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United States v. Grills

United States District Court, E.D. Wisconsin

October 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WAYNE D. GRILLS, Defendant.

          ORDER

          J.P. STADTMUELLER, U.S. DISTRICT JUDGE

         On December 11, 2018, a grand jury returned a four-count indictment charging Defendant Wayne D. Grills (“Grills”) with kidnapping, sexual assault, unlawful possession of a firearm, and victim intimidation. (Docket #1). The Defendant filed three motions to suppress and one motion to dismiss, all of which were fully briefed before Magistrate Judge David E. Jones. (Docket #14, #15, #17, #18). Magistrate Judge Jones issued reports and recommendations on each motion, and the parties subsequently filed objections and responses with this Court.

         On July 23, 2019, the government filed a superseding indictment, charging Grills with the same four counts of conduct, but clarifying that the victim intimidation charge was made with reference to communication with a law enforcement officer or judge of the United States, in order to establish a federal jurisdictional nexus for the crime. See (Docket #29, #31 at 3-4). The superseding indictment moots the motion to dismiss, (Docket #18), as well as Magistrate Judge Jones's recommendation of dismissal. (Docket #31). The other reports and recommendations are ripe for review. For the reasons explained below, Magistrate Judge Jones's recommendations will each be adopted in large measure.

         1. STANDARD OF REVIEW

         When reviewing a magistrate's recommendation, this Court is obliged to analyze de novo “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The Court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. The Court's review encompasses both the magistrate's legal analysis and factual findings. Id.; see also Fed. R. Crim. P. 59(b).

         2. RELEVANT FACTS

         The parties do not object to Magistrate Judge Jones's statement of facts, so those facts will be adopted in full and substantially inserted below, from Docket #27 at 2-3; Docket #30 at 2-3; and Docket #32 at 2-4, for ease for reference.

         In the early morning hours of June 9, 2019, a woman called 911 to report that her sister, A.L.K., had been forcibly taken from her home in Greendale, Wisconsin, by her ex-boyfriend, Wayne Grills. See (Docket #21 at 5). Greendale police obtained a cell phone number for Grills: (773) XXX-XXXX. (Docket #17-1 at 7). When they called that number A.L.K. answered, her voice sounding shaky and like she had been crying. Id. A.L.K. stated that she was driving around with Grills and that she was okay. However, it appeared to the police that A.L.K. was being coached on what to say and that she was in danger. Id. The police also spoke twice with Grills. He agreed to report to the Greendale Police Department but never showed.

         A few hours later, the police spoke with A.L.K.'s sister. See Id. at 8. The sister indicated that A.L.K. had called her from telephone number (847) XXX-XXXX at 5:37 a.m. Id. AL.K. told her sister that she was at a gas station in Illinois and that she was okay. A.L.K. called her sister from the same number at 6:23 a.m. Investigation revealed that the 847 and the 773 numbers were both associated with Grills. Id. The police tracked the 773 number to an area near Grills's listed address in Melrose Park, Illinois at 5:59 a.m. Id. at 7-8. They also received a call from Grills's tenant/roommate, D.F., who reported hearing Grills's voice inside their attached garage. (Docket #21 at 2).

         At about 7:26 a.m., members of the Melrose Park Police Department (MPPD) arrived at the residence, and D.F. gave officers keys to open the locked garage. Id.; (Docket #25 ¶2). Inside the garage, the police located Grills, A.L.K., and Grills's van. Id. Grills was immediately arrested and handcuffed. Id. ¶ 3. The police patted him down and seized from his person a wallet, keys, and a Galaxy 7S cell phone. Id. ¶ 14. The scene was secure by 7:32 a.m. Id. ¶ 3. Grills was then placed in custody and taken to the MPPD. Id. ¶ 4. The squad left the scene with Grills at 7:39 a.m. and arrived at the police station at 7:41 a.m. Id. After Grills was removed from the scene, the police saw and seized a Galaxy S5 cell phone that was laying on a workbench in the garage. Id. ¶ 15.

