In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3137

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARNELL L. ELLIS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 107—Rudolph T. Randa, Chief Judge.

____________

ARGUED MARCH 27, 2007—DECIDED AUGUST 27, 2007

____________

Before MANION, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. Darnell Ellis was convicted of

possessing in excess of 500 grams of cocaine and was

sentenced to 70 months’ imprisonment. The drugs were

discovered by DEA agents and local police officers during

a search of Ellis’s home. Ellis did not consent to the

search and the agents and officers did not have a warrant

when they entered the home. The district court concluded

that there was probable cause and exigent circumstances

sufficient to uphold the search. Following the district

court’s decision, Ellis entered into a plea agreement but

retained the right to appeal the district court’s decision on

the legality of the search. We conclude that the search

was improper and therefore reverse.
2 No. 06-3137

I. HISTORY

On March 21, 2005, DEA agents in Milwaukee, Wisconsin were contacted by a cooperating informant (“CI”). The

CI told them that he had been contacted by Daniel Garrity

who wanted to sell the CI some crack cocaine. The DEA

agreed to go forward using the CI in the transaction. The

CI and Garrity arranged to meet that day at a parking lot

outside a fast food restaurant in the 3300 block of 23rd

Street in Milwaukee. The DEA agents established a

surveillance of the parking lot and placed electronic

devices on the CI to record the CI’s conversations and

track his movements.

The CI and Garrity each arrived in separate vehicles.

The CI got into Garrity’s vehicle and they negotiated the

transaction. Approximately thirty minutes into the discussions, Garrity called his supplier on a cell phone

and instructed the supplier to deliver the drugs to the

parking lot. The supplier was unknown at that time but he

later would be identified as Mitchell Wilson. Wilson

arrived at the parking lot in a third vehicle and delivered

the crack cocaine to Garrity. Garrity and the CI then

completed the transaction and all three individuals

went their separate ways in their own vehicles.

The DEA agents decided to follow Wilson. Wilson went

to 3758 N. 40th Street, a duplex home. Wilson remained

at the 40th Street home for a few minutes and then left.

The agents then ended their surveillance and Wilson’s

identity remained unknown at that time.

A few days later, the agents decided to arrange a second

controlled buy from Garrity through the CI. The agents

apparently hoped that Garrity would use the same supplier. A second transaction was arranged for March 29th.

However, Garrity was arrested before the second transaction could occur. The record does not explain why Garrity

was arrested before he was able to complete the second
No. 06-3137 3

transaction. The agents questioned Garrity but he refused

to disclose the identity of his supplier.

Hitting a dead end with Garrity, the DEA agents decided

to perform a “knock and talk” investigation of the 40th

Street home. A five person team was assembled consisting

of Milwaukee police officers Chu, Lopez and McNeil and

DEA agents Krueger and Ludington. The DEA learned

that Rufus Jackson was the listed tenant for the home and

that Jackson had two prior drug convictions. However, the

team members were told other incorrect information. Team

members were inaccurately informed that the 40th Street

home was involved in drug transactions. Officer Lopez

erroneously believed that a prior drug purchase had

occurred at the 40th Street home.

Once arriving at the 40th Street home, the officers and

agents surrounded the home. Officers McNeil and Chu

went to the front door. Officer Lopez positioned himself at

the side door and Agents Krueger and Ludington were at

the back door. McNeil and Chu then knocked on the front

door and announced themselves as police officers. Officers

McNeil and Chu are patrol officers and were wearing their

Milwaukee Police Department uniforms. Ellis did not

open the door and instead spoke to McNeil and Chu

through the door. McNeil and Chu asked Ellis to open the

door so that they could come into the home. Officers

McNeil and Chu claimed that they were investigating a

missing child and asked Ellis’s consent to search the home.

Ellis said no and responded that he did not live there, no

one who lived at the home was present at the time and

that the police should come back later when the residents

would be home. During the conversation between Ellis

and Officers McNeil and Chu, Officer Lopez heard movement in the home and a person running up and down the

stairs.

The movement turned out to be a second person in the

home, Demarius Dean. Hearing Dean’s movement, Officer
4 No. 06-3137

Lopez concluded that the occupants in the home were

trying to destroy drugs. Lopez called out to the other

officers and agents telling them that the residents were

trying to destroy evidence. Officer Chu then came over to

Officer Lopez’s position at the side door and Officers Chu

and Lopez broke down the side door entering the home.

