United States District Court, N.D. Illinois, Eastern Division
December 3, 2004.
UNITED STATES OF AMERICA, Plaintiff,
NIKITA HAMPTON, ADEDEJO OKUNOLA and CRYSTAL BLAIR, Defendants.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants Nikita Hampton (hereinafter,
"Hampton") and Adedejo Okunola's (hereinafter, "Okunola") Motions
to Suppress. For the following reasons, Hampton's Motion is
denied and Okunola's Motion is denied in part and granted in
Defendants' Motions arise from the October 10, 2003 search of
an apartment located at 869 North Cambridge in Chicago, Illinois
("the residence"). On the morning of October 10, 2003, police
officers received a tip from an informant that a suspected bank
robber, who had robbed a series of Chicago-area banks at gunpoint
over the preceding months, was located at the residence. A group
of Chicago police officers and FBI agents assembled outside the
residence and at approximately 3:50 p.m. knocked on the door.
Frankie White ("White"), Okunola's mother and Hampton's fiancé,
opened the door. The respective stories differ significantly from this point
forward. According to the Government, White immediately
cooperated and allowed agents to search her home for the
suspected bank robber. Defendants contend that White did not
consent to the police officers' initial entry and search. During
the search and protective sweep of the home, police officers
located and immediately arrested Hampton on an upstairs floor.
They also observed a handgun in the upstairs bedroom used by
Hampton and White. Okunola was apprehended on the downstairs
floor, where he was sitting on a sofa. After searching White's
purse outside the home, where they found a baseball cap
purportedly used in some of the bank robberies, police officers
detained White. Both White and Okunola were then taken into
custody for questioning.
Once at the police station, at approximately 4:50 p.m., Okunola
signed a written consent to search the residence. Approximately
thirty minutes thereafter, White signed a similar written
consent. (Both White and Okunola are leaseholders on the
residence.) Following Okunola's written consent, police then
searched the residence and seized various evidentiary materials
purportedly related to a variety of bank robberies. Police
officers did not obtain arrest or search warrants. Defendants
contend that White's written consent to search was improperly
obtained because, among other reasons, police officers wrongfully
threatened White with eviction from her public housing.
Defendants also contend that Okunola's written consent to search was invalid
because it was the product of an unlawful arrest and, moreover,
that he was coerced into signing it.
During his detention, Okunola also provided incriminating
statements pertaining to his and Hampton's involvement in a prior
bank robbery. Okunola seeks to suppress his statements on the
basis that he was illegally detained and police officers
improperly failed to provide him with Miranda warnings.
Defendants now move to suppress all evidence obtained from the
residence on October 10, 2003. Okunola also moves to suppress all
statements made by him while in custody on October 10, 2003. An
evidentiary hearing was held on October 28, 2004, during which
several police officers and FBI agents testified on behalf of the
Government, and White, Okunola, and Morrison Hunley testified on
behalf of the Defendants.
A. White's Initial Consent to Search the Residence
Defendants first argue that the Government has not shown that
White's initial consent to search the residence for Hampton was
voluntary. Defendants rely primarily on testimony from White, in
which she claims that consent was never requested, and police
instead rushed into the home. See Hr'g Tr. at 191-92. The
Government, in turn, relies primarily on the testimony of
Detective Graeber, and also certain corroborating testimony from
other officers and agents, which collectively indicate that consent was
requested and received. See Hr'g Tr. at 24, 102, 107, 127-28,
The Court finds that the Government met its burden on this
issue. Detective Graeber's testimony was credible, and was
buttressed by the testimony of Detective Matias and Agent Araya,
although these two individuals admitted that they did not hear
the specifics of White's consent. See id. In contrast, White's
testimony was less credible. In addition to an obvious (and
understandable) potential bias to protect her child (Okunola) and
her fiancé (Hampton), White's other testimony pertaining to the
discovery of a baseball cap in her purse and other evidentiary
material was simply not credible, and provided a general sense of
obfuscation. Thus, the Government established by a preponderance
of the evidence that White's initial consent was valid.
