In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3365

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FIDEL ROBELES-ORTEGA, also known as

FIDEL ROBLES-ORTEGA, also known as

FIDEL ORTIZ-ROLBOUES,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 141— Joan B. Gottschall, Judge.

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ARGUED APRIL 7, 2003—DECIDED NOVEMBER 7, 2003

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Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. The sole issue in this case is

whether the district court erred in denying the defendant’s

motion to suppress the evidence. The facts as recited by the

district court are as follows. 

On February 14, 2001, agents of the Drug Enforcement

Agency (DEA) were monitoring a conversation between

its confidential informant (CI), the defendant, and another

person in an apartment, in which the CI was negotiating

the purchase of seven kilos of cocaine. The CI was supposed

to view the cocaine, then leave the apartment and convince
2 No. 02-3365

the defendant to follow him outside, at which time the DEA

agents planned to arrest them. All did not proceed according to that plan. Instead, the defendant quoted a higher

price than originally proffered, and the CI left the apartment alone. The CI entered the car and told the agent in

the car (who the defendant was told was his nephew), that

he had seen the cocaine. The agent and the CI then drove

away from the scene. 

The actions taken by the DEA agents at that point in time

are inexplicable. Rather than obtaining a search warrant

based on that information, within two minutes of the CI’s

departure the agents forcibly entered the apartment by

breaking down the door. Approximately five agents entered

the apartment with guns drawn, conducting a security

sweep of the apartment while the occupants, including a

four-year-old child, lay on the floor in the living room.

During that sweep, the agents observed a gym bag on the

floor in a bedroom which was later found to contain cocaine.

The district court credited the agents’ testimony that they

did not search that bag at the time. Immediately after that

sweep, the agents identified Azuzena Tabizon as the

leaseholder, and they asked her to go to the kitchen with

them. She complied, and they informed her that she was

not a suspect, and requested that she sign a written consent

for them to search the apartment. She did so, and the

agents then searched the apartment and seized the cocaine.

The district court denied the motion to suppress the evidence, concluding that Tabizon’s consent was sufficiently

voluntary that it was not tainted by the agents’ illegal entry. The sole issue on appeal is whether the district court

erred in that determination.

The Fourth Amendment prohibition against unreasonable

searches and seizures protects persons in their homes

against unwarranted intrusions. The exclusionary rule
No. 02-3365 3

preventing the use of evidence obtained in violation of

that amendment protects the Fourth Amendment guarantees by deterring lawless conduct by law enforcement

officers and by “ ‘closing the doors of the federal courts to

any use of evidence unconstitutionally obtained.’ ” Brown v.

Illinois, 422 U.S. 590, 598 (1975); Wong Sun v. United

States, 371 U.S. 471, 486 (1963). Therefore, in examining

whether the exclusionary rule applies in this case, we are

concerned not only with the privacy interests inherent in

the Fourth Amendment, but also with considerations of

deterrence and judicial integrity. See Brown, 422 U.S. at

598 and cases cited therein. 

The Supreme Court has repeatedly set forth the principles to be applied where the issue is whether the evidence

obtained after an illegal arrest or search should be excluded, as has this court. See Brown, 422 U.S. at 597 (1975).

The Fourth Amendment exclusionary rule “ ‘extends as well

to the indirect as the direct products of unconstitutional

conduct’ ”; therefore, “ ‘[i]n determining whether evidence is

tainted by a prior illegality, we must determine whether the

evidence was ‘come at by exploitation of [the initial]

illegality or instead by means sufficiently distinguishable to

be purged of the primary taint.’ ” United States v. Valencia,

913 F.2d 378, 382 (7th Cir. 1990), quoting Segura v. United

States, 468 U.S. 796, 804 (1984) and Wong Sun, 371 U.S. at

488. Where the search following the illegal entry is justified

based on alleged consent, courts must determine whether

that consent was voluntary, and in addition the court must

determine whether the illegal entry tainted that consent.

