within a recognized warrantless search exception. See Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973). In its opposition to defendant’s suppression motion, the government argues that the
search in question was conducted by consent of the defendant and, moreover, that the
government agents entered the house with the consent of the defendant’s wife. This court must
examine the consent argument by determining whether the consent, in light of the totality of the
circumstances, was given freely and voluntarily. Id, at 221.

The Fifth Amendment analysis used in this court’s previous decision to suppress
defendant’s voluntary but unwarned custodial statements also turns on the issue of voluntariness.
Missouri v. Seibert, 124 S. Ct. 2601 (2004). When government agents interrogate a suspect

without first informing the suspect of his or her Miranda rights, the court must determine whether

the suspect’s will was overborne by the interrogation such subsequent statements were
involuntary. Id.; United States v. Hocking, 860 F.2d 769, 774 (7" Cir. 1988).

Defendant’s briefs in this suppression motion raise an implied argument that this court
should apply the fruit of the poisonous tree doctrine first developed in Wong Sun v. United
States, 371 U.S. 471 (1963), to both Fourth Amendment and Fifth Amendment failure-to-warn
situations. Although there is an appealing consistency in such an extension, the Supreme Court

has declined to take this step. See, e.g., Seibert, 124 S. Ct. 2601; United States v. Patane, 124 S.

Ct. 2620 (2004). Instead, despite the overlapping fact patterns that may give rise to both Fourth
and Fifth Amendment evidentiary questions, courts often must tread a tight and constrained path
through the case law at the nexus of the two.

Defendant frames this suppression motion as a Fourth Amendment issue, and this court

will follow that direction. As noted above, the analysis under both the Fourth and Fifth

“4.


rendered the same day as Seibert, contradicts defendant’s assertion, however, clearly stating that

a failure to give Miranda warnings does not require “suppression of the physical fruits of the
suspect’s unwarned but voluntary statements.” United States v. Patane, 124 S.Ct. 2620, 2624
(2004).

In Patane, defendant was arrested for harassing his ex-girlfriend and subsequently
released subject to a temporary restraining order. Defendant apparently violated the restraining
order and local police began an investigation. After learning from an agent of the Bureau of
Alcohol, Tobacco and Firearms (“ATF”) that defendant, a convicted felon, possessed a firearm,
local police and ATF agents went to defendant’s home and arrested defendant for violating the

restraining order. The police officer began to advise defendant of his Miranda rights, but did not

get beyond the right to remain silent before defendant interrupted and asserted that he knew his
rights. The officers then questioned defendant about the firearm, asked for and received
permission to retrieve it, and seized the gun. The trial court granted defendant’s motion to
suppress the firearm on the grounds that officers lacked probable cause to arrest defendant for
violating the restraining order. The Court of Appeals affirmed the suppression order, but rejected
the probable cause reasoning. Instead, it based its opinion on its reading of Dickerson v. United

States, 530 U.S. 428 (2000), as announcing that “a failure to warn pursuant to Miranda is itself a

violation of the Constitution.” Patane, 124 S.Ct. at 2625. The Supreme Court, in its plurality

decision overruling the appellate court, stated that “the Miranda rule is a prophylactic employed

to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause,

however, is not implicated by the admission into evidence of the physical fruit of a voluntary


[government agents] took control over the house as if executing a search or arrest warrant.”
Def.’s Reply Br. at 1, SA McCune and Mrs. Renken give conflicting accounts of what happened
at the doorway of the house that night. SA McCune stated that the government agents asked if
they could speak with Mrs. Renken and that she agreed and invited them into the house. The
government notes that the defendant does not allege Mrs. Renken objected to the government
agents’ entry nor that the agents threatened her, physically or verbally, or claimed to have
independent authority to enter the house.

The burden of proving voluntariness of consent, however, remains on the government.

Schneckloth y. Bustamonte, 412 U.S. 218, 222 (1973) (quoting Bumper v. North Carolina, 391

US. 543, 548 (1968)). Voluntariness is a question of fact, to be determined by examining the

totality of the circumstances.” Schneckloth, 412 U.S. at 227. “But the Fourth and Fourteenth

Amendments require that a consent not be coerced, by explicit or implicit means, by implied
threat or covert force.” Id. at 230. However, “unlike those constitutional guarantees that protect a
defendant at trial, it cannot be said that every reasonable presumption ought to be indulged
against voluntary relinquishment.” Id. at 243. The Seventh Circuit has outlined factors for a trial
court to consider in evaluating voluntariness of consent, including “age, education and
intelligence of the defendant; advisement of his rights; how long he was detained prior to the

consent; repeated requests for consent; physical coercion; and whether he was in custody.”

