The opinion of the court was delivered by: DUFF
Defendant Walter Jachimko ("Jachimko") filed a motion to suppress evidence obtained subsequent to a June 30, 1992 warrantless search of his home. An evidentiary hearing was held on the motion in December 1992. The Court's first ruling on the motion to dismiss underestimated the reach of this circuit's consent-once-removed doctrine. See United States v. Jachimko, 19 F.3d 296, 299 (7th Cir. 1994) (vacating this Court's granting of a motion to suppress in United States v. Anhalt, 814 F. Supp. 750 (N.D. Ill. 1993)). In the prior opinion, the Court attempted to distinguish the line of cases enunciating this doctrine on two grounds: that there had been no previous investigation of Jachimko prior to the search of his home and that, by this fact, the role of the CI, a perjurer and a convicted felon, was improperly inflated. See id. at 754; cf. United States v. Janik, 723 F.2d 537 (7th Cir. 1983) (holding that express invitation to view contraband offered to police officer friend in social setting established consent to search by later-summoned government agents); United States v. Paul, 808 F.2d 645 (7th Cir. 1986) (expanding Janik by holding that consensual entry by confidential informant also established consent to search by later-summoned government agents); United States v. Diaz, 814 F.2d 454, 459 (7th Cir.), cert. denied, 484 U.S. 857, 108 S. Ct. 166, 98 L. Ed. 2d 120 (1987) (articulating the standards governing "consent-once-removed:" (1) agent or informant enters at the express invitation of someone with authority to consent, (2) agent or informant establishes probable cause to effect an arrest or search, and (3) agent or informant immediately summons help from other officers). Finding the government had not shown consent to enter or any other exception to the Fourth Amendment's warrant requirement, this Court earlier held the search of Jachimko's home illegal. See Anhalt, 814 F. Supp. at 754; see also Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 1375, 63 L. Ed. 2d 639 (1980) (holding the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest"); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973) (holding uncoerced consent to be a valid substitute for the warrant requirement because it makes a search reasonable).
On appeal, the Seventh Circuit held this Court's distinctions irrelevant. See Jachimko, 19 F.3d at 299. They returned the case for reconsideration of the Defense's motion to suppress in light of the framework announced in Diaz. Even under the consent-once-removed analysis set forth in Diaz, the government failed to meet its burden to justify the warrantless search of Jachimko's home. In view of the absence of competent corroborating evidence, this Court has strong doubts that the CI had established probable cause to search by the time he summoned DEA agents to enter Jachimko's home.
The government was required to meet its burden of showing Hendrickson had established probable cause inside Jachimko's apartment prior to sounding the alarm by a preponderance of the evidence. Only in this way would consent granted to Hendrickson extend to the later-entering officers under the Diaz framework. In this case, the probable cause issue is not separated from the Court by a layer of review. See, e.g., Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) (allowing after-the-fact voiding of an otherwise proper search warrant by impeachment of the affidavit presented before the neutral magistrate; deferential review); cf. United States v. Nobles, 69 F.3d 172, , 1995 U.S. App. LEXIS 31048 (7th Cir. 1995) ("The denial of a motion to suppress evidence is reviewed deferentially. . . . When the district court's decision rests on credibility determinations, . . . 'the trial judge's . . . choice of whom to believe is conclusive on the appellate court unless the judge credits exceedingly improbable testimony.'") Since the government defaulted in obtaining a warrant, the question of probable cause stands naked before the Court.
The Court's findings of fact are set out in the prior opinion. To summarize, in March of 1992, on his own initiative, Joseph Hendrickson telephoned the Drug Enforcement Administration (DEA) to offer his services for investigating an alleged indoor marijuana growing operation managed by Robert and William Anhalt. To say Hendrickson is not a model citizen is to abuse understatement. He is a convicted felon, a former escapee from a federal prison, a drug user, and a violator of probation. In this Court's belief, Hendrickson is a liar and a perjurer as well. Before this Court, he affirmatively disclaimed having used drugs since 1987, when in fact, he tested positive for cocaine use the day before his crucial participation in a 1992 DEA buy-bust. Whether in spite of these facts or in ignorance of them (plus the fact of an outstanding arrest warrant), the DEA accepted his offer. He became a CI for monetary compensation.