The Supreme Court has identified a number of factors relevant to that inquiry, including (1) the temporal proximity

of the illegal entry and the consent, (2) the presence of intervening circumstances, and, particularly, (3) the purpose

and flagrancy of the official misconduct. Brown v. Illinois,

422 U.S. 590, 603-04 (1975). On appeal of the district

court’s denial of the motion to suppress, we review the dis-
4 No. 02-3365

trict court’s legal conclusions de novo and its findings of fact

for clear error. United States v. Yang, 286 F.3d 940, 944 (7th

Cir. 2002). 

In applying the above factors, the district court relied

extensively on this court’s decision in United States v.

Valencia, 913 F.2d 378, 381 (7th Cir. 1990). In Valencia, officers were conducting surveillance on two individuals who

were in the process of negotiating a narcotics transaction.

One of the suspects indicated that he was going to speak

with his “money man,” and shortly thereafter he entered

Valencia’s apartment. Id. at 380. After he departed from

that apartment, the officers observed a man, Valencia, leave

the apartment. Id. They directed other officers to find and

stop Valencia, and proceeded to the apartment. Id. They

rang the apartment doorbell, and when a woman opened

the door, the officers entered the apartment without her

consent and secured it. Id. at 381. Meanwhile, other officers

stopped Valencia and attempted to question him but were

hampered by Valencia’s limited English. Id. An officer

arranged for a Spanish-speaking officer to meet them at

Valencia’s apartment, and drove Valencia home in Valencia’s own car. Id. (The court held that this sequence of

events was not an unlawful detention, and therefore that

did not impact on the issue of whether the subsequent

search was lawful. Id. at 382-83) Once Valencia returned to

his apartment, he was read his Miranda rights in Spanish,

and he answered questions, including volunteering that

there was some marijuana in his kitchen, and $8,000-

$10,000 and a .357 magnum revolver in his bedroom. Id. at

381. The officers found those items as indicated and asked

him if he would consent to the search of his apartment,

explaining that he did not have to do so. Id. He consented,

and the officers discovered $316,000 and another handgun.

Id.

The Valencia court first determined that he had voluntarily consented to the search. The court noted that he was
No. 02-3365 5

never threatened in any manner and that he remained calm

throughout the process. Id. The court further noted that the

most significant factor was that he was given his Miranda

warnings and knew that he did not have to consent to the

search, but did so anyway. Id. Therefore, the court upheld

the district court’s determination that his consent was

voluntary. Id.

The Valencia court then turned to the issue of whether

that consent was nevertheless tainted by the illegal entry.

The court held that the consent was not tainted by that

illegal entry. First, the court noted that the consent was

obtained more than an hour after entry. Id. at 382. Second,

the court state that the agents had not discovered any

evidence in that illegal entry that they could use to coerce

his consent, and that they therefore did not exploit the

initial entry to obtain that consent. Id. Finally, they determined that the officers’ mere presence did not coerce his

consent, because the district court had held that his consent

was voluntary. Id.

That situation is markedly different from the circumstance presented here. In Valencia, the defendant was not

even at home when the illegal entry was made, and therefore the force and nature of the intrusion would not have

tainted his consent. The consent was provided hours after

the illegal entry, by a person who was not present at the

time of the entry, and with no indication that the police had

discovered any evidence during that illegal entry. In the

present case, the agents literally broke down the door and

entered with a strong show of force, brandishing their guns

and having the occupants lay on the floor. Immediately

after this incident, they removed Tabizon to the kitchen,

and obtained her consent the search. The impact of the

illegal entry on Tabizon’s consent is simply dramatically

different from the impact present in Valencia. 

The district court acknowledged that only a few minutes

had passed between the agents’ initial entry and Tabizon’s
6 No. 02-3365

consent, but held that “the evidence suggests that enough

time had passed to lessen substantially the impact of the

illegal entry on Tabizon before she consented.” Op. at 6.

