United States v. Lazzerick Alexander ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3718
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L AZZERICK M. A LEXANDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 71—John C. Shabaz, Judge.
A RGUED S EPTEMBER 4, 2008—D ECIDED JULY 21, 2009
Before M ANION, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Lazzerick M. Alexander was
convicted, following his guilty plea, of possession of
two firearms and ammunition by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). The district court sen-
tenced him to 225 months’ imprisonment. Alexander
appeals from the district court’s judgment, arguing that
the court erred in denying his motion to suppress evi-
dence. We affirm.
2 No. 07-3718
I. The Searches
In April 2007, Kathy Bastian, the manager of the
Country Meadows apartment complex at 6804 Schroeder
Road in Madison, Wisconsin, received an anonymous
telephone call about a person staying with one of her
tenants in the apartment complex. The caller, in notable
detail, told Bastien that a man named Lazzerick
Alexander, date of birth 10/24/80, was living with a
Donelle or Vaniece Harris at 6804 Schroeder Road, Apt. 1.
He described Alexander as an African American man of
smaller build, approximately 5 feet 8 inches tall, 165
pounds, and he said that Alexander drove a white
Buick Riviera with Wisconsin license plate number 909-
LRS. The caller also told Bastien that Alexander was
selling crack cocaine out of Apt. 1, charging $100 for eight-
balls, $350 for half ounces, and $700 for one ounce. The
caller said that Alexander cooked the crack in the apart-
ment. The caller also told Bastien that he had heard
that Alexander kept a gun hidden underneath the hood
of the Buick Riviera. He advised her that Alexander
was involved in a stabbing in Madison and currently
was on probation or parole. Bastian called the cops and
gave them the information she had received.
On April 16, 2007, Officer Daniel Nale of the Madison
Police Department (“MPD”) and other MPD officers
were planning to arrest Alexander on the basis of an
outstanding warrant for a parole violation. While planning
for the arrest, Officer Nale heard over the city air channel
that police dispatch was sending two officers to 6804
Schroeder Road to stand by as a vehicle—a white Buick
No. 07-3718 3
Riviera—was repossessed. Because the description of the
vehicle matched the tipster’s description of the vehicle
Alexander drove, Nale asked to be added to the call.
Officer Nale contacted Bryan Bowman, the agent of
Ultimate Repossessors Incorporated who was going to
repossess the vehicle. Bowman told Officer Nale that
he had information that the vehicle was registered in a
female’s name in Marshall, but a male was using the
vehicle and staying at 6804 Schroeder Road Apt. 1.
Officer Nale asked Bowman why he wanted the police
to stand by, and Bowman advised that he heard from
the registered owner of the vehicle (Jennifer Fjelstad)
that the person who had the vehicle might react
violently to its repossession. Officer Nale told Bowman
about his concern that weapons may be in the car and
asked him to wait and see if the police could find the
vehicle first. Bowman agreed.
That evening, officers waited for Alexander at the
Country Meadows parking lot. Officer Nale observed a
white Buick Riviera with Wisconsin license plate 909-LRS
turn into the parking lot. Nale pulled the vehicle over.
He approached and observed Alexander sitting in the
front passenger seat. Officers Dustin Clark and Matt
Schroedl arrived and arrested Alexander based on the
outstanding warrant for his arrest. Sergeant Kosovac
arrived as well. Officer Nale placed the driver, identified
as Antwan Richmond, in handcuffs.
Officer Nale testified at the suppression hearing that
he said something to Alexander about the car and Alexan-
der responded that it was not his car. Alexander claimed
4 No. 07-3718
that the car belonged to Richmond, or Richmond’s girl-
friend, “or whatever.” Nale added that Alexander
repeated three or four times that it wasn’t his car. Simi-
larly, Officer Schroedl testified that during the course
of Alexander’s arrest, Alexander stated that the vehicle
did not belong to him, but belonged to Antwan. Officer
Schroedl’s report states that as he was walking Alexander
back to his squad car, Alexander made reference to
“my car,” but when Schroedl asked whether he was
referring to the Buick Riviera, Alexander stated, “No,
that’s Antwan’s car.” Subsequently, Schroedl placed
Alexander in the back seat of his squad car. Nale’s arrest
report estimates that Alexander and Richmond were
arrested at approximately 8:20 p.m.
