Unlike the evidentiary search and seizure at the residence,
there is no other legal basis that shields the police conduct here.
As a result, Okunola’s statements must be suppressed insofar as
they are to be used against him. (Hampton, of course, does not
have standing to challenge the use of Okunola’s statements on the
grounds that they were obtained in violation of Okunola’s Fourth
Amendment rights. See generally Rakas v. Illinois, 439 U.S. 128,
139-40 (1978)).

III. CONCLUSION

For the foregoing reasons, Hampton’s Motion to Suppress is

DENIED and Okunola’s Motion to Suppress is GRANTED as to his

statements while in police custody but DENIED to the evidence

seized at the residence on October 10, 2

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: ts soap

-13-


officers and agents, which collectively indicate that consent was
requested and received. See Hr’g Tr. at 24, 102, 107, 127-28, 147.

The Court finds that the Government met its burden on this
issue. Detective Graeber’s testimony was credible, and was
buttressed by the testimony of Detective Matias and Agent Araya,
although these two individuals admitted that they did not hear the
specifics of White’s consent. See id. In contrast, White’s
testimony was less credible. In addition to an obvious (and
understandable) potential bias to protect her child (Okunola) and
her fiancé (Hampton), White’s other testimony pertaining to the
discovery of a baseball cap in her purse and other evidentiary
material was simply not credible, and provided a general sense of
obfuscation. Thus, the Government established by a preponderance
of the evidence that White’s initial consent was valid.

B. Okunola’s Unlawful Arrest

A threshold issue here is whether the detention of Okunola at
the 18th District police station was lawful. Upon the police
officers’ entry to the residence, Okunola was immediately
handcuffed and was then quickly transported to the police station.
He remained handcuffed to the wall in a holding room at the police
station for more than six hours. It is not clear from the
Government’s briefing whether it concedes that Okunola’s detention
was, from the outset, effectively an arrest, or whether there was

some particular point in time when the temporary detention


the basis that police discovered two bags on cocaine in a shared
bathroom. See United States v. Dozal, 173 F.3d 787, 793 (10th Cir.
1999). But even in that case, the police nonetheless found
incriminating evidence in an area of the home regularly used by the
suspect, and thus a logical connection was established.

Curiously, the Government cites only one Seventh Circuit case
in support of its probable cause argument based on surrounding
circumstances, despite a plethora of case law in this circuit
addressing the requirements of individualized probable cause. See,
e.g., United States v. Johnson, 170 F.3d 708, 714 (7th Cir. 1999);
United States v. Carpenter, 342 F.3d 812, 815-16 (7th Cir. 2003);
United States v. Jones, 72 F.3d 1324, 1332-33 (7th Cir. 2003) (and
cases cited therein). In any event, the Seventh Circuit clearly
follows the general contours of Ybarra v. Illinois, which requires
at least some minimal form of individualized probable cause in
addition to mere association with someone suspected of criminal
activity. See Ybarra v. Illinois, 444 U.S. 85 (1979); id.

Here, the Government failed to show the necessary nexus
between Okunola and the incriminating evidence observed at the time
of the arrest. For instance, there was no testimony that Okunola
engaged in any suspicious behaviors prior to his arrest: he did not
flee, attempt to hide any evidence, or otherwise act in any manner
arising suspicion. As noted above, the search for a second suspect

was attenuated, given the preceding arrest of Glass, and nothing in


person would believe that an offense has been (or is being)
committed by the person to be arrested. See id. Here, the
Government is faced with a significant obstacle: Detective
Graeber, the lead investigator here, flatly admitted that at the
time of Okunola’s detention in the residence he had no belief that
Okunola had committed a crime. See Hr’g Tr. at 27:22-25; 28:1;
65:11-13. He further conceded that he merely wanted to take
Okunola “in for investigation just to see whether he was willing to
tell us anything relative to Mr. Hampton or to the possibility that
he might have been involved in any of the robberies in any way
whatsoever.” Id. Indeed, the testimony at the evidentiary hearing
revealed that the police entered the residence with the unitary
focus of locating Hampton, and, upon encountering Okunola on the
ground floor, the police immediately recognized that he did not
fit the description of Hampton. See Hr’g Tr. at 85, 128.