Lopez then saw Ellis at the front door. Agent Krueger

entered into the home and went to the top of the stairs

leading to the basement. He saw Dean holding an object.

Krueger pointed his gun at Dean and told him to lay on his

stomach. Krueger then determined that Dean was holding

his cell phone. The agents and officers then conducted

protective sweeps of the first floor and basement areas.

They discovered cocaine residue in a bedroom on the

first floor. They obtained a search warrant and then

searched the home. The search discovered a firearm and

two and half kilograms of cocaine.

Ellis filed a motion to suppress arguing that the government entered the home unlawfully and therefore conducted

an illegal search and seizure. The magistrate judge

recommended that the motion to suppress be denied and

the district court adopted the recommendation in toto.

II. ANALYSIS

“In reviewing the district court’s denial of a motion to

suppress, we review questions of law de novo and factual

findings for clear error.” United States v. Groves, 470 F.3d

311, 318 (7th Cir. 2006) (citing United States v. Denberg,

212 F.3d 987, 991 (7th Cir. 2000)). “The determination of

probable cause is normally a mixed question of law and

fact, but when ‘what happened’ questions are not at issue,

the ultimate resolution of whether probable cause existed

is a question of law, which we review de novo.” Smith v.

Lamz, 321 F.3d 680, 684 (7th Cir. 2003) (citing Ornelas v.
No. 06-3137 5

United States, 517 U.S. 690, 696 (1996); Cervantes v.

Jones, 188 F.3d 805, 811 (7th Cir. 1999)).

Although Ellis denied living in the home when speaking

to Officers McNeil and Chu through the closed front door,

the government agrees that Ellis did live in the home. He

had a legitimate expectation of privacy in his home and

therefore he has standing to challenge the search of the

home. See generally United States v. Mendoza, 438 F.3d

792, 795 (7th Cir. 2006) (noting that a defendant must

demonstrate a legitimate expectation of privacy in order

to raise a Fourth Amendment challenge). We therefore

turn to the merits of the Fourth Amendment issue.

“The ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed’,

and accordingly, warrantless entries are considered

presumptively unreasonable.” United States v. Rivera, 248

F.3d 677, 680 (7th Cir. 2001) (quoting Payton v. New York,

445 U.S. 573, 585-86 (1980); United States v. United States

District Court, 407 U.S. 297, 313 (1972); United States v.

Saadeh, 61 F.3d 510, 516 (7th Cir. 1995)). “[Warrantless]

searches [of a home] are constitutionally permissible . . .

where there is probable cause and exigent circumstances

create a compelling need for official action and insufficient

time to secure a warrant.” United States v. Andrews, 442

F.3d 996, 1000 (7th Cir. 2006) (quoting United States v.

Marshall, 157 F.3d 477, 481-82 (7th Cir. 1998)).

“[D]etermining whether probable cause exists involves

a ‘practical, common-sense decision whether, given all the

circumstances set forth . . . there is a fair probability that

contraband or evidence of a crime will be found in a

particular place.’ ” United States v. Hines, 449 F.3d 808,

814 (7th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983); United States v. Markling, 7 F.3d 1309, 1317

(7th Cir. 1993)). “Probable cause is a fluid concept based

on common-sense interpretations of reasonable police
6 No. 06-3137

officers as to the totality of the circumstances” known at

the time the event occurred. United States v. Breit, 429

F.3d 725, 728 (7th Cir. 2005) (citing United States v.

Brown, 366 F.3d 456, 458 (7th Cir. 2004); United States v.

Sholola, 124 F.3d 803, 814 (7th Cir. 1997)). “The principal

components of a determination of . . . probable cause will

be the events which occurred leading up to the . . . search,

and then the decision whether these historical facts,

viewed from the standpoint of an objectively reasonable

police officer, amount to . . . probable cause.” Ornelas, 517

U.S. at 696.

The magistrate judge identified three items to support

the determination that probable cause existed when the

officers entered the home. First, the unknown supplier

had gone to the 40th Street home immediately after

completing the March 21st transaction and the government determined that the listed resident, Rufus Jackson,

had two prior drug convictions. Second, Ellis had refused

to open the door and denied that he lived at the home

when he spoke with Officers Chu and McNeil. The magistrate’s decision stated that “[w]hile citizens certainly have

the right to refuse law enforcement officials’ requests to

enter their home, officers are not obligated to ignore

reasons for a refusal that they deem unusual or suspicious.” R. 43 at 7. Agent Krueger’s testimony, as credited

by the magistrate, was that Ellis’s statement that he was

not a resident of the home was suspicious. Agent Krueger

explained that in his experience, a person will deny being

an occupant of the home in anticipation of a search by

the police so that the denying person can later claim that

he was not responsible for drugs found during the search.