Once Alexander and Richmond had been removed
from the Riviera and arrested, Officer Nale called
Bowman who was waiting at a nearby gas station and
told him to come over. When Bowman and another indi-
vidual arrived, Officer Nale identified Bowman based
on a Wisconsin driver’s license. Officer Nale asked Bow-
man if the Buick Riviera was the vehicle he was sup-
posed to repossess, and Bowman answered that it ap-
peared to be, but he would need to confirm the VIN
to make sure. After Bowman confirmed the VIN with
his paperwork, at approximately 8:28 p.m., Officer Nale
turned the vehicle over to Bowman, indicating that the
officers were done with it and had arrested two persons
out of it. Bowman took possession of the Buick Riviera.
Officer Nale then asked him to consent to a search the
vehicle; Bowman gave his consent.
No. 07-3718 5
Officer Nale subsequently searched the vehicle. He
opened the hood to the engine compartment and, at
approximately, 8:33 p.m., found a brown cloth sack, which
he pulled out of the engine compartment. Officer Nale
could tell that the bag contained something heavy, like
a handgun. He and Officer Schroedl opened the bag,
discovering a handgun. Alexander was in Schroedl’s
squad car during the search of the Buick Riviera.
Shortly thereafter, Office Schroedl and two other officers,
including Officer Jeffrey Felt and his canine partner,
Gilden, went to Vaniece Harris’s apartment at 6804
Schroeder Road, Apt. 1. Officer Felt had Gilden conduct
a sniff of the doorway to Apt. 1. The dog didn’t alert.
Officer Schroedl knocked on the door, Harris answered
and gave Schroedl and another officer permission to
enter. The officers told Harris that Alexander had been
arrested. Harris informed the officers that Alexander
lived in the apartment. The officers reported that they
had information that Alexander was cooking crack
cocaine in the apartment and asked Harris if they
could search the apartment. Harris declined to consent,
indicating the officers would need a search warrant. With
that, the officers exited the apartment.
The officers had the dog conduct a second sniff at Har-
ris’s apartment door. This time he sat—an alert for
drugs. As a result, Officer Schroedl again knocked on
the door. When Harris opened it, he and two other
officers entered without asking for permission. Officer
Schroedl testified that they wanted to secure the apart-
ment to ensure that no evidence, especially drugs, was
6 No. 07-3718
destroyed. Officer Schroedl advised Harris that the dog
had alerted to the presence of narcotics and, based on
that and the information that Alexander was cooking
crack cocaine in the apartment, they had probable cause
and would apply for a search warrant. Harris asked
how long that would take, and Officer Schroedl explained
that it would take approximately two hours to draft a
warrant application which would then have to be
reviewed and approved by a judge. He advised Harris
that they would stay until a search warrant was ob-
tained. Officer Schroedl also informed her that she
could consent to a search and it wouldn’t take as much
time. Harris said she would consent to a search of the
apartment. When presented with the consent to search
form, however, she said she didn’t want to sign the
form. Sergeant Linda Kosovac told Harris that they
needed her to sign the form, and Harris responded that
they would have to get a search warrant.
As a result, Sgt. Kosovac instructed Officer Schroedl to
leave and begin drafting the search warrant application.
He left to do so and the other officers remained in the
apartment. Harris telephoned Alexander’s mother to
tell her what had been happening. Sgt. Kosovac advised
Harris they would stay there until the search warrant
came back and that she was free to move about. The
officers maintained a normal conversational tone; they
did not yell at or threaten Harris. Nor did they place her
in handcuffs.
After again talking on the telephone with Alexander’s
mother, Harris told the officers that she would sign the
No. 07-3718 7
consent form and they could go ahead and search. Harris
testified that she had changed her mind: It was late at
night, she had to be at work the next day, and she was
very tired. Harris signed the form. Thereafter, the
officers searched the apartment and found a handgun
and ammunition.
Alexander moved to suppress the evidence found
during the vehicle and apartment searches. After a
hearing, the magistrate judge recommended that the
motion be denied. He determined that Alexander had no
expectation of privacy in the vehicle because he had
denied that it was his and therefore could not challenge
the search. The magistrate judge also concluded that
the searching officers reasonably relied on Bowman’s
apparent authority to consent to the search. And the
magistrate judge reasoned that once the officers found
the bag under the hood of the car, they had probable
cause to believe it contained a gun and could, pursuant
to the automobile exception to the warrant requirement,
open the bag and seize the gun. The magistrate judge
also found that the officers lawfully re-entered Harris’s
apartment and had probable cause to search the apart-
ment. In addition, he concluded that the inevitable dis-
covery doctrine applied. In the alternative, he con-
cluded that Harris had consented voluntarily to the
search of the apartment.
