied, and She products kitchen with them. of unconstitutional con- direct *3 “ therefore, that she was not informed her they determining ‘[i]n duct’ sign that she and suspect, requested aby prior whether evidence is tainted the for them to search written consent must whether the illegality, we determine so, the agents and apartment. She by exploitation was come at and apartment seized then searched the by illegality or instead [the initial] the cocaine. sufficiently distinguishable to be ” taint.’ United States v. motion to The court denied the district Valencia, 378, F.2d 382 913 evidence, concluding that Ta- States, v. 468 quoting Segura United U.S. voluntary sufficiently consent was bizon’s 3380, 796, 804, 82 104 S.Ct. agents’ by it was tainted (1984) Sun, 488, at Wong and 371 83 is U.S. appeal sole on illegal entry. The issue search following erred in that S.Ct. 407. Where the the district court whether justified alleged based on determination. consent, courts must determine whether prohibi Fourth Amendment voluntary, and addition that consent and against unreasonable searches court must determine whether the ille- in their homes protects persons seizures entry tainted that consent. The Su- gal The ex against unwarranted intrusions. has identified a number of preme Court preventing use of evi rule clusionary including inquiry, factors to that relevant in violation of that amend dence obtained (1) temporal proximity protects the Fourth Amendment ment (2) consent, entry and deterring conduct by lawless guarantees circumstances, and, particular- “ intervening by ‘clos by law officers and enforcement (3) ly, purpose flagrancy any courts to ing the doors the federal Illinois, 422 Brown v. official misconduct. unconstitutionally ob use of evidence 590, 603-04, 2254, 45 ” L.Ed.2d U.S. 590, Illinois, 422 tained.’ Brown v. U.S. (1975). appeal 416 On (1975); 598, 2254, 416 95 45 L.Ed.2d S.Ct. suppress, of the motion to court’s denial 471, v. 371 Wong Sun United U.S. legal the district court’s conclu- we review 441 9 83 L.Ed.2d S.Ct. of fact for de novo and its sions examining the exclu whether Yang, v. 286 error. United States clear sionary applies rule this we are (7th Cir.2002). F.3d privacy inter with the concerned Amendment, Fourth ests inherent factors, the dis- applying In above of deterrence but also with considerations extensively this court’s court relied on trict Brown, 422 judicial integrity. See Valencia, decision United States 2254 and cited cases U.S. Cir.1990). Valencia, F.2d therein. conducting were surveillance officers process were in the two individuals who has re Supreme Court transaction. One negotiating a narcotics ap peatedly principles set forth the be going he was suspects indicated that the evi plied where the issue whether man,” “money with his short- speak or after an arrest dence obtained apart- he Valencia’s excluded, ly thereafter as has this search should be from departed After 95 ment. Id. at 380. U.S. court. See that apartment, entry. the officers observed a tainted the illegal theless man, Valencia, apartment. leave the Id. held the consent was not tainted They First, directed other officers to find and entry. the court not- Valencia, stop proceeded ed that the consent was obtained more rang They entry. ment. Id. than hour door- Id. at 382. Sec- bell, door, ond, opened and when a woman the court state that the had the apartment officers entered without discovered evidence in her consent and Id. at they secured it. use could to coerce his Meanwhile, other officers stopped Valencia and that therefore did not question attempted exploit him but the initial to obtain that con- *4 by hampered English. they Valencia’s limited sent. Finally, Id. determined that arranged Id. An officer a Spanish- the presence officers’ mere did not coerce officer speaking to meet them at his Valencia’s because the court district had apartment, and drove Valencia home held that his was voluntary. consent Id. (The Valencia’s own car. Id. court held That situation markedly different sequence that this events was not an from presented the circumstance here. In detention, unlawful and therefore that did Valencia, the defendant not was even at not impact the issue of whether the made, home the illegal entry when was and subsequent search was lawful. Id. at 382- the therefore force and nature intru- 83) Once Valencia returned to his sion would not have tainted his consent. ment, was his rights he read Miranda The consent provided was hours after the Spanish, and he questions, answered in- entry, a who was not cluding volunteering that was there some present time the entry, and with kitchen, marijuana $8,000- his and police no indication that the had discovered $10,000 magnum a and .357 revolver his any evidence that during illegal entry. bedroom. Id. at 381. The officers found the present agents literally broke those items indicated and him if asked down the door and entered a strong with he would consent the search of his force, brandishing guns show of their and apartment, explaining that he did not have having occupants lay on the floor. Im- consented, to do so. Id. He and the offi- incident, mediately after they this removed $316,000 cers discovered and another kitchen, Tabizon to the and obtained her handgun. Id. consent the impact search. The The Valencia court first determined that on Tabizon’s consent is simply he voluntarily had dramatically consented to search. different from the impact The court noted present that was never threat- in Valencia. ened in manner that he remained The acknowledged district court calm throughout process. Id. The only a passed few minutes had between court further noted the most signifi- the agents’ entry initial and Tabizon’s con- cant factor was that he was his sent, but held “the suggests warnings and knew that he did enough passed had to lessen search, have consent to the but did substantially impact anyway. so Id. the court up- on Tabizon before Op. she consented.” held district determination court’s adjourned That evidence that they was his voluntary. consent was Id. room, to another that she was told she was

