Order Overruling Defendant’s Objection (Dkt. No. 51), Adopting Magistrate Judge Joseph’s Report and Recommendation (Dkt. No. 50) — United States v. Dettrick L. Brown, No. 22-cr-251-pp (Dkt. 55, E.D. Wis.)
Summary
Chief Judge Pamela Pepper of the Eastern District of Wisconsin overruled Dettrick L. Brown’s objection, adopted Magistrate Judge Nancy Joseph’s report and recommendation and denied Brown’s motion to suppress in this order of March 6, 2024. On June 22, 2022, after Brown’s phone was traced to a Milwaukee duplex, officers forced entry with a battering ram forty-four minutes after approaching the door of the upper unit to execute an arrest warrant; during a protective sweep an officer found a drum magazine for a .40 caliber pistol in a bedroom closet. The court found that officers had probable cause to believe Brown was in the upper unit, that the sweep did not exceed its scope, and that the later search warrant was supported by probable cause and the good faith exception. The parties must file a joint status report by March 29, 2024.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 22-cr-251-pp
v.
DETTRICK L. BROWN,
Defendant.
ORDER OVERRULING DEFENDANT’S OBJECTION (DKT. NO. 51),
ADOPTING MAGISTRATE JUDGE JOSEPH’S REPORT AND
RECOMMENDATION (DKT. NO. 50) AND DENYING DEFENDANT’S MOTION
TO SUPPRESS (DKT. NO. 24)
On June 22, 2022, officers forced entry into the upper unit of a duplex at
4108 N. 13th Street in Milwaukee to execute an arrest warrant. The defendant
filed a motion to suppress, challenging the arrest, the protective sweep and a
subsequent search of the unit; the defendant also moved for an evidentiary
hearing. Dkt. No. 24. Magistrate Judge Nancy Joseph heard testimony and
issued a report recommending that this district court deny the motion to
suppress. Dkt. No. 50. The defendant has objected to the recommendation,
clarifying the “context” surrounding the facts and challenging Judge Joseph’s
legal conclusions. