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United States v. Kitchenakow

United States District Court, E.D. Wisconsin

March 2, 2016


Page 1063

          For Ashley E Kitchenakow, Defendant: Henry R Schultz, LEAD ATTORNEY, Schultz Law Office, Crandon, WI.

         For USA, Plaintiff: William J Roach, LEAD ATTORNEY, United States Department of Justice (ED-WI), Office of the U.S. Attorney, Green Bay, WI.

Page 1064


         William C. Griesbach, Chief United States District Judge.

         Defendant Ashley E. Kitchenakow is charged in an indictment with involuntary manslaughter in causing the death of an individual whose initials are S.A. while driving a motor vehicle under the influence of an intoxicant on the Menominee Indian Reservation in violation of 18 U.S.C. § § 1112 and 1153. In a second count, Kitchenakow is charged with assault resulting in serious bodily injury to a person whose initials are J.R., arising out of the same occurrence in violation of 18 U.S.C. § § 113(a)(6) and 1153. The first count carries

Page 1065

a maximum sentence of eight years in prison, while the second count, curiously, carries up to ten years. The case is before the Court on the defendant's motion to suppress evidence allegedly obtained as a result of an illegal arrest of the defendant in violation of the Fourth Amendment and the violation of her Fifth Amendment right against compelled self-incrimination. For the reasons set forth below, the motion will be denied in part and granted in part.


         Defendant first contends that law enforcement illegally entered her home to effectuate her arrest, and thus, any evidence obtained as a result of the arrest must be suppressed. Specifically, defendant seeks suppression of the test results for the alcohol content of her blood, her field sobriety test results, and any statements made to the Menominee Tribal Police or the FBI, as well as any derivative evidence. I conclude, however, that the arrest of the defendant by Menominee Tribal Police Officer Vincent Grignon was not illegal.

         At the evidentiary hearing held on the defendant's motion, Officer Grignon testified that at approximately 11:00 p.m. on August 29, 2015, he was requested to assist an investigation of an automobile accident in Neopit, Wisconsin on the Menominee Indian Reservation. Upon his arrival, Officer Grignon noted that a vehicle had crashed into a tree. The vehicle was badly damaged, but was unoccupied at the time. The registration of the vehicle came back to the defendant, and several witnesses at the scene had told other officers that she had fled the scene.

         Officer Grignon had known the defendant since they were in high school together. He also knew where she lived. He proceeded to that location in his squad car and arrived shortly thereafter. He observed that there were people in the back yard, sitting around a fire. Officer Grignon asked if the defendant was present and was told that she had left a couple of hours earlier. He asked if she was in the house and was told by an individual who was later identified as Christopher Kitchenakow that she was not. Officer Grignon then asked if he could go inside to look for himself. Christopher consented, but when Officer Grignon asked if he had authority to consent, Christopher admitted that he did not. Christopher stated, however, that the defendant's father was inside and that he did have such authority. Officer Grignon then knocked on the door and was invited to enter by the defendant's father. The defendant was not there.

         In the meantime, the dispatcher for the Menominee Tribal Police advised Officer Grignon that there were active warrants on Christopher Kitchenakow. Officer Grignon took Christopher into custody and transported him to the Menominee Tribal Police Department. He was then directed back to the scene at which time he was informed that one of the occupants of the vehicle had died and others were seriously injured. When he arrived back at the scene, he observed a woman down the street screaming that the defendant was running down the alley. Officer Grignon proceeded to the location of the woman and she stated that the defendant was running down River Street. Officer Grignon gave chase and followed the defendant back to her home. An occupant of the home across the street pointed to her home and indicated that she had entered just before Officer Grignon arrived. Officer Grignon then proceeded to the back of the house again, knocked on the door, and heard the defendant respond. When she opened the door, Officer Grignon instructed her to exit the residence. She did not comply and he reached in, grabbed her arm and pulled her out. At that point, he

Page 1066

advised her she was being detained and placed restraints on her wrists. She was then transported to Shawano Medical Center where she failed the sobriety tests and consented to the withdrawal of a sample of her blood for testing. According to the government, the test showed an alcohol content of .154 %. Gov't. Resp. to Mot. to Suppress (ECF No. 12) at 4.

         Officer Grignon testified that he did not step into the house when he grabbed the defendant; he simply reached in and pulled her out. He further stated that she was within one step of the entrance. Further, he testified that he did not want her to retreat into the home because there were other individuals there and that on his earlier entry he had seen alcohol. In his experience, it is not uncommon for someone who is suspected of driving under the influence, if given the chance, to rapidly drink, or chug, additional alcoholic beverages so as to make impossible an accurate determination of their blood alcohol content at the time they were driving. For all of these reasons, he concluded that taking custody of the defendant when she appeared at the doorway was reasonable.

         Officer Grignon was correct. Under the " hot pursuit" exception to the search warrant requirement a law enforcement officer may enter a home while in " hot pursuit" of a suspect in order to protect the public or prevent the destruction or loss of evidence of a crime. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Santana, the defendant was suspected of selling heroin to an undercover police officer. Within minutes of the sale, other police officers proceeded to the home and observed the defendant standing in the doorway of the house where the delivery had just occurred. The police pulled up to within 15 feet of the defendant, got out of their van shouting " police" and displaying their identification. As the officers approached, the defendant retreated into the vestibule for her house. The officers followed through the open door, catching her in the vestibule. As she tried to pull away, a bag she was holding tilted and two bundles of paper package with white powder, later determine to be heroin, fell to the floor. She was later arrested and charged with possession of heroin with the intent to distribute. In upholding the arrest and seizure of evidence the Court noted that the police were justified in entering the home in hot pursuit of the defendant and given the exigent circumstances. Exigent circumstances existed because once the defendant saw the police, there was a realistic expectation that any delay would result in the destruction of evidence. Id. at 42-3.

         The same reasoning justifies the actions of Officer Grignon in this case. The defendant had fled the scene of the fatal accident approximately two hours and forty minutes earlier. It was reasonable to believe she had been hiding and running from the police since that time. She entered the house only minutes before Officer Grignon arrived. If he had not immediately taken the defendant into custody at the doorway, Officer Grignon risked the possibility that the defendant would flee into the house and delay even further the opportunity to obtain a sample of her blood so that it could be tested for its alcohol content. Officer Grignon noted that he was aware from his training and experience that alcohol metabolizes in the blood and the longer the delay between the drinking and the driving, the more difficult it would be to prove that she was intoxicated at the time of the crash. Officer Grignon also noted the additional risk that if not immediately taken into custody, the defendant would be able to consume additional alcoholic beverages that were accessible

Page 1067

to her in the house so as to make impossible the determination of what her blood alcohol content was at the time she was driving.

         Under these circumstances, the limited entry required in order for Officer Grignon to take the defendant into custody was reasonable. It is important to note that other than reaching across the threshold, Officer Grignon did not enter the defendant's home; he simply reached in and pulled the defendant out onto the porch. The defendant suggests that because the arrest occurred at the back door, the invasion of the defendant had a greater privacy interest than if Officer Grignon had gone to the front door. But Officer Grignon explained that the back door was commonly used as the entrance to the home for guests, and the defendant offered no evidence that visitors were not welcome to come to the back door in order to summon one of the occupants. Finally, it should also be noted that police were investigating a homicide. This was not a mere driving while intoxicated offense. Cf.Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (holding that warrantless " hot pursuit" entry into home to arrest occupant for driving under the influence ...

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