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October 13, 1989

GUY RAMIREZ, Defendant

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR


 Apart from tendering the pretty-much-standard defense motions, all of which received short shrift from this Court, counsel for defendant Guy Ramirez ("Ramirez") also filed a motion to suppress evidence that has occasioned an evidentiary hearing and post-hearing briefs submitted by counsel for Ramirez and the United States. Only two witnesses testified at the hearing: Ramirez and Drug Enforcement Administration ("DEA") Agent Robert Irwin ("Irwin"). For the reasons stated in this memorandum opinion and order, Ramirez' motion to suppress is granted.


 Before Ramirez entered the viewfinder of the DEA enforcement personnel, they had been investigating the strongly suspected narcotics activity of a group led by Ana Grisales ("Grisales"). As the result of that surveillance and a warrant-authorized search, the arrest of Felix Muniz ("Muniz") led in turn to Muniz' cooperation and his providing of extensive information to the DEA.

 Muniz described himself as a distributor in the Grisales-headed organization, as part of which Muniz identified Ramirez as Grisales' main driver. Further DEA surveillance provided some limited inferential corroboration by linking Ramirez with Muniz. Then (consistently with the information that Muniz had also furnished) DEA agents observed Ramirez depart for Los Angeles -- on a one-way plane ticket and carrying a single piece of luggage -- for what Muniz described as an impending major cocaine delivery (25 kilos) to the Chicago area via a van to be driven by Ramirez. Next day Grisales and a woman companion also flew from Chicago to Los Angeles -- according to Muniz, to make arrangements for the 25 kilo cocaine shipment.

 Irwin and a number of other agents stationed themselves at the bus station -- and sure enough, Ramirez arrived on the bus just as Muniz had said. At that time all the agents were outside the bus station. They then saw Ramirez emerge from the bus station carrying an entirely different piece of luggage from the one he had taken with him to Los Angeles. Almost immediately he was surrounded by agents. One took Ramirez' suitcase from him, while another patted him down. After initially refusing permission to open the suitcase, Ramirez agreed. At Irwin's request, Ramirez unlocked the suitcase. It was searched, but nothing was found or seized.

 During the questioning Ramirez was asked if he had any other luggage. In response he said that he did but it was someone else's, and that he had been paid $ 50 to bring the other bag to Chicago. Further questioning drew the answer that it was in a station lock box. During a further pat down, a set of keys was located in Ramirez' jacket pocket, at which point an agent removed that set of keys, including one with a number stamped on it.

 At that point Irwin asked whether Ramirez would consent to the opening of the locker. Despite Ramirez' refusal, no warrant was sought or obtained by the agents. Instead an agent other than Irwin located the locker, unlocked it with the key that had been taken from Ramirez and retrieved the suitcase. Then the agents (still without obtaining a warrant) asked Ramirez' consent to search that second suitcase, and he refused.

 Next the agents took Ramirez and the suitcase to the DEA office here in the federal building. After several further refusals by Ramirez to submit to the agents' importunings to consent to a search of the second suitcase, Irwin told Ramirez that if he did not consent a court order could be obtained. Ultimately Ramirez did sign a consent-to-search form, the suitcase was in fact searched and five kilos of cocaine were found there. Only then was Ramirez advised of his Miranda rights.


 As this Court told counsel after the evidentiary hearing, there can really be no serious dispute that Ramirez was under arrest from the very outset of his having been surrounded by the bevy of agents at the bus station. Under the circumstances Ramirez then confronted, any reasonable person would have viewed the situation as one in which he or she was not free to leave (the test most recently reconfirmed by the Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988); accord, United States v. Dunigan, 884 F.2d 1010, 1989 U.S. App. LEXIS 13859, at 14 (7th Cir. 1989)). *fn2" Indeed, Agent Irwin's own testimony confirms that reality, though the agent erroneously sought to label the arrest as merely a "detention."

 There is also no serious question that the arrest, though warrantless, was valid because the agents had probable cause to take that step. Muniz' information, which had been reasonably corroborated by other objective facts, sufficed for that purpose. *fn3" Compare United States v. Edwards, 885 F.2d 377, 1989 U.S. App. LEXIS 14208, at 14-16 (7th Cir. 1989).

 Post-Arrest Searches and Seizures

 Incident to the lawful arrest of Ramirez, the agents had the right to "make a warrantless search incident to that arrest of the arrestee's person and the immediate area in order to secure any weapons or prevent the destruction of evidence" (Edwards, id. at 14, citing Chimel v. California, 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969) and United States v. Arango, 879 F.2d 1501, 1504 (7th Cir. 1989)). But the scope of the permitted seizure is carefully circumscribed (Edwards, id. at 14-15):

Only a limited search may be made incident to an arrest. Chimel, 395 U.S. at 763; United States v. Queen, 847 F.2d 346, 352 (7th Cir. 1988). Such a search will be upheld as lawful where it "was contemporaneous with the arrest, was conducted to prevent seizure of a weapon or destruction of evidence, and was limited to the area within the arrestee's immediate control." Queen, 847 F.2d at 352.

 That permitted scope of search in this case led to the location of the locker key. And that leads in turn to the next step in the analysis, in which the ensuing warrantless seizure of that key must of course fit within the identical limitations. If the agents had probable cause to believe Ramirez had brought drugs with him (as this Court has found they did), their seizure of the key could be found to serve the second quoted purpose: to avoid Ramirez' destruction of that evidence once he was again released.

