United States District Court, E.D. Wisconsin
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
(DKT. NO. 24), GRANTING IN PART DEFENDANT'S MOTION TO
SUPPRESS STATEMENTS (DKT. NO. 9), AND DENYING DEFENDANT'S
AMENDED MOTION TO SUPPRESS PHYSICAL EVIDENCE (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
April 26, 2018, Magistrate Judge William E. Duffin issued a
report, recommending that this court grant in part and deny
in part the defendant's motion to suppress statements. He
further recommended that this court deny the defendant's
motion to suppress physical evidence. Dkt. No. 24. Both the
defendant (dkt. no. 28) and the government (dkt. no. 25)
objected. Because the court finds that the defendant was
“in custody” for purposes of Miranda v.
Arizona, 384 U.S. 436 (1966) when multiple officers led
the defendant in handcuffs on a walk to their squad car, the
court will grant the defendant's motion to suppress
regarding the statements he made on the walk to the squad
November 21, 2017, the grand jury returned a two-count
indictment charging the defendant with one count of being a
felon in possession of a firearm and one count of knowingly
and forcibly assaulting, impeding, intimidating, and
interfering with a United States Postal Service Letter
Carrier. Dkt. No. 1. On February 8 and February 9, 2018,
respectively, the defendant filed a motion to suppress
statements, dkt. no. 9, and an amended motion to suppress
physical evidence, dkt. no. 10. In the fact sections of the
motions to suppress, the defendant wrote that “[t]hese
facts are taken from the police reports and body cam footage
of the police encounter with [the defendant]. Counsel for
[the defendant] has conferred with counsel for the government
and the parties do not see any material facts in dispute that
would call for an evidentiary hearing on this motion.”
Dkt. No. 9 at 1, n.1; see also dkt. no. 10 at 1,
days later, Judge Duffin issued an order pointing out that
the defendant had not provided the relevant police reports
and body camera footage necessary to decide the motions. Dkt.
No. 11. He ordered the defendant to provide that evidence to
the court, and the government to opine on whether it believed
an evidentiary hearing was necessary to decide either of the
motions. Id. The government notified the court that
it “[was] aware of no disputed material facts, and,
therefore, agree[d] that no evidentiary hearing [was]
necessary to resolve either of the pending suppression
motions.” Dkt. No. 13.
Judge Duffin issued the April 26, 2018 report, dkt. no. 24,
the government timely filed an objection, dkt. no. 25. On the
day of the deadline for filing objections-after business
hours-the defendant filed a motion asking the court for an
additional two weeks to file his objections, without
an explanation as to why he needed the additional time. Dkt.
No. 26. The court granted the request, and the defendant
objected on May 24, 2018. Dkt. No. 28.
parties' representations, Judge Duffin found that
“both sides have waived any right they may have
otherwise had to an evidentiary hearing.” Dkt. No. 24
at 2. Below is the fact section from his report and
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, “You're 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
Later that day, while it was still daylight, several law
enforcement officers, including Stolz and Wilkiewicz, went to
4631 No. 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,
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 the SWAT
team would knock the door down and tear up the house and 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.)
Judge Duffin's Report and Recommendation
Motion to Suppress Statements
Duffin began by observing that the “prophylactic
warnings” of Miranda concerned the inherently
coercive nature of custodial interrogations;
accordingly, “‘a suspect must be both in custody
and subjected to interrogation before Miranda
warnings are required.'” Dkt. No. 24 at 8 (quoting
United States v. Ambrose, 668 F.3d 943, 954 (7th
Cir. 2012)). Judge Duffin explained that “a person is
only ‘in custody' for Miranda purposes
‘if there was a formal arrest or a restraint on his or
her freedom of movement of the degree associated with a
formal arrest.'” Id. at 8 (quoting
United States v. Patterson, 826 F.3d 450, 455 (7th
Duffin commented that relevant factors for the “in
custody” determination included “‘the
location of the questioning, its duration, statements made
during the interrogations, the presence or absence of
physical restraints during the questioning, and the release
of the interviewee at the end of questioning.'”
