United States v. Bell, Francis J. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4288
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCIS BELL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04-CR-202—Matthew F. Kennelly, Judge.
____________
ARGUED JANUARY 8, 2007—DECIDED AUGUST 31, 2007
____________
Before EASTERBROOK, Chief Judge, and ROVNER, and
WOOD, Circuit Judges.
ROVNER, Circuit Judge. Francis Bell, the ransom
collector in a deadly kidnapping, sought to suppress
evidence of drugs found in his hotel room safe during
the course of the kidnapping investigation. The district
court denied the motion to suppress finding that the
search fell under the exigent circumstances exception to
the Fourth Amendment prohibition on warrantless
searches. We affirm.
2 No. 05-4288
I.
On February 21, 2004, kidnappers lured businessman
Jesus Colon from his place of business and soon there-
after called his wife, Norma Morales, demanding $100,000
in ransom in exchange for his safe return. Morales called
the Chicago Police Department to report the crime and a
team of law enforcement officers from the Chicago Police
Department and the Drug Enforcement Administration
(“DEA”) dove into action. The next day, the kidnappers
called Morales and instructed her to leave the ransom
money at the Logan Square subway station in Chicago.
Henry Harris, a task officer and group supervisor with the
DEA led a team of twenty officers to the area in and
around the subway station. DEA Special Agent William
Warren disguised himself as a CTA repairman working
near where Morales left the ransom bag. A short time
before 9:30 p.m., the defendant, Bell, entered the sta-
tion and picked up the bag. Warren called out to Bell,
informed him that he was a police officer, and ordered him
to stop. Bell threw the bag in Warren’s direction and ran.
After a chase and a prolonged struggle, Warren and a
fellow officer took Bell into custody.
The officers read Bell his rights, and immediately began
to question him. Bell claimed he was homeless and that
someone had offered him $500 to pick up a bag from the
subway station and throw it over a fence. When asked
why he had a low-range two-way radio with him, he ini-
tially did not have an explanation, but later explained
that he had been instructed to place the radio inside the
bag before he threw it over the fence. Upon searching
Bell’s wallet, the police found approximately $1000 in cash
and two key cards from an unspecified Holiday Inn hotel.
The officers took Bell to the Area 3 Chicago police sta-
tion at around ten o’clock that night.
Warren and the other officers initially focused their
investigation on the area immediately surrounding the
No. 05-4288 3
Logan Square subway station, canvassing the area look-
ing for witnesses and possible confederates. They ar-
rested four suspects in the vicinity of the subway station
and took them to the police station for questioning. They
were simultaneously guarding the victim’s house, monitor-
ing and tracking phone calls to the house, and tracking
phone calls made on Bell’s cellular telephone. The officers
were working throughout the night because they be-
lieved that the threat to Colon’s life was credible and
possibly imminent. The kidnappers had threatened to
kill Colon if his wife contacted the police and they were
clearly conducting counter-surveillance. When Colon’s
wife left the house to deliver the ransom, the kidnappers
called to ask her why she was not alone. After Bell’s ar-
rest, the kidnappers called again to ask why the ransom
had not been delivered to the subway station as demanded.
In the mean time, the officers continued to question
Bell and he continued to deny all knowledge of the kid-
napping, maintaining his story that he was homeless and
that someone had offered him $500 to pick up a bag. Bell
gave different versions of the story. In one version he
was supposed to bring the ransom back to a person. In
another, he was instructed to throw it over a fence. The
officers doubted the veracity of Bell’s tale. They considered
that, although Bell claimed to be homeless, his clothing
did not appear to be that of a homeless person, he was
carrying $1000 in cash, and he had a cellular telephone
at the time of his arrest.
Warren arrived at the police station at around 11:00 p.m.
and took over the interrogation of Bell. Searching for new
leads, Warren turned back to Bell’s wallet hoping to
find a number, an address, or something else that might
eventually lead him to Colon. At around 11:30 p.m.,
Warren asked Bell about the hotel key cards. Bell told
Warren that he and his girlfriend had been staying at a
Holiday Inn near O’Hare airport, but had checked out.
