United States District Court, E.D. Wisconsin
ORDER DENYING MOTION TO SUPPRESS EVIDENCE (DKT. NO.
PAMELA PEPPER United States District Judge.
grand jury returned a one-count indictment, charging the
defendant with possessing two firearms after having been
convicted of a felony; the indictment also alleges that the
firearms had previously traveled in interstate commerce. Dkt.
No. 1. (The government later obtained a superseding
indictment, adding a forfeiture count. Dkt. No. 11.) The
defendant filed a motion to suppress the weapons, arguing
that law enforcement obtained them as a result of an unlawful
stop, arrest and search. Dkt. No. 9. Magistrate Judge Jones
held an evidentiary hearing on the motion, dkt. no. 15, and
ended up issuing a recommendation that this court deny the
motion to suppress, dkt. no. 22. The defendant objected to
the report, dkt. no. 23, and the government responded, dkt.
no. 25. The court agrees with Judge Jones' report and
recommendation, and based on that recommendation, will deny
the motion to suppress.
Jones' report and recommendation lays out in detail the
facts that came out at the evidentiary hearing. Dkt. No. 22
at 2-5. The bottom line is that while investigating the
defendant in connection with allegations that he was involved
in June 2015 shooting incidents in Milwaukee, police
discovered that the defendant's live-in girlfriend had
purchased a firearm from a sporting goods store. Id.
at 2. They went to the couple's residence (one officer
wearing an active body camera recorder), where they spoke to
the girlfriend. She confirmed that she'd purchased a
firearm, and that it was in the residence with the defendant.
Id. at 3. At the officers' request, the
girlfriend asked the defendant to come outside; when he
didn't, they asked the girlfriend to let them into the
residence, which she did. Id. They found the
defendant in the kitchen, and asked him to step outside-which
he did. They patted him down, escorted him downstairs,
and-when he became argumentative-handcuffed the defendant and
put him in a squad car. Id. The officers eventually
took the defendant to the police station, without asking him
for consent to search the residence. Id. at 3-4.
They did, however, ask the girlfriend for consent to search
the residence, and she gave it. The officers found the gun
the girlfriend had purchase, as well as another one.
Id. at 4. The officers later questioned the
defendant about the guns, and (after he received his
Miranda warnings), he incriminated himself.
defendant argued that even though the police had the
defendant's live-in girlfriend's consent to search,
the search violated the Fourth Amendment because they did not
also obtain the defendant's consent. Id. at 22.
Judge Jones found, pursuant to the Supreme Court's
decision in Fernandez v. California, ___ U.S. ___,
134 S.Ct. 1126, 1134 (2014), that the girlfriend's
consent was sufficient unless the officers removed the
defendant from the residence for the purpose of avoiding an
objection to the search. Id. at 7-8. Thus, he turned
to whether the officers had reasonable suspicion to pat down
and detain the defendant. Judge Jones concluded that they
did-the defendant had been in the residence alone with a
firearm before the officers entered, and it was reasonable
for them to pat him down (to make sure it wasn't on his
person) and detain him while they located the weapon.
Id. at 10.
defendant argued, however, that his detention went beyond the
bounds of an investigatory stop, and became an arrest for the
purposes of preventing him from objecting to the search.
Judge Jones disagreed, finding that the officers detained the
defendant for one minute before transporting him to the
police station (id. at 17 n.2), and that within
twenty or so minutes, the officers had probable cause to
arrest the defendant (having found the firearms).
Id. at 11. The defendant argued that he was, in
reality, arrested before the police found the firearms (the
police handcuffed him and put him in a patrol car).
Id. at 12. Judge Jones concluded that, while the use
of the handcuffs may have been unnecessary, it did not
somehow allow the officers to find evidence that they
otherwise wouldn't have found. Id. at 15. The
girlfriend consented to the search, and the officers did not
officially arrest the defendants until after they had
recovered the firearms. Id. at 15-16. For all of
these reasons, Judge Jones recommended that the court deny
the motion to suppress.
objection, the defendant argues that Judge Jones should not
have relied on Fernandez and similar decisions,
because the police officers did not give the defendant a
chance to object to the search. Dkt. No. 23 at 4-5. He argues
that the officers obtained the girlfriend's consent to
enter the residence, then-without asking the defendant for
his consent to search-took the defendant out of the
residence, without explaining to him why he was being
detained. The officers then asked the girlfriend for consent
to search. The defendant argues that this chain of events
shows that the officers removed the defendant from the
residence to prevent him from objecting to the search.
