{"id":21336,"date":"2016-03-21T01:41:39","date_gmt":"2016-03-21T06:41:39","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=21336"},"modified":"2016-03-20T13:42:57","modified_gmt":"2016-03-20T18:42:57","slug":"ca7-the-rubric-of-consent-once-removed-needs-to-be-jettisoned-as-meaningless-but-entry-still-valid-by-exigency","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=21336","title":{"rendered":"CA7: The rubric of \u201cconsent once removed\u201d needs to be jettisoned as meaningless, but entry still valid by exigency"},"content":{"rendered":"

The rubric of \u201cconsent once removed\u201d needs to be jettisoned as meaningless. Here, there was real exigency after the informant\u2019s entry into a potentially dangerous situation with the undercover officers watching, and that was sufficient to justify the entry without a warrant. United States v. Rivera<\/a>, 2016 U.S. App. LEXIS 4828 (7th Cir. March 16, 2016):
\n<\/p>\n

At first glance the doctrine of “consent once removed” is absurd. If one thing is certain it’s that Duenas and Rivera would never have consented to the entry of federal drug agents into Duenas’s garage, where the drugs to be bought by the informant were stored. The doctrine thus cannot, despite its name, be based on consent. This is well recognized. See, e.g., John F. Decker & Kathryn A. Idzik, “Disguising A New Exception to the Warrant Requirement: An Examination of the Consent-Once-Removed Doctrine and Its Hollow Justifications,” 61 Drake L. Rev. 127, 160-68 (2012); Ben Sobczak, “The Sixth Circuit’s Doctrine of Consent Once Removed: Contraband, Informants and Fourth Amendment Reasonableness,” 54 Wayne L. Rev. 889, 902-08 (2008). As Sobczak points out, citing Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), if you invite someone to a party at your house he can’t, without your express or implied permission, bring others with him; that is, one can’t without permission extend an invitation that one has received to other persons, especially ones unknown to the host. It’s thus difficult to understand what was intended by the statement in United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995), that “when Akinsanya gave his consent to Gilani to enter his apartment, he effectively gave consent to the agents with whom Gilani was working.”<\/p>\n

But though misnamed, the doctrine has the following kernels of validity. First, an informant’s job, especially in cases such as this that come from the frequently violent world of drug trafficking, is often (though not always, even in the drug world, see, e.g., Richards v. Wisconsin, 520 U.S. 385, 393, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997); United States v. Williams, 604 F.2d 1102, 1122-23 (8th Cir. 1979)), risky, and likewise that of a lone undercover officer. The informant in our case may well have feared that if he returned to the garage with the money for the drugs, Rivera and Duenas would take the money but not give him the drugs\u2014and maybe would kill him to prevent his retaliating against them for stealing his money. (He would be likely to have fared no better with them had he returned to the garage without any money\u2014how would he have explained that to them?) It was therefore reasonable for him to arrange with the agents that when he was about to return to the garage with the money he would call them and they would enter the garage at his heels in order to protect him. United States v. Jachimko, supra, and the cases cited in it, rightly emphasize the lawful protective purpose of the misnamed “consent once removed” doctrine. See, e.g., United States v. Yoon, 398 F.3d 802, 809-10 (6th Cir. 2005). And in this case obtaining a search warrant on the basis of what the informant saw in the garage would not have been practicable. The interval between the informant’s notifying the agents that he had seen drugs in the garage and the agents’ swooping down on it and arresting its occupants was too short\u2014about one minute\u2014for the agents to have been able to obtain a warrant.<\/p>\n

But one doesn’t need the opaque label “consent once removed” to justify authorizing such a response to an emergency situation. The doctrine of “exigent circumstances” (where “exigent” means emergency) allows such a response in this case because the interval between the informant’s notifying the agents of the presence of the cocaine in the garage and the agents’ arrival at the scene was so short. They could have gotten a search warrant had they delayed their arrival\u2014but by then Rivera and Duenas, worried by the failure of the buyer (not known to them to actually be an informant) to show up with the money, might have removed the cocaine from the truck and hid it elsewhere.<\/p>\n

The agents upon arrival in the garage could have phoned for warrants, meanwhile ordering Rivera and Duenas to remain in the garage. But the order would have been a seizure within the meaning of the Fourth Amendment\u2014without a warrant.<\/p>\n

We note parenthetically that consent to enter need not be invalid just because the person giving it lacks relevant knowledge of the person to whom he’s giving it. In United States v. White, 660 F.2d 1178 (7th Cir. 1981), two undercover agents obtained consent to enter the defendant’s apartment by concealing their identities as police officers. That was “real” consent, though uninformed. One of the agents left after a while, ostensibly to get the money for a deal (like the informant in our case)\u2014and instead returned with other agents. The court declined to consider their entry “a separate intrusion” given that one agent had remained inside throughout. Id. at 1183 n. 3. The defendant might have consented to the entry of those other agents as well, had they concealed their identity as police officers. And had the informant in our case returned to the garage with a police officer disguised as a drug dealer, and the informant had told Duenas and Rivera that the newcomer was an expert in assessing the quality of a cocaine sample, they (Duenas and Rivera) might have consented to his presence.<\/p>\n