4 No. 05-4288
Doubting this claim, Warren began calling Holiday Inn
hotels located near O’Hare and asking for Francis Bell’s
room. At some point, Warren telephoned the Holiday Inn
at 8201 West Higgins Road in Chicago and when he asked
to be put through to Francis Bell’s room, the desk clerk
connected him to a room. Hoping that Colon would be in
that hotel room, Warren and DEA agent George Ohlin left
Area 3 almost immediately and drove to the Holiday Inn.
The desk clerk noted in her log that the officers arrived at
the hotel at 1:30 a.m. After viewing a picture of Bell, the
clerk confirmed that he had been staying at the hotel
for an extended period of time and had been paying for
the room in cash. Upon the request of the officers, the
clerk was able to “read the key” to determine that it was
assigned to Room 204 at the hotel. The clerk recorded all
of this activity in the hotel log. When officers knocked on
the door of room 204, Bell’s girlfriend opened the door
and identified Bell from a photograph, stated that she
was his girlfriend, and gave the officers permission to
search the room. The kidnapping victim, Colon, was not
in the room, nor did the officers find any evidence that
he had ever been there. Instead, they found plastic wrap-
pings with powder residue which were similar to wrap-
pings that Warren had seen used to wrap kilogram
quantities of cocaine. They also found a locked safe about
the size of a breadbox (or, perhaps, in this day and age, a
reference to a toaster-oven would be more familiar). The
girlfriend told the agents that Bell might have been using
the room to sell narcotics and that she believed that
there might be narcotics in the safe, but she did not
have access to it.
The agents returned to the desk clerk and obtained the
access code for the safe. Inside they found a scale, plastic
bags, a quantity of powder that tested positive for cocaine,
and a pill bottle. The label on the pill bottle contained
the name and address of an unknown woman, but a trip
No. 05-4288 5
to that woman’s address was fruitless, as was a search of
the automobile Bell had parked in the Holiday Inn park-
ing lot.
In the district court, the officers testified that prior
to searching the safe they had telephoned the police
station where Bell was being held and the officers at the
station had obtained Bell’s written consent to conduct a
complete search of the room. Bell signed the consent form
at 2:15 p.m. The officers testified that they arrived at
the hotel at 2:00 a.m. and did not search the safe until
2:30 a.m.
The district court, however, discredited this testimony
and determined that Bell signed the consent form after
the officers had already searched the room. Warren
testified that he discovered that a Francis Bell had a
room at a Holiday Inn on Higgins Road near O’Hare
airport at approximately 1:00 a.m. and left the police
station almost immediately. Taking judicial notice of the
locations of the police station, the Holiday Inn, the near-
est highway between the two, and the condition of traffic
at 1:00 a.m., the district court determined that the officers
would have arrived at the hotel sometime around 1:30 a.m.
In fact, after all of the officers had finished their testi-
mony, a Holiday Inn employee testified that a contempora-
neous hotel log indicated that the officers had indeed
arrived at the hotel at 1:30 a.m. The district court did not
believe that the officers would have arrived at the hotel
at 1:30 a.m. and not have searched the safe until after
2:15 a.m. It was the police, after all, who maintained that
they were facing direly exigent circumstances. Mr. Colon
could have been killed (and indeed was barbarically
killed around this same time) at any moment.
Bell was indicted for possession with the intent to
distribute a controlled substance and filed a motion to
suppress the evidence recovered in the safe. Bell entered
6 No. 05-4288
a conditional guilty plea pursuant to Federal Rule of
Criminal procedure 11(a)(2) specifically reserving his
right to have an appellate court review the adverse deter-
mination on the motion to suppress. In that motion he
argued that his consent to search had not been voluntarily
obtained and that the search of the safe violated his
Fourth Amendment rights. The district court ruled against
Bell on both issues finding that his account of coercion
was not credible. The district court also concluded that
although Bell had not signed the consent form prior to
the time of the search, the warrantless search of the
safe fell under the exigent circumstances exception to the
Fourth Amendment prohibitions on searches without
warrants. The district court sentenced Bell to 300 months’
imprisonment. Bell timely appealed only the question of
the warrantless search of the safe. The propriety of
warrantless searches is reviewed without deference.
Ornelas v. United States, 517 U.S. 690, 699 (1996).
II.