Finally, the magistrate judge pointed to the movement in

the home heard by Officer Lopez. The magistrate judge

explained that movement can lead to the suspicion that

the occupants were trying to destroy evidence before

the police could enter.
No. 06-3137 7

However, the error in the district court was imputing

the knowledge of the officers at the front door to Officer

Lopez at the side door. Officer Lopez testified during the

suppression hearing that he made the decision to enter the

home upon hearing the footsteps within the home. Tr. at

69. Lopez also testified that although he could hear that

Ellis and Officers Chu and McNeil were talking at the

front door, Lopez “couldn’t hear exactly what was being

said back and forth.” Tr. at 66. There is also no evidence

that Officers Chu and McNeil communicated to Lopez

before Lopez entered the home. Chu moved from the

front door to the side door to assist Lopez in breaking

down the door. However, Lopez was clear to point out in

his testimony that he made the decision to enter the home

based on the running in the house and Chu apparently

came over to assist Lopez after Lopez had decided to

break down the side door. Lopez did not hear Ellis’s

allegedly “suspicious” denial that he did not live in the

home and his alleged statement that there was no one

else in the home.

The inability to impute knowledge to Lopez in this

situation must be contrasted to those situations in which

we allow the imputing of knowledge between officers.

“Under the collective knowledge doctrine, the knowledge

of one police officer is imputed to other officers when they

are in communication regarding a suspect. This doctrine

permits arresting officers to rely on the knowledge, but not

necessarily the conclusions (such as whether probable

cause exists), of other officers. . . . [An] officer need not be

personally aware of all of the specific facts supporting

probable case, so long as an officer who is aware of such

facts relay them to the other [officer].” Reynolds v.

Jamison, 488 F.3d 756, 768 n.7 (7th Cir. 2007) (citing

United States v. Hensley, 469 U.S. 221, 232-33 (1985);

United States v. Sawyer, 224 F.3d 675, 680 (7th Cir.

2000)). As there was no communication from Officers Chu
8 No. 06-3137

and McNeil at the front door to Lopez at the side door, it

was improper to impute their knowledge to Lopez.

Consequently, a recitation of the pertinent facts for the

evaluation of whether Lopez had probable cause to enter

via the side door are: (1) an unknown drug supplier visited

the home a week earlier for a few minutes, (2) the registered occupant had two prior drug convictions, (3) the

person at the front door (Ellis) would not allow Officers

Chu and McNeil to enter the home, and (4) Lopez heard

movement in the home that made him concerned that

drugs were being destroyed. On item three, we can infer

that Lopez knew that Ellis was refusing entry to Chu and

McNeil because the team’s plan was to obtain consent to

enter into the home. Consequently, a reasonable officer in

Lopez’s position would recognize that consent was not

being offered when Chu and McNeil continued to talk to

Ellis through the door.

A reasonable officer in Lopez’s position can properly

consider the fact that the then unknown supplier visited

the 40th Street home immediately after supplying drugs

to a drug transaction. Although “a person’s mere propinquity to others independently suspected of criminal

activity does not, without more, give rise to probable

cause,” United States v. Carpenter, 342 F.3d 812, 815 (7th

Cir. 2003) (quoting Ybarra v. Illinois, 444 U.S. 85, 91

(1979)), it is appropriate to “draw reasonable inferences

about where evidence is likely to be kept, based on the

nature of the evidence and the type of the offense.” United

States v. Mykytiuk, 402 F.3d 773, 778 (7th Cir. 2005)

(quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th

Cir. 1996); United States v. Sleet, 54 F.3d 303, 306 (7th

Cir. 1995)). “In the case of drug dealers evidence is likely

to be found where the dealers live.” Mykytiuk, 402 F.3d at

778-79 (quoting Reddrick, 90 F.3d at 1281; United States

v. Lamon, 930 F.3d 1183, 1188 (7th Cir. 1991)). Although
No. 06-3137 9

there was no evidence that the supplier lived at the 40th

Street home, the fact that the supplier went to the home

immediately after making a drug delivery is a fact to be

considered in the probable cause determination.

We have also recognized that a person’s reactions to the

police can be considered in a probable cause determination.