B. Okunola's Unlawful Arrest
A threshold issue here is whether the detention of Okunola at
the 18th District police station was lawful. Upon the police
officers' entry to the residence, Okunola was immediately
handcuffed and was then quickly transported to the police
station. He remained handcuffed to the wall in a holding room at
the police station for more than six hours. It is not clear from
the Government's briefing whether it concedes that Okunola's
detention was, from the outset, effectively an arrest, or whether
there was some particular point in time when the temporary
detention transformed into an arrest. See Terry v. Ohio, 392 U.S. 1
(1968); Gov. Reply Br. at 3-4. The Government, however, appears
to acknowledge in its reply brief that at some point probable
cause was required to continue to detain Okunola. See Gov.
Reply Br. at 3-4.
In any event, the undisputed testimony at the evidentiary
hearing demonstrates that, certainly at the point that Okunola
was handcuffed to the wall at the Chicago police station, his
detention was the functional equivalent of an arrest. See Hayes
v. Florida, 470 U.S. 811, 816 (1985); Kaup v. Texas,
538 U.S. 626, 630 (2003); United States v. Cellitti, 387 F.3d 618, 622
(7th Cir. 2004); Maxwell v. City of Indianapolis, 998 F.2d 431,
433 (7th Cir. 1993). That is, it is patently clear that any
reasonable person, upon being handcuffed, transported to a police
station, restrained to a wall, and then interrogated, would not
feel at "liberty to ignore the police presence and go about his
business." Kaup, 538 U.S. at 629 (quotations and citations
omitted). Thus, the Government must establish that it had
probable cause to conduct this warrantless arrest of Okunola.
Probable cause to conduct a warrantless arrest is a fluid
concept that depends on the known facts and circumstances at the
time of the arrest. See generally, Ornelas v. United States,
517 U.S. 690, 695-96 (1996); see also, Wong Sun v. United
States, 371 U.S. 471, 479 (1963). The fundamental inquiry is
whether a prudent person would believe that an offense has been (or is being)
committed by the person to be arrested. See id. Here, the
Government is faced with a significant obstacle: Detective
Graeber, the lead investigator here, flatly admitted that at the
time of Okunola's detention in the residence he had no belief
that Okunola had committed a crime. See Hr'g Tr. at 27:22-25;
28:1; 65:11-13. He further conceded that he merely wanted to take
Okunola "in for investigation just to see whether he was willing
to tell us anything relative to Mr. Hampton or to the possibility
that he might have been involved in any of the robberies in any
way whatsoever." Id. Indeed, the testimony at the evidentiary
hearing revealed that the police entered the residence with the
unitary focus of locating Hampton, and, upon encountering Okunola
on the ground floor, the police immediately recognized that he
did not fit the description of Hampton. See Hr'g Tr. at 85,
The Government essentially ignored the issue of probable cause
in its initial brief, but then wisely addressed it in its reply
brief. To establish probable cause, the Government turns to the
fact that police were purportedly looking for a second offender
in the bank robberies. This argument, however, is flawed in
several regards. First, the informant had identified Tony Glass
as a potential accomplice, and police apprehended Glass in the
immediate vicinity of the residence just before entering the
residence. See id. at 52. Therefore, at least at that point in
time, the likely second suspect was already in custody, which significantly
reduced the likelihood that Okunola was that second suspect.
Second, the Government simply provided no evidence that Okunola
had any particular physical similarity to the second offender.
For instance, Detective Graeber testified regarding a "business
alert" photograph of a second suspect, but the sole connection
between the photograph and Okunola seems to be that both are
black men. See Hr'g Tr. at 47-48. The business alert identifies
the second suspect's age range as 30-to-35 and his weight as 230
to 250 lbs. Okunola clearly does not match these characteristics
and the police immediately recognized that Okunola was too
young to match Hampton's described age of 30-to-35. See Hr'g
Tr. 85, 128. Thus, Detective Graeber's testimony does not
persuasively indicate that a reasonably prudent officer would
believe that Okunola was likely to be the second suspect. Indeed,
Detective Graeber's other testimony more-fairly reveals the true
state of mind of a reasonable officer at the time of Okunola's
detention: Okunola was not suspected of any criminal activity at
the time of his detention. See Hr'g Tr. at 64-65.