2a

[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of
his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact
voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to
be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be
taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a
voluntary consent.” Id. at 248-49,

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Amendments in this specific situation turn on voluntariness and the result under either
framework would be the same.

B. A Warrantless Search Must Fall Within A Warrantless Search Exception
Under the Fourth Amendment

Defendant correctly notes that the Fourth Amendment requires a state-initiated search be
reasonable and that such reasonableness is generally determined by the existence of a valid

warrant. The touchstone of the Fourth Amendment is “reasonableness.” Florida v. Jimeno, 500

US. 248, 250 (1991) (citing Katz v. United States, 389 U.S. 347, 360 (1967)). The Fourth
Amendment, however, does not prohibit all state-initiated searches but rather proscribes those

which are “unreasonable.” Jimeno, 500 U.S. at 250. To determine whether a search was

reasonable, as a threshold matter, a court must consider whether there was a valid warrant issued
therefor, and if not, whether the search falls into one of the recognized exceptions to the search
warrant requirement.

The defendant argues that a warrantless search that does not fall into one of the
warrantless search exceptions must be invalid. The government asserts that the search in question
was protected under the consent search exception. We turn now to examine the question of
consent in the search.

1. The Initial Entry and Seizure of the House Was By Consent

The government asserts that its agents entered defendant’s house with the consent of
defendant’s wife and immediately moved to secure the premises. Defendant argues that
defendant’s wife did not consent to the agents’ entry, but rather that “[a]t best, Ms. Renken, a

good citizen, opened the door because the FBI/police knocked on it. Once the door was open, the


contain any allegation or evidence that Mrs. Renken verbally or physically sought to deny entry
to the agents; in fact, it appears that she gave some kind of implied consent to entry, even if there
was no verbal assent to their request to speak to her husband. This Court notes, however, that this
kind of implied consent should not be assumed in every case. The effect of opening one’s front
door to find three law enforcement officials, one in uniform and with an exposed weapon, on the
front step at 10:40 p.m., and several more armed agents arrayed around the perimeter of one’s
property, likely would have an intimidating effect on many people; an instinctive recoil should
not be taken for a consent to enter without more persuasive evidence from the government.
Indeed, if voluntariness were the only issue to examine in this suppression motion, instead of
consent, it would be hard to justify how this encounter was voluntary. From the moment Mrs.
Renken opened the door of the house until the agents left with her husband, the setting strongly
suggests coercion and intimidation. However, the support provided for both parties’ positions on
this point was conclusory and rhetorically weak.

Cc Under Fifth Amendment Case Law, A Miranda Violation Does Not Require
Suppression of Non-Testimonial Evidence

Defendant asserts that the evidence seized during the search of his house and sport-utility
vehicle on the night of November 13, 2002 must be suppressed because “the same circumstances
that caused the defendant’s illegal confessions to be suppressed make the consents [sic] to search
... illegal.” (Def.’s Br. at 6.) This court’s decision to suppress defendant’s statements rests on
Missouri v. Seibert, 124 S. Ct. 2601 (2004), which held that the question-first interrogation
technique, in which Miranda warnings were given mid-interrogation, were ineffective and post-

warning confessions therefore inadmissible at trial. Another recent Supreme Court decision,


+ Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Ni i + Sittin, if Oth
venir Magistrate Judge David H. Coar than Assigned Judge
CASE NUMBER 02 CR 1099 DATE 10/27/2004
CASE United States of America vs. Henry C. Renken
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented]

MOTION:
Defendant’s Motion to Suppress Evidence
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due
(4) oO Ruling/Hearing on setfor at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on___—setfor__—__at
(6) QO Pretrial conference[held/continued to] [set for/re-set for}on__——ssetfor_——s at.
(7) Qa Trial{set for/re-set for]on__—_aat i”
(8) a [Bench/Jury trial] [Hearing] held/continuedto__—_at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Ci Local Rule 41.1. OFRCP41(a)(1) O FRCP41(a)(2).
ao) [Other docket entry] As discussed on the attached memorandum opinion and order, Defendant’s

Motion to Suppress Evidence [Doc. No. 85-1] is hereby denied.
oo

cud |e

di) ff {For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
A , Number.
No notices required. umber ootes eae

Notices mailed by judge’s staff,

L
Notified counsel by telephone. 0 T “date docketed —_
wv | Docketing to mail notices.
Mail AO 450 form dockering WeDbty initials

Copy to judge/magistrate judge.

courtroom ys dare mailed notice
mvf(le) deputy’s : ; \
initials = , \
Date/time received in . 7 ;
central Clérk’s Office ialing deputy initials



enforcement officials to forego Miranda warnings, in the hopes that the admissibility of evidence
seized pursuant to the custodial interrogation will overcome the defects of any unwarned
statements. Such a result would conflict with fundamental requirements of due process. In the
case at bar, however, this Court does not need to conduct such a searching evaluation because
this is a Fourth Amendment, not a Fifth Amendment, dispute.

