Id. The legality of the search was upheld, the court noting that the friend, whom the defendant knew to be a police officer, was expressly invited and that "the fact that [the friend] got help from other officers in removing the submachine gun can make no difference." Id. at 547-48.
United States v. Paul, 808 F.2d at 648, expanded Janik to cover consensual entries made by confidential informants, rather than law enforcement personnel. In Paul, a confidential informant named Moore arranged to buy a bale of marijuana from Paul for $ 44,000. Three telephone conversations between Moore and Paul were taped by Illinois officers cooperating with federal drug agents. Id. at 646. In these conversations, the time and place of the purchase were established. Not wanting to entrust Moore with such a large sum of money, the agents equipped him with an alert button which he was to activate when he saw marijuana at Paul's home, where the purchase was to be consummated. Id. When Paul led Moore to the basement and Moore observed two bales of marijuana, he pressed the button; the waiting agents knocked, received no answer, and arrested Paul when they proceeded to the basement and saw the marijuana. Id. at 646-47. The Seventh Circuit found the search lawful, holding that when a confidential informant gains entry by consent and is shown contraband, the informant can summon other agents to assist in the arrest, consistent with the Fourth Amendment. Id. at 648.
In Diaz, the Seventh Circuit articulated three requirements for valid "second entry" by law enforcement agents after an original, consensual entry is gained by an undercover officer or informant: "we have applied this doctrine of 'consent once removed' only were the agent (or informant) entered at the express invitation of someone with authority to consent, at that point established the existence of probable cause to effectuate an arrest or search, and immediately summoned help from other officers." Diaz, 814 F.2d at 459. Diaz was arrested after an investigation by Illinois drug enforcement personnel. An undercover agent named Mueller was introduced to Diaz by an acquaintance, and after several telephone conversations, Diaz agreed to sell Mueller eight kilograms of cocaine for $ 344,000. Id. at 455-56. The place of the purchase was arranged at a meeting between Mueller, Diaz, and the acquaintance the evening before the deal. Mueller was to come to Diaz's hotel room to test a sample of the cocaine, and if it was satisfactory, Mueller would have one hour to bring the money to the hotel. Id. at 456. All went as arranged. Diaz admitted Mueller into his hotel room, Mueller took a sample, and left the room, ostensibly to get money. He knocked on Diaz's door a few minutes later, claiming to have forgotten his keys, the door was opened and the surveillance team swept in, arrested Diaz and seized the cocaine. Id. The court found that Diaz had effectively consented to the second entry of the surveillance team, by virtue of his consent to Mueller's entry. Id. at 459.
Despite the rules announced in the "second entry" cases, the general rule remains that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspects's home in order to make a routine felony arrest." Payton v. New York, 445 U.S. 573, 576, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). This court perceives a danger that the "second entry" exception may swallow the general preference for warrants if it is expanded beyond its articulated limits. A finding that the search was proper in this case would work such an expansion. At the suppression hearing, DEA agent Courtney opined that a search of any house on the 4900 block of Newport Avenue would have been proper, as long as it was preceded by the entry of the CI and the activation of the alert button. This is extreme. As the Seventh Circuit itself noted in Diaz, "The importance of enforcing the drug laws cannot be an excuse for the erosion of basic constitutional protections." Diaz, 814 F.2d at 459.
In Paul and Diaz, the individuals arrested were the specific targets of law enforcement investigations. Law enforcement officials either had direct undercover contact with the target (Diaz), or had tapes of confidential informant contact with the target (Paul). In both of those cases, law enforcement officials had specific information about the illegal activity that was afoot. In contrast, the agents in this case had direct contact, and taped contact through the CI, only with Robert Anhalt. Walter Jachimko had never been a target of their investigation. No evidence remains of any possible information they may have received about Jachimko before they entered his home, the tapes from that evening being blank.
While Paul and Diaz do not address the import of the ongoing investigations targeting the individuals actually arrested, those investigations provided law enforcement official with a background of probable cause that the individuals targeted were committing violations of federal law. In fact, given this background, the Seventh Circuit noted in Paul that the law enforcement officials had sufficient information to get a warrant. Their admonition was stronger in Diaz, where the court stated, "we are at a loss to understand why the police did not obtain at least a search warrant in this case." Diaz, 814 F.2d at 457.
Without the background on the targeted individual provided by the ongoing investigation, the role of the confidential informant in determining the existence of probable cause is inflated, as it was in this case. When the anticipated sale at Anhalt's residence did not occur, and Hendrickson found himself in Jachimko's home, he could have concluded the meeting and reported to the DEA that he had met a new participant in the marijuana ring, together with what he had observed in the apartment. Instead, he chose to summon the agents. In this case, the informant led and the DEA followed. The person occupying this expanded role of informant, Hendrickson, has been found by this court to be insincere and incredible.
It is not for this court to expand the holdings of Paul and Diaz to cover warrantless searches of suspects not under investigation without clearer direction from the Seventh Circuit.
It may be, as Paul and Diaz intimate, that every invitation to a stranger into one's home constitutes a waiver of one's privacy interest; this court is not prepared to make that ruling at this time. Instead, this court holds that the "second entry" doctrine does not extend to validate the search of Jachimko's home on June 30, 1992, where he had not been the subject of a law enforcement investigation prior to that time, and where the role of the confidential informant in determining probable cause was expanded due to the lack of investigative information linking Jachimko to any illegal activity.
For the foregoing reasons, defendant Walter Jachimko's motion to suppress the fruits of the search of his home at 4900 West Newport in Chicago on June 30, 1992 is granted.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
DATE: February 19, 1993