“While mere presence at the scene of a crime is not

enough to establish probable cause, we know that it is

generally accepted that ‘flight can be strong evidence of

guilt.’ ” United States v. Schaafsma, 318 F.3d 718, 722 (7th

Cir. 2003) (quoting United States v. Lima, 819 F.2d 687,

689 (7th Cir. 1987)). Drugs are an easily destroyable form

of evidence and therefore an officer’s suspicions may be

raised when he or she hears movement. United States v.

Gillaum, 372 F.3d 848, 855 (7th Cir. 2004). This suspicion

could be increased if it appears that another occupant

is preventing the police from entering in another location

to buy time for his cohort.

However, the problem in this case is that the officers and

agents lacked a warrant when they approached the home

and utilized tactics that, if allowed to go unchecked, would

eliminate the Fourth Amendment warrant requirement

for a home with any connection to drugs. The 40th Street

home had some connection to drug activity but it was

rather low and by itself would not be sufficient to establish probable cause.

Knocking on a door will result in movement in any

home because an occupant will move to the door to see

who is knocking and possibly to answer the door. Others

in the home will likely also move to see what is occurring.

In this case, the home was effectively surrounded by

officers and agents at the front, side and back. The record

tells us that Officers Chu and McNeil at the front door

were uniformed officers but the record does not tell us if

the DEA agents at the back wore jackets identifying
10 No. 06-3137

themselves as DEA agents or if Lopez was identified on

the side. It is reasonable that any person, not just people

trying to destroy drugs, would be moving throughout the

home to see what was going on the front, side and back of

the home.

The key is that Lopez makes no efforts to differentiate

the movement that occurred in the 40th Street home from

the reasonable type of movement that would be found in

any home where there was a knock on the door. There is

no evidence that anyone in the 40th Street home said “It’s

the cops,” the flushing of toilets, the throwing of items out

of the windows, the immediate running out of another exit,

the slamming of doors or other actions that could lead to

a conclusion of criminal activity occurring within the

home. In short, there is no evidence in the record to

demonstrate that Lopez had any reason to single out the

40th Street home from any other home that has been

connected to drug activity.

Thus, if we affirm the district court’s decision in this

case, we have effectively created a situation in which the

police have no reason to obtain a warrant when they want

to search a home with any type of connections to drugs. If

the police knock on the door and seek to talk to the

occupant without a warrant, there likely will be movement

within any home. The police will then be able to respond

that this movement increased their suspicion and also

creates exigent circumstances that required that they

enter into the home to prevent the destruction of the drugs

that the police believed to be in the home. Alternatively,

an occupant might open the door and consent to entry

by the police. Thus, we have two choices presented to home

occupants whose homes have some type of connection to

drugs, either consent to the police when they ask to come

into your home or if you do not consent, your movement

within your own home to answer the door and the movement by others in the home, along with your home’s prior
No. 06-3137 11

contact with drug activity, will create sufficient probable

cause and exigent circumstances to allow the police to

enter the home without the warrant.

We note that our conclusion relies on the fact that there

is a minimum of information presented by the government

about the 40th Street home on the probable cause issue.

There was no effort by the government to develop additional evidence of criminal activity in the home before

they decided to perform a knock and talk investigation. It

was the government’s decision to inform the occupants of

the 40th Street home that they were targets of a government investigation when the government knocked on the

front door and asked for consent to come into the home.

The government took a gamble hoping that the occupants

would consent to their entry or would open the door

revealing contraband in plain sight. Perhaps if the government had come up with a better story than, “We’re

looking for a lost child, can we search the home?” they

might have been able to convince Ellis to consent to their

entry. However, once Ellis refused to consent, the occupants knew of the government’s investigation of the home

and so the government was concerned that the occupants

might destroy any drugs that could be in the home.

However, it was the government’s choice to reveal itself

to the home occupants by engaging in a “knock and talk”

investigation and its decision backfired. It is perfectly

lawful for the government to knock on the front door of

home and ask to come in. However, once Ellis said no, the

government could not save its case by kicking in the side

door when it lacked either a warrant or probable cause

coupled with exigent circumstances. We return the case to

the district court to consider in the first instance whether

there are any additional arguments to save the government’s search of the 40th Street home and with it the

government’s case against Ellis.
12 No. 06-3137

III. CONCLUSION

The decision of the district court is REVERSED and the

case is REMANDED for additional proceedings consistent

with this decision.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-27-07