The opinion of the court was delivered by: Richard Mills, District Judge:
This cause is before the Court on remand from the Court of
Appeals for the Seventh Circuit for further development of the
record. The circuit court has retained jurisdiction of this
cause and awaits this Court's findings as stated herein to
finally adjudicate the appeal. United States v. Talkington,
843 F.2d 1041, 1050 (7th Cir. 1988).
The circuit court cited a number of deficiencies in the
original record ranging from confusion of the sequence of
events to insufficient or absent findings of fact. As this
Court reads the circuit court's opinion, we are to address the
following issues raised by the circuit court: (1) there is
confusion on the sequence of events following Raymond
Talkington's "furtive movement" in the chair (id. at 1043); (2)
whether exigent circumstances existed to justify the
warrantless entry of 409 Amherst including whether the agents
had sufficient evidence to justify a belief that counterfeit
money either was being burned or had been burned in the past
(id. at 1045), and whether vehicles parked in front or near the
Talkington residence were tied to the Talkington residence by
the investigating agents (id. at 1045-46); (3) whether there
was time to secure a warrant between the first observation of
the fire and the warrantless entry, and whether lesser
intrusions were feasible (id. at 1046); (4) whether a
telephonic warrant could have been procured (id.); (5) why the
Government did not apply for a warrant immediately after the
warrantless entry (id. at 1047); and (6) whether subtle police
actions, as well as statements or questions, coerced Mr.
Talkington into giving consent to search his home, including
any potentially coercive events which had a bearing on the
voluntariness of the consent, and whether the treatment of Mrs.
Talkington prompted the consent to search (id. at 1048-49).
Also, the circuit court wishes us to consider whether, in this
Court's view, sufficient evidence exists to support the
judgment of conviction if the warrantless entry is determined
to be valid but the subsequent consent search is not.
Id. at 1050.
I. SEQUENCE OF EVENTS FOLLOWING TALKINGTON'S "FURTIVE
The appellate court found the record to be unclear with
respect to the sequence of events following Raymond
Talkington's "furtive movement." We find that the following
At approximately 8:40-8:50 p.m., Raymond Talkington reached
his hand into the cushion area of the chair where he sat.
Fearing for his safety, Agent Canavit drew his weapon and
ordered Raymond to remove his hand from the cushion area. Agent
Canavit then had him rise from the chair, patted him down, and
had him sit down again. Mr. and Mrs. Talkington then conferred
for a short time (three to five minutes) on the couch.
Ten minutes later, at 9:00 p.m. or shortly before, Raymond
Talkington testified that he was told to go to the kitchen by
Officer Canavit. He testified that as he and Canavit were on
the way to the kitchen another agent emerged from the kitchen
and said to him (Raymond), "we're waiting for someone to body
search her [Betty]." Tr. of Sept. 14, 1988, at 821. Thus,
Raymond testified that the comment was directed to him.
However, he could not testify which agent said this. He
testified that he could not identify this agent because his
attention was focused elsewhere. Yet, as Betty Talkington
testified, this was a startling event for Raymond. It
supposedly prompted him to fully cooperate with the agents.
Yet, when the comment was made, he says his attention was
focused elsewhere. It would seem that such a startling event as
someone saying he is going to "body search" your wife would
draw full and immediate attention. Had this comment really been
made, it is inconceivable that Raymond's attention would not be
riveted on the person who spoke those harrowing words.
Betty, testifying about the same event, stated that as
Raymond left his chair on the way to the kitchen "[a]nother
agent came out of the kitchen area and came through that way,
and the agent says to me [Betty], as he's walking in, we're
waiting for a female agent to body search you." Id. at 743.
Thus, Betty testified this comment was directed to her. Yet,
Betty also could not identify the agent who made the comment.
Again, it is inconceivable that Betty's complete and undivided
attention would not be riveted on a person who just told her
she was going to be "body searched." Further, she testified
without hesitation at the first suppression hearing, in
December of 1986, that Agent Eric Pingolt said those words.
Yet, now she is unsure who was speaking when she was allegedly
told she would be "body searched." Even more telling is the
fact that it was uncontrovertedly established that Agent
Pingolt did not arrive at 409 Amherst until 9:30 p.m., at the
earliest, and probably closer to 10:00 p.m. The alleged comment
about Betty being "body searched" happened at approximately
9:00 p.m. — but in no case later than 9:15 p.m. when the
waiver of Miranda rights form was executed. All the agents
present at 409 Amherst testified that no such event took place.
Considering the conflicting testimony of Betty and Raymond,
their inability to identify the speaker, and Betty's obviously
false accusal of Agent Pingolt at the first hearing and her
recant at this hearing, the Court finds that these witnesses
are not credible. The agents' testimony was credible. We find
that the alleged threat that Betty would be "body searched" is
a complete fabrication.
The search of 409 Amherst began at 9:30 p.m. According to all
accounts, Agent Pingolt arrived at 409 Amherst shortly before
10:00 p.m. Postal Inspector Marian Day arrived at 409 Amherst
at 10:15 p.m. and conducted the search of Betty sometime after
II. EXIGENT CIRCUMSTANCES
The circuit court stated that it was "troubled by the paucity
of evidence in the record to support" a finding of exigent
circumstances. Talkington, 843 F.2d at 1045. The circuit court
addressed two factors within the exigent circumstances issue:
(1) whether the agents had sufficient evidence to justify their
belief that counterfeit money was being burned at 409 Amherst;
and (2) whether any evidence linked the parked cars outside 409
Amherst to the Talkington home.