 But that is not the end of the matter, for at the point when the key had been seized there was no further risk of possible destruction of the hoped-for evidence. Yet acting without Ramirez' consent -- in fact, flying directly in the face of Ramirez' specific refusal to consent -- the agents nonetheless proceeded to open the locker, and that search surely could not be characterized as "incident to the arrest." It was not really contemporaneous with the arrest, it could not be justified as having been necessary to prevent seizure of a weapon or destruction of evidence, and it was certainly outside the area of Ramirez' immediate control. And finally, the government cannot escape judicial scrutiny by urging (as it does) that Ramirez had disclaimed ownership of the suitcase and therefore lacks standing to complain -- for it is not the status of the suitcase that is relevant at this stage of the analysis. *fn4" What is relevant instead is that Ramirez certainly had the required proprietary interest in the locker, so as to have standing to challenge its search.

 Thus the situation is conceptually no different from one in which the agents might have seized the key to Ramirez' apartment or home, then proceeded over his flat-out objection to search the premises. In this instance there was nothing -- no emergency -- to prevent the agents from seeking and obtaining a search warrant from an impartial magistrate at the same time that they retained possession of the locker key (and if necessary, they could have staked out the area surrounding the lockers to secure them while awaiting the requested warrant). That means the warrantless search of the locker was invalid, so that the consequent warrantless seizure of the second suitcase and its contents was equally invalid.

 In turn that means -- as the final step in the analysis -- that the suitcase and the cocaine it contained must be suppressed as the fruits of the just-described illegal search and seizure -- unless, that is, Ramirez' later consent at the DEA office to the further search of the suitcase somehow removed the illegal taint. Only that last possibility remains to be considered.

 For that purpose it is unnecessary to conclude, as Ramirez' counsel argues, that transporting Ramirez to the DEA offices for investigatory purposes violated Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979) and Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664 (1982). Instead the analysis properly focuses, as taught by our Court of Appeals' discussion and holding in United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1099-1100 (7th Cir. 1980), on the voluntariness vel non of Ramirez' consent to search in the factual matrix that confronted him. *fn5"

 On that score this Court credits Ramirez' account of the events rather than Irwin's contrasting, highly improbable and sterile version. According to Ramirez he was taken (along with the second suitcase) to the DEA interrogation room, where he found himself alone with Irwin and the five or six other officers who had participated in the original arrest and subsequent events. At that point the dialogue to which Ramirez testified at Tr. 28-32 (attached as an Appendix to this memorandum opinion and order) took place.

 Under those circumstances, the agents' obtaining of the consent form from Ramirez must be viewed as not "sufficiently an act of free will to purge the primary taint" ( Sanchez-Jaramillo, 637 F.2d at 1100, quoting the seminal "fruit of the poisoned tree" decision in Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), as quoted in turn in Brown v. Illinois, 422 U.S. 590, 602, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975)). What the agents did was to back an unrepresented defendant, who had not been cautioned as to his constitutional rights, into what he plainly perceived as a logical corner that was the direct result of the agents' violation of his constitutional rights a short time earlier.

 This is not a case like Carson, 793 F.2d at 1155-58, in which the defendant consented to a search in ignorance of and wholly without regard to a prior illegal search. Instead the agents elicited Ramirez' consent only after convincing him that they already had the suitcase in custody and intended to search it pursuant to a court order with or without his consent. In doing so, they overrode his prior refusals to confer consent. Even though (unlike the facts in Sanchez-Jaramillo, see 637 F.2d at 1100) the agents did tender Ramirez a consent-to-search form that said "I have not been threatened or forced in any way," that does not vitiate the conclusion that the consent was itself "fruit of the poisoned tree" and therefore involuntary in constitutional terms. *fn6"

 Accordingly it must be concluded that the illegal taint that attached to the search and seizure of the second suitcase was not vitiated by Ramirez' later "consent" to the search of that suitcase -- a "consent" that was not voluntary in constitutional terms. This opinion's earlier conclusion requiring suppression remains intact.

 It is always a source of real regret when a potentially valid prosecution must be frustrated by lawless conduct on the part of law enforcement officers. In that respect the opening comment by our Court of Appeals in United States v. Novak, 870 F.2d 1345, 1346 (7th Cir. 1989) might well have been written for this case. *fn7" But as was true in Novak, a court's responsibility is to preserve the individual defendant's constitutional rights, coupling that enforcement with the hope that the officers' keener awareness of their own constitutional duties will mean that fewer future defendants may go free because of such egregious -- and wholly needless -- blunders. Ramirez' motion to suppress is granted as to both the second suitcase and its contents, the five kilograms of cocaine. This case is set for a status hearing at 8:45 a.m. October 23, 1989 (at which time Ramirez' presence is waived) to discuss the future course of its prosecution.


 Date: October 13, 1989

 Ramirez - direct

 Q. And was there anything in the room with you?

 A. They brought the suitcase in there.

 Q. The second one? The one from the storage locker?

 A. Yes.

 Q. While you were in that room did you have any conversation regarding that suitcase?

 A. Yes. Mr. Irwin asked me if they could open the suitcase again.

 Q. What did you say that time?

 A. I just said, "No, because it ain't my suitcase."

 Q. All right. And did you have any further ...

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