United States of America v. Joseph L. Cellitti

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3777
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OSEPH L. C ELLITTI ,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Western Division.
No. 03 CR 50006-1—Philip G. Reinhard, Judge.
____________
A RGUED M AY 18, 2004—D ECIDED O CTOBER 19, 2004
____________
Before F LAUM , Chief Judge, and K ANNE and R OVNER ,
Circuit Judges.
R OVNER , Circuit Judge. Joseph Cellitti pleaded guilty to
possessing a firearm after sustaining a felony conviction, 18
U.S.C. § 922(g)(1), while reserving the right to challenge on
appeal the district court’s denial of his motion to suppress
evidence. We now vacate and remand.
Background
Police in Rockford, Illinois, received a call in the early
morning hours of August 13, 2002, that a man with a gun

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2 No. 03-3777
1 At one point, Officer Combs testified that nine people exited the
house; at another, he testified that there were ten people in the
lineup. The discrepancy for our purposes is immaterial.
was threatening people on Gilbert Avenue. The first officer
to respond, Harold Combs, encountered three people hiding
behind a building. One of them, James Singleton, told
Officer Combs that he had been walking home when he was
confronted by a man later identified as Cellitti. Singleton
said that Cellitti had verbally accosted him and then threat-
ened him with a beer bottle. At that point, Singleton told the
officer, a white Dodge Neon had turned onto the street and
screeched to a halt next to him and Cellitti. A woman, later
identified as Cellitti’s fiancée, Melissa Bauer (“Melissa”),
and her brother, Kevin Bauer (“Kevin”), jumped out of the
car; Kevin joined Cellitti in attacking Singleton while Melissa
tried to restrain both her brother and fiancé. During the
commotion Singleton retreated to his apartment, retrieved
a kitchen knife, and returned to the street. But he quickly
ran for cover, Singleton continued, when he saw Cellitti exit
a nearby house at 2215 Kilburn Avenue carrying an assault
rifle that Cellitti loaded and pointed at him. The other two
people hiding with Singleton—his fiancée and a neighbor—
had also witnessed Cellitti’s unprovoked assaults, and they
provided Officer Combs with similar accounts.
Officer Combs radioed this information to backup officers,
who proceeded to 2215 Kilburn Avenue and entered a breeze-
way behind the house. The police then shouted for the oc-
cupants to come outside. Cellitti, Melissa, Kevin, and two
others exited, and the officers handcuffed all of them. After
approximately five minutes of calling into the house, officers
entered and conducted a protective sweep. They located four
additional adults, all of whom they brought outside and hand-
cuffed (there were also two children in the house). The
police then lined up the nine adults 1 and brought Singleton
over to the group. Singleton immediately identified Cellitti

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No. 03-3777 3
as the man who had brandished the rifle and Melissa and
Kevin as the occupants of the white Neon. The officers then
determined that Melissa owned the house—where she lived
with Cellitti—and they obtained her consent to search the
house for the rifle. The officers failed to locate a gun in the
house, but happened upon a set of keys under a cushion on
a sofa in the living room. Officer Combs seized the keys and
used them to attempt to unlock a white Dodge Neon that
was parked in front of the residence. The keys did not fit
the Neon or any of several other cars parked near the
house.
Officers transported the nine adults to a police station,
where Melissa was placed in a holding cell and handcuffed
to a bench. The record is silent about what happened to the
other occupants of the house once they arrived at the
station. Meanwhile, other officers still at the scene located
Melissa’s maroon Buick automobile parked two blocks from
2215 Kilburn Avenue and discovered that the keys recov-
ered from the house unlocked the car. The officers did not
search the car, but instead towed it to an impound lot. Back
at the police station, two detectives spoke with Melissa, and
she signed a form consenting to a search of the Buick. After
she consented to the search, she was promptly released
from custody. Approximately six hours had passed from the
time the police initially responded to the call until Melissa
signed the consent form. Police searched the Buick and
found a loaded Sturm Ruger .223 caliber assault rifle in the
trunk.
Discussion
Cellitti acknowledges on appeal that the officers’ initial
entry into the home was justified by exigent circumstances,
see Michigan v. Tyler, 436 U.S. 499, 509 (1978), and that
their subsequent search of his and Melissa’s home was
conducted pursuant to Melissa’s voluntary consent, see
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). He