The district court adopted the magistrate judge’s recom-
mendations and denied Alexander’s motion to suppress
evidence. Alexander pled guilty, reserving his right to
appeal the denial of his motion to suppress. The district
8 No. 07-3718
court accepted his plea, imposed sentence, and entered
a judgment of conviction. A timely appeal followed.
II. Analysis of Challenges to the Denial of the
Motion to Suppress
Alexander appeals the district court’s denial of his
motion to suppress. He asserts that the court erred in
refusing to suppress the evidence seized from the
Buick Riviera because he had a possessory interest in the
vehicle which he had not abandoned. He also claims
that Bowman’s consent to search was ineffective given
the extensive police involvement in the repossession
and that the police erroneously relied on Bowman’s
consent. Alexander next argues that the court erred in
refusing to suppress the evidence obtained from Harris’s
apartment because neither probable cause to search nor
exigent circumstances existed. Lastly, he claims that
Harris’s consent was not voluntarily given.
When reviewing the denial of a motion to suppress
evidence obtained during a warrantless search, we
review legal conclusions de novo and factual findings
for clear error. United States v. Sims, 551 F.3d 640, 643
(7th Cir. 2008). Mixed questions of law and fact are re-
viewed de novo. United States v. Fiasche, 520 F.3d 694, 697
(7th Cir.), cert. denied, 129 S. Ct. 281 (2008). The essence
of Alexander’s dispute with the rulings on the motions
to suppress is with the conclusions rather than the under-
lying facts. So our discussion will focus on the district
court’s application of the law to the facts.
No. 07-3718 9
A. Search of the Vehicle
Alexander first argues that the district court erred in
refusing to suppress the evidence obtained from the
search of the Buick Riviera. A defendant who objects to
a search as violating his Fourth Amendment rights bears
the burden of proving that he had a legitimate expectation
of privacy in the area searched. United States v. Yang,
478 F.3d 832, 835 (7th Cir. 2007). A person cannot have
a reasonable expectation of privacy in abandoned
property, United States v. Pitts, 322 F.3d 449, 455-56 (7th
Cir. 2003), unless the abandonment results from police
misconduct, United States v. McDonald, 100 F.3d 1320, 1328
(7th Cir. 1996). “To demonstrate abandonment, the gov-
ernment must prove by a preponderance of the evidence
that the defendant’s voluntary words or actions would
lead a reasonable person in the searching officer’s position
to believe that the defendant relinquished his property
interests in the item to be searched.” Pitts, 322 F.3d at
456 (citation omitted). The test is an objective one: We
consider only “the external manifestations of the defen-
dant’s intent as judged by a reasonable person
possessing the same knowledge available to the” searching
officer. Id.
Alexander contends that the district court erroneously
found that he had abandoned the Riviera because the
government failed to establish that he denied ownership
of the vehicle prior to the search. Though the district court
did not make a specific finding as to when Alexander
denied owning the vehicle, the record establishes that
he began denying that the car was his prior to the search.
10 No. 07-3718
Officer Schroedl’s report states that as he was walking
Alexander back to his squad car, Alexander referred to
the Buick Riviera, saying that it wasn’t his and it was
“Antwan’s car.” The record also establishes that
Alexander repeatedly said that it wasn’t his car and, more
importantly, that Alexander already had been placed in
the squad car by the time the search of the vehicle oc-
curred. Thus, the record supports the finding that Alexan-
der denied ownership of the vehicle prior to the search;
it does not support a finding that his denials were made
as a result of the search of the vehicle.1
Alexander submits that not every disclaimer of owner-
ship signifies relinquishment of a legitimate expectation
of privacy. United States v. Ellis, 499 F.3d 686 (7th Cir.
2007), on which he relies, is unhelpful to him. In that case,
although Ellis denied living in the home when officers
asked him to consent to a search of the home, he later
asserted that he lived there and the government agreed.
Id. at 688-89. Here, in contrast, Alexander was merely a
passenger in the vehicle, the officers knew at the time
of the search that the vehicle was titled in another
person’s name, and Alexander denied that the vehicle
was his prior to the search.
Even assuming that Alexander had an ownership or
possessory interest in the Buick Riviera, in deciding
whether he abandoned that interest, we look to “the
external manifestations of [his] intent as judged by a
1
In any event, as discussed below, the search was lawful
based on Bowman’s apparent authority to consent.