The Valencia court then turned to suspect, relinquished their issue of whether that consent was weapons joining never- before her at the kitchen First, table, read and under sion. the court considered whether that she was According agents exploited form. the initial stood court, testimony suggests that the induce court “[t]his consent. district did not the initial passed time that Tabizon testimony credit that she she along with realization that Tabizon’s was confronted with the contents of the wrongdoing, vitiated suspected was gym bag, and instead held that nothing was possibility that Tabizon coerced seen in the used to sweep was obtain her That, however, at 7. .entry.” Op. the initial consent. no reason to question We have not the that factor. proper application those them accept as valid. question the causal connec is whether that the agents then concluded illegality the consent not use evidence obtained the search broken, has the Finally, to coerce consent. her on that issue. persuasion burden of court held agents’ that the in the Texas, 626, -, Kaupp v. apartment did not have coercive effect 1843, 1847, (2003); voluntary. and that her consent was 103 F.3d United States *5 Cir.1997) concurring) (Ripple, J. All of court’s address Brown, noting that the taint anal (quoting agents whether coerced Tabizon’s consent. ysis whether antecedent applies That focus because misplaced, is the defen illegal is Fourth Amendment violation an dant does the burden of not bear demon search). illegal tempo seizure or an strating coerced that the the con proximity ral is relevant because a consent sent; instead, a consent is where obtained immediately illegal entry obtained after pursuant illegal entry, to an burden less to be unconnected to that likely is persuasion is on demon case, entry. the court that In this found that was not strate the consent tainted within a the consent was obtained few at-, illegal entry. Kaupp, 538 U.S. entry. It illegal minutes is difficult critical 123 S.Ct. at 1847. The issue is imagine a shorter frame between whether the consent was obtained action and the unconstitutional consent. sufficiently distinguishable from of law as a matter this factor illegal and violent so as to be weighs a determination that against Valencia, taint. causal connection was broken. The court’s F.2d quoting 382 reliance of evidence of voluntariness 804, 104 S.Ct. Segura, 468 U.S. in misplaced considering the consent Sun, Wong 371 U.S. S.Ct. held, this factor. As the volun- Valencia only tariness of the consent the first Therefore, we must focus on those fac- step, inquiry is and the next whether them to apply tors alone and the facts by the in other consent was tainted Because the relevant presented here. words, product whether it was result of undisputed, facts are that test issue, considering illegal entry. law. The first is clear as a matter of temporal in this proximity strong case factor, already has temporal proximity, ly favors the defendant discussed, the few minutes be- been applying court erred as a matter of law in and the tween “consent” this factor. finding that the only weigh against can dissipated. taint of action had