The Government essentially ignored the issue of probable cause
in its initial brief, but then wisely addressed it in its reply
brief. To establish probable cause, the Government turns to the
fact that police were purportedly looking for a second offender in
the bank robberies. This argument, however, is flawed in several
regards. First, the informant had identified Tony Glass as a
potential accomplice, and police apprehended Glass in the immediate
vicinity of the residence just before entering the residence. See

id. at 52. Therefore, at least at that point in time, the likely


transformed into an arrest. See Terry v. Ohio, 392 U.S. 1 (1968);
Gov. Reply Br. at 3-4. The Government, however, appears to
acknowledge in its reply brief that at some point probable cause
was required to continue to detain Okunola. See Gov. Reply Br. at
3-4.

In any event, the undisputed testimony at the evidentiary
hearing demonstrates that, certainly at the point that Okunola was
handcuffed to the wall at the Chicago police station, his detention
was the functional equivalent of an arrest. See Hayes v. Florida,
470 U.S. 811, 816 (1985); Kaup v. Texas, 538 U.S. 626, 630 (2003);
United States v. Cellitti, 387 F.3d 618, 622 (7th Cir. 2004);
Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993).
That is, it is patently clear that any reasonable person, upon
being handcuffed, transported to a police station, restrained to a
wall, and then interrogated, would not feel at “liberty to ignore
the police presence and go about his business.” Kaup, 538 U.S. at
629 (quotations and citations omitted). Thus, the Government must
establish that it had probable cause to conduct this warrantless
arrest of Okunola.

Probable cause to conduct a warrantless arrest is a fluid
concept that depends on the known facts and circumstances at the
time of the arrest. See generally, Ornelas v. United States, 517
U.S. 690, 695-96 (1996); see also, Wong Sun v. United States, 371

U.S. 471, 479 (1963). The fundamental inquiry is whether a prudent

- 5 -


fails to show - as it was required to show - that there was some
logical connection between these events and Okunola. Although the
authority cited by the Government supports the general proposition
that surrounding circumstances can create probable cause, closer
inspection of the facts in these cases shows that there must be
some nexus between a suspect and incriminating behavior or
circumstances. That is, the surrounding circumstances alone cannot
replace the requirement of some minimal form of individualized
probable cause. See Ybarra v. Illinois, 444 U.S. 85 (1979).

For instance, in Hayes, an informant specifically identified
the suspect as having a gun, and the police officers observed the
suspect attempting to hide the gun and then fleeing the scene. See
United States v. Hayes, 236 F.3d 891, 894 (7th Cir. 2001).
Similarly, in Townsend, the police officer observed a weapon on the
suspect and noticed the suspect’s “nervous manner” (not to mention
that the police were also aware that the suspect had purchased
chemicals related to the manufacture of methamphetamine and was
recently involved in an explosion of a methamphetamine laboratory).
See United States v. Townsend, 330 F.3d 438, 441 (6th Cir. 2003).
In Holder, the suspect was standing a few feet away from a “drug-
laden table,” and thus was undeniably aware of illicit drug
activity. See United States v. Holder, 990 F.2d 1327, 1329 (D.C.
Cir. 1993). Perhaps the best case for the Government is the Tenth

Circuit’s Dozal decision, where a suspect was arrested primarily on


‘Minute Onder Form (067) |

United States District Court, Northern District of Mlinois

Name of Assigned Jud i Sitting Judge if Oth
or Magistrate Judge Harry D. Leinenweber than Assigned Tuidge |
CASE NUMBER 03 CR 983. - DATE 12/3/2004
CASE United States of America vs. Nikita Hampton, Adedejo Okunola and Crystal Blair
TITLE
[In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) a] Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
@) a Answer brief to motion due. . Reply to answer brief due .
(4) Oo Ruling/Hearing on set for at
‘6© a Status hearing[held/continued to] [set for/re-set for] on set for at .
© Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(e) ag Trial[set for/re-set for] on at
(8) ©  [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (Local Rule 41.1 COFRCP41(ay(1) OO FRCP41(a)(2).
(0) Mf [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Hampton’s Motion to
Suppress is DENIED and Okunola’s Motion to Suppress is GRANTED as to his statements while in

police custody but DENIED as to the evidence seized at the residence on October 10, 2003.

(1) io [For further detail see order attached to the original minute order.)
No notices required, advised in open court.

No notices required.

| Notices mailed by judge's staff.

