United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
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.
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.
STANDARD OF REVIEW
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).
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
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.
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).
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.
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.
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).
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.
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
Motion to Suppress Firearm
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.
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.
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