In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-3365
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FIDEL ROBELES-ORTEGA, also known as
FIDEL ROBLES-ORTEGA, also known as
FIDEL ORTIZ-ROLBOUES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 141— Joan B. Gottschall, Judge.
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ARGUED APRIL 7, 2003—DECIDED NOVEMBER 7, 2003
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Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. The sole issue in this case is
whether the district court erred in denying the defendant’s
motion to suppress the evidence. The facts as recited by the
district court are as follows.
On February 14, 2001, agents of the Drug Enforcement
Agency (DEA) were monitoring a conversation between
its confidential informant (CI), the defendant, and another
person in an apartment, in which the CI was negotiating
the purchase of seven kilos of cocaine. The CI was supposed
to view the cocaine, then leave the apartment and convince
2 No. 02-3365
the defendant to follow him outside, at which time the DEA
agents planned to arrest them. All did not proceed accord-
ing to that plan. Instead, the defendant quoted a higher
price than originally proffered, and the CI left the apart-
ment alone. The CI entered the car and told the agent in
the car (who the defendant was told was his nephew), that
he had seen the cocaine. The agent and the CI then drove
away from the scene.
The actions taken by the DEA agents at that point in time
are inexplicable. Rather than obtaining a search warrant
based on that information, within two minutes of the CI’s
departure the agents forcibly entered the apartment by
breaking down the door. Approximately five agents entered
the apartment with guns drawn, conducting a security
sweep of the apartment while the occupants, including a
four-year-old child, lay on the floor in the living room.
During that sweep, the agents observed a gym bag on the
floor in a bedroom which was later found to contain cocaine.
The district court credited the agents’ testimony that they
did not search that bag at the time. Immediately after that
sweep, the agents identified Azuzena Tabizon as the
leaseholder, and they asked her to go to the kitchen with
them. She complied, and they informed her that she was
not a suspect, and requested that she sign a written consent
for them to search the apartment. She did so, and the
agents then searched the apartment and seized the cocaine.
The district court denied the motion to suppress the evi-
dence, concluding that Tabizon’s consent was sufficiently
voluntary that it was not tainted by the agents’ illegal en-
try. The sole issue on appeal is whether the district court
erred in that determination.
The Fourth Amendment prohibition against unreasonable
searches and seizures protects persons in their homes
against unwarranted intrusions. The exclusionary rule
No. 02-3365 3
preventing the use of evidence obtained in violation of
that amendment protects the Fourth Amendment guaran-
tees by deterring lawless conduct by law enforcement
officers and by “ ‘closing the doors of the federal courts to
any use of evidence unconstitutionally obtained.’ ” Brown v.
Illinois, 422 U.S. 590, 598 (1975); Wong Sun v. United
States, 371 U.S. 471, 486 (1963). Therefore, in examining
whether the exclusionary rule applies in this case, we are
concerned not only with the privacy interests inherent in
the Fourth Amendment, but also with considerations of
deterrence and judicial integrity. See Brown, 422 U.S. at
598 and cases cited therein.
The Supreme Court has repeatedly set forth the princi-
ples to be applied where the issue is whether the evidence
obtained after an illegal arrest or search should be ex-
cluded, as has this court. See Brown, 422 U.S. at 597 (1975).
The Fourth Amendment exclusionary rule “ ‘extends as well
to the indirect as the direct products of unconstitutional
conduct’ ”; therefore, “ ‘[i]n 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.’ ” United States v. Valencia,
913 F.2d 378, 382 (7th Cir. 1990), quoting Segura v. United
States, 468 U.S. 796, 804 (1984) and Wong Sun, 371 U.S. at
488. Where the search following the illegal entry is justified
based on alleged consent, courts must determine whether
that consent was voluntary, and in addition the court must
determine whether the illegal entry tainted that consent.