No. 07-3718 11
reasonable person possessing the same knowledge avail-
able to the” searching officers. Pitts, 322 F.3d at 456. The
officers knew that the Buick was titled in Feljstad’s
name and that Alexander had disclaimed that the
vehicle was his. That is enough to establish abandonment
despite the officers’ belief that the Buick Riviera was
Alexander’s. Anyway, the officers had no knowledge at
the time of the search that Alexander claimed to be the
true owner of the Buick by virtue of making the pay-
ments on it, as Alexander later claimed in an affidavit
filed with the district court. A reasonable person in the
searching officers’ position would believe that Alexander
relinquished his property interests in the Riviera. There-
fore, Alexander abandoned the vehicle and his Fourth
Amendment rights were not violated by the vehicle search.
And, as we shall see, the search of the Buick Riviera
was also lawful on another basis—Bowman’s consent.
Alexander first contends that Bowman’s consent to
search was ineffective based on the extensive police
involvement in the repossession. In Alexander’s view,
the police did not merely assist in the repossession, but
rather, repossessed the vehicle for Bowman, using his
desire to repossess the Buick as a pretext to avoid the
warrant requirement. The record establishes that Officer
Nale had been planning to arrest Alexander before
learning that Bowman intended to repossess the vehicle.
And the officers stopped the Buick Riviera and arrested
Alexander and Richmond before turning the vehicle
over to Bowman. While the officers’ stop and arrests
made Bowman’s job much easier and less risky, the two
events—the stop and arrests on the one hand, and the
12 No. 07-3718
repossession on the other—were not one. Viewed in
this way, the officers were not actively involved in the
repossession.
Alexander also challenges the district court’s conclu-
sion that Bowman had apparent authority to consent to
the search of the Buick. Apparent authority to consent to
a search exists “when the facts available to an officer at
the time of a search would allow a person of reasonable
caution to believe that the consenting party had authority
over the premises.” United States v. Ryerson, 545 F.3d
483, 489 (7th Cir. 2008) (citations omitted). The court
considers what the officers knew at the time they sought
consent, not facts that came to light after the search
began. United States v. Groves, 470 F.3d 311, 319 (7th Cir.
2006). An officer has “a duty to inquire further as to a
third party’s authority to consent to a search, if the sur-
rounding circumstances make that person’s authority
questionable.” United States v. Goins, 437 F.3d 644, 648
(7th Cir. 2006).
Alexander claims that the officers lacked sufficient
facts to reasonably believe that Bowman had authority to
consent. Bowman did not present any verification of his
identity as an agent of Ultimate Repossessors, such as a
business card or company identification, and the record
does not reflect that any of the officers knew him from
prior repossessions. Nor did Bowman actually share any
paperwork, such as the order to repossess, with the
officers.
However, other facts known to the officers at the time
would permit them to reasonably believe that Bowman
No. 07-3718 13
had authority over the Buick Riviera. Officer Nale had
heard that dispatch was sending officers to stand by
with a repossessor while he tried to repossess a vehicle.
Officer Nale added himself to the call and contacted the
repossessor, inquiring why he wanted the police to
stand by. Bowman told Nale that the registered owner
had told Bowman that the person who had the car might
react violently to its repossession. After Officer Nale
stopped the Buick Riviera and arrested Alexander, he
called Bowman who came to the scene within a minute
or so. Officer Nale identified Bowman based on his state
driver’s license, thus confirming that he was the person
Nale had contacted earlier regarding the repossession.
Bowman told Nale that the Buick Riviera looked like the
vehicle he was supposed to repossess, but he needed to
check the VIN. According to Officer Nale, Bowman
showed him his clipboard and Nale glanced at it. Bowman
confirmed the VIN with his paperwork and indicated
that the car was the one he was there to repossess. Officer
Nale testified that he had assured himself that Bowman
was who he claimed to be and that he had authority
to consent to the search of the vehicle, which was based
on the fact he was repossessing the vehicle.