Special Agent Fox gave the order to enter 409 Amherst without
a warrant because he believed evidence was being destroyed.
Agent Fox has 13 years experience as a secret service agent.
Drawing on this experience generally he knew that burning is a
common method used in the destruction of counterfeit money. In
fact, he has actually worked on a case where such an incident
Further, more specific to the instant case, Agent Fox had
recollection of three conversations of Jeffrey Dean Irving, one
of the members involved in the Talkington conspiracy. Irving
had told Illinois DCI Agent Evans on September 24, 1986, that
he (Irving) could not arrange for any more counterfeit money to
be obtained from the Talkingtons because it had been burned. On
September 25, 1986, Irving recanted this story and said it was
a fabrication. However, all Agent Fox knew for sure, at this
point, is that Irving had lied, either on the 24th about the
burning, or on the 25th about the fabrication.
Next, Agent Fox learned on the afternoon of the 26th that
Flynt Talkington stated that there was approximately $150,000
in counterfeit money at 409 Amherst and that Raymond wanted to
get rid of it all. This would tend to confirm for Fox that
Irving was lying about the burning on the 24th — at least to
the extent that he said all the money had been burned. However,
during the surveillance of 409 Amherst, Agent Fox received a
report from Agents Hand and Sartore,*fn1 who had 11 and 17
years police experience respectively, that a fire was burning
in the yard of 409 Amherst. The agents related to Fox that
possibly counterfeit money was being burned.
Shortly after learning of the backyard fire, Fox was told
that Flynt Talkington had taken only $63,000 of the counterfeit
money from 409 Amherst, apparently leaving the balance of the
$150,000 there. Fox knew, through Flynt, that Raymond wanted to
get rid of all the money. Added to this was the fact that the
fire was burning (1) in the backyard of a house under
for criminal activity involving counterfeit money, (2) at
approximately 8:15 p.m., and (3) with no reason for the fire,
other than for the destruction of evidence, readily apparent to
the observing agents. Finally, Fox knew that several
surveillance vehicles (7 to 10) and a number of law enforcement
personnel had been involved in the surveillance of 409 Amherst.
With so much activity and, in light of the fire, Fox had a
reasonable fear that the surveillance had been detected and
that evidence was being destroyed. Considering all the facts
available to Special Agent Fox as discussed above, the Court
finds that exigent circumstances, sufficient to justify the
warrantless entry of 409 Amherst, existed.
The circuit court seemed troubled by the fact that the cars
in the driveway and around the cul-de-sac were not linked to
the Talkington home by the agents prior to the warrantless
entry. Id. at 1045-46. In the context of the exigency of the
circumstances, the cars are irrelevant. The cars came into play
only after the decision to enter 409 Amherst had been made.
Agent Sartore brought up the fact of all the cars in his
request for back-up only — not in conversing with Fox over
whether to secure the residence.
Finally, with respect to the exigent circumstances issue, the
circuit court stated: "Indeed, upon closing in on the front
door, one agent noted that there was no noise from within the
home. Such an observation, inconsistent with a fear that
several suspects were endeavoring to destroy evidence of crime,
was not evaluated by the district judge." Id. at 1046 (citation
omitted). With all due respect, this Court does not believe
that people moving about within a home, so as not to be heard
from the outside of the home, is inconsistent with an endeavor
to destroy evidence. In fact, it seems to cut much the other
way. One would think that persons attempting to destroy
evidence would be as quiet as possible so as to avoid drawing
attention to themselves. Thus, we find that the absence of
noise, audible from the outside of 409 Amherst, should not have
arrested the agents' fears that evidence was being destroyed
within the residence.
III. TIME TO SECURE A SEARCH WARRANT?
The circuit court ordered further factfinding on whether the
agents had time to secure a search warrant between the first
sighting of the fire by Sartore and the warrantless entry of
the Talkington home. Id. at 1046. Agent Sartore testified that
he first spotted the fire sometime after 8:00 p.m. The entry of
the home was placed at anywhere from 8:30 p.m. to 8:36 p.m. by
various witnesses. Thus, there was approximately 30 minutes
between the first sighting of the fire and the warrantless
We find that 30 minutes was not sufficient time in which to
get a warrant. Assistant United States Attorney (AUSA) Harris
was at home, as was the magistrate on call. To prepare the
warrant, Harris would have to drive to his office in the United
States Courthouse where he would meet a clerical person who
would type the warrant. The lead agent on the investigation,
with whom the AUSA would have worked to prepare the necessary
affidavit, was involved in the arrest and processing of persons
taken into custody at 1136 Daniel Street (where Flynt
Talkington was arrested). The AUSA believed that the transfer
of the counterfeit money from Flynt Talkington to Jeffrey
Irving at 1136 Daniel Street was a necessary element in
establishing probable cause to obtain the search warrant for
409 Amherst. This transfer did not occur until 8:15 p.m. to
8:30 p.m. — further limiting the time ...