United States v. Renken, Henry C. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2838
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HENRY C. RENKEN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1099—David H. Coar, Judge.
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ARGUED OCTOBER 18, 2006—DECIDED JANUARY 31, 2007
____________
Before POSNER, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. A jury convicted Henry Renken
of bank robbery (and using a firearm while committing
the robbery) after concluding that he had held up the
NorthSide Community Bank in Gurnee, Illinois, and re-
lieved it of over $18,000 in cash before making his getaway
on, of all things, a bicycle. As he fled, the college-educated
Renken (he earned a bachelor’s degree in biology from
Ripon College in Ripon, Wisconsin, in 1976) proclaimed,
“You can thank President Bush and the economy for this.”
Renken now seeks a new trial, arguing that the district
court judge (David H. Coar) should not have admitted
certain evidence, including the results of police searches
2 No. 05-2838
of his home and vehicle and the testimony of a dog handler
who, together with his bloodhound (Daisy Mae),1 investi-
gated part of the crime scene. We start with the facts.
On a late afternoon in November of 2002, a tall man
carrying a duffel bag and wearing a ski mask, green
hooded parka, jeans, and black gloves entered the Gurnee
branch of NorthSide Community Bank, approached a
teller, drew a gun, ordered a customer to the floor, and
demanded that the teller fill the duffel bag with cash.
After the first teller complied (while also managing to
pass off some prerecorded bait bills from his drawer), the
drive-thru teller received and followed the same instruc-
tions. The robber then, as we said, proclaimed his ad-
miration for President Bush and rapidly pedaled away.
Once the police arrived, an officer realized he had just
passed a man in a green parka riding a bicycle and
heading toward a bike path in a wooded area. The officer
drove his squad back in the direction of the cyclist and
maneuvered onto the bike path, where he quickly found
an abandoned bicycle—a green mountain bike. Parked
nearby, at a distance of some 20 yards, was a green Chevy
Blazer, which sat at the end of another road that led away
from the bike path in a different direction. It was later
learned that the Blazer was registered to the defendant’s
wife, Susan Renken.
The robber ultimately escaped, and the police began
to investigate the area around the bicycle. One officer
arrived in a squad car that he parked next to the Chevy
Blazer; wearing gloves and taking care to avoid touching
1
The dog’s name is spelled Daisy “Mae” and Daisy “May” in
various parts of the record. We prefer Daisy “Mae,” recalling
the voluptuous Daisy Mae who was hopelessly in love with Li’l
Abner (while living in Dogpatch!) over the long run of Al Capp’s
classic comic strip.
No. 05-2838 3
the bike’s seat, he moved the bike from its location and
placed it near the squad car.
About 3 hours later, Gurnee police called in Kevin Tracz,
chief of the Bannockburn police department and, more
importantly for their purposes, the handler of Daisy
Mae, a trained bloodhound. Daisy Mae was 9 months old
and had been receiving training for use in police investi-
gations for 6 months, including 163 training hours. (At
trial, Tracz testified that, prior to the day of the robbery,
Daisy Mae had only been used twice before on a real
investigation.) When he arrived, Tracz instructed another
officer to put the bike back where it was originally found.
Once this was done, Tracz offered Daisy Mae the bicycle
seat for a scent. She was then given a “find” command
from which she promptly led Tracz to the Blazer. She first
walked around the truck and then jumped on it, signaling
to Tracz that she scored a hit.
After determining that the Blazer belonged to Renken’s
wife, a team of federal and local law enforcement officers
converged on Renken’s home in Lake Bluff, some 8 or so
miles away. Three of them, two of whom carried exposed
guns, approached the front door while others watched
the rear of the house for anyone trying to leave. When
Susan Renken answered, the three identified themselves,
explained that they wanted to speak to her husband, and
asked if they could come in. They then entered, although
it is disputed whether Susan gave them permission to do
so.
When asked who else was in the house, Susan explained
that her husband was showering upstairs. The officers told
her they needed to verify this for their own safety, and
several proceeded upstairs, where they encountered
Renken showering with the bathroom door ajar. Two FBI
agents moved inside the bathroom, identified themselves
to Renken, and told him they wanted to speak with him
4 No. 05-2838
after he had completed his shower. When he had done so,
the agents escorted him downstairs to the kitchen where
they found a green hooded parka with a fur-trimmed hood
matching the description of the jacket worn by the bank
robber. Meanwhile, a detective, still upstairs, noticed dirty
and torn socks and shoes containing “broken bits of dried
leaves [and] branches” in the bathroom.