Id. at 8-9 (quoting United States v.
Borostowski, 775 F.3d 851, 859-80 (7th Cir. 2014)). He
observed, however, that “‘there is no
litmus-paper test for determining when a seizure exceeds the
bounds of an investigative stop and becomes an
arrest.'” Id. at 9 (quoting United
States v. Bullock, 632 F.3d 1004, 1016 (7th Cir. 2011)).
to the facts of this case, Judge Duffin started with the fact
that when the defendant “stepped out of the
house” at 4631 N. 35th Street, the police officers
determined that he matched the description of the man the
postal worker had described. Id. Because the postal
worker had informed officers that the suspect had a gun,
Judge Duffin concluded that it was reasonable for officers to
place the defendant in handcuffs while they determined
whether he was armed. Id. The question at that
point, Judge Duffin said, was whether a reasonable person in
the defendant's position would have concluded that he was
not free to leave. Id. Because the only thing the
officers had told the defendant at that point is that they
were cuffing him until they could figure out what was going
on, Judge Duffin determined that a reasonable person would
not yet have believed himself to be “in
‘custody' as that term is used for
Miranda-warning purposes.” Id. at 10.
Given that, Judge Duffin held that the statement the
defendant made while the officers were patting him down-that
he had had a water gun earlier-was admissible. Id.
Judge Duffin considered the statement the defendant had made
to Wilkiewicz as they walked to the squad car; Wilkiewicz
asked the defendant if something had happened earlier with
the defendant's dog, and the defendant responded that a
mailman had sprayed his dog and that he had pulled a water
gun that looked like a .45 on the carrier. Id. Judge
Duffin concluded that a reasonable person would not have
considered himself in custody at this point, either.
Id. Judge Duffin based this conclusion on the facts
that (a) the discussion took place in front of the
defendant's home, in broad daylight and in front of his
wife; (b) Wilkiewicz did not raise his voice; (c) the
exchange resembled a conversation; (d) none of the officers
put a hand on their weapons; (e) none of the officers told
the defendant he was under arrest; and (f) the conversation
took place moments after the defendant stepped out of his
house. Id. at 10-11. Judge Duffin conceded that this
was a close call, noting that several officers were present
at the time of the conversation, that Wilkiewicz was
controlling the defendant's movements by directing him to
the squad car, and that the defendant remained in handcuffs.
Id. at 11. Judge Duffin came to the conclusion,
however, that the defendant made the statement about pulling
the water gun on the mail carrier under
Terry-stop-like conditions, rather than conditions
that would lead him to believe he was under formal arrest.
government conceded (under, Judge Duffin concluded, the wrong
standard) that once the defendant repeated his assertion that
he'd pointed the water gun at the postal worker, he was
in custody. Id. at 11-12. Judge Duffin accepted that
concession, and determined that all statements from that
point forward were made while in custody, and that, because
the officers had not provided the defendant with his
Miranda warnings, that statement, and all the
statements the defendant made in the squad car, should be
suppressed. Id. at 11-15.
Motion to Suppress Physical Evidence
the defendant's motion to suppress physical evidence, the
defendant argued first that the officers had unlawfully
arrested the defendant (a prelude to the defense argument
that the unlawful arrest of the defendant rendered his
wife's consent to search the home involuntary).
Duffin noted that “[a]fter the police asked Mrs.
Polnitz to have her husband come to the door, [the defendant]
came to the door and, at Wilkiewicz's request, stepped
outside.” Id. at 17. Judge Duffin remarked
that “there was very little time for the police to make
a determination while [the defendant] was still in the house
as to whether he matched the description given to them by the
postal worker of the person who pointed a gun at him.”
Id. at 17-18. In effect, he concluded-contrary to
the defendant's assertions-that the officers did not have
time to hide their intentions in order to draw the defendant
out of his house. Id. at 18 (citing Flores v.