Id. at 5. He also argued that the police did not
have probable cause to detain the defendant, because all they
had at the time they detained him was the girlfriend's
statement that she'd bought a gun, that it was in the
residence, and that the defendant may have touched it.
Id. at 7.
government responds that the officers had reasonable
suspicion, based on the girlfriend's statements, to
believe that the defendant might have a gun. Dkt. No. 25 at
9. They also were aware that the defendant was a felon, and
that he had a criminal history that involved allegations that
he'd been involved in two shootings. Id. at 10.
For these reasons, the government argues, the officers had a
reasonable basis for temporarily detaining the defendant. The
government also argues that the officers' brief detention
of the defendant in the squad car was reasonable-it lasted
approximately fifteen minutes, and the officers conducted
their search immediately. Id. at 11-12. The
government acknowledges Judge Jones' concern about the
fact that the officers handcuffed the defendant, id.
at 12, but argued that under the “collective
knowledge” doctrine, the officers knew that they were
dealing with a felon with multiple, serious prior
convictions, as well as with a possible shooter, id.
at 13-14. The government noted that the defendant had refused
to come out of the residence when the girlfriend had asked
him to (before the officers entered), and had become
argumentative on his way out of the residence. Id.
the government argues that the officers had probable cause to
arrest the defendant-they had reason to believe that he had a
gun in his appointment and that he'd touched it (which
meant he knew it was there); he'd refused to come out of
the residence once he knew the officers were there to ask
about a gun (and had time to hide it before the officers came
in); when the officers did find the gun, it wasn't where
the girlfriend had said it would be (giving rise to an
inference that the defendant had moved it once he knew the
police were there); the officers found a second gun, which
the girlfriend said the defendant was holding for a friend;
and the officers found ammunition and clips in the
couple's shared bedroom. Id. at 14-16. The
government notes that the question isn't whether the
defendant owned the guns, but whether he possessed
them, and the officers had probable cause to conclude that he
the government disputes the defendant's argument that the
officers took him out of the residence to prevent his
objection to the search. The government points out that while
they were with the defendant in the residence, he did not
object to their being there. It was only after the officers
started to take him out of the residence that he started to
ask questions about why the officers were there, or what
he'd done. Even then, the defendant did not tell the
officers to get out of the residence, or tell them that they
could not search it. Id. at 18.
court agrees with Judge Jones' conclusions, and with the
government's arguments. The officers arrived at the
residence of a known felon, armed with information that there
was a firearm in the residence. They had reason to believe
that he'd been involved in shootings before. He did not
come out of the residence when asked, and by the time the
girlfriend let them in, the defendant knew that the officers
were there to ask him about a gun. These facts provided them
with reasonable suspicion to detain him. During the minutes
he was detained, the defendant did not object to the
officers' presence, or object to them searching the
apartment. The defendant implies that the officers had an
obligation to ask him if he would consent to the search
before taking him out of the residence, but provide no
authority for such a proposition. The officers detained the
defendant for a relatively short period of time-fifteen to
twenty minutes-while they searched the apartment. Whether
they detained him in cuffs or not, the court agrees with
Judge Jones that the detention was reasonable, and based on
reasonable suspicion. By the time the officers arrested the
defendant at the police station, they had obtained the
girlfriend's consent, found the gun she'd purchased
(somewhere other than where she thought it would be), and
found another gun and ammunition in the defendant's
evidence does not support the conclusion that the officers
removed the defendant from the residence to prevent him from
giving consent, and thus the girlfriend's consent was
sufficient to allow the search.
court ADOPTS Magistrate Judge Jones'
recommendation, Dkt. No. 22, and DENIES the
defendant's motion to suppress, Dkt. No. 9.
court will set a telephonic status conference, to discuss
with the parties a schedule for a final ...