Finally, the Government argues that the surrounding
circumstances, namely, the presence of Hampton in the residence,
the gun discovered upstairs, and White's concealment of a
baseball cap, collectively create probable cause to conduct a
warrantless arrest of Okunola. This argument fails because the
Government fails to show as it was required to show that there was some
logical connection between these events and Okunola. Although the
authority cited by the Government supports the general
proposition that surrounding circumstances can create probable
cause, closer inspection of the facts in these cases shows that
there must be some nexus between a suspect and incriminating
behavior or circumstances. That is, the surrounding circumstances
alone cannot replace the requirement of some minimal form of
individualized probable cause. See Ybarra v. Illinois,
444 U.S. 85 (1979).
For instance, in Hayes, an informant specifically identified
the suspect as having a gun, and the police officers observed the
suspect attempting to hide the gun and then fleeing the scene.
See United States v. Hayes, 236 F.3d 891, 894 (7th Cir. 2001).
Similarly, in Townsend, the police officer observed a weapon on
the suspect and noticed the suspect's "nervous manner" (not to
mention that the police were also aware that the suspect had
purchased chemicals related to the manufacture of methamphetamine
and was recently involved in an explosion of a methamphetamine
laboratory). See United States v. Townsend, 330 F.3d 438, 441
(6th Cir. 2003). In Holder, the suspect was standing a few feet
away from a "drug-laden table," and thus was undeniably aware of
illicit drug activity. See United States v. Holder,
990 F.2d 1327, 1329 (D.C. Cir. 1993). Perhaps the best case for the
Government is the Tenth Circuit's Dozal decision, where a
suspect was arrested primarily on the basis that police discovered two bags on cocaine in a shared
bathroom. See United States v. Dozal, 173 F.3d 787, 793 (10th
Cir. 1999). But even in that case, the police nonetheless found
incriminating evidence in an area of the home regularly used by
the suspect, and thus a logical connection was established.
Curiously, the Government cites only one Seventh Circuit case
in support of its probable cause argument based on surrounding
circumstances, despite a plethora of case law in this circuit
addressing the requirements of individualized probable cause.
See, e.g., United States v. Johnson, 170 F.3d 708, 714 (7th
Cir. 1999); United States v. Carpenter, 342 F.3d 812, 815-16
(7th Cir. 2003); United States v. Jones, 72 F.3d 1324, 1332-33
(7th Cir. 2003) (and cases cited therein). In any event, the
Seventh Circuit clearly follows the general contours of Ybarra
v. Illinois, which requires at least some minimal form of
individualized probable cause in addition to mere association
with someone suspected of criminal activity. See Ybarra v.
Illinois, 444 U.S. 85 (1979); id.
Here, the Government failed to show the necessary nexus between
Okunola and the incriminating evidence observed at the time of
the arrest. For instance, there was no testimony that Okunola
engaged in any suspicious behaviors prior to his arrest: he did
not flee, attempt to hide any evidence, or otherwise act in any
manner arising suspicion. As noted above, the search for a second
suspect was attenuated, given the preceding arrest of Glass, and
nothing in the business alert photograph truly pointed toward Okunola. The
gun observed by the police was in a bedroom used by White and
Hampton, on a different floor from where Okunola was located when
police entered the residence. In addition, White's concealment of
the baseball cap occurred outside of the presence of Okunola.
Finally, Okunola, as a leaseholder and the son of White, had a
legitimate non-criminal reason to be present at the residence.