But there was no newcomer invited or even permitted to join the party in this case. Nor was the informant, having driven away from the garage before the agents entered, and anyway not having returned, in danger from Rivera or Duenas such as would have justified his summoning law enforcement for aid and protection\u2014he was well out of harm’s way. This case seems therefore not to fit either of the rationales that we’ve identified as justifying the “consent once removed” doctrine. But the district judge had a third ground, of which more later in this opinion, for denying the defendants’ suppression motion\u2014”inevitable discovery.” See, e.g., Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Witzlib, 796 F.3d 799, 802-03 (7th Cir. 2015); United States v. Tejada, 524 F.3d 809, 812-13 (7th Cir. 2008). If officers search without a warrant, but it is certain they’d have obtained one had they applied for it, their omission is deemed harmless, and so is ignored.<\/p>\n

We can’t find a case that mentions “consent once removed” in which the decision in favor of the government could not have been supported on another ground: United States v. White, supra, 660 F.2d at 1183 n. 3 (exigent circumstances); United States v. Janik, 723 F.2d 537, 547-48 (7th Cir. 1983) (actual consent to entry); United States v. Diaz, 814 F.2d 454, 457-58 (7th Cir. 1987) (inevitable discovery); United States v. Akinsanya, supra, 53 F.3d at 855-56 (same); United States v. Paul, 808 F.2d 645, 647-48 (7th Cir. 1986) (same). In light of these decisions we are inclined to think that the term “consent once removed” is not only opaque, but expendable.<\/p>\n

Once the confidential informant alerted the agents to the fact that there was cocaine in Duenas’s garage, they had probable cause to search the garage. They could have obtained a search warrant by relaying what the informant had told them to whatever magistrate was available to rule on a warrant application. But there was no time. The agents had to move fast because Rivera and Duenas might panic when they realized that the (unknown to them) informant might not be returning, and remove the drugs from the garage. The certainty (just as in United States v. Pelletier, 700 F.3d 1109, 1117 (7th Cir. 2012) and many other cases) that the agents could have gotten a warrant to conduct a search that would have revealed the drugs should alleviate concern with the warrantless search and arrests in this case. And if further justification is required (it isn’t), there is the doctrine of harmless error, which usually refers to procedural errors in a trial but is applicable as well to searches and arrests. <\/p>\n

. . .<\/p>\n

Because “the officer[s] who conducted the search complied with then-binding precedent, the evidence obtained from the search should not be excluded[,] because the search was conducted with the objectively reasonable good-faith belief that it was lawful.” United States v. Gary, 790 F.3d 704, 705 (7th Cir. 2015). (The binding precedent\u2014actually precedents\u2014in this case are the “consent once removed” cases\u2014with which the agents faithfully complied.)<\/p>\n

The clincher is our recent decision in United States v. Witzlib, supra, 796 F.3d at 802, which presented a parallel issue to this case, though it involved contraband explosives rather than contraband drugs. We offered “an alternative justification, besides consent and exigency, for the initial search (which happens also to have been the search that turned up by far the most important evidence of Witzlib’s guilt). Had the police sought a search warrant from the moment they finished talking to the uncle and aunt, it’s a certainty that it would have been issued\u2014such was the probable cause created by what they told the police. So whether they got a warrant or not there was no way that Witzlib’s fireworks stash was going to remain undiscovered by the authorities” (citations omitted).<\/p>\n

Similarly, had the agent in our case followed routine procedure\u2014which as we said he would have done had he not been planning to rely on consent\u2014a warrant would certainly have been issued on the basis of the informant’s knowledge: he had seen the cocaine stash in Rivera’s truck. So for Witzlib’s stash of explosives substitute our defendants’ cocaine stash and one sees that Witzlib governs this case. And Witzlib does not stand alone. For similar cases similarly decided see United States v. Pelletier, supra, 700 F.3d at 1117; United States v. Marrocco, 578 F.3d 627, 639-40 n. 21 (7th Cir. 2009); United States v. Are, 590 F.3d 499, 507 (7th Cir. 2009). If ever a warrantless search and seizure were warranted, it was in this case. It would be a miscarriage of justice to allow the defendants to go scot-free in so open and shut a case of criminal drug trafficking as this case is.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The rubric of \u201cconsent once removed\u201d needs to be jettisoned as meaningless. Here, there was real exigency after the informant\u2019s entry into a potentially dangerous situation with the undercover officers watching, and that was sufficient to justify the entry without … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,3],"tags":[],"class_list":["post-21336","post","type-post","status-publish","format-standard","hentry","category-consent","category-emergency-exigency"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/21336","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=21336"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/21336\/revisions"}],"predecessor-version":[{"id":21337,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/21336\/revisions\/21337"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=21336"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=21336"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=21336"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}