The Fourth Amendment “protects the security a man
relies upon when he places himself or his property within
a constitutionally protected area, be it his home or his
office, his hotel room or his automobile.” Hoffa v. United
States, 385 U.S. 293, 301 (1966). Warrantless searches and
seizures within a home (and hotel room, see id.) are
presumptively unreasonable except under certain narrowly
proscribed exceptions. Brigham City v. Stuart, 126 S. Ct.
1943, 1947 (2006). One of these exceptions allows police
officers to search without a warrant to protect or preserve
life or prevent serious injury in the event of exigent
circumstances. Mincey v. Arizona, 437 U.S. 385, 392-93
(1978). This exception “must be strictly circumscribed
by the exigencies.” Id. at 393. It cannot be used merely to
make law enforcement more efficient, to safeguard evi-
No. 05-4288 7
dence that could be protected in another manner, or
simply because a serious crime has been committed. Id. at
391-95. On the other hand, the police need not stand by
when violence erupts and wait for a blow to render a
victim unconscious, but rather may step in to prevent
serious injury and restore order. Stuart, 126 S. Ct. at 1949;
see also United States v. Elder, 466 F.3d 1090-91 (7th Cir.
2006) (upholding a warrantless search where a brief and
anonymous call about a methamphetamine lab signaled
police that the caller might be in danger).
In this particular case, there was no question that the
police were entitled to enter and search Bell’s hotel room.
Disregarding any potential exigent circumstances, Bell’s
girlfriend consented to the search of the hotel room, and
the prohibition on warrantless searches does not apply to
situations in which voluntary consent has been obtained,
either from the individual whose property is searched, or
from a third party who shares, or is reasonably believed
to share, authority over the area. Georgia v. Randolph,
547 U.S. 103, 126 S. Ct. 1515, 1518 (2006); Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). In this case, there
is no dispute that Bell’s girlfriend could and did consent
to a search of the hotel room. Likewise, there is no dispute
that she lacked access to or authority over the safe and
could not, therefore, consent to its search.
The only question, therefore, is whether the govern-
ment can bear the burden of demonstrating that the
police faced exigent circumstances when they searched the
safe. See United States v. Marshall, 157 F.3d 477, 482 (7th
Cir. 1998). Exigent circumstances exist if a officer had
an objectively “reasonable belief that there was a compel-
ling need to act and no time to obtain a warrant.” United
States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006). Bell
argues first that any exigencies dissolved once the police
arrived and realized that the kidnapping victim, Colon,
8 No. 05-4288
was not and never had been in the room. Furthermore, he
argues that the police had ample time to obtain a warrant.
The question as to whether exigent circumstances exist
is viewed through the eyes of a reasonable police officer.
Stuart, 126 S. Ct. at 1948. When the officers arrived, they
did indeed conclude that Colon was not in the room and
never had been there. That conclusion, however, did not
eviscerate the exigency. When the officers arrived at the
Holiday Inn at 1:30 a.m., Colon was still missing and the
ransom was four hours late. The kidnappers, who had
already threatened to kill Colon, had called the victim’s
family again demanding to know why the ransom had not
yet been paid. Police officers also knew that the kidnap-
pers were conducting counter-surveillance and that they
probably knew that Bell had been arrested.
Bell argues that because Colon himself could not have
been hidden in the small safe there were no exigencies
that permitted a search of the safe. Although it is true
that there was no evidence that Colon had ever been in
the room, there was a great deal of evidence to suggest
that Bell had been in the room and the officers had
compelling reasons to suspect that Bell was involved in the
kidnapping. They did not believe that the kidnappers
would have trusted a complete stranger to pick up
$100,000 in ransom, and the force with which Bell re-
sisted arrest made the officers believe that he knew he
was on the hook for a serious crime. By the time they
found the safe, the officers knew that Bell had lied about
being homeless (they knew that, at a minimum, he had
been renting a hotel room for a long time and paying
in cash), that he lied about having checked out of the
Holiday Inn, and that he had tried to conceal the loca-
tion of the Holiday Inn in which he had been staying. Of
course Colon himself could not have been concealed in the
safe, but it could have contained phone numbers to reach
accomplices, maps to a hide-out location, notes about the
No. 05-4288 9
kidnapping plan, or Mr. Colon’s wallet or car keys or other
personal effects that would have confirmed Bell’s knowl-
edge of Colon’s whereabouts.