Without issuing Miranda warnings, the agents began
questioning Renken about the robbery. After he initially
denied involvement, the police confronted him with sev-
eral pieces of evidence tying him to the crime, including
the trail picked up by Daisy Mae between the bike and the
Blazer. Apparently convinced of the futility of his denials,
Renken confessed and told the officers where to find the
money and the gun he had used. He was then advised of
his Miranda rights. And he proceeded to make a detailed
oral confession before signing a written statement based
on that confession. He also signed a consent to search
his house and the Chevy Blazer. The police soon found
the gun and the duffel bag filled with the money (includ-
ing the marked bills) as Renken said they would: each was
in a separate part of the wooded area through which he
had fled that afternoon.
Before the trial, Renken moved for the suppression of
his confessions, the evidence seized as a result of those
confessions, and the signed consent to search, arguing
that his Fourth and Fifth Amendment rights were vio-
lated. Judge Coar granted the motions with respect to the
confessions, and the government was precluded from
introducing them—and some physical evidence that was
fruit of the confessions—at trial. But he refused to sup-
press the physical evidence seized from Renken’s home
and vehicle the night of the arrest. Because the judge
concluded that Renken’s wife consented to the officers
entry into the home and that Renken’s interactions with
the officers had likewise been voluntary, he found that the
No. 05-2838 5
searches were exempted from the general Fourth Amend-
ment prohibition against warrantless searches, as ex-
plained in Schneckloth v. Bustamonte, 412 U.S. 218, 219-
22 (1973).
Renken disputes these conclusions. He argues that,
under a Schneckloth analysis of the “totality of the cir-
cumstances” surrounding his and his wife’s dealings with
the officers, it is clear that neither acted voluntarily.
Because this contention gives rise to questions of fact
rather than law, Renken has the burden of showing that
the judge’s ruling was clearly erroneous. As we shall see,
he has failed to do so.
The “totality of the circumstances” analysis looks to
factors such as “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 cus-
tody.” United States v. LaGrone, 43 F.3d 332, 334 (7th Cir.
1994). Renken argues that this situation mirrors the
one described in United States v. Gillespie, 650 F.2d 127,
128-29 (7th Cir. 1981), cert. denied, 458 U.S. 1111 (1982),
in which the government argued that an entry and
search was consensual in an effort to avoid the sup-
pression of evidence seized during a search prompted by
a warrant for the arrest of a third party who turned out
not to be on the scene. In Gillespie, we held that, even
though it was unclear from the record whether the of-
ficers were already inside when they received permission
to search the house, the search could not have been
consensual because “even if the agent[s] were outside,
Gillespie could only have felt he had no choice but to let
in the officers.” Id. at 129.
The two cases are not without similarities: as in this
case, armed federal agents and local police officers ap-
proached the front door while others watched the back of
6 No. 05-2838
the house, and the exact sequence of how the officers
entered the house is in dispute. But their differences are
the key: in Gillespie at least five “heavily armed” agents
approached the house with guns drawn and in the “ready”
position, declaring they were looking for three fugitives.
Once inside, they immediately frisked Gillespie and then
forced him to lead them through the house room by room
as they followed with shotguns drawn.
Nothing like that happened here; the officers at the
Renkens’ door adopted a far less confrontational posture,
and there was “no unnecessary display of weapons.”
United States v. Rojas, 783 F.2d 105, 108 (7th Cir. 1986).
Renken offers nothing to suggest that his wife’s age,
education, or intelligence precluded her from understand-
ing that she was consenting to the police entry into her
home. Nor is there evidence that the officers repeatedly
asked for or demanded entry. Indeed, Renken argues only
that Susan did not expressly invite the officers in—a
contention that the officers dispute and that in any event
neglects to appreciate that consent in certain cases can
be implied in the absence of clear verbal permission.
Ultimately, in sorting out the facts, Judge Coar believed
the version advanced by the police and thus concluded
that Mrs. Renken’s consent to the entry was voluntary.
The judge’s determination cannot be branded as clear
error.
As for Renken’s own signed consent to search, we have
previously established that a consent to search can be
voluntary—and therefore Fourth-Amendment-compli-
ant—notwithstanding the fact that it was given while
a defendant was in custody without having received
Miranda warnings. United States v. Bernitt, 392 F.3d 873,
877 (7th Cir. 2004); see also United States v. Watson, 423
U.S. 411, 424 (1976) (“[T]he fact of custody alone has
never been enough in itself to demonstrate a coerced
confession or consent to search.”). Here, Judge Coar looked
No. 05-2838 7
at the environment in which Renken was questioned
and determined that he was in custody based on his lack
of freedom to interrupt or terminate his conversation with
the officers and the fact that he was confronted with
evidence of his guilt. That conclusion required the suppres-
sion of Renken’s confession made before he received
Miranda warnings and, after Missouri v. Seibert, 124
S. Ct. 2601 (2004), of his confession after receiving those
warnings. But that’s as far as he can get on this ticket,
for under United States v. Patane, 124 S. Ct. 2620, 2629
(2004), the failure to give Miranda warnings does not
require the exclusion of evidence collected after a defen-
dant gives a voluntary consent to search. Instead, the
standard “totality of the circumstances” analysis applies.