The Supreme Court has identified a number of factors rel-
evant to that inquiry, including (1) the temporal proximity
of the illegal entry and the consent, (2) the presence of in-
tervening circumstances, and, particularly, (3) the purpose
and flagrancy of the official misconduct. Brown v. Illinois,
422 U.S. 590, 603-04 (1975). On appeal of the district
court’s denial of the motion to suppress, we review the dis-
4 No. 02-3365
trict court’s legal conclusions de novo and its findings of fact
for clear error. United States v. Yang, 286 F.3d 940, 944 (7th
Cir. 2002).
In applying the above factors, the district court relied
extensively on this court’s decision in United States v.
Valencia, 913 F.2d 378, 381 (7th Cir. 1990). In Valencia, of-
ficers were conducting surveillance on two individuals who
were in the process of negotiating a narcotics transaction.
One of the suspects indicated that he was going to speak
with his “money man,” and shortly thereafter he entered
Valencia’s apartment. Id. at 380. After he departed from
that apartment, the officers observed a man, Valencia, leave
the apartment. Id. They directed other officers to find and
stop Valencia, and proceeded to the apartment. Id. They
rang the apartment doorbell, and when a woman opened
the door, the officers entered the apartment without her
consent and secured it. Id. at 381. Meanwhile, other officers
stopped Valencia and attempted to question him but were
hampered by Valencia’s limited English. Id. An officer
arranged for a Spanish-speaking officer to meet them at
Valencia’s apartment, and drove Valencia home in Valen-
cia’s own car. Id. (The court held that this sequence of
events was not an unlawful detention, and therefore that
did not impact on the issue of whether the subsequent
search was lawful. Id. at 382-83) Once Valencia returned to
his apartment, he was read his Miranda rights in Spanish,
and he answered questions, including volunteering that
there was some marijuana in his kitchen, and $8,000-
$10,000 and a .357 magnum revolver in his bedroom. Id. at
381. The officers found those items as indicated and asked
him if he would consent to the search of his apartment,
explaining that he did not have to do so. Id. He consented,
and the officers discovered $316,000 and another handgun.
Id.
The Valencia court first determined that he had volun-
tarily consented to the search. The court noted that he was
No. 02-3365 5
never threatened in any manner and that he remained calm
throughout the process. Id. The court further noted that the
most significant factor was that he was given his Miranda
warnings and knew that he did not have to consent to the
search, but did so anyway. Id. Therefore, the court upheld
the district court’s determination that his consent was
voluntary. Id.
The Valencia court then turned to the issue of whether
that consent was nevertheless tainted by the illegal entry.
The court held that the consent was not tainted by that
illegal entry. First, the court noted that the consent was
obtained more than an hour after entry. Id. at 382. Second,
the court state that the agents had not discovered any
evidence in that illegal entry that they could use to coerce
his consent, and that they therefore did not exploit the
initial entry to obtain that consent. Id. Finally, they deter-
mined that the officers’ mere presence did not coerce his
consent, because the district court had held that his consent
was voluntary. Id.
That situation is markedly different from the circum-
stance presented here. In Valencia, the defendant was not
even at home when the illegal entry was made, and there-
fore the force and nature of the intrusion would not have
tainted his consent. The consent was provided hours after
the illegal entry, by a person who was not present at the
time of the entry, and with no indication that the police had
discovered any evidence during that illegal entry. In the
present case, the agents literally broke down the door and
entered with a strong show of force, brandishing their guns
and having the occupants lay on the floor. Immediately
after this incident, they removed Tabizon to the kitchen,
and obtained her consent the search. The impact of the
illegal entry on Tabizon’s consent is simply dramatically
different from the impact present in Valencia.
The district court acknowledged that only a few minutes
had passed between the agents’ initial entry and Tabizon’s
6 No. 02-3365
consent, but held that “the evidence suggests that enough
time had passed to lessen substantially the impact of the
illegal entry on Tabizon before she consented.” Op. at 6.