Recently, in Stuart, 126 S. Ct. at 1948-49, the Supreme
Court explored the magnitude of urgency required before
officers may conduct a warrantless search. In Stuart
the police encountered sufficiently exigent circumstances
for a warrantless entry when they observed, through a
screen door, four adults restraining a juvenile. Id. at 1949.
The juvenile eventually broke free and hit one of the
adults who spit blood into a nearby sink. Id. at 1946. The
other adults continued to try to restrain the juvenile,
pressing him up against a refrigerator with such force that
the refrigerator began moving across the floor. Id. Accord-
ing to the Court, the officers had an objectively reason-
able belief that the injured adult might need help and
that the violence was just beginning. Id. at 1949. They
were not required to wait until the violence escalated and
a “blow rendered someone unconscious.” Id. at 1949. In
the case before us, the exigencies were even greater. The
police knew that Colon could be killed at any time and that
Bell might be holding the literal or proverbial key to his
whereabouts.
Bell argues that the prosecution has not demonstrated
that obtaining a warrant would have been impossible or
impracticable during the four hours between Bell’s ar-
rest and the search of his room. Bell, however, is focused
on the wrong time frame. Since the warrantless search of
the room is not at issue, we need only look to see whether
there was adequate time to obtain a warrant to search the
safe. Bell argues that the clock begins to tick at the
moment the officers had the right to obtain a warrant.
United States v. Patino, 830 F.2d 1413, 1417 (1987). In
Patino, law enforcement agents knew, about four hours
prior to the search that the suspect had committed at
least one armed robbery and they had probable cause to
10 No. 05-4288
believe he was staying at the defendant’s home. Id. In
addition, one officer, upon spotting the suspect, sat out-
side his home for thirty minutes waiting for back-up
without making any attempts to secure a telephonic
warrant. Id. at 1416. In this case, on the other hand, the
officers had no idea that they would need a warrant to
search the safe until they arrived at the room and found
first, that there was a safe in the room, second, that the
safe was locked, and third, that the girlfriend who had
consented to the search of the room could not legally
consent to a search of the safe. Prior to the search of the
hotel room, the officers simply had no reason to know they
would need a warrant to search the safe. The clock began
to tick, therefore, at the moment the officers discovered
a locked safe.
Bell’s brief makes much of the fact that no one asked
Bell about the key cards until two hours after his arrest,
and argues that had they done so immediately, they could
have sought a warrant shortly after 9:30 p.m. But a court
may not second guess how the police structure their
priorities in an investigation. In this case, the police and
agents initially focused their efforts on the area sur-
rounding the Logan Square subway station, hoping that
because Bell had a low powered walkie talkie, the kid-
nappers might be in the vicinity. Bell initially told the
officers that he had checked out of the hotel, so the officers
did not prioritize a search for the hotel room. Only after
they ran out of leads did the officers circle back to review
Bell’s personal effects and re-prioritize investigation of
the key.
In any case, we have already concluded that the only
time frame that matters is the time between when the
officers discovered a locked safe and the time they sought
to open the safe. Within minutes of discovering a locked
safe, the officers sought and received access to the safe
No. 05-4288 11
from the hotel manager.1 Indeed, based on the parapher-
nalia in the room, the officers may have believed that the
safe contained drugs, but they may also have believed
that the safe contained clues to the whereabouts of Jesus
Colon. In any event, their subjective suspicions about
the contents of the safe are irrelevant. Stuart, 126 S. Ct.
at 1948. If a reasonable officer might have believed that
the safe contained information that would lead to the
safe recovery of Jesus Colon, then those officers were
justified in searching the safe immediately rather than
waiting for a warrant, even if they also believed they
might find evidence of a drug crime. See id.
In short, the district court correctly determined that
exigent circumstances justified the warrantless search.
We need not decide, therefore, whether the doctrine of
inevitable discovery (which appears to have been forfeited
below in any case) should apply.
The judgment of the district court is affirmed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
1
At times, Bell appears to be relying on the officer’s now
discredited testimony that they waited a half an hour after they
arrived at the hotel before entering the room. The district
court found otherwise (R. at 50, p. 11), and the government
has not challenged this adverse fact finding on appeal.
USCA-02-C-0072—8-31-07