Under Patane, therefore, defendant’s argument that physical evidence seized pursuant to

his unwarned statements should be suppressed fails. Defendant argues that Patane is inapplicable
because it applies only to Fifth Amendment violations, whereas the issue in the instant case is
whether the government violated defendant’s Fourth Amendment rights. (Def.’s Reply Br. at 3)
However, defendant’s arguments contradict one another; first, defendant argues that “the same
circumstances that caused defendant’s illegal confessions to be suppressed make the consents
[sic] to search the defendant’s house in this case illegal,” and then that the Fifth Amendment is
not at issue. But the Fifth Amendment, specifically the failure to warn and the “question-first”
interrogation technique used by the government agents in their interrogation of defendant, is what
“caused” defendant’s statements to be suppressed. Mem. Op. and Order, Aug. 26, 2004. In fact,
this suppression motion appears to implicate the nexus of Fourth and Fifth Amendment law. As
discussed above, however, the decision to deny the motion to suppress is the same under either

analysis.

-ll-


statement. Accordingly, there is no justification for extending the Miranda rule to this context.”
Id. at 2626.

The Patane plurality focused on the self-executing nature of the Self-Incrimination Clause
and the need to maintain the “closest possible fit ... between the Self-Incrimination Clause and
any rule designed to protect it.” Id. at 2628. The plurality explained “Unlike the Fourth
Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing. We
have repeatedly explained ‘that those subjected to coercive police interrogations have an
automatic protection from the use of their involuntary statements (or evidence derived from their
statements) in any subsequent criminal trial.’” Id. (quoting Chavez v. Martinez, 538 U.S. 760,
769 (2003) (plurality opinion)). The plurality went on to state that “[t]his explicit textual
protection supports a strong presumption against expanding the Miranda rule any further.” Id. at
2628. Thus, it reasoned, “[i]ntroduction of the nontestimonial fruit of a voluntary statement ...
does not implicate the Self-Incrimination Clause.” Id. In their concurring opinion, Justices
Kennedy and O’Connor stated that “{a]dmission of nontestimonial physical fruits ... does not run
the risk of admitting into trial an accused’s coerced incriminating statements against himself.”

Insofar as consent to search is not an incriminating statement, and as long as it is not
being admitted for itself, then there is no constitutional violation in admitting evidence seized
pursuant to an unwarned confession. If consent is perceived or interpreted as an inculpatory
statement, then it will be inadmissible under the self-executing Self-Incrimination Clause. Here,
however, the government seeks only indirectly to use defendant’s consent to justify its search.
However, great care must be taken to prevent granting an evidentiary benefit to careless or bad

faith investigative techniques. This Court sees a tremendous risk of creating an incentive for law

-10-


United States v. LaGrone, 43 F.3d 332, 334 (7" Cir. 1994) (quoting United States v. Kozinski, 16
F.3d 795, 810 (7 Cir. 1994)).

In Schneckloth, the defendant was a passenger in a car that was stopped by the police for
aroutine traffic violation at approximately three a.m. The police asked the driver if they could
search the car. The driver replied, “Sure, go ahead.” The driver assisted in the search by opening
the trunk and the glove compartment for the officers. Under the rear seat of the car, the police
found three stolen checks, which were then used as evidence in the defendant’s trial for
possessing a check with intent to defraud. Schneckloth, 412 U.S. at 219-21. Defendant was
convicted and appealed. The appellate court found that the trial court could find that consent was
given freely and voluntarily to the search, noting that the driver consented to and assisted in the
search and that the atmosphere of the interaction was “congenial.” Id. at 221.

In the instant case, the circumstances surrounding the officers’ entry into the Renken
house are less clear-cut. Both sides agree that three government agents rang the doorbell of the
defendant’s house and that Mrs. Renken answered the door. The government claims that the
agents identified themselves and asked to speak with Mrs. Renken. Gov’t’s Corrected Resp. Br.
at 7. The defendant alleges that the agents “did not present Ms. Renken with a consent to search
[form] at the time of their entry” but rather executed “a highly organized police invasion.” Def.’s
Reply Br. at 2. However, a consent to search form is not a requirement for free and voluntary
consent.

