case law update

While Noting the “Consent Once Removed” Doctrine as “Expendable,” the 7th Circuit Still Finds Warrantless Search Constitutional

The U.S. Court of Appeals for the Seventh Circuit recently found a warrantless search constitutional, noting it would be a “miscarriage of justice” to allow the defendants to go scot-free. In doing so, the court of appeals deemed the “consent once removed” doctrine “expendable.”

Discreetly trailed by federal agents, a confidential informant drove to the garage of Juan Duenas in order to purchase cocaine being sold out of William Rivera’s truck. The informant entered the open garage door and discussed the transaction with the defendants. The informant then left the garage, informing Duenas and Rivera he intended to get money from his car. 

After returning to his car the informant drove away and notified the federal agents that there was cocaine in the possession of Duenas and Rivera. Without search warrants, the agents arrived at the scene in less than three minutes. The agents then arrested Duenas outside of the open garage and Rivera inside of it. Upon a search of the garage and truck, the agents discovered two kilograms of cocaine from Rivera’s truck.

Duenas and Rivera moved to suppress the drugs seized when the federal agents searched Duenas’s garage and Rivera’s truck. In doing so, Duenas and Rivera contended that the warrantless searches violated the Fourth Amendment. The district court denied their motions, relying on the doctrine of “consent once removed.” Under that doctrine, consent given to an informant is extended to law enforcement officers summoned by the informant after discovering probable cause.

Duenas and Rivera pleaded guilty to conspiring to possess and distribute cocaine in violation of 21 U.S.C. §§ 841(a), 846. Rivera was sentenced to 60 months’ imprisonment and Duenas was sentenced to 48 months’ imprisonment. Duenas and Rivera appealed the district court’s denial of their motions to suppress to the U.S. Court of Appeals for the Seventh Circuit.

The court of appeals entertained several justifications made by the district court for using “consent once removed.” However, the court bluntly stated that at first glance, the doctrine is “absurd.” The court began by rejecting any argument that the doctrine could be based on consent. Duenas and Rivera consented to the informant’s returning to purchase the cocaine, and on this basis the district court judge invoked the doctrine. However, the court of appeals stated that Duenas and Rivera would never have consented to the entry of federal drug agents into Duenas’s garage. Actual consent to entry was required. The court was quick to clarify that actual consent need not be informed. Citing to United States v. White, 660 F.2d 1178 (7th Cir. 1981), the court stated that undercover agents could still obtain consent by concealing their identities as agents. Still, in the present situation there was no newcomer invited or permitted to join Duenas and Rivera in the garage.

The court of appeals next considered the justification emphasized in United States v. Jachimko, 19 F.3d 296 (7th Cir. 1994), and its progeny. Those cases stress the lawful protective purpose of the doctrine. Here, circumstances yielded a potentially life threatening situation if the agents returned to the garage with the money. This made it reasonable for the informant to arrange for the agents to enter the garage to protect him. However, the informant drove away from the garage before the agents entered and removed himself from any danger that would have justified summoning law enforcement for aid or protection.

The court of appeals found it necessary to mention that in such situations the doctrine of “exigent circumstances” would allow a response though. The interval of time between the informant’s notifying the agents of the presence of the cocaine in the garage and the agents’ arrival at the scene lasted less than three minutes. If the agents waited for a search warrant, Duenas and Rivera, worried by the failure of the informant to show up with the money, could have removed the cocaine and placed it elsewhere. In such a situation, even if the agents arrived upon the scene and phoned in warrants while ordering Duenas and Rivera to remain in the garage, the order would have been seizure under the Fourth Amendment. 

The court of appeals then considered a third rationale used by the district court to deny Duenas and Rivera’s suppression motion – “inevitable discovery.” As stated by the court of appeals, if the agents conducted a search without a warrant, but were certain they would have obtained one had they applied for it, their omission is deemed harmless and ignored. The federal agents had probable cause to search the garage once the confidential informant alerted the agents to the location of the cocaine. The agents could very well have obtained a search warrant on this information, but the court of appeals found that there was no time to do so as it risked the disappearance of the contraband. Had time permitted, the court stated that the agents would have followed routine procedure and obtained a warrant. Thus, the court of appeals found the warrantless search justified.

Affirming the district court decision, the court of appeals made it very clear that its decision was not based on the doctrine of “consent once removed.” The court stated, “We can’t find a case that mentions ‘consent once removed’ in which the decision in favor of the government could not have been supported on another ground.” Therefore, the court of appeals found the doctrine “expendable.”

Read the full case: United States v. Rivera


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: case law update, michael j sgarlat


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