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4 No. 03-3777
contends, however, that the officers exceeded the scope of
the consent to search the house when they seized the keys
from under the sofa cushion, and that Melissa’s later con-
sent to the search of the Buick was coerced. In reviewing
the district court’s denial of Cellitti’s motion to suppress
evidence, we review legal questions de novo and factual
questions for clear error. United States v. Fields, 371 F.3d
910, 914 (7th Cir. 2004).
At the outset the government contends that Cellitti can-
not challenge the consent search of the Buick because it was
Melissa, not Cellitti, who gave that consent. See Rakas v.
Illinois, 439 U.S. 128, 139-40 (1978) (Fourth Amendment
rights are personal and may not be asserted vicariously).
But this argument misses the mark because the relevant
inquiry is whether Cellitti’s privacy interests in the Buick
were violated by the search, and the government conceded
both in the district court and in its brief on appeal that he
had a legitimate expectation of privacy in that car. See id.
at 143 (defendant can claim protection under the Fourth
Amendment if he “has a legitimate expectation of privacy in
the invaded place”). A third party may give consent to
search a place in which both she and the defendant have
legitimate expectations of privacy, and the defendant can
challenge the validity of the consent given by the third party.
See, e.g., United States v. Matlock, 415 U.S. 164 (1974)
(defendant challenged roommate’s consent to search bed-
room); United States v. Basinski, 226 F.3d 829, 834-36 (7th
Cir. 2000) (defendant challenged friend’s consent to search
defendant’s briefcase); United States v. Jensen, 169 F.3d 1044,
1048-49 (7th Cir. 1999) (defendant challenged his stepfather’s
consent to search car he was driving but that his stepfather
owned); United States v. Ladell, 127 F.3d 622, 624 (7th Cir.
1997) (defendant challenged his mother’s consent to search
their apartment); United States v. Saadeh, 61 F.3d 510,
517-19 (7th Cir. 1995) (defendant challenged consent of the
woman who owned garage where he worked to search the
garage). That is the situation here. If, as Cellitti contends,

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No. 03-3777 5
Melissa’s constitutional rights were violated in that she was
coerced into consenting to a search of the Buick, then
Cellitti’s rights were likewise violated because he too had
an expectation of privacy in the car. He can therefore chal-
lenge the voluntariness of her consent.
We turn then to Melissa’s consent. Whether she freely
and voluntarily consented to the search is a factual question,
which we review for clear error. United States v. Pedroza,
269 F.3d 821, 826 (7th Cir. 2001). We defer to the district
court’s determinations of witness credibility, id., and we will
not reverse unless we are “left with the definite and firm
conviction that a mistake has been made,” United States v.
Strache, 202 F.3d 980, 984-85 (7th Cir. 2000) (internal cita-
tion and quotation omitted). The district court correctly rec-
ognized that several factors ordinarily are relevant in deter-
mining whether consent was given voluntarily, including: (1)
the age, intelligence, and education of the person who gave
consent, (2) whether she was advised of her constitutional
rights, (3) how long she was detained before consenting, (4)
whether she consented immediately or only after repeated
requests by authorities, (5) whether physical coercion was
used, and (6) whether she was in police custody at the time
she gave her consent. Schneckloth, 412 U.S. at 226; United
States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001).
No one factor is dispositive and the determination of vol-
untariness depends on the totality of the circumstances.
Strache, 202 F.3d at 985. The district court acknowledged
that Melissa was in custody at the time she consented and
that she had been detained by the police for approximately
six hours, but determined that her consent was nonetheless
voluntary because she had not been physically coerced or
badgered to consent and, at 23 years of age, was old enough
and possessed enough intelligence and maturity to under-
stand the situation.
But there is a flaw in the district court’s reasoning be-
cause the court failed to consider why Melissa was in custody.

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6 No. 03-3777
Having been placed in handcuffs, driven to the police sta-
tion, locked in a holding cell, and chained to a bench for
several hours, her encounter with the police had progressed
beyond an investigatory detention, see Terry v. Ohio, 392
U.S. 1 (1968), and developed into an arrest long before she
consented to the search of the Buick. See Dunaway v. New
York, 442 U.S. 200, 212-13 (1979). But the police had no
probable cause to believe that Melissa had committed a crime
when they arrested her. See United States v. Funches, 327
F.3d 582, 586 (7th Cir. 2003). Indeed the government has
never disputed Cellitti’s contention that Melissa’s arrest was
illegal and has never suggested a reason why the officers
had probable cause to arrest her. Officer Combs even tes-
tified at the suppression hearing that he had no information
that Melissa had committed a crime at the time he took her
into custody.
Consent given during an illegal detention is presump-
tively invalid. See Pedroza, 269 F.3d at 827; United States
v. Jerez, 108 F.3d 684, 695 & n.13 (7th Cir. 1997) (there is
a “strong body of case law in our circuit, as well as in other
circuits” holding that consent is tainted by illegal stops,
detentions, or arrests); United States v. Thompson, 106 F.3d
794, 797-98 (7th Cir. 1997); United States v. Novak, 870
F.2d 1345, 1353 (7th Cir. 1989); United States v. Sanchez-
Jaramillo, 637 F.2d 1094, 1098-1100 (7th Cir. 1980). Al-
though the consent may nevertheless be valid provided that
it is sufficiently attenuated from the illegal police action to
dissipate the taint, Wong Sun v. United States, 371 U.S. 471,
487-88 (1963); Fields, 371 F.3d at 915; see also Thompson,
106 F.3d at 797-98 (consent given during illegal arrest may
be voluntary if it stems from “an independent act of free
will”), the government here has not established that Me-
lissa’s consent was attenuated from her illegal arrest. In
assessing whether the taint of an illegal seizure was
dissipated before consent was given, we consider the time
that elapsed between the illegal act and the subsequent