Notified counsel by telephone.
wo | Docketing to mail notices.
—

Mail AO 450 form.
Copy to judge/magistrate judge.
Shit oo as
« AS iy &~ 950 4002
WAP deputy’s
initials Tae
ew 7 \Dateltingjreceived in
central Clerk's Office



depend upon such invalid consent are likewise tainted and
inadmissible. See id.; Wong Sun v. United States, 373 U.S. 471
(1963). Here, Okunola’s consent occurred less than one hour after
his illegal arrest, and therefore it is not sufficiently attenuated
from the arrest. See id. Thus, under the normal course, the
evidence obtained at the residence subject to Okunola’s invalid
consent would be tainted and therefore suppressed. See id.

There are, however, two notable exceptions to the general
rule: the “independent source” and “inevitable discovery”
doctrines. See United States v. Johnson, 380 F.3d 1013, 1014 (7th
Cir. 2004), citing Murray v. United States, 487 U.S. 533, 537
(1988). These two similar doctrines allow tainted evidence to be
used if the evidence was either obtained by any other legal means,
or would have been obtained legally in any event. See id. Here,
the independent source doctrine (and perhaps the inevitable
discovery doctrine) applies because White provided independent
written consent to search the residence.

As stated above, there was credible testimony that White
consented to the initial search of her home. Unlike Okunola, White
was not arrested (nor was her detention the functional equivalent
of an arrest), and therefore her written consent is not tainted by
an unlawful arrest. Finally, there was credible testimony by the
Government that White voluntarily signed the consent to search

form, which was buttressed by testimony that White thereafter

-11-


the business alert photograph truly pointed toward Okunola. The
gun observed by the police was in a bedroom used by White and
Hampton, on a different floor from where Okunola was located when
police entered the residence. In addition, White’s concealment of
the baseball cap occurred outside of the presence of Okunola.
Finally, Okunola, as a leaseholder and the son of White, had a
legitimate non-criminal reason to be present at the residence.

In short, there appears to be no hing outside of his mere
presence at the residence and association with Hampton (who was
arrested) and White (who, curiously, was not) that contributed to
a probable cause determination. These, however, are not
sufficiently compelling surrounding circumstances: something more
than propinquity with others suspected of criminal activity is
required for probable cause. Cf. Johnson, 170 F.3d at 714;
Carpenter, 342 F.3d at 815-16; Jones, 72 F.3d at 1332-33.
Otherwise, taken to its logical extension, the Government’s
argument here would dictate that there was sufficient probable
cause to arrest anyone present at the residence without any need
for individualized assessments.

C. Consequences of the Okunola’s Unlawful Arrest

1. Suppression of Evidence Obtained at 869 N. Cambridge

Consent to search that is given pursuant to an unlawful arrest
is presumptively invalid. See Cellitti, 387 F.3d at 622. And,

accordingly, subsequent evidentiary searches and seizures that

-10-


second suspect was already in custody, which significantly reduced
the likelihood that Okunola was that second suspect. Second, the
Government simply provided no evidence that Okunola had any
particular physical similarity to the second offender. For
instance, Detective Graeber testified regarding a “business alert”
photograph of a second suspect, but the sole connection between the
photograph and Okunola seems to be that both are black men. See
Hr’g Tr. at 47-48. The business alert identifies the second
suspect’s age range as 30-to-35 and his weight as 230 to 250 lbs.
Okunola clearly does not match these characteristics - and the
police immediately recognized that Okunola was too young to match
Hampton’s described age of 30-to-35. See Hr’g Tr. 85, 128. Thus,
Detective Graeber’s testimony does not persuasively indicate that
a reasonably prudent officer would believe that Okunola was likely
to be the second suspect. Indeed, Detective Graeber’s other
testimony more-fairly reveals the true state of mind of a
reasonable officer at the time of Okunola’s detention: Okunola was
not suspected of any criminal activity at the time of his
detention. See Hr’g Tr. at 64-65.

Finally, the Government argues that the surrounding
circumstances, namely, the presence of Hampton in the residence,
the gun discovered upstairs, and White’s concealment of a baseball
cap, collectively create probable cause to conduct a warrantless

arrest of Okunola. This argument fails because the Government


also contend that Okunola’s written consent to search was invalid
because it was the product of an unlawful arrest and, moreover,
that he was coerced into signing it.

During his detention, Okunola also provided incriminating
statements pertaining to his and Hampton’s involvement in a prior
bank robbery. Okunola seeks to suppress his statements on the
basis that he was illegally detained and police officers improperly
failed to provide him with Miranda warnings.