Lackage, 938 F.Supp.2d 759 (N.D. Ill. 2013)). Because
Judge Duffin already had found that the officers did not
arrest the defendant until after he stepped out of the house
and told them he had pointed a water gun that looked like a
.45 at the postal worker, Judge Duffin concluded that the
officers lawfully had arrested the defendant. Id.
Duffin further reasoned that even if the officers
had unlawfully arrested the defendant, the unlawful
arrest would not have tainted Mrs. Polnitz's consent to
search the home. Id. at 18-19. Judge Duffin observed
that while Mrs. Polnitz initially appeared reluctant to
consent to a search-despite officers warning her that if she
did not cooperate they would get a search warrant and a SWAT
team would break down the door and tear the home up- she
ultimately agreed to retrieve the firearm. Id. at
18. Judge Duffin found that “the statement regarding
the SWAT team returning was not merely a pretext to induce
submission and did not taint Mrs. Polnitz's
consent.” Id. at 18 (citing United States
v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994)). Finally,
he reasoned that while the officers' conduct in motioning
for the defendant to leave his home could be considered close
to the line of permissibility, “that action in no way
rises to a ‘flagrant' level of illegal conduct such
that Mrs. Polnitz's consent to retrieve the firearm was
tainted.” Id. at 19. He determined that the
fact that the defendant immediately stepped outside
dissipated any possible taint created by the request.
Id. Judge Duffin recommended that the court deny the
motion to suppress physical evidence.
Government's Objections (Dkt. No. 25)
government objected to the part of Judge Duffin's report
that recommended that this court suppress the defendant's
statement while in the squad car “describing the
‘water gun' in response to the question of where
the water gun is[.]” Dkt. No. 25 (quoting dkt. no. 24
at 19). The government contends that the police officer's
question of “so, you said it was a water gun, where is
that water gun?” was a permissible follow-up question
that the police officer could ask the defendant. Id.
(citing Andersen v. Thieret, 903 F.2d 526, 532 (7th
Cir. 1990)). The government asserts that the defendant
volunteered his earlier statement that he had a water gun,
and that the “reasonable follow-up questions”
should not have required officers to Mirandize the defendant.
Id. at 3.
Defendant's Objections (Dkt. No. 28)
defendant objects to Judge Duffin's recommendation on the
motion to suppress physical evidence, as well as his
recommendation on the motion to suppress statements as it
pertained to the defendant's statements (1) during the
initial encounter with the officers outside the residence and
(2) during the defendant's walk to the squad car. Dkt.
59(b) governs dispositive motion practice initiated before
magistrate judges. Fed. R. Crim. P. 59(b). Parties have
fourteen days to file “specific written
objections” to a magistrate judge's report and
recommendation on a dispositive motion. Fed. R. Crim. P.
59(b)(2). When reviewing a magistrate's recommendation,
the district judge must review de novo the
recommendations of the magistrate judge to which a party
timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P.
59(b)(2), (3). The court can “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate.” 28 U.S.C. §636(b)(1).
Motion to Suppress Statements
Fifth Amendment provides, in relevant part: “No person
. . . shall be compelled in any criminal case to be a witness
against himself . . . .” U.S. Const. amend. V. In
Miranda v. Arizona, the Supreme Court effectuated
the Fifth Amendment's privilege against
self-incrimination in the context of custodial
interrogations, holding that
the prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of
his freedom of action in any meaningful way.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). In
other words, “if the police take a suspect into custody
and then ask him questions without informing him of the
rights enumerated above, his responses cannot be introduced
into evidence to establish his guilt.” Berkemer v.
McCarty, 468 U.S. 420, 428 (1984). However, “[t]he
privilege against self-incrimination is not imperiled by
every conversation with the government. Instead, the concern
in Miranda was with the inherently coercive nature
of custodial interrogation. Accordingly, a suspect must be
both in custody and subjected to interrogation before
Miranda warnings are required.” United
States v. Ambrose, 668 F.3d 943, 954 (7th Cir. 2012).