That evidence was that they adjourned to another room,

that she was told she was not a suspect, that they relinquished their weapons before joining her at the kitchen

table, and that she was read and understood the consent

form. According to the court, “[t]his testimony suggests that

the time that passed after the initial entry, along with

Tabizon’s realization that she was not suspected of wrongdoing, vitiated the possibility that Tabizon was coerced by

the initial entry.” Op. at 7. That, however, is not the proper

application of that factor. The question is whether the

causal connection between the illegality and the consent

was broken, and the government has the burden of persuasion on that issue. Kaupp v. Texas, 123 S. Ct. 1843, 1847

(2003); United States v. Liss, 103 F.3d 617, 623 (7th Cir.

1997) (Ripple, J. concurring)(quoting Brown, noting that the

taint analysis applies whether the antecedent Fourth

Amendment violation is an illegal seizure or an illegal

search). The temporal proximity is relevant because a consent obtained immediately after an illegal entry is less

likely to be unconnected to that entry. In this case, the

court found that the consent was obtained within a few

minutes of the illegal entry. It is difficult to imagine a

shorter time frame between the unconstitutional action and

consent. Therefore, as a matter of law this factor weighs

against a determination that the causal connection was

broken. The court’s reliance of evidence of the voluntariness

of the consent is misplaced in considering this factor. As

Valencia held, the voluntariness of the consent is only the

first step, and the next inquiry is whether the consent was

tainted by the entry, in other words, whether it was the

product of that illegal entry. In considering that issue, the

temporal proximity in this case strongly favors the defendant and the district court erred as a matter of law in

applying this factor.
No. 02-3365 7

Aside from its consideration of the temporal proximity,

the court considered a couple of other factors in reaching its

decision. First, the court considered whether the agents

exploited the initial entry to induce consent. The district

court did not credit the testimony of Tabizon that she was

confronted with the contents of the gym bag, and instead

held that nothing seen in the sweep was used to obtain her

consent. We have no reason to question those findings and

accept them as valid. The court then concluded that the

agents did not use evidence obtained in the search to coerce

her consent. Finally, the district court held that the agents’

presence in the apartment did not have a coercive effect and

that her consent was voluntary.

All of court’s findings address whether agents coerced

Tabizon’s consent. That focus is misplaced, because the

defendant does not bear the burden of demonstrating that

the agents coerced the consent; instead, where a consent is

obtained pursuant to an illegal entry, the burden of persuasion is on the government to demonstrate that the consent was not tainted by the illegal entry. Kaupp, 123 S. Ct.

at 1847. The critical issue is whether the consent was

obtained by means sufficiently distinguishable from that

illegal and violent entry so as to be purged of the primary

taint. Valencia, 913 F.2d 378, 382 (7th Cir. 1990), quoting

Segura, 468 U.S. at 804 and Wong Sun, 371 U.S. at 488.

Therefore, we must focus on those factors alone and apply

them to the facts presented here. Because the relevant facts

are undisputed, the result of that test is clear as a matter

of law. The first factor, the temporal proximity, has already

been discussed, and the few minutes between the illegal

entry and the “consent” can only weigh against a finding

that the taint of that illegal action had dissipated. The

second factor is the presence of intervening circumstances.

The only “intervening circumstance” argued here is her

agreement to sign the consent form. That is distinct from

the types of circumstances that previously have been
8 No. 02-3365

considered sufficient. See, e.g., Wong Sun, 371 U.S. at 491

(confession was made several days after illegal arrest and

was preceded by arraignment and release from custody);

Rawlins v. Kentucky, 448 U.S. 98, 108-09 (1980) (discovery

of other incriminating evidence implicating the defendant

and causing the defendant to confess spontaneously). There

is no reason in this case to believe that her written consent

was independent of the illegal entry. It was obtained almost

immediately after that forcible entry into the home and

subsequent show of force. As with confessions given after

Miranda warnings, that consent alone does not necessarily

purge the taint of the illegal action. See Brown, 422 U.S. at

603 (rejecting argument that Miranda warnings by themselves always purge the taint of an illegal arrest.) That is