It is not surprising that Bowman arrived without any
keys to the Buick Riviera. One would not necessarily
expect the repossessor to have keys to the vehicle to be
repossessed; the persons who drove the vehicle would
be more likely to have the keys. Nor is it surprising
that Bowman arrived without a tow truck at hand. He
did not know, after all, the exact location where the
14 No. 07-3718
vehicle would be found and repossessed. It would only
make sense to first locate and repossess the vehicle and
then call for a tow truck. A repossessor cruising a neigh-
borhood in a tow truck might not be as successful at
locating wanted vehicles as one who arrives in a
less noticeable form of transportation. Besides, the
repossessor may not know what type of tow truck was
needed until the location and condition of the vehicle
are known.
Alexander argues that the officers’ reliance on Bowman’s
consent was unreasonable because the repossession
violated state law. Wisconsin law authorizes a merchant
to repossess collateral provided that the merchant
does not commit a breach of the peace. Wis. Stat. Ann.
§ 425.206(2)(a). According to Alexander, the statute
prohibits repossession when resistance by the debtor or
a third party merely threatens a breach of the peace. For
authority he relies on Hollibush v. Ford Motor Credit Co., 508
N.W.2d 449 (Wis. Ct. App. 1993). But Hollibush does not
stand for the proposition that the mere fear of resistance
by the debtor is a breach of the peace. Instead, Hollibush
held that the creditor’s agent breached the peace by
repossessing the debtor’s vehicle when the debtor or her
fiancé told the agent not to repossess the vehicle. Id. at 455.
Similarly, the other case relied on by Alexander also
involved repossession in the face of the debtor’s objec-
tion, which was found to be a breach of the peace. See
First & Farmers Bank of Somerset, Inc. v. Henderson, 763
S.W.2d 137, 140 (Ky. Ct. App. 1988). Here, neither Fjelstad,
Alexander, nor, for that matter, Richmond, objected to the
repossession. Besides, the concern here is whether the
No. 07-3718 15
officers could have reasonably believed that the
repossessor had authority to give consent. Evaluation of
the reasonableness of their belief in the context of the
Fourth Amendment is not dependent on every nuance
of Wisconsin repossession law. The facts known by these
officers were sufficient to support a reasonable belief
that Bowman had such authority.
The next challenge made by Alexander is that Bowman
lacked authority to consent to the search of closed con-
tainers within the vehicle. We need not address whether
the scope of Bowman’s authority included closed contain-
ers, however. Once Officer Nale opened the hood and
discovered the brown bag inside the engine compart-
ment, together with the informant’s tip that Alexander
kept a gun hidden under the hood, the officers had proba-
ble cause to believe that the bag contained a gun, which
was contraband when possessed by Alexander, a known
convicted felon. See United States v. Scott, 516 F.3d 587, 589
(7th Cir. 2008) (“Probable cause to search exists ‘where
the known facts and circumstances are sufficient to war-
rant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found.’ ” (quot-
ing Ornelas v. United States, 517 U.S. 690, 696 (1996))). And,
under the automobile exception to the warrant require-
ment, they were authorized to open the bag and seize the
handgun. United States v. Ross, 456 U.S. 798, 820-22 (1982)
(permissible scope of search includes containers and
packages found inside vehicle); United States v. Johnson,
383 F.3d 538, 546 (7th Cir. 2004) (stating that scope of
a permissible search extends to the trunk of the vehicle
including any containers therein); United States v. Young,
16 No. 07-3718
38 F.3d 338, 340 (7th Cir. 1994) (“A search of an auto-
mobile based on probable cause lawfully extends to all
parts of the vehicle in which contraband or evidence
could be concealed, including closed compartments
and trunks.”).
We conclude that the warrantless search of the Buick
Riviera and the bag found in the engine compartment
was reasonable under the Fourth Amendment. Accord-
ingly, the district court correctly denied Alexander’s
motion to suppress the gun seized during that search.2
B. Entry and Search of the Apartment
Alexander challenges the district court’s refusal to
suppress the handgun and ammunition obtained from
the search of the apartment. He maintains that the
officers’ re-entry into the apartment was unlawful, that
the officers lacked probable cause to search the apart-
ment, and that Harris’s consent to search was not volun-
tarily given.
Alexander argues that exigent circumstances did not
justify the re-entry into the apartment and subsequent
seizure of evidence. The presence (or not) of exigent
circumstances in this case is beside the point. In Segura v.
2
We need not rely on the search incident to arrest exception,
so Arizona v. Gant, 129 S. Ct. 1710 (2009), has no direct bearing
on this case—except that we note that the Supreme Court
continues to recognize the automobile exception to the
warrant requirement. Id. at 1721.
