3. An arrest warrant for Hendrickson was pending since before Hendrickson contacted the DEA in March 1992. Hendrickson was not arrested under the warrant until the day of the hearing on the motion to suppress in December 1992. The night before the hearing, during the pendency of the outstanding warrant, the U.S. Attorney's office lodged Hendrickson in a downtown Chicago luxury hotel. The Court takes judicial notice that any law enforcement officer, such as one conducting a routine traffic stop, might have learned of this outstanding warrant in a matter of minutes. No explanation exists in the record why this warrant was not exercised for over a year, including during time when Hendrickson worked closely with and was paid by federal law enforcement agents.
4. Hendrickson admitted to the use in June 1992 of cocaine during a hearing on his probation violation. This probation hearing was prosecuted by the same U.S. Attorney's office, occurred on the same day, and occurred before the same judge, as the hearing on Jachimko's motion to suppress. After eliciting Hendrickson's testimony that he had not used drugs since 1987, the Assistant U.S. Attorney prosecuting Jachimko did not comment on the falsity of that representation, despite the obvious inconsistency with the day's earlier admission and the positive random urine screen.
5. The alleged tape recordings made during Hendrickson's time inside Jachimko's apartment, missing for unexplained reasons, either do not support the prosecution's testimony or do not exist.
6. The record does not disclose whether the alleged recording device was on the person of CI Hendrickson and thus under his control, or was in a DEA vehicle away from the scene of his activity.
7. CI Hendrickson did not recall which agent of the DEA instructed him on when to activate the agent alert button. Agent Courtney also provided no such information.
8. CI Hendrickson was at the time of the events in question a knowledgeable user of illegal drugs.
9. Based on its experience in criminal law and as a judge presiding over criminal trials, the Court finds that one of the common motives of knowledgeable users of illegal drugs for assisting drug enforcement officers is that they can continue to use narcotics under the auspices and with the acquiescence of law enforcement authorities.
10. Inconsistencies and gaps in Hendrickson's testimony of the events that occurred after the DEA agents entered Jachimko's home further undermines his credibility. On cross examination, when asked if Jachimko had permitted the DEA to enter, he said, "I don't know," and that he could see "but not clear enough to answer your question." He then explained that he was around the corner, and when asked what he could see, he answered, "Well, more or less I was trying to keep surveillance on Bob." He said that Jachimko was trying to keep his dog from running out, but he "didn't know whether he couldn't hold the dog or it wasn't listening or what." He first said he saw agents with their guns drawn always, and that there were about eight of them in flak jackets. But then he said he could not remember where the guns were pointed or how many agents came in because he was watching Robert Anhalt run upstairs out the front door. Agent Courtney gave no testimony about any dog, although the CI testified it was "running around trying to bite."
Now, having set forth the factual background for the legal analysis, the Court addresses the consent-once-removed framework announced in United States v. Diaz, 814 F.2d 454, 459 (7th Cir. 1987). See also United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995) (applying same). Under that framework, the warrant less entry into a home by law enforcement personnel summoned in by an agent or informant is valid where (1) an agent or informant was expressly invited inside, (2) the agent or informant at that point established probable cause to arrest or search, and (3) the agent or informant immediately summoned help from other officers. Id.
The legal fiction enabled under this framework is that the warrantless entry by the police after being summoned (the "second entry") is made reasonable under the Fourth Amendment because of the earlier consent granted to an agent of the government. It does not matter that the agent deceives the host as to his identity or affiliation with the police. See Lewis v. United States, 385 U.S. 206, 209, 87 S. Ct. 424, 426, 17 L. Ed. 2d 312 (1966); Hoffa v. United States, 385 U.S. 293, 303, 87 S. Ct. 408, 414, 17 L. Ed. 2d 374 (1966). It does not matter that the agent might be a confidential informant, possessing his own motives, pecuniary or otherwise, for effecting an arrest. See Paul, 808 F.2d at 648; but cf. Hoffa, 385 U.S. at 317, 87 S. Ct. at 421 (Warren, C.J., dissenting) ("Here, . . . a jailbird languishing in a Louisiana jail under indictments for . . . embezzlement, kidnapping, and manslaughter (and soon to be charged with perjury and assault), contacted federal authorities and told them he was willing to become, and would be useful as, an informer . . . . A motive for his doing this is immediately apparent -- namely, his strong desire to work his way out of jail . . . ."). It does not matter that the agent is perfectly able to exit the home without summoning the second entry so that a warrant may be obtained from a neutral magistrate. See Janik, 723 F.2d at 547-48. This is the law of this circuit, and this Court must follow it. But see California v. Carney, 471 U.S. 386, 392-93, 105 S. Ct. 2066, 2070, 85 L. Ed. 2d 406 (1985) (expanding the "automobile exception" to motor homes on facts similar to those found in Diaz; no mention of consent extending to government officers even though "second entry" by accompanying citizen would likely have been held consensual). Nonetheless, the following words by Justice Jackson still ring powerful.
Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.