United States District Court, Northern District of Illinois, E. D
May 28, 1982
UNITED STATES OF AMERICA, PLAINTIFF,
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
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 356, 362 (5th Cir. 1981).
(1) White was under arrest and handcuffed.
(2) White was asked to consent just a short
time after 12 armed officers stormed his
(3) There was no written consent. United States
v. Dichiarinte, 445 F.2d 126, 128 n. 1 (7th Cir.
(4) White was not informed that he could refuse
to permit the search.
Oral consents obtained from an arrested subject require
careful scrutiny. As the Supreme Court put it in
Schneckloth, 412 U.S. at 231-32, 93 S.Ct. at 2049-50 (emphasis
Consent searches are part of the standard
investigatory techniques of law enforcement
agencies. They normally occur on the highway, or
in a person's home or office, and under informal
and unstructured conditions.
While this is a close case, the Court finds the government
has met its burden. Several factors are persuasive. First, in
addition to permitting the search, White waived his
Miranda rights though his co-conspirators did not under
identical conditions. Second, the consent took place during a
quiet conversation on the back porch. Matters would have been
very different had White been asked to consent just after the
arrest in the living room, while he was faced by 12 agents,
many with guns drawn. Finally, White has a long arrest record
and has been in similar situations before. As part of the
congeries of factors, those items particularly demonstrate
White was able to choose voluntarily whether to let the agents
undertake the search.
Though every such case is necessarily somewhat
distinguishable, the closest authority this Court has found is
United States v. Valencia, 645 F.2d 1158 (2d Cir. 1980). There
defendant was arrested by a DEA task force outside her
apartment. In response to a question she told agents another
suspect was inside the apartment. When the agents then asked
defendant if they could enter the apartment, she did not
respond but walked in that direction, with the agents following
and entering the apartment without protest. At that point the
other suspect was arrested and both were read their Miranda
rights. Then an agent asked defendant if he could search the
apartment and she replied she had "nothing to hide." On those
facts the Second Circuit upheld the district court, which had
found the consent voluntary.
Scope of the Consent and Search
White contends even if his agreement were held voluntary, he
gave only a limited consent: to search the third floor
apartment for heroin. If so, he urges, the government
unlawfully exceeded the scope of that consent by searching for
currency. In the government's view, however, White gave a
general consent to search the apartment.
On that critical issue the officers' accounts of the
conversation during which White gave his consent are quite
close. Cline testified that when he, Gallagher and White
walked out onto the back porch, he asked White if he had any
more heroin. White said he didn't. Because Cline believed
there was heroin elsewhere in the building he then asked White
if he could search the third floor apartment and White
responded, "Go ahead and search. I told you that is all I
have." Gallagher testified White answered Cline's question,
"Go ahead and search. There is nothing up there." Either
version clearly shows White understood the agents were
interested in finding heroin and were asking if they could
search the third floor apartment for that substance. This
Court finds White did not give permission for a general search
of his apartment but rather consented to a limited search for
If a search is conducted pursuant to a consent, any part of
the search not within the bounds of the consent is unlawful.
Dichiarinte, 445 F.2d at 130. Thus the next question is whether
the search of the flight bag containing the $38,394 was
properly within the scope of White's consent.
Three officers (Cline, Gallagher and Clarence Thomas
("Thomas")) testified and provided conflicting versions of how
was actually found. This Court credits Cline's recollection of
(1) Cline and several officers went up to the
third floor apartment and knocked on the door.
Zenobia Anderson ("Anderson") answered and was
told White had been arrested and had given
consent to have the apartment searched.
(2) Before beginning the search Cline asked
Anderson, "Is there any money in the apartment or
any jewelry, anything expensive like that?" (Tr.
81). Anderson answered there was money in a
(3) Anderson then went to the closet and
pointed out a bag. Cline picked up the bag and
asked how much was in there. Anderson said,
"$40,000." Then the bag was brought into the
kitchen and searched and the money was seized.
This Court finds Cline was specifically searching for money,
not heroin, when he searched the travel bag. Because White had
consented only to a search for heroin, Cline exceeded the
scope of that consent. Accordingly the search violated the
That result may at first blush seem somewhat anomalous. Had
Cline not asked Anderson about any money in the apartment, had
he simply come across and searched the travel bag in the normal
course of looking for heroin, this Court would likely have
upheld the search. Had that been the situation it would
certainly have been reasonable to consider that heroin could be
hidden in a flight bag.
But those are not the facts as this Court finds them. By his
own admission Cline was clearly searching for money, not
heroin, when he seized and opened the flight bag. And the
distinction is critical in legal terms.
In essence this Court has found it was Cline's specific
subjective intent to search for money. For obvious reasons
evidence of the subjective intent of a police officer
conducting a search is rare indeed. In the vast majority of
cases, with no such evidence, courts must infer intent from
the nature of officers' actions. Thus the determination
usually distills down to whether an officer could
reasonably have been looking for a particular item where he was
searching. For example, if an officer were given consent only
to search for rifles it would be unlawful to open a pill box.