No. 07-3718 17
United States, 468 U.S. 796 (1984), the Supreme Court held
that an illegal entry upon the premises did not require
the suppression of evidence later discovered pursuant to
a valid search warrant issued on the basis of information
wholly unconnected to the illegal entry. Id. at 813-14.
The illegality of the entry is irrelevant to the admissibility
of evidence obtained through an independent source.
Id. The Court also held that officers who have probable
cause may enter and secure the premises from within
to preserve the status quo while a search warrant is
obtained without violating the Fourth Amendment’s
prohibition of unreasonable seizures. Id. at 810.
Thus, whether the officers’ re-entry into Harris’s apart-
ment was illegal is irrelevant. None of the information
which would support the issuance of a search war-
rant was based on anything the officers learned from
their re-entry into the apartment. They did not conduct
a search of the apartment immediately upon re-entering.
Instead, they entered to secure the premises to prevent
the destruction of evidence while they sought to obtain
a search warrant. This they could lawfully do, provided
they had probable cause.
So, we turn to that question. “Probable cause to search
exists ‘where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the
belief that contraband or evidence of a crime will be
found.’ ” Scott, 516 F.3d at 589 (quoting Ornelas v. United
States, 517 U.S. 690, 696 (1996)). The probable cause deter-
mination asks whether “given the totality of the circum-
stances, there is a fair probability that contraband or
18 No. 07-3718
evidence of a crime will be found in a particular place.”
Id. (quotation omitted).
According to Alexander, the highly detailed tip pro-
vided to the police was corroborated only by illegally
obtained evidence, namely, the handgun found in the
Buick Riviera and, without that, the officers lacked proba-
ble cause to search the apartment. Police corroboration
of an informant’s tip is valuable in determining the reli-
ability of the tip and, ultimately, in establishing probable
cause. United States v. Wiley, 475 F.3d 908, 916 (7th Cir.
2007); United States v. Olson, 408 F.3d 366, 372 (7th Cir.
2005). Alexander is right that the discovery of the hand-
gun corroborated the tip. But he is wrong to believe this
poses a problem. As addressed above, the gun was not
illegally obtained.
Alexander also challenges the district court’s con-
clusion that the dog’s alert provided probable cause to
search. He disputes whether the dog was sufficiently
reliable based on his failure to alert initially to the door-
way. It may be that the dog’s alert on the second try would
be insufficient, by itself, to establish probable cause. Yet
probable cause is based on the totality of the circum-
stances. Probable cause to search the apartment existed
independent of the dog’s positive alert. The dog’s alert
merely provided another circumstance supporting the
reasonable belief that the apartment contained drugs.
Because the officers had probable cause to search the
apartment, they lawfully could enter the apartment to
secure it and maintain the status quo while obtaining
a search warrant.
No. 07-3718 19
Moreover, a warrant to search the apartment would
have been issued. Thus, the search was lawful notwith-
standing Harris’s consent. Under the inevitable dis-
covery doctrine, the exclusionary rule is inapplicable
where the government establishes by a preponderance of
the evidence “that the information ultimately or
inevitably would have been discovered by lawful means.”
Nix v. Williams, 467 U.S. 431, 444 (1984); see also United
States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008) (stating
in the context of a warrantless search that the inevitable
discovery doctrine applies where the government estab-
lishes “that a warrant would certainly . . . have been
issued had it been applied for”). The government has
met that burden here.
As we said, the officers had probable cause to search the
apartment. In addition, they had begun the process of
obtaining a search warrant. Sgt. Kosovac directed Officer
Schroedl to return to the police station to draft a search
warrant application and Schroedl already had left to
do that very thing. A warrant surely would have been
issued had he completed the process of applying for
one. And there is no reason to believe that he wouldn’t
have done so in the absence of Harris’s consent to
search. Therefore, the handgun and ammunition were
admissible under the inevitable discovery doctrine.
Furthermore, Harris did give her consent to search.
Though Harris’s consent is irrelevant given the
inevitable discovery doctrine, we will consider whether
her consent was voluntary as this would provide an
independent basis for upholding the apartment search.
20 No. 07-3718
The voluntariness of a consent to search is a factual
determination, which we review for clear error. United
States v. Johnson, 495 F.3d 536, 541 (7th Cir.), cert. denied,
128 S. Ct. 725 (2007). The government bears the burden of
proving voluntariness. Id. In determining the voluntari-
ness, we consider the totality of the circumstances, in-
cluding such factors as:
(1) the person’s age, intelligence, and education,
(2) whether [s]he was advised of h[er] constitutional
rights, (3) how long [s]he was detained before [s]he
gave h[er] consent, (4) whether h[er] consent was
immediate, or was prompted by repeated requests
by the authorities, (5) whether any physical coercion
was used, and (6) whether the individual was in
police custody when [s]he gave h[er] consent.
