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United States v. Polnitz

United States District Court, E.D. Wisconsin

April 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID E. POLNITZ, JR., Defendant.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. Magistrate Judge

         I. Procedural History

         On November 21, 2017, the grand jury returned an indictment charging David E. Polnitz, Jr. with possessing a firearm after having been convicted of a felony and with knowingly and forcibly assaulting, impeding, intimidating, and interfering with a United States Postal Service Letter Carrier while he was engaged in the performance of his official duties through the use of a deadly and dangerous weapon. (ECF No. 1.) On February 8, 2018, Polnitz filed two motions: a motion to suppress physical evidence (ECF No. 8) and a motion to suppress statements (ECF No. 9.) The following day Polnitz filed an amended motion to suppress physical evidence. (ECF No. 10.)

         Polnitz did not request an evidentiary hearing. He stated that, after conferring with counsel for the government, the parties do not see any material facts in dispute that would call for an evidentiary hearing. (ECF No. 9.) The court requested that Polnitz again confer with counsel for the government to confirm that the government agreed that no evidentiary hearing was needed for either motion, and both sides responded that they did not believe that an evidentiary hearing was required. (ECF Nos. 12, 13.) Therefore, both sides have waived any right they may have otherwise had to an evidentiary hearing.

         II. Facts

         When Polnitz filed his motions he did not attach a copy of the police reports or body camera footage referenced in his motions. On February 12, 2018, the court ordered that he provide the court with the reports and the footage. (ECF No. 11.) He did so. Exhibit 1 consisted of several police reports, and Exhibits 2 and 3 were body cam footage taken during the encounter between the police, Polnitz, and his wife. The following facts come from the police reports and body camera footage, which the parties agree may serve as the exclusive factual basis for the court's resolution of the motions.

         On June 27, 2017, in response to a complaint about the reckless use of a weapon, Milwaukee Police Officers Andrew Wilkiewicz and Marcel Stolz were dispatched to a United States Postal Office. A United States postal worker stated that at approximately 3:30 p.m. that day, while delivering mail in the 4600 Block of N. 35th Street, he observed a pitbull run directly at him. Fearing for his safety, he deployed his Mace and the dog ran back into the yard at 4631 N. 35th St. (Ex. 1 at 3.)

         The postal worker continued with his route. While at 4735 N. 35th Street a white Dodge Caravan approached him. The driver, described as a black male in his late twenties to early thirties with a dark complexion, ear length dreadlocks, and “Pepsi” blue eyes, wearing a white T-shirt and orange basketball shorts (later identified as Polnitz) asked him if he had pepper sprayed his dog. The postal worker stated that he had, explained why, and told Polnitz to contact his employer. Polnitz responded, “Fuck that. I'll be back.” (Id.)

         The postal worker observed the Caravan drive south and park near 4631 N. 35th Street. He observed Polnitz get out of the Caravan and walk into the house at that address. He then saw Polnitz run toward him with his right hand in his shorts pocket, yelling, “Hey mailman.” Polnitz told the postal carrier, “Yo u'r e not gonna be delivering mail over here anymore.” The postal worker asked if Polnitz was threatening him. Polnitz pulled a handgun from his pocket, pointed the gun at the postal worker and stated, “No, this is a threat.” Polnitz then fled. (Id.)

         Later that day, while it was still daylight, several law enforcement officers, including Stolz and Wilkiewicz, went to 4631 N. 35th Street to check for the suspect. (Ex. 1 at 6.) It is not entirely clear exactly how many law enforcement officers were present, but the court counts at least five officers in the body cam footage. Upon arrival they saw a white Dodge Caravan parked in the rear of the residence. (Id.) Wilkiewicz knocked on the door of the house and a woman answered. (Id.) Wilkiewicz explained that the officers were there regarding an incident with a dog and that they “needed to talk to you guys to figure out what happened.” (Id.) He said that there was “a male here who was involved somehow.” When Wilkiewicz asked who else was inside the home and who drives the white Caravan, the woman stated that her husband and nephew were inside and her husband drives the vehicle. (Id.) Wilkiewicz asked her to have her husband come to the door.

         When Polnitz came to the door Wilkiewicz gestured for him to come outside and stated, “Do me a favor and step out for me real quick.” (Ex. 3 at 3:52.) Without pausing Polnitz stepped out of the house, at which time the officers placed handcuffs on him, telling him that they were going to put him in handcuffs until they figured out what was going on. (Ex. 3 at 4:02.) Stolz asked Wilkiewicz, “Does he fit the description?” Wilkiewicz answered, “Yeah.” (Id.)

         While Polnitz was in front of the house in handcuffs the officers asked him if he had any firearms or weapons on him. (Ex. 3 at 4:09.) Polnitz stated that he did not. (Id.) They then patted him down. (Id.) As they did, Polnitz stated that earlier he had had a water gun. (Ex. 3 at 4:21.) At that point Wilkiewicz told Polnitz that they were going to walk over to his squad car and talk. (Ex. 3 at 4:44.) On the walk to the car, with Polnitz still in handcuffs, Wilkiewicz asked Polnitz if something happened earlier with his dog. (Ex. 3 at 5:01.) Polnitz responded that a mailman sprayed his dog and that he confronted the postal carrier and pulled a water gun that looked like a .45 on the postal carrier. (Ex. 3 at 5:18.) Wilkiewicz stated that he wanted to get Polnitz's story and that obviously Polnitz was aware why the officers were there. (Id.)

         When Polnitz was put in the back of the squad car he asked if he was under arrest. (Ex. 3 at 8:00.) Wilkiewicz told him that he was. (Id.) While in the car Wilkiewicz asked, “You've been arrested before, obviously, are you a convicted felon?” (Id. at 9:21.) Polnitz responded, “Yes I am, that's why I got no guns.” (Id.) Wilkiewicz asked, “There's nothing, no firearms in the house or anything like that?” (Id. at 17:10.) Polnitz responded, “I don't have a firearm, I am a felon, I cannot have a firearm, there should not be no firearms in the house.” (Ex. 3 at 17:21.)

         Wilkiewicz then asked if Polnitz would consent to a search of the residence. (Ex. 1 at 6.) Polnitz refused to consent. (Id.) Polnitz stated that he was willing to go to work to show Wilkiewicz the water gun. In response to Wilkiewicz's question of the color of the water gun, Polnitz responded that it is black and orange with a purple bottom. (Ex. 3 at 17:44.)

         During this time Officer Stolz remained at the door of the house talking with Lorenzya Polnitz, Polnitz's wife. Stolz asked her if there were any firearms in the house. (Ex. 2 at 9:25.) He explained that if she did not allow them to retrieve the firearm they would get a search warrant and the SWAT team would knock the door down and tear up the house to get the firearm. (Ex. 2 at 10:45.) Mrs. Polnitz eventually said that there was a shotgun and a .380 handgun in her bedroom. (Id. at 11:46.) She agreed to retrieve the handgun and did so, allowing an officer into the residence to take the handgun. (Id. at 24:01.)

         III. Analysis Statements

         Polnitz moves to suppress “all statements” he made during what he characterizes as “custodial questioning” on June 27, 2017, on the ground that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to police initiating the questioning. (ECF No. 9 at 1.) Polnitz does not identify which specific statements he seeks to suppress. The court thus interprets the motion's reference to “all statements” to mean all statements Polnitz made to the police that are captured on the body camera footage that has been supplied to ...


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