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United States v. Polnitz

United States District Court, E.D. Wisconsin

July 19, 2018

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

          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. 10)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On 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 car.

         I. Background

         A. Procedural History

         On 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, n.1.

         Three 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.

         After 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.

         B. Facts

         On the 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 recommendation:

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 fled. (Id.)
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, “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 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.)

         C. Judge Duffin's Report and Recommendation

         1. Motion to Suppress Statements

         Judge 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 Cir. 2016)).

         Judge 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)).

         Turning 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.

         Next, 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. Id.

         The 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.

         2. Motion to Suppress Physical Evidence

         Regarding 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).

         Judge 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.

         Judge 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.

         D. Government's Objections (Dkt. No. 25)

         The 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.

         E. Defendant's Objections (Dkt. No. 28)

         The 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. No. 28.

         II. Analysis

         A. Standard

         Rule 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).

         B. Motion to Suppress Statements

         The 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).

         The 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)).

         “In 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 Cir. 2011).

         The 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 custody.

         The 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 him significantly.

Dkt. No. 30 at 4 (internal citations omitted).

         As the 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 defendant's arguments.

         1. Initial encounter ...


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