United States District Court, E.D. Wisconsin
For Stephen Donte Ivory, Defendant: Craig W Albee, Federal Defender Services of Wisconsin Inc, Milwaukee, WI.
For USA, Plaintiff: Margaret B Honrath, LEAD ATTORNEY, William J Lipscomb, United States Department of Justice (ED-WI), Office of the U.S. Attorney, Milwaukee, WI.
DECISION AND ORDER
LYNN ADELMAN, District Judge.
On August 27, 2013, a Milwaukee police officer conducted a pat-down of defendant Stephen Ivory, discovering a firearm. The officer arrested defendant for carrying a concealed weapon (" CCW" ) under state law, and defendant was later convicted of that offense in Milwaukee County Circuit Court, receiving a sentence of 180 days in jail. Meanwhile, on November 19, 2013, the government obtained an indictment charging defendant with making a false statement in connection with the purchase of a firearm (count one), contrary to 18 U.S.C. § 922(a)(6), and possessing a firearm as an unlawful drug user (count two), contrary to 18 U.S.C. § 922(g)(3). Count one pertained to defendant's attempted purchase of a firearm from Cabela's, a federal firearms dealer, on November 2, 2011, while count two pertained to the firearm seized from defendant's person on August 27, 2013.
On May 6, 2014, defendant filed a motion to suppress all evidence and derivative evidence, including all of his statements, obtained as a result of the search and seizure by Milwaukee police on August 27, 2013. The following day the government moved for leave to dismiss count two, which I granted on May 21, 2014. On June 12, 2014, the magistrate judge handling pre-trial proceedings in this case conducted an evidentiary hearing on the motion to suppress. The parties did not at that hearing discuss the impact of the dismissal of count two or otherwise address the scope of the suppression order sought. On August 5, 2014, the magistrate judge issued a recommendation that the motion be denied, finding that defendant consented to the pat-down. Defendant objected, and I held a de novo hearing on October 20, 2014, at which the parties again did not address the scope of the suppression order sought. On November 4, 2014, I granted the motion, finding that defendant did not consent and that the police unlawfully searched his person.
At a November 20, 2014, status conference, the government requested and I granted permission to brief the scope of suppression. In its submission, the government notes that the only pending charge is count one, which alleges that defendant made a false statement to a federally licensed firearms dealer on November 2, 2011, nearly two years prior to the police encounter that was the subject of the evidentiary hearings. The government indicates that in order to prove count one it would submit the ATF Form 4473 defendant completed on November 2, 2011, in which he represented that he was not a fugitive from justice, as well as evidence showing that at the time defendant made this statement there was a warrant out for his arrest for failure to appear in Clark County, Indiana on a marijuana possession case emanating from a March 23, 2011 traffic stop. The government contends that this evidence need not be suppressed based on my finding of an unlawful search on August 27, 2013. Defendant counters that the government pursued this evidence only because of statements he made following his unlawful arrest on August 27, 2013, and that the government cannot establish
any independent source that would have led them to this evidence. The matter is fully briefed and ready for decision.
In my November 4 order, I summarized the facts regarding the August 27 search and seizure as follows:
On August 27, 2013, Milwaukee police responded to a fatal shooting in the area of 27th and Burleigh Streets, shutting down traffic, securing the scene, and canvassing the area to identify witnesses and suspects. During the canvass, officers secured a Chicago Subs shop, identifying six witnesses, including defendant. Three officers were stationed inside the shop to make sure no one came in or left, to ensure that the witnesses did not taint their statements by conferring, and to protect the witnesses' identities. The witnesses remained in the shop for between 30 and 60 minutes. The scene commander, Sgt. Wesam Yangham, secured squad cars so the witnesses could be questioned separately. Five of the six witnesses were questioned in squads, the sixth inside the sub shop.
After about an hour, Yangham told Officers Jose Ramirez and Chad Boyack to take defendant to their squad car for an interview. Ramirez approached defendant, who was standing outside the sub shop holding a bag of food, and told defendant to follow him to the car. Ramirez pointed out the car, and defendant walked in front of Ramirez towards it. Once they arrived at the squad car, Ramirez told defendant that before he placed defendant in the squad car he would " need to pat him down just for personal procedures." Defendant said something to the effect of " okay," but Ramirez could not remember his exact words. Ramirez tapped defendant's elbows, defendant put his hands up, and Ramirez proceeded to pat him down, discovering a firearm in his waistband. Defendant was not at the time of the pat-down a suspect, just a witness, and the officers had no reason to believe that he was armed or dangerous.
(R. 41 at 1-2, internal citations and footnotes omitted.)
According to the supplemental materials presented by the parties, based on the discovery of the firearm officers arrested defendant for CCW and took him into custody at approximately 12:40 a.m. At about 5:20 a.m., a Milwaukee detective questioned defendant about the gun found on his person and the shooting he had witnessed. At approximately 1:15 p.m., Milwaukee Detective Caballero (an ATF task force officer) and ATF Special Agent Adamson interviewed defendant again. Adamson advised defendant of his Miranda rights, and defendant agreed to talk. (R. 44-1 at 1.) During the interview, defendant indicated that he purchased the firearm he had been caught with the previous night at a gun show in June of 2013. Defendant stated that the only other time he tried to purchase a firearm was in 2011 or 2012 when he tried to buy a .40 caliber Sigma from Cabela's. Defendant stated that he was denied that firearm because he was considered a fugitive from justice. He explained that in March of 2010 ...