In short, there appears to be nothing outside of his mere
presence at the residence and association with Hampton (who was
arrested) and White (who, curiously, was not) that contributed to
a probable cause determination. These, however, are not
sufficiently compelling surrounding circumstances: something more
than propinquity with others suspected of criminal activity is
required for probable cause. Cf. Johnson, 170 F.3d at 714;
Carpenter, 342 F.3d at 815-16; Jones, 72 F.3d at 1332-33.
Otherwise, taken to its logical extension, the Government's
argument here would dictate that there was sufficient probable
cause to arrest anyone present at the residence without any
need for individualized assessments.
C. Consequences of the Okunola's Unlawful Arrest
1. Suppression of Evidence Obtained at 869 N. Cambridge
Consent to search that is given pursuant to an unlawful arrest
is presumptively invalid. See Cellitti, 387 F.3d at 622. And,
accordingly, subsequent evidentiary searches and seizures that depend upon such invalid consent are likewise tainted and
inadmissible. See id.; Wong Sun v. United States, 373 U.S. 471
(1963). Here, Okunola's consent occurred less than one hour after
his illegal arrest, and therefore it is not sufficiently
attenuated from the arrest. See id. Thus, under the normal
course, the evidence obtained at the residence subject to
Okunola's invalid consent would be tainted and therefore
suppressed. See id.
There are, however, two notable exceptions to the general rule:
the "independent source" and "inevitable discovery" doctrines.
See United States v. Johnson, 380 F.3d 1013, 1014 (7th Cir.
2004), citing Murray v. United States, 487 U.S. 533, 537
(1988). These two similar doctrines allow tainted evidence to be
used if the evidence was either obtained by any other legal
means, or would have been obtained legally in any event. See
id. Here, the independent source doctrine (and perhaps the
inevitable discovery doctrine) applies because White provided
independent written consent to search the residence.
As stated above, there was credible testimony that White
consented to the initial search of her home. Unlike Okunola,
White was not arrested (nor was her detention the functional
equivalent of an arrest), and therefore her written consent is
not tainted by an unlawful arrest. Finally, there was credible
testimony by the Government that White voluntarily signed the
consent to search form, which was buttressed by testimony that
White thereafter supervised a large portion actual search as it occurred in her
home, and did not protest during her observation of the search.
See Hr'g Tr. at 112-17.
Importantly, White's written consent was provided within 30
minutes of Okunola's consent. See id. at 115. Although the
evidentiary search and seizure appears to have been initially
predicated on Okunola's tainted consent, it is clear that White's
nearly-contemporaneous written consent provided an independent
legal basis for the evidentiary search and seizure. (And, as a
leaseholder and occupant of the bedroom where the weapon and
other materials were found, there is no question that White had
authority to provide consent for all areas of the residence. See
United States v. Matlock, 415 U.S. 164, 170 (1974)). Thus, under
the terms of the independent source doctrine, the evidence seized
at the residence is not fatally tainted by the Okunola's invalid
consent, and therefore should not be suppressed.
2. Suppression of Okunola's Incriminating Statements
The independent source and inevitable discovery doctrines do
not provide refuge for Okunola's incriminating statements. As
noted above, Okunola provided several incriminating statements
while in custody over the course of the afternoon and evening of
October 10, 2003. These statements clearly flowed directly from
his illegal arrest and are therefore tainted and inadmissible
against him. See Wong Sun, 373 U.S. at 484-85. Unlike the evidentiary search and seizure at the residence,
there is no other legal basis that shields the police conduct
here. As a result, Okunola's statements must be suppressed
insofar as they are to be used against him. (Hampton, of course,
does not have standing to challenge the use of Okunola's
statements on the grounds that they were obtained in violation of
Okunola's Fourth Amendment rights. See generally Rakas v.
Illinois, 439 U.S. 128, 139-40 (1978)).
For the foregoing reasons, Hampton's Motion to Suppress is
DENIED and Okunola's Motion to Suppress is GRANTED as to his
statements while in police custody but DENIED as to the
evidence seized at the residence on October 10, 2003.
IT IS SO ORDERED.
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