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UNITED STATES v. WHITE

May 28, 1982

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HENRY WHITE, DEFENDANT. UNITED STATES OF AMERICA, PLAINTIFF, V. $38,394 U.S. CURRENCY, DEFENDANT, HENRY WHITE, CLAIMANT.



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

Facts*fn3

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:

Indicating Voluntariness:

    (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
  the law.
    (4) White's co-conspirators refused to
  cooperate. United States v. Goldstein,
  635 F.2d ...

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