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December 14, 1988


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.


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 events occurred.

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.

Considering the credibility (or lack thereof) of the respective witnesses, we find that the following events took place shortly after the Talkingtons spoke on the couch. Just prior to 9:00 p.m., Raymond asked to speak to Agent Canavit and said that he would "give him [Canavit] what he wanted if he would go easy on Betty." At this point, Agent Canavit advised Raymond of his Miranda rights and a waiver of those rights was executed at 9:15 p.m. During this time period — 9:00 p.m. to 9:15 p.m. — while Raymond was being interviewed by Illinois Department of Criminal Investigations (DCI) Agent Hand and Agent Nenninger, Canavit spoke to Agent Fox by telephone to determine when the search warrant would arrive at 409 Amherst. Fox, aware of Raymond's wish to cooperate, had Canavit ask Raymond if he would sign a consent to search form instead of waiting for the search warrant. Fox then spoke with Raymond and told him the house could be searched only with a search warrant or consent to search. Raymond told Fox he would consent. Although Raymond denies having a conversation with Fox prior to signing the consent, we find that testimony is not credible. Only after several inquiries by the agents to make sure Raymond understood that the choice whether to sign the consent was totally up to him did Raymond sign the Illinois State Police Voluntary Consent to Search form. While explaining the consent forms to Raymond, Agent Nenninger told him that everyone in the house would be searched. This form was executed at 9:25 p.m.

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 that.


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 occurred.

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.

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.


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 entry.

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 ...

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