Id. at 542 (quotation omitted).
Alexander identifies several factors to support his
claim that Harris’s consent was not voluntary: she was
22 years old; her only prior interaction with the police
had been related to traffic violations; she did not consent
immediately but only after the officers persisted; at least
three officers were present; she believed the officers
would tear the place apart if she refused to consent; they
advised her that if she refused consent and any contra-
band was found, she would be arrested; and they repre-
sented that they would obtain a search warrant. As to
these last two points, an officer’s factually accurate state-
ment that the police will take lawful investigative action
in the absence of cooperation is not coercive conduct. See
United States v. Miller, 450 F.3d 270, 272-73 (7th Cir. 2006),
No. 07-3718 21
abrogated on other grounds by Kimbrough v. United States,
552 U.S. 85 (2007). There is no reason to doubt that the
officers would have obtained a search warrant had
they applied for one, and they could have arrested
Harris upon discovering contraband in her apartment.
Both the magistrate judge and district judge con-
sidered the relevant factors and determined that
Harris’s consent was voluntarily given. The findings,
based on Harris’s own testimony, that Harris “is intelli-
gent, articulate, and strong-willed” and “refused to
consent until she decided, on her own, that it was in her
best interest” are not clearly erroneous. Harris chose to
change her mind and voluntarily gave her consent to
search. The district court did not err in finding that
her consent was voluntary.
That doesn’t end our inquiry, though, as Alexander
claims that the officers’ illegal entry into the apartment
tainted Harris’s consent. Even assuming that the officers’
re-entry was illegal, suppression would not be required.
Where “consent is obtained pursuant to an illegal entry,
the burden of persuasion is on the government to demon-
strate that the consent was not tainted by the illegal
entry.” United States v. Robeles-Ortega, 348 F.3d 679, 683 (7th
Cir. 2003) (citation omitted). The government may make
this showing by establishing that “the consent was ob-
tained by means sufficiently distinguishable from that
illegal . . . entry so as to be purged of the primary taint.” Id.
Factors we consider in determining whether an illegal
entry tainted consent include: “(1) the temporal proximity
of the illegal entry and the consent, (2) the presence of
22 No. 07-3718
intervening circumstances, and, particularly, (3) the
purpose and flagrancy of the official misconduct.” Id. at
681. The district court did not apply these factors
because it believed that the re-entry was legal. Our ap-
plication leads us to the conclusion that the re-entry did
not taint Harris’s consent.
The temporal proximity of the alleged illegal re-entry
and Harris’s consent is unclear, but the record reveals
that the consent did not follow right on the heels of the
officers’ re-entry. There was enough time between the re-
entry and Harris’s consent for the following to occur: the
officers explained the warrant application process to
Harris and requested her consent, which was refused;
Sgt. Kosovac retrieved a written consent form from her
squad car and returned to the apartment to review it
with Harris; Harris verbally consented but then refused
to sign the form; Officer Schroedl left to prepare a
warrant application; Harris phoned Alexander’s mother
to discuss the situation at which point Harris decided to
consent to search; and Sgt. Kosovac reviewed the
written consent form with Harris. These facts reflect not
only the passage of time but also intervening circum-
stances—Harris’s call to Alexander’s mother and subse-
quent decision to execute the consent form. As for the
third factor, the purpose of re-entry was to secure
the premises and maintain the status quo. The officers
did not search the apartment and did not discover any
evidence to use to coerce Harris’s consent. Nor is there
any suggestion that they used force or violence to en-
ter—they knocked on the door and, when Harris
opened it, they entered without seeking her permission.
No. 07-3718 23
Alexander submits that the re-entry was calculated to
surprise and confuse Harris, but the manner of the
entry does not bear this claim out. Indeed, the re-entry
was prompted by the dog’s alert on the second try.
Our consideration of the relevant factors leads to the
conclusion that the re-entry did not taint Harris’s consent.
For all of these reasons, we conclude that the district
court properly refused to suppress the handgun and
ammunition found in Harris’s apartment.
III. Conclusion
We A FFIRM the district court’s judgment.
7-21-09