That evidence was that they adjourned to another room,
that she was told she was not a suspect, that they relin-
quished their weapons before joining her at the kitchen
table, and that she was read and understood the consent
form. According to the court, “[t]his testimony suggests that
the time that passed after the initial entry, along with
Tabizon’s realization that she was not suspected of wrong-
doing, vitiated the possibility that Tabizon was coerced by
the initial entry.” Op. at 7. That, however, is not the proper
application of that factor. The question is whether the
causal connection between the illegality and the consent
was broken, and the government has the burden of persua-
sion on that issue. Kaupp v. Texas, 123 S. Ct. 1843, 1847
(2003); United States v. Liss, 103 F.3d 617, 623 (7th Cir.
1997) (Ripple, J. concurring)(quoting Brown, noting that the
taint analysis applies whether the antecedent Fourth
Amendment violation is an illegal seizure or an illegal
search). The temporal proximity is relevant because a con-
sent obtained immediately after an illegal entry is less
likely to be unconnected to that entry. In this case, the
court found that the consent was obtained within a few
minutes of the illegal entry. It is difficult to imagine a
shorter time frame between the unconstitutional action and
consent. Therefore, as a matter of law this factor weighs
against a determination that the causal connection was
broken. The court’s reliance of evidence of the voluntariness
of the consent is misplaced in considering this factor. As
Valencia held, the voluntariness of the consent is only the
first step, and the next inquiry is whether the consent was
tainted by the entry, in other words, whether it was the
product of that illegal entry. In considering that issue, the
temporal proximity in this case strongly favors the defen-
dant and the district court erred as a matter of law in
applying this factor.
No. 02-3365 7
Aside from its consideration of the temporal proximity,
the court considered a couple of other factors in reaching its
decision. First, the court considered whether the agents
exploited the initial entry to induce consent. The district
court did not credit the testimony of Tabizon that she was
confronted with the contents of the gym bag, and instead
held that nothing seen in the sweep was used to obtain her
consent. We have no reason to question those findings and
accept them as valid. The court then concluded that the
agents did not use evidence obtained in the search to coerce
her consent. Finally, the district court held that the agents’
presence in the apartment did not have a coercive effect and
that her consent was voluntary.
All of court’s findings address whether agents coerced
Tabizon’s consent. That focus is misplaced, because the
defendant does not bear the burden of demonstrating that
the agents coerced the consent; instead, where a consent is
obtained pursuant to an illegal entry, the burden of per-
suasion is on the government to demonstrate that the con-
sent was not tainted by the illegal entry. Kaupp, 123 S. Ct.
at 1847. The critical issue is whether the consent was
obtained by means sufficiently distinguishable from that
illegal and violent entry so as to be purged of the primary
taint. Valencia, 913 F.2d 378, 382 (7th Cir. 1990), quoting
Segura, 468 U.S. at 804 and Wong Sun, 371 U.S. at 488.
Therefore, we must focus on those factors alone and apply
them to the facts presented here. Because the relevant facts
are undisputed, the result of that test is clear as a matter
of law. The first factor, the temporal proximity, has already
been discussed, and the few minutes between the illegal
entry and the “consent” can only weigh against a finding
that the taint of that illegal action had dissipated. The
second factor is the presence of intervening circumstances.