On that point, Renken signed a consent to search form
that contained, in express terms, an assurance that he
was not required to give his consent. Although he con-
sumed a single beer earlier in the day, there was no hint
that the 47-year-old Renken was capable of being
coerced or tricked into consenting, nor that the officers
made such efforts. As Judge Coar pointed out, there was
no allegation of physical coercion, and his interrogation
lasted no more than 12 minutes. We cannot say that the
district judge clearly erred in concluding that, under the
totality of the circumstances, his consent to search the
home and the Chevy Blazer was voluntary. The evidence
seized from those searches was admissible at his trial.
Renken’s other argument concerns Daisy Mae and her
handler, Chief Tracz. Citing the pair’s limited experience
as a team with real police investigations, Renken argues
that, under Rule 702 of the Federal Rules of Evidence (a
codification of the Daubert rule), the judge should have
excluded as unreliable Tracz’s testimony about Daisy
Mae’s actions on the bike path. Because this presents a
challenge to a decision about the admissibility of evi-
8 No. 05-2838
dence, we review only for an abuse of discretion. United
States v. Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998).
Renken explains that Tracz received no special training
on how to work with search dogs but instead used a
training program provided by the North American Search
Dog Network in order to train Daisy Mae. He points out
that Daisy Mae had only been used for two investigations
prior to November of 2002, and that, although Tracz
testified that the dog had successfully completed an
intermediate-level test provided by the training program
(which involved tracking a 30- to- 60-minute-old trail
over a half-mile distance), Daisy Mae had never received
a certificate authenticating her efforts. Renken also
invokes Tracz’s own trial testimony that a young search
dog must be worked regularly and notes that Daisy Mae
missed a week or more of training time at several points
during the year prior to the bank robbery. Finally, he
argues that the trail Daisy Mae traced was contaminated,
both because the bicycle had been temporarily moved
and because a different dog and handler team had al-
ready searched the area.
The government contends that Daisy Mae and Tracz had
more than enough experience and success to demonstrate
their reliability. They argue that Tracz developed sub-
stantial knowledge of search dog training and methodology
when he devoted 163 hours to Daisy Mae’s training, and
they note that in her two prior investigations Daisy Mae’s
findings were corroborated by other facts or tracking dogs.
More generally, they point out that a majority of juris-
dictions to consider the issue have found bloodhound
tracking evidence to be admissible (although Illinois is
an exception) and dog handler testimony to be an ap-
propriate means for establishing the reliability of a
particular dog.
From our vantage point, there may be some reason to
question the reliability of Tracz’s methods in this particu-
No. 05-2838 9
lar case, if only because of the apparent contamination of
the search area caused by moving the bicycle. But unfortu-
nately for Renken, it is apparent to us that “even if the
district court had erred in its decision as to the admissi-
bility of the proffered testimony, the evidence in this case
was so overwhelming . . . that his conviction was not
‘inconsistent with substantial justice.’ ” United States v.
Reed, 259 F.3d 631, 635 (7th Cir. 2001). In other words, at
worst the admission of Tracz’s testimony was harmless
error.
The major contribution of Tracz’s testimony was to
affirm that Daisy Mae detected a connection between the
abandoned bicycle and the Blazer. Although this con-
nection helped crack the case, it was not essential to the
government’s case against Renken at trial.2 The govern-
ment presented a mountain of incriminating evidence: six
eyewitnesses from the bank who attested to various
aspects of the robber’s appearance, including his height,
gender, and the green parka with fur-trimmed hood and
black gloves that he was wearing; a police officer who
noticed and followed the trail of a man wearing a green
hooded parka and riding a green bicycle; the testimony
of Renken’s son that his father owned a green mountain
bike; the bike itself found so close to the Blazer; a transac-
tion report and receipt for Renken’s purchase of “motor
clothes” from Harley Davidson; a duffel bag found in
the wooded area containing over $18,000 in cash and a
Harley Davidson black leather glove; testimony that the
recovered cash included the bait bills recorded by the bank;
a .22 Lugar handgun also recovered from the wooded area,
shown to have been purchased by a Ruth V. Renken in
2
Plus, even without Daisy Mae, the police obviously noted a
possible connection between the abandoned bike and the Blazer.
The proximity, one to the other in a wooded area, made that
quite obvious.
10 No. 05-2838
1973 and recalled by Henry Renken’s ex-wife from their
past visits to Ruth Renken’s home; the dirty shoes and
jeans spotted in Renken’s bathroom by the FBI agent; and
the key to the green Chevy Blazer found in the pocket of
those jeans. The government’s evidence against Renken,
even without Tracz’s testimony about Daisy Mae, was
more than overwhelming.
For these reasons, Henry Renken’s conviction is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-31-07