Defendants now move to suppress all evidence obtained from the
residence on October 10, 2003. Okunola also moves to suppress all
statements made by him while in custody on October 10, 2003. An
evidentiary hearing was held on October 28, 2004, during which
several police officers and FBI agents testified on behalf of the
Government, and White, Okunola, and Morrison Hunley testified on
behalf of the Defendants.

II. DISCUSSION
A. White’s Initial Consent to Search the Residence

Defendants first argue that the Government has not shown that
White’s initial consent to search the residence for Hampton was
voluntary. Defendants rely primarily on testimony from White, in
which she claims that consent was never requested, and police
instead rushed into the home. See Hr’g Tr. at 191-92. The
Government, in turn, relies primarily on the testimony of Detective

Graeber, and also certain corroborating testimony from other



The respective stories differ significantly from this point
forward. According to the Government, White immediately cooperated
and allowed agents to search her home for the suspected bank
robber. Defendants contend that White did not consent to the
police officers’ initial entry and search. During the search and
protective sweep of the home, police officers located and
immediately arrested Hampton on an upstairs floor. They also
observed a handgun in the upstairs bedroom used by Hampton and
White. Okunola was apprehended on the downstairs floor, where he
was sitting on a sofa. After searching White’s purse outside the
home, where they found a baseball cap purportedly used in some of
the bank robberies, police officers detained White. Both White and
Okunola were then taken into custody for questioning.

Once at the police station, at approximately 4:50 p.m.,
Okunola signed a written consent to search the residence.
Approximately thirty minutes thereafter, White signed a similar
written consent. (Both White and Okunola are leaseholders on the
residence. ) Following Okunola’s written consent, police then
searched the residence and seized various evidentiary materials
purportedly related to a variety of bank robberies. Police
officers did not obtain arrest or search warrants. Defendants
contend that White’s written consent to search was improperly
obtained because, among other reasons, police officers wrongfully

threatened White with eviction from her public housing. Defendants


IN THE UNITED STATES DISTRICT COURT F | L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DEC $2008
JUDGE HARRY D. LEINENWEBER
UNITED STATES OF AMERICA, US. DISTRICT COURT JUDGE
Plaintiff,
Case No. 03 CR 983
v.
NIKITA HAMPTON, ADEDEJO Hon. Harry D. Leinenweber

OKUNOLA and CRYSTAL BLAIR,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants Nikita Hampton (hereinafter,
“Hampton”) and Adedejo Okunola’s (hereinafter, “Okunola”) Motions
to Suppress. For the following reasons, Hampton’s Motion is denied
and Okunola’s Motion is denied in part and granted in part.

I. INTRODUCTION

Defendants’ Motions arise from the October 10, 2003 search of
an apartment located at 869 North Cambridge in Chicago, Illinois
(“the residence”) . On the morning of October 10, 2003, police
officers received a tip from an informant that a suspected bank
robber, who had robbed a series of Chicago-area banks at gunpoint
over the preceding months, was located at the residence. A group
of Chicago police officers and FBI agents assembled outside the
residence and at approximately 3:50 p.m. knocked on the door.
Frankie White (“White”), Okunola’s mother and Hampton’s fiancé,

opened the door.


supervised a large portion actual search as it occurred in her
home, and did not protest during her observation of the search.
See Hr’g Tr. at 112-17.

Importantly, White’s written consent was provided within 30
minutes of Okunola’s consent. See id. at 115. Although the
evidentiary search and seizure appears to have been initially
predicated on Okunola’s tainted consent, it is clear that White’s
nearly~contemporaneous written consent provided an independent
legal basis for the evidentiary search and seizure. (And, as a
leaseholder and occupant of the bedroom where the weapon and other
materials were found, there is no question that White had authority
to provide consent for all areas of the residence. See United
States v. Matlock, 415 U.S. 164, 170 (1974)). Thus, under the
terms of the independent source doctrine, the evidence seized at
the residence is not fatally tainted by the Okunola’s invalid
consent, and therefore should not be suppressed.

2. Suppression of Okunola’s Incriminating Statements

The independent source and inevitable discovery doctrines do
not provide refuge for Okunola’s incriminating statements. As
noted above, Okunola provided several incriminating statements
while in custody over the course of the afternoon and evening of
October 10, 2003. These statements clearly flowed directly from
his illegal arrest and are therefore tainted and inadmissible

against him. See Wong Sun, 373 U.S. at 484-85.

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