Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-CR-84 -- Prentice H. Marshall, Judge .
Before Sprecher, Circuit Judge, Nichols, Associate Judge,*fn* and Cudahy, Circuit Judge.
This case is before the court on appeal by the United States of a pretrial order of District Judge Marshall suppressing evidence. The issue presented is whether the defendant/appellee, Michael Thomas Karalis, consented to a search of luggage contained in his automobile, by consenting to a search of the car itself. Because we find the district court applied an incorrect legal standard, we vacate the suppression order and remand the case.
On March 21, 1979, the Chicago office of the Federal Bureau of Investigation (FBI) was notified that a four-door salmon colored Cadillac sedan with Illinois license plate No. TX 1684 had been involved in a jewelry theft in Grand Rapids, Michigan. A description of the alleged perpetrators of the theft was provided. The FBI determined that the automobile in question was registered to Adele Karalis, 2704 N. 74th Court, Elmwood Park, Illinois. The description of one of the perpetrators matched that of Karalis, who was known to the FBI as a thief and burglar.
The FBI began surveillance of the Elmwood Park address on March 21, and on March 22, FBI agents Benesh, Dolan, and Miller were present. At about 8:00 a.m., the automobile in question entered the garage behind the Karalis residence. Agents Dolan and Benesh thereupon converged upon the garage. As Karalis exited the car, he activated the trunk switch. Dolan observed two closed pieces of luggage. Dolan met Karalis at the rear of Karalis' car and Karalis closed the trunk. In response to Dolan's request that he and Benesh speak to Karalis about the jewel theft, Karalis agreed and entered Dolan's car.
The agents questioned Karalis and he responded that neither his car nor his license plates had been stolen recently. The agents informed Karalis of the Grand Rapids robbery, and asked if they could search the car. Karalis told them to get a warrant. After Benesh said he would present the information to the United States Attorney, Karalis asked if he could think about the search request. Karalis then left Dolan's car and entered his home.
There is a dispute in testimony over what next occurred. The agents testified that when Karalis returned, Miller said, "(y)ou're going to let these guys search your car, aren't you?" Karalis allegedly responded, "(s)ure." The agents further testified that Karalis cooperated so he would not be returned to Michigan for trial, where his conviction would result in a life imprisonment sentence for being a habitual offender. Karalis, however, testified that the agents surrounded him in a corner of the garage and threatened to return him to Michigan. The district court found that it was conceded that Karalis "left the premises for the purpose of cooperating. The totality of the agents' testimony is that Karalis voluntarily consented to the search of the car." United States v. Covello and Karalis, No. 80 CR 84, Memorandum Order 6 (N.D.Ill. Dec. 16, 1980).
Before the agents opened the trunk, Karalis signed a printed consent form which reads in material part:
I, Michael T. Karalis, having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, hereby authorize John R. Benesh, Robert J. Miller, and John T. Dolan, Special Agents of the Federal Bureau of Investigation, United States Department of Justice, to conduct a complete search of my automobile*fn* located at garage behind residence, 2704 N. 74th Ct., Elmwood Park, Ill. These agents are authorized by me to take from my premises any letters, papers, materials or other property which they may desire.
This written permission is being given by me to the above-named Special Agents voluntarily and without threats or promises of any kind.
When the trunk was opened, there were three pieces of luggage. Two were similar to an attache case in size and the third was smaller and located below the other two. One of the attache-sized pieces bore a combination lock which the agents testified Karalis voluntarily opened. However, the FBI statement prepared by Dolan and Benesh stated that "Karalis made a point of providing the combination to the interviewing agents so that the case would not be destroyed." At any rate, the three pieces were all opened. The piece with the combination lock contained burglary equipment; the other attache-sized case contained personal effects and some jewelry; and the third case, which appeared to be a jewelry display case, contained a substantial quantity of jewelry.
Karalis and defendant/appellee Ronald Joseph Covello were charged in a two count indictment with violations of 18 U.S.C. §§ 2314, 2315 relating to the interstate transportation and receipt of stolen property. Karalis filed a motion to suppress the fruits of a warrantless search on February 29, 1980. After holding a hearing, the district court, on April 3, 1980, ordered the suppression of the contents of the luggage found in Karalis' trunk. On April 4, 1980, the government filed a Motion to Reconsider and for Leave to Reopen its Evidence. On June 27, 1980, the motion was granted, and on December 16, 1980, the district court entered a Memorandum Order suppressing the contents of the luggage. The government appeals that order pursuant to 18 U.S.C. § 3731, relating to interlocutory appeals in criminal cases.
The district court found "(t)he evidence is that Karalis orally and then in writing consented to a search of the automobile." United States v. Covello, supra at 9. However, relying on Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979) and United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971), the district court held that because the government failed to show Karalis further expressly consented to the search of the luggage, the evidence was obtained in violation of the fourth amendment. The government argues that the district court ...