Argued January 27, 2016
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 563 - Thomas M. Durkin, Judge.
Before Posner, Kanne, and Hamilton, Circuit Judges.
Posner, Circuit Judge.
The defendants pleaded guilty to conspiring to possess and distribute cocaine, in violation of federal law, 21 U.S.C. §§ 846, 841(a), and were sentenced to 60 months (Rivera) and 48 months (Duenas) in prison. But they reserved the right to appeal from the district judge's denial of their motions to suppress evidence consisting of drugs that federal agents had seized in searches of Duenas's garage and Rivera's truck, which was in the garage. The agents didn't have search warrants, and the defendants contend that the searches therefore violated the Fourth Amendment. Contrary to popular impression, the Fourth Amendment does not require a warrant to search or to arrest-ever; its only reference to warrants is a condemnation of general warrants. (The amendment reads in full: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.") The amendment has nevertheless been interpreted to require warrants in many cases-but not, as we'll see, in cases such as this.
A confidential informant (with the help of another man, whom we can ignore) arranged to purchase cocaine that was being sold at Duenas's garage. Trailed by federal agents at a discreet distance, the informant drove to the garage, parked outside, entered (the garage door, open when he arrived, closed after he entered), and there discussed the transaction with Duenas and Rivera. He then left, ostensibly to get the money for the purchase of the cocaine from his car. Instead he got back into the car (which was parked nearby), drove a short distance, parked, and phoned one of the federal agents to report that there indeed was cocaine in the garage, in Rivera's truck. Agents arrived shortly, arrested Duenas outside the open garage and Rivera inside it, and then searched the garage and found and seized two kilograms of cocaine from Rivera's truck. Between the confidential informant's departure from the garage and the agents' arrival, only about three minutes had elapsed.
The informant (of course not known to Duenas and Rivera to be such) had entered the garage with the consent of Duenas, the owner of the garage, and of Rivera, the owner of the truck that contained the drugs to be sold to the informant. Although the informant had returned to his car and driven a short distance off, Duenas and Rivera had remained, the garage door was now open, and it is a fair inference that they were expecting the informant to return soon with the money.
Obviously they had consented to the informant's returning, and on this basis the district judge invoked the curious, or at least curiously named, doctrine of "consent once removed." If an informant is invited to a place by someone who has authority to invite him and who thus consents to his presence, and the informant while on the premises discovers probable cause to make an arrest or search and immediately summons help from law enforcement officers, the occupant of the place to which they are summoned is deemed to have consented to their presence. See United States v. Jachimko, 19 F.3d 296 (7th Cir. 1994), and cases cited in it. On this basis the district judge rejected the defendants' Fourth Amendment claim.
At first glance the doctrine of "consent once removed" is absurd. If one thing is certain it's that Duenas and Rivera would never have consented to the entry of federal drug agents into Duenas's garage, where the drugs to be bought by the informant were stored. The doctrine thus cannot, despite its name, be based on consent. This is well recognized. See, e.g., John F. Decker & Kathryn A. Idzik, "Disguising A New Exception to the Warrant Requirement: An Examination of the Consent-Once-Removed Doctrine and Its Hollow Justifications, " 61 Drake L. Rev. 127, 160–68 (2012); Ben Sobczak, "The Sixth Circuit's Doctrine of Consent Once Removed: Contraband, Informants and Fourth Amendment Reasonableness, " 54 Wayne L. Rev. 889, 902–08 (2008). As Sobczak points out, citing Georgia v. Randolph, 547 U.S. 103 (2006), if you invite someone to a party at your house he can't, without your express or implied permission, bring others with him; that is, one can't without permission extend an invitation that one has received to other persons, especially ones unknown to the host. It's thus difficult to understand what was intended by the statement in United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995), that "when Akinsanya gave his consent to Gilani to enter his apartment, he effectively gave consent to the agents with whom Gilani was working."
But though misnamed, the doctrine has the following kernels of validity. First, an informant's job, especially in cases such as this that come from the frequently violent world of drug trafficking, is often (though not always, even in the drug world, see, e.g., Richards v. Wisconsin, 520 U.S. 385, 393 (1997); United States v. Williams, 604 F.2d 1102, 1122– 23 (8th Cir. 1979)), risky, and likewise that of a lone undercover officer. The informant in our case may well have feared that if he returned to the garage with the money for the drugs, Rivera and Duenas would take the money but not give him the drugs-and maybe would kill him to prevent his retaliating against them for stealing his money. (He would be likely to have fared no better with them had he returned to the garage without any money-how would he have explained that to them?) It was therefore reasonable for him to arrange with the agents that when he was about to return to the garage with the money he would call them and they would enter the garage at his heels in order to protect him. United States v. Jachimko, supra, and the cases cited in it, rightly emphasize the lawful protective purpose of the misnamed "consent once removed" doctrine. See, e.g., United States v. Yoon, 398 F.3d 802, 809–10 (6th Cir. 2005). And in this case obtaining a search warrant on the basis of what the informant saw in the garage would not have been practicable. The interval between the informant's notifying the agents that he had seen drugs in the garage and the agents' swooping down on it and arresting its occupants was too short-about one minute-for the agents to have been able to obtain a warrant.
But one doesn't need the opaque label "consent once removed" to justify authorizing such a response to an emergency situation. The doctrine of "exigent circumstances" (where "exigent" means emergency) allows such a response in this case because the interval between the informant's notifying the agents of the presence of the cocaine in the garage and the agents' arrival at the scene was so short. They could have gotten a search warrant had they delayed their arrival-but by then Rivera and Duenas, worried by the failure of the buyer (not known to them to actually be an informant) to show up with the money, might have removed the cocaine from the truck and hid it elsewhere.
The agents upon arrival in the garage could have phoned for warrants, meanwhile ordering Rivera and Duenas to remain in the garage. But the order would have been a seizure within the meaning of the Fourth Amendment-without a warrant.
We note parenthetically that consent to enter need not be invalid just because the person giving it lacks relevant knowledge of the person to whom he's giving it. In United States v. White, 660 F.2d 1178 (7th Cir. 1981), two undercover agents obtained consent to enter the defendant's apartment by concealing their identities as police officers. That was "real" consent, though uninformed. One of the agents left after a while, ostensibly to get the money for a deal (like the informant in our case)-and instead returned with other agents. The court declined to consider their entry "a separate intrusion" given that one agent had remained inside throughout. Id. at 1183 n. 3. The defendant might have consented to the entry of those other agents as well, had they concealed their identity as police officers. And had the informant in our case returned to the garage with a police officer disguised as a drug dealer, and the informant had told Duenas and Rivera that the newcomer was an expert in assessing the quality of a cocaine sample, they (Duenas and Rivera) might have consented to his presence.
But there was no newcomer invited or even permitted to join the party in this case. Nor was the informant, having driven away from the garage before the agents entered, and anyway not having returned, in danger from Rivera or Duenas such as would have justified his summoning law enforcement for aid and protection-he was well out of harm's way. This case seems therefore not to fit either of the rationales that we've identified as justifying the "consent once removed" doctrine. But the district judge had a third ground, of which more later in this opinion, for denying the defendants' suppression motion-"inevitable discovery." See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984); United States v. Witz-lib, 796 F.3d 799, 802–03 (7th Cir. 2015); United States v. Tejada, 524 ...