especially true where, as here, the other factors weigh

strongly against that conclusion. Moreover, contrary to the

government’s argument, United States v. Liss, 103 F.3d 617

(7th Cir. 1997), does not hold that a consent is an independent intervening event that breaks the causal chain stemming from the illegal search. In Liss, the officers conducted

an illegal search of a barn, and subsequently requested

consent of the owner to the search of his house. The court

held that the causal connection between the illegal barn

search and the evidence found in the house was sufficiently

attenuated because the barn search merely motivated the

decision to seek the consent to search the house, but

otherwise the search of that unrelated location had no role

in the discovery of the evidence obtained pursuant to the

non-custodial voluntary consent. Id. at 620-22. The Liss

court explicitly contrasted the situation in which the illegal

action and the subsequent consent search are of the same

location, in which case the likelihood is greater that illegal

action influenced the consent, and therefore the causal

connection is stronger. Id. at 621. The government’s

attempt to turn all written consents into an “intervening

circumstance” breaking the causal chain is inconsistent

with that distinction in Liss, and with the Supreme Court’s
No. 02-3365 9

rejection of a similar argument with respect to Miranda

warnings in Brown v. Illinois, 422 U.S. 590 (1975).

We turn, then, to the third factor, which is the purpose

and flagrancy of the official misconduct. In this case, the

officers literally broke down the door, without exigent circumstances and without a warrant, and at least five agents

rushed into the apartment with guns. The occupants of the

apartment were apparently ordered to lie down on the floor

while the agents entered all of the rooms. Similar to cases

such as Brown, the manner of the illegal entry in this case

“gives the appearance of having been calculated to cause

surprise, fright, and confusion.” Brown, 422 U.S. at 605.

That invasion of a person’s home is precisely the type of

action the Fourth Amendment is most concerned with

preventing, and therefore the interests in deterrence and in

protecting the integrity of the judicial process are very high

in this circumstance. 

Because of the violent and sudden nature of the intrusion,

the extremely short time period between the entry and the

consent, and the absence of any other event that would

have attenuated the impact of that illegal entry, we conclude as a matter of law that the evidence was not obtained

by means “sufficiently distinguishable as to be purged of the

primary taint.” Nothing occurred in this instance that

isolated the search and the discovery of the evidence from

that illegal entry, or that could give us any confidence at all

that “the causal connection between [the] illegal police

conduct and the procurement of [the] evidence is ‘so attenuated as to dissipate the taint’ of the illegal action.” Liss, 103

F.3d at 620, quoting United States v. Fazio, 9154 F.2d 950,

957 (7th Cir. 1990) (quoting Segura v. United States, 468

U.S. 796, 805 (1984)). Accordingly, the district court erred

in suppressing the motion to exclude evidence.

That does not end the case, however, because the district

court appears not to have reached alternate arguments
10 No. 02-3365

raised by the government below to justify the admission of

that evidence. Accordingly, the decision of the district court

denying the motion to suppress is VACATED and the case

REMANDED for further proceedings consistent with this

opinion.

BAUER, Circuit Judge, dissenting. I respectfully dissent.

As the majority opinion points out, the essential facts are

not in dispute so I will not repeat them except to note that

the emphasis seems to be on the illegal entry—which is a

given—and the outrage felt by this court. I think we agree,

however, that the only issue is whether the consent was

given voluntarily considering all the circumstances. The

time lapse between one event: the entry, and the other: the

consent, is a consideration and was considered by the district court. I cannot say her analysis or her conclusion were

in error. Courts have held repeatedly that only seconds of

reflections are necessary to form malice even in a murder

case. I cannot see why so much more time is necessary for

a person to give an informed consent to a search.

There was, it seems to me—and to the trial court—

enough of a lapse between the entrance and the consent to

call the consent informed. I am reluctant to substitute my

judgment for hers, particularly where she accorded the

parties three days of hearing, and came to a reasoned conclusion, and produced a thoughtful order that disposed of

the issues involved.

I would affirm.
No. 02-3365 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-7-03