Aside from its consideration of the tem- of inter- a The second factor is poral proximity, considered vening “interven- couple of its deci- circumstances. reaching other factors ing argued circumstance” here is her situation which the action and the agreement sign form. subsequent That consent search are of the same types is distinct from the location, circumstances in which case the likelihood is previously have been considered suffi- greater that illegal action influenced the See, Sun, e.g., Wong cient. 371 U.S. at consent, and therefore the causal connec- (confession was made is stronger. govern- Id. at 621. The days several after arrest and was turn attempt ment’s all written consents preceded by arraignment and release from an “intervening into circumstance” break- custody); Rawlings Kentucky, 448 U.S. ing the causal chain is inconsistent with 98, 108-09, 100 S.Ct. 65 L.Ed.2d 633 distinction and with the Su- (1980) (discovery of incriminating other ev- preme rejection argu- Court’s of a similar implicating idence the defendant and caus- with respect ment to Miranda warnings ing the defendant to spontaneous- confess Illinois, Brown v. 422 U.S. ly). There is no reason this case to 45 L.Ed.2d 416 believe that her written consent was inde- turn, then, factor, We to the third which pendent It entry. was ob- purpose flagrancy is the of the official immediately tained almost after that forc- misconduct. In this the officers liter- ible into the subsequent home and door, ally exigent broke down the without show of force. As with confessions warrant, circumstances and without a warnings, that consent at least five agents rushed into the alone not necessarily purge does the taint ment with guns. occupants the illegal action. See apparently ordered to lie *6 603, (rejecting argument S.Ct. 2254 down on the floor while the warnings by themselves al- all of the rooms. Similar to cases such as arrest.) ways purge the illegal taint of an Brown, the manner of the where, here, That is especially true as “gives this case appearance having weigh other strongly against factors been calculated to surprise, fright, cause Moreover, contrary conclusion. to the and confusion.” 422 U.S. at government’s argument, United States v. person’s S.Ct. 2254. That invasion aof Liss, 103 F.3d 617 does precisely home is type of action the hold that a consent is an in- independent Fourth Amendment is most concerned tervening event that breaks the causal with preventing, therefore inter- stemming chain illegal from the search. ests deterrence in protecting Liss, officers conducted an integrity judicial of the process very barn, search of a and subsequently re- high this circumstance. quested consent of the owner to the search Because of the violent and sudden na- of his house. The court held that intrusion, ture of the extremely causal connection between short barn period search and between the and the the evidence found in the house any and the absence sufficiently was attenuated other because the barn search event that would have merely motivated the attenuated the im- decision house, pact to seek of that illegal entry, the consent to search we conclude as but matter of otherwise search of that law that the evidence unrelated location had no role in the discovery “sufficiently obtained distin- pursuant evidence obtained guishable to the non- as be voluntary custodial Nothing consent. Id. 620-22. taint.” occurred this instance The Liss court explicitly contrasted the that isolated the discovery search and the to call the con- and the consent entry, or entrance from that the evidence I am reluctant to substi- at all informed. confidence sent us give that could hers, particularly my judgment for [the] tute connection “the causal days three parties accorded the procurement and the where she conduct illegal police as to attenuated and came to a reasoned conclu- hearing, is ‘so [the] sion, action.” thoughtful order that produced taint’ of dissipate the quoting United involved. disposed F.3d at of the issues Fazio, 914 F.2d v. States I would affirm. Cir.1990) v. United Segura (quoting (1984)). Accordingly, mo- suppressing court erred to exclude evidence. case, however, not end That does not to appears court the district

because raised arguments reached alternate

have justify the below to by the SYSTEM, Appellant, HEALTH BJC Accordingly, that evidence. admission denying of the district the decision and the is Vaoated motion to COMPANY, CASUALTY COLUMBIA proceedings further case Remanded HealthPro, doing business CNA opinion. with this consistent Appellee.

BAUER, dissenting. Judge, No. 03-1118. dissent. respectfully I Appeals, States Court United out, the points majority opinion theAs Eighth Circuit. I will dispute are not in so facts essential except to note that repeat them *7 12, 2003. Sept. Submitted: en- on the seems to be emphasis outrage given is a try Nov. Filed: —and —which agree, how- I think we felt this court.

ever, is whether issue considering voluntarily

consent lapse be-

all the circumstances. the other: one event:

tween and was is a consideration I court. cannot by the district

considered her conclusion were

say analysis her or repeatedly that have held

error. Courts necessary of reflections

only seconds I in murder case. malice even

to form more time is why so much

cannot see give an informed

necessary for a to a search. to the was, to me—and it seems

There lapse of a enough

trial court —