The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Henry White ("White") was arrested on a charge of possession
of heroin with intent to distribute. Immediately after his
arrest government agents searched another apartment in the
same building (White owned the building) and seized
$38,394.*fn1 This Court conducted a trial of the criminal
offense and a separate hearing under Fed.R. Crim.P. ("Rule")
41(e), the latter on White's motion for return of the money as
having been seized unlawfully. White was convicted on the
criminal charge but prevailed on his Rule 41(e) motion.
Our Court of Appeals then upheld the conviction but reversed
the Rule 41(e) ruling. United States v. White, 660 F.2d 1178
(7th Cir. 1981). It did not reach (660 F.2d at 1184 n. 8) — and
this Court must now decide — whether t1he search itself was
lawful. For the reasons stated in this memorandum opinion and
order White's Rule 41(e) motion is granted and the related
civil forfeiture action is dismissed as moot.*fn2
In November 1979 the Organized Crime Division of the Chicago
Police Department joined forces with the Drug Enforcement
Administration ("DEA") to investigate White's heroin-selling
activities. That investigation culminated the evening of March
11, 1980 when undercover agents Christine Kolman ("Kolman")
and John Duckhorn ("Duckhorn") went to White's apartment
building, ostensibly to purchase heroin. Upon arrival they
found White in the first floor apartment along with Raymond
Council ("Council") and Bernard Rogers ("Rogers"). After
agents negotiated a deal Kolman left the apartment with
Rogers, supposedly to get money from her car.
Kolman's action was the signal for other agents who had
surrounded the building. Rogers was arrested upon leaving the
building and the agents took his keys so they could gain entry
to the apartment. About six to eight agents, some with guns
drawn, entered the first floor apartment unannounced. Within
minutes 12 agents were in the apartment. White and Council
were arrested immediately.
Rogers was brought back into the apartment, and all three
were handcuffed and read their Miranda rights. Council and
Rogers refused to cooperate, but White agreed to waive his
Miranda rights. Because White appeared cooperative, Sergeant
Cline ("Cline") and DEA agent John Gallagher ("Gallagher") took
White, alone, out to the back porch. They asked him if there
was any heroin in the apartment other than what had been found
in the kitchen. White responded there wasn't. One of the agents
then asked if they could search the third floor apartment
(intending to see if there was any other heroin), and White
agreed. Government agents immediately searched that apartment
and, under circumstances described later in this opinion, found
the $38,394 in a flight bag in a closet.
Voluntariness of the Consent
Initially the government contends the search was lawful
because of White's consent. This Court finds White did agree
to let the agents search the third floor apartment for heroin.
But that does not end the inquiry, for the government has the
burden of proving consent was freely and voluntarily given.
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20
L.Ed.2d 797 (1968). White's consent must therefore be examined
in the totality of circumstances to determine if there were any
express or implied coercion. Schneckloth v. Bustamonte,
412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
There was no express coercion. For example, the agents did
not tell White if he refused to consent they would obtain a
search warrant anyway. But a consent can be involuntary
because of a coercive atmosphere. See, United States v.
Gillespie, 650 F.2d 127, 129 (7th Cir. 1981). On that score the
relevant factors line up this way:
(1) At the time of consent neither officer had
his gun drawn.
(2) There is no evidence of any threats,
promises or subtle coercion.
(3) White had substantial prior contact with
(4) White's co-conspirators refused to
cooperate. United States v. Goldstein,
635 F.2d ...