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No. 03-3777 7
acquisition of evidence; the presence of intervening factors;
and the purpose and flagrancy of the official misconduct.
Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Jerez, 108
F.3d at 694-95. When consent to search is given by a person
who remains illegally detained, the government is unlikely to
meet its burden of showing that the consent was sufficiently
attenuated from the illegality. See Jerez, 108 F.3d at 695;
McGann v. Northeast Ill. Reg’l Commuter R.R. Corp., 8 F.3d
1174, 1184 (7th Cir. 1993). Here, Melissa’s consent was given
while she was still in custody because of the illegal arrest
and there was no intervening event of significance. Under
these circumstances, we conclude that her consent to search
the Buick was tainted by her illegal arrest and was there-
fore invalid.
Although the search of the Buick cannot be upheld on the
basis of Melissa’s consent, we must consider whether the
officers had an alternative ground to search the car without
a search warrant. Several events led to the officers’ search
of the Buick and we must consider each in turn, beginning
with the seizure of the keys. Again, we note that in the
district court the government conceded that Cellitti had
“standing” to challenge the seizure of the keys, and we
accept its concession. The officers seized the keys while they
were searching the house for the rifle. When a citizen con-
sents to a search of her property, the police must constrain
their search and seizures to the scope of the consent. Florida
v. Jimeno, 500 U.S. 248, 251 (1991). But an officer may
nevertheless seize an incriminating item not within the
scope of the consent if it is in “plain view.” United States v.
Raney, 342 F.3d 551, 558-59 (7th Cir. 2003). The seizure of
an item that falls outside the scope of a consent search is
within the plain view exception if: (1) the officer was
lawfully present in the place from where he viewed the
item, (2) the item was in plain view, and (3) its incriminat-
ing nature was “immediately apparent.” Id. Neither of the
first two requirements is in doubt here. Melissa voluntarily

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8 No. 03-3777
consented to the officers’ entry into her home for the
purpose of looking for a rifle, which could be hidden under
the cushions of a sofa. See United States v. Ross, 456 U.S.
798, 820-21 (1982) (search may extend to entire area in
which object of search may be found). Once the officers
removed the cushions, the keys were in plain view.
What is less clear, however, is whether the incriminating
nature of the keys was “immediately apparent.” See Coolidge
v. New Hampshire, 403 U.S. 443, 466 (1971). For the incrim-
inating nature to be immediately apparent, the officer must
have probable cause to believe that the item is contraband
or otherwise linked to criminal activity. United States v.
Bruce, 109 F.3d 323, 328 (7th Cir. 1997). Although officers
may have probable cause to seize an ordinarily innocuous
object when the context of an investigation casts that item
in a suspicious light, see United States v. Van Dreel, 155
F.3d 902, 905 (7th Cir. 1998) (guns and ammunition found
during investigation of illegal hunting); Bruce, 109 F.3d at
328-29 (shotgun shells found while officers were investigat-
ing armed bank robberies); United States v. Cooper, 19 F.3d
1154, 1163 (7th Cir. 1994) (empty ammunition box found in
suspected drug dealer’s apartment); United States v.
Cervantes, 19 F.3d 1151, 1153 (7th Cir. 1994) (large amount
of cash found on man who had recently sold illegal drugs to
an undercover officer), the link between the keys and the
criminal activity these officers were investigating is too
strained. The officers did not locate a rifle in the house and
thought that it was hidden somewhere nearby—perhaps in
a car. As it turned out, the officers’ instincts were correct.
But at the time they located the keys, the police had no in-
formation whatsoever tying that lone set of keys found in a
house occupied earlier by nine adults to the crime they were
investigating. Nothing about the keys suggested that they
belonged to any of the three people Singleton said were
present during the altercation with Cellitti. Nor did any-

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No. 03-3777 9
thing link those keys to the Neon—a car that had been
involved in the earlier assaults and was parked in front of
the house. So far as we can tell from the record, nothing
about the keys revealed that they corresponded to a Buick,
and in any event there had not been a Buick involved in the
morning’s altercation, no Buick was parked in front of the
house, and the officers had no information that the gun
might have been in a Buick. The gun could have been
anywhere, and the officers’ speculation that it might have
been hidden in a car is insufficient to establish probable
cause to seize the keys. We thus hold that the seizure of the
keys did not fall within the plain view exception, and
therefore violated the Fourth Amendment.
The testing of the keys in the lock of the Buick, and the
impoundment and warrantless search of the car occurred as
a direct result of the officers’ illegal seizure of the keys, and
thus are fruits of the poisonous tree. See Fields, 371 F.3d at
915. The government has not argued that the police inevita-
bly would have discovered the rifle in the Buick through
any other means, see Murray v. United States, 487 U.S. 533,
539 (1988), and we must therefore conclude that the district
court erred when it denied Cellitti’s motion to suppress the
rifle.
V ACATED and R EMANDED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-04

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