         At approximately 7:48 a.m., A.L.K. told police that Grills had been armed with a gun during the alleged kidnapping. Id. ¶ 6. A.L.K. indicated that Grills had her hide the gun inside his outdoor doghouse. Id. The doghouse was in Grills's backyard and within the curtilage of his home; the backyard is enclosed by the home, the garage, fences, and gates. Id. ¶ 7. Officers then entered the backyard, walked to the doghouse, and removed a blanket that covered the entrance to the doghouse. Id. ¶¶ 8-10. Inside the doghouse, officers observed a gun, which they photographed and seized. Id. ¶¶ 10, 12. Later that day, A.L.K. stated during an interview that she did not know whether the gun was loaded or real. Id. ¶ 11.

         Grills's van was towed to the police station and held as evidence. Id. ¶ 16. Five days later, the police obtained a state-court warrant to search the van for evidence related to aggravated criminal sexual assault, based on A.L.K.'s subsequent statements. (Docket #15-1). The police then searched the van and seized items from it, including a carpet sample that was tested for the presence of biological samples and DNA. (Docket #15 ¶ 3).

         The S5 phone, which was found on the workbench, was given to Greendale police to be held as evidence. (Docket #25 ¶ 17). The S7 phone, which was found on Grills's person, remained in the custody of the Melrose Park police until July 9, 2018, when it was turned over to a Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agent and a Greendale police detective. Id. ¶ 21. While in custody, Grills repeatedly asked his daughter and his cousin to retrieve his property, including his phones. Id. ¶ 18. The police regularly listened to those recorded jail calls and wrote summaries of the calls. Id. ¶ 19. However, the Melrose Park police refused to return any property. Id. ¶ 20.

         On August 3, 2018, Luke Barker, a Special Agent with ATF, applied for warrants to search the S5 and S7 phones for evidence relating to the unlawful possession of a firearm and kidnapping. (Docket #17-1 at 4-18; Docket #17-2 at 4-18). The affidavits submitted in support of the search-warrant applications appear to be identical. Therein, SA Barker recounted the details of the kidnapping, as described by A.L.K., her daughter, and her sister. Id. at 6-11. The affidavits state that A.L.K. left her apartment without her purse, keys or cellular phone. Id. at 7. The affidavits, however, do not explain how law enforcement came into possession of the phones, stating only that they were located at the Greendale Police department. Id. at 6, 11. Magistrate Judge Jones authorized the warrants later that afternoon.

         3. ANALYSIS

         3.1 Motion to Suppress Firearm

         The Fourth Amendment establishes “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “With few exceptions, ” warrantless searches of a home are unreasonable. Kyllo v. United States, 533 U.S. 27, 31 (2001). These few exceptions generally relate to the body of law regarding “exigent circumstances, ” which allows law enforcement to enter a home without a warrant when necessary to pursue an escaping suspect, to address an emergency to life or limb, or to prevent the imminent destruction of evidence. Sutterfield v. City of Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014). The mere likelihood that a dangerous weapon is in a house does not constitute an exigent circumstance. Groh v. Ramirez, 540 U.S. 551, 559 (2004). Indeed, “a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.” Id. (citing Payton v. New York, 445 U.S. 573 (1980)).

         The government argues that there were exigent circumstances that constituted an exception to the warrant requirement. Specifically, they argue that the gun in the doghouse posed a risk to public safety and to the officers on the scene, and that because some time had elapsed between when A.L.K. put the gun in the doghouse and when the police arrested Grills, they were not sure whether the gun had become more unsafe. They cite United States v. Webb, 83 F.3d 913 (7th Cir. 1996) and United States v. Henderson, 553 F.3d 1163 (8th Cir. 2009) in support of their rationale.

         In Webb, an officer responding to a bar fight witnessed a suspect outside the bar in question pointing a shotgun at his opponent. 83 F.3d at 915. When the suspect saw the police, he “went to his parked car, threw the shotgun he was holding in the open trunk, and then slammed the trunk lid closed. The keys were left in the trunk lock.” Id. After securing the scene, the officer used the keys that were hanging in the lock of the trunk to retrieve the gun, activate the safety, and remove the ammunition. Id. The Seventh Circuit held that this was a lawful search under the automobile exception to the warrant requirement, which “permits the search of a vehicle without a warrant if there is probable cause to believe that the car contains contraband or evidence.” Id. at 916. In the alternative, the Seventh Circuit noted that the exigent circumstances exception could apply to this situation ...


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