The Supreme Court put it this way:
Two discrete inquiries are essential to the determination:
first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was at liberty to
terminate the interrogation and leave. Once the scene is set
and the players' line and actions are reconstructed, the
court must apply an objective test to resolve the ultimate
inquiry: was there a formal arrest or restraint on freedom of
movement of the degree associated with formal arrest.
Thompson v. Keohane, 516 U.S. 99, 112 (1995).
defendant's motion alleges that the defendant was
“in custody” at the time of all his statements.
“[W]hether a suspect is ‘in custody' is an
objective inquiry, ” J.D.B. v. North Carolina,
564 U.S. 261, 270 (2011), assessed from the perspective of a
reasonable person in the defendant's position,
Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). It
requires the court to ask whether a person “would have
felt he or she . . . was at liberty to terminate the
interrogation and leave.” Keohane, 516 U.S. at
112. “‘[S]ubjective views harbored by either the
interrogating officers or the person being questioned'
are irrelevant. The test, in other words, involves no
consideration of the ‘actual mindset' of the
particular suspect subjected to police questioning.”
J.D.B., 564 U.S. at 271 (quoting Stansbury v.
California, 511 U.S. 318, 322 (1994)).
determining whether a reasonable person in the suspect's
shoes would have felt free to leave, we consider ‘all
of the circumstances surrounding the
interrogation.'” United States v.
Patterson, 826 F.3d 450, 455 (7th Cir. 2016) (quoting
Howes v. Fields, 565 U.S. 499, 509 (2012)). Relevant
factors include: “(1) the location of the
interrogation; (2) the duration of the interrogation; (3) any
statements made by the suspect during the interrogation; (4)
any use of physical restraints during the interrogation; and
(5) whether the suspect was released at the end of the
interrogation.” Id. (citing Howes,
565 U.S. at 509). The Seventh Circuit has put a finer point
on these factors, asking whether the encounter occurred in a
public place; whether the suspect consented to speak with
officers; whether the officers informed the individual that
he was not under arrest and was free to leave;
whether the individual was moved to another area; whether
there was a threatening presence of several officers and a
display of weapons or physical force; and whether the
officers' tone of voice was such that their requests were
likely to be obeyed.
United States v. Littledale, 652 F.3d 698, 701 (7th
defendant says that “[t]he central problem with [Judge
Duffin's] Recommendation is that it is based on an
unrealistic ‘reasonable person.'” Dkt. No. 28
at 6. He argues that “[a]t no point during [the
defendant]'s encounter with officers was he free to
disregard them, ” and that even if there was
uncertainty about the defendant's custodial status, that
uncertainty disappeared once Officer Wilkiewicz escorted the
defendant to the squad car. Id. at 9. The defendant
asserts that Judge Duffin erred in concluding that a
reasonable person would not have believed himself to be in
custody until the moments officers told him that he was in
defendant argues that he
was removed from his home, which was surrounded by officers.
He was handcuffed immediately. He was told where to move and
where not to move. He was told he matched the suspect. He
tried to obtain some personal property but was not allowed to
do so. He was escorted, with his hands cuffed behind his
back, and an officer grasping his arm. The officer told [the
defendant] three times, that he was going to talk to him
about what happened. The officer told [the defendant] twice
that he was taking him to his squad. The officers outnumbered
Dkt. No. 30 at 4 (internal citations omitted).
defendant notes: “Judge Duffin essentially broke the
encounter with [the defendant] down into three separate
parts: 1) the initial encounter between [the defendant] and
the officers outside the residence; 2) the walk to the squad
car; and 3) [the defendant's] statements inside the squad
car after being told he was under arrest.” Dkt. No. 28
at 5. The court will use that same format to consider the
Initial encounter ...