The only “intervening circumstance” argued here is her
agreement to sign the consent form. That is distinct from
the types of circumstances that previously have been
8 No. 02-3365
considered sufficient. See, e.g., Wong Sun, 371 U.S. at 491
(confession was made several days after illegal arrest and
was preceded by arraignment and release from custody);
Rawlins v. Kentucky, 448 U.S. 98, 108-09 (1980) (discovery
of other incriminating evidence implicating the defendant
and causing the defendant to confess spontaneously). There
is no reason in this case to believe that her written consent
was independent of the illegal entry. It was obtained almost
immediately after that forcible entry into the home and
subsequent show of force. As with confessions given after
Miranda warnings, that consent alone does not necessarily
purge the taint of the illegal action. See Brown, 422 U.S. at
603 (rejecting argument that Miranda warnings by them-
selves always purge the taint of an illegal arrest.) That is
especially true where, as here, the other factors weigh
strongly against that conclusion. Moreover, contrary to the
government’s argument, United States v. Liss, 103 F.3d 617
(7th Cir. 1997), does not hold that a consent is an independ-
ent intervening event that breaks the causal chain stem-
ming from the illegal search. In Liss, the officers conducted
an illegal search of a barn, and subsequently requested
consent of the owner to the search of his house. The court
held that the causal connection between the illegal barn
search and the evidence found in the house was sufficiently
attenuated because the barn search merely motivated the
decision to seek the consent to search the house, but
otherwise the search of that unrelated location had no role
in the discovery of the evidence obtained pursuant to the
non-custodial voluntary consent. Id. at 620-22. The Liss
court explicitly contrasted the situation in which the illegal
action and the subsequent consent search are of the same
location, in which case the likelihood is greater that illegal
action influenced the consent, and therefore the causal
connection is stronger. Id. at 621. The government’s
attempt to turn all written consents into an “intervening
circumstance” breaking the causal chain is inconsistent
with that distinction in Liss, and with the Supreme Court’s
No. 02-3365 9
rejection of a similar argument with respect to Miranda
warnings in Brown v. Illinois, 422 U.S. 590 (1975).
We turn, then, to the third factor, which is the purpose
and flagrancy of the official misconduct. In this case, the
officers literally broke down the door, without exigent cir-
cumstances and without a warrant, and at least five agents
rushed into the apartment with guns. The occupants of the
apartment were apparently ordered to lie down on the floor
while the agents entered all of the rooms. Similar to cases
such as Brown, the manner of the illegal entry in this case
“gives the appearance of having been calculated to cause
surprise, fright, and confusion.” Brown, 422 U.S. at 605.
That invasion of a person’s home is precisely the type of
action the Fourth Amendment is most concerned with
preventing, and therefore the interests in deterrence and in
protecting the integrity of the judicial process are very high
in this circumstance.
Because of the violent and sudden nature of the intrusion,
the extremely short time period between the entry and the
consent, and the absence of any other event that would
have attenuated the impact of that illegal entry, we con-
clude as a matter of law that the evidence was not obtained
by means “sufficiently distinguishable as to be purged of the
primary taint.” Nothing occurred in this instance that
isolated the search and the discovery of the evidence from
that illegal entry, or that could give us any confidence at all
that “the causal connection between [the] illegal police
conduct and the procurement of [the] evidence is ‘so attenu-
ated as to dissipate the taint’ of the illegal action.” Liss, 103
F.3d at 620, quoting United States v. Fazio, 9154 F.2d 950,
957 (7th Cir. 1990) (quoting Segura v. United States, 468
U.S. 796, 805 (1984)). Accordingly, the district court erred
in suppressing the motion to exclude evidence.
That does not end the case, however, because the district
court appears not to have reached alternate arguments
10 No. 02-3365
raised by the government below to justify the admission of
that evidence. Accordingly, the decision of the district court
denying the motion to suppress is VACATED and the case
REMANDED for further proceedings consistent with this
opinion.
BAUER, Circuit Judge, dissenting. I respectfully dissent.
As the majority opinion points out, the essential facts are
not in dispute so I will not repeat them except to note that
the emphasis seems to be on the illegal entry—which is a
given—and the outrage felt by this court. I think we agree,
however, that the only issue is whether the consent was
given voluntarily considering all the circumstances. The
time lapse between one event: the entry, and the other: the
consent, is a consideration and was considered by the dis-
trict court. I cannot say her analysis or her conclusion were
in error. Courts have held repeatedly that only seconds of
reflections are necessary to form malice even in a murder
case. I cannot see why so much more time is necessary for
a person to give an informed consent to a search.
There was, it seems to me—and to the trial court—
enough of a lapse between the entrance and the consent to
call the consent informed. I am reluctant to substitute my
judgment for hers, particularly where she accorded the
parties three days of hearing, and came to a reasoned con-
clusion, and produced a thoughtful order that disposed of
the issues involved.
I would affirm.
No. 02-3365 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-7-03