Here, because defendant’s wife was not a minor, does not allege any educational or
mental deficiencies, and does not allege that the government agents claimed independent

authority to enter, the Court finds that there was consent to enter the house. The record does not

7-



table. Government agents began questioning defendant at approximately 10:50 p.m. and
concluded at approximately 12:30 a.m., when the agents left defendant’s home with him in
custody.

Sometime between 11:02 p.m. on November 13, 2002 and 12:30 a.m. on November 14,
2002, defendant executed a consent to search form. The form stated, “I have been asked by
Special Agents of the Federal Bureau of Investigation to permit a complete search” and then
provided a blank space, which was filled in by hand, specifying the areas to be searched. The
form permitted the government agents to search “green Blazer with IL Plate 22788FF” and “412
MacLaren Ln. Lake Bluff, IL,” meaning defendant’s sport-utility vehicle and his home. The
second typed item on the form stated, “I have been advised of my right to refuse consent”; the
third stated, “I give this permission voluntarily.” Defendant signed the form. SA Daniel McCune
witnessed it.
Il. ANALYSIS

A. Applicable Analysis at the Intersection of Fourth and Fifth Amendment Case

Confusion eries in this case because defendant frames his motion to suppress as a Fourth
Amendment argument, but then cites this Court’s previous decision to suppress defendant’s
voluntary, but unwarned, custodial statements as support for his instant motion, despite the fact
that the previous decision was grounded in Fifth Amendment law. See Def.’s Br.; cf. Mem.
Order & Op., Aug. 26, 2004.

Fourth Amendment analysis turns on the reasonableness of a state-initiated search and
seizure, The primary factor used in determining reasonableness is the existence of a valid

warrant. In the absence of a warrant, courts must examine the challenged search to see if it falls

-3-


McCune of the FBI rang the doorbell. Defendant’s wife, Susan Renken (“Mrs. Renken”), who
was wearing her robe, opened the door. The agents identified themselves to her and indicated that
they wanted to speak to her husband and/or to her. The parties dispute whether Mrs. Renken
invited the agents in (as the government contends) or the agents simply went inside (as Mrs.
Renken contends). This dispute will be addressed below.

The agents entered the home and, once inside, asked Mrs, Renken who else was in the
residence. She stated that defendant was upstairs in the shower and their baby was asleep in the
bedroom. The agents stated that they wanted to verify who was in the house for their own safety
and that they were going upstairs to do so. In particular, they were concerned about whether
someone in the house might have a weapon, as the robbery suspect had used a firearm.

McCune and the other agents subsequently went upstairs. The bathroom was located at
the top of the stairs, across from the exit down the stairway. McCune opened the bathroom door
(which was partially closed), indicating his FBI affiliation as he did so. He then opened the
shower curtain and observed defendant taking a shower. McCune told defendant that once he
was done showering, McCune wanted to talk with him. As defendant finished his shower,
McCune stood in the bathroom doorway with the door partially opened. The other agents first
verified the baby’s location and then joined McCune in waiting for defendant outside of the
bathroom.

After showering, defendant dressed under McCune’s watch. McCune stated that he
wanted to speak to defendant, and defendant agreed. McCune and defendant walked downstairs,
with at least one agent walking in front of defendant and at least one agent walking behind him.

They then proceeded into the kitchen, where defendant and McCune took seats at the kitchen

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
Plaintiff, y
) No. 02. CR 1099
v. )
) HONORABLE DAVID H. COAR
HENRY C. RENKEN )
)
Defendant. ) HEN
RY,
a !
MEMORANDUM OPINION AND ORDER 720,

Defendant Henry C, Renken was charged in a two-count indictment with bank robbery
and use of a dangerous weapon in connection with the commission of said offense, in violation
of 18 U.S.C. §§ 924(c)(1)(A), 2113(a) & (d). Defendant’s motion to suppress evidence is
currently before this court.

For the reasons set forth below, defendant’s motion is denied. The evidence seized during
the search of defendant’s house and sports-utility vehicle on the evening of November 13, 2002
will be admissible in evidence.

L FACTS!

On the night of November 13, 2002, government agents went to Henry C. Renken’s

(“Renken” or “defendant”) house in Lake Bluff, Illinois. Three government agents, one in

uniform and with an exposed weapon, went to the front door. Special Agent (“SA”) Daniel

'The relevant facts of the bank robbery and the government’s initial investigation thereof have been fully set
forth in this court’s March 22, 2004 memorandum opinion and order and are repeated here only to the extent
necessary for coherence. This court assumes familiarity with the March 22, 2004 memorandum opinion and order.

l

-1-


Conclusion

For the foregoing reasons, Defendant’s Motion to Suppress Evidence is denied.

Enter:-—.

fl Alben.

David H. Coar
United States District Judge

Dated: October 27, 2004

-12-