Even though the court had no direct evidence of what was going
through the officer's mind when he did so, it would infer from
his actions that he was not searching for rifles.
But the fact that evidence of subjective intent is seldom
available does not mean it can be ignored when the officer is
candid as to what he is about. Limited consent, like a
specific warrant, circumscribes the discretionary power of the
officer to conduct the search. Dichiarinte, 445 F.2d at 129. He
can properly delve into only those items he honestly believes,
based on reasonable grounds, he is searching within the scope
of that consent. That honest belief is just as important as the
reasonable basis for that belief. This is effectively the same
standard that would be used in a suit under 42 U.S.C. § 1983 to
test an officer's good faith in conducting a search. Wood v.
Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 1000-01, 43
L.Ed.2d 214 (1975).
No other circumstances justify searching the travel bag.
Anderson could not have consented to a search of the travel
bag, for the officers' statement to her plainly indicated White
had already given a general consent to search the apartment.
Thus she was never even asked to consent to any kind of search.
Nor were there any exigent circumstances. While the officers
might arguably have had probable cause to believe a sum of cash
(if found) was related to a heroin transaction, there was
nothing to prevent them from securing the travel bag and
obtaining a search warrant.
By diverting and enlarging the search to money instead of
heroin, the government
exceeded the scope of the consent obtained from White. There
being no lawful basis for the search, this Court finds the
search of the travel bag and the resulting seizure of the
currency unlawful. White's motion under Rule 41(e) is granted.
Because the government will no longer have legal possession of
the money, its related civil forfeiture action is dismissed as
SUPPLEMENTAL MEMORANDUM OPINION
Just after this Court issued its May 28, 1982 memorandum
opinion and order (the "Opinion") finding the government's
search of Henry White's travel bag and seizure of its contents
($38,394 in currency) invalid, the Supreme Court handed down
its June 1 opinion in United States v. Ross, ___ U.S. ___, 102
S.Ct. 2157, 72 L.Ed.2d 572. Ross committed Robbins v.
California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981)
to an early grave and announced a newly-broadened version of
the "automobile exception" to the Fourth Amendment's warrant
requirement. Because Ross has obvious implications for any
search-and-seizure decision, this supplemental opinion is being
As Justice Stevens wrote for the Court in Ross, ___ U.S. at
___, 102 S.Ct. at 2163:
The rationale justifying a warrantless search of
an automobile that is believed to be transporting
contraband arguably applies with equal force to
any movable container that is believed to be
carrying an illicit substance. That argument,
however, was squarely rejected in United States v.
Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d
It is obvious from the Court's discussion and treatment of the
issues that some container locations are less equal than
others, for better or worse and however illogical some of the
distinctions in application may appear. Rules that apply to
containers in automobiles do not necessarily apply with full
vigor to containers found elsewhere.
If only for that reason, the full impact of a Supreme Court
decision is not necessarily to be ascribed to Justice Stevens'
dictum about non-automobile searches, id. at ___, 102 S.Ct. at
A lawful search of fixed premises generally
extends to the entire area in which the object of
the search may be found and is not limited by the
possibility that separate acts of entry or
opening may be required to complete the search.
Thus, a warrant that authorizes an officer to
search a home for illegal weapons also provides
authority to open closets, chests, drawers, and
containers in which the weapon might be found. A
warrant to open a footlocker to search for
marijuana would also authorize the opening of
packages found inside. A warrant to search a
vehicle would support a search of every part of
the vehicle that might contain the object of the
search. When a legitimate search is under way,
and when its purpose and its limits have been
precisely defined, nice distinctions between
closets, drawers, and containers, in the case of
a home, or between glove compartments,
upholstered seats, trunks, and wrapped packages,
in the case of a vehicle, must give way to the
interest in the prompt and efficient completion
of the task at hand.
But even taking the quoted statement at face value, it does
not compel a different result here.
In the Opinion this Court held the government to the purpose
its own agents had announced for the search of the flight bag
— a hunt for money and jewels, not narcotics. It would not
permit the government, having set its own ground rules for that
search, to say in effect:
We could have searched the flight bag for drugs
under the consent as originally given by
White.*fn1 Indeed we would likely have done so,
because it was logical to do so in the course of
our search of the entire apartment. Had we searched
the flight bag we would have found the money. White
therefore cannot complain because
we found the money as the result of an
That kind of argument really does away with the significance
of the warrant — or its substitute, the consent. It would
vitiate a critical part of Justice Stevens' final quoted
sentence — that "a legitimate search [be] under way" and that
"its purpose and its limits have been precisely defined. . . ."
Post hoc reasoning about what the government might have done,
like all efforts at revisionist history, does not commend
itself to this Court. It therefore adheres to the reasoning and
conclusion expressed in the Opinion.