For about two and a half months, Hendrickson and DEA agents Jodwalis and Courtney worked together to set up a purchase of marijuana plants from Robert and William Anhalt. Based on Hendrickson's tips and corroborating facts, the DEA suspected the Anhalts of operating a large scale marijuana growing operation. During several June 1992 meetings between Hendrickson and Robert Anhalt designed to lay the groundwork for a buy-bust, Hendrickson, unaccompanied by any DEA agent, was equipped with a transmitter which allowed the recording of his conversations. Those recordings were made without any particular mishap. Hendrickson and Robert Anhalt made preparations for the purchase of 150 marijuana plants from the Anhalts to occur on June 30, 1992.
Again unaccompanied by DEA agents (although under physical and electronic surveillance), Hendrickson met with Robert Anhalt on June 30, 1992. This time, he had in his possession an "agent alert button" with which he might summon the surveilling DEA agents. He was instructed not to press the alert button until he saw more than one hundred marijuana plants. Hendrickson went to Robert Anhalt's residence. He stayed for ten minutes, returned to a designated meeting place alone where DEA agents were gathered, and then went back to Robert Anhalt's apartment. From there, Robert Anhalt and Hendrickson left in a car and they drove to 4900 West Newport in Chicago, a location which had never been under DEA surveillance during the investigation. At the time they approached 4900 West Newport, the surveilling DEA agents had no idea who lived there or how many units there were in the building. They did not know of any violations of law taking place at that address.
All the information in the record of what happened next comes either from Hendrickson's testimony or from Agent Courtney's brief testimony of what surveilling agents told him. Even though Hendrickson was equipped with a transmitting device, the tapes of the conversations at this point are blank. According to the testimony of Agent Courtney, another DEA agent monitored the conversations of Hendrickson, but this agent did not prepare a report of those conversations, and no record of them exists. It cannot be stated too strongly: there is no corroborating evidence of what happened when Hendrickson, a liar and probably an addict, was indoors unobserved by government agents.
Two excerpts from the direct testimony of the only witnesses the government produced illustrates the weight, or rather the lack of weight, of the government's key evidence. First, from Agent Courtney:
Q. And what happened then?
A. An Agent indicated that there was a knock on the window and they were subsequently let inside the residence.
Q. And they went inside the front door, is that right?
A. That's correct, that's what the Agent reported.
A. About 20 minutes later there was the Agent Alert signal sounded.
Q. About 20 minutes later?
As this excerpt amply illustrates, the value of this essential testimony is undermined by hearsay, by responses to leading questions, and by the absence of proper foundation. This is in spite of repeated admonitions from the Court to counsel to take more care in conducting the direct examination. It is true that under Federal Rule of Evidence 104, hearings on a motion to suppress do not require the rigid use of the Federal Rules of Evidence and all of its exclusionary apparatus. However, this does not mandate the trial judge's uncritical acceptance of evidence adduced in violation of those rules. It is recognized in this context that a "trial judge's experience and legal training can be relied upon to winnow the chaff from the wheat." 1 Weinstein's Evidence P 104 (1994). Although through no fault of the witness himself, the Court finds this testimony too overburdened by chaff to lend very much weight to whatever kernel lies within. The record fails to disclose who saw Hendrickson and Anhalt enter Jachimko's home, how Agent Courtney might have observed them enter, who was counting the passage of time, what was the instrument used to measure the passage of time, who received the alert signal, how Agent Courtney knew of the alert signal, and how much time elapsed between receipt of the signal and the entry into Jachimko's home.
The intended courtesy which some trial judges in this district may show in tolerating such less than skillful examination practice should not be misunderstood as acquiescence in the practice. It should be understood that such a technique ineluctably impairs the declarative presentation as well as the credibility of the testimony. It not only diminishes the certainty of the memory, the spontaneity, and the knowledge of the witness, but the words are not taken out of his mouth. To some degree, this is a result of habits which are formed during practice before the grand jury and which might be acceptable there, albeit unimpressive, but are not competent in a trial or a hearing on the merits of the charge.
This is the relevant direct testimony of CI Hendrickson, the only witness who said anything at all about the events inside Jachimko's home.
A. We went to Wally's [Defendant Jachimko's] house.
A. I was with Bob [Robert] Anhalt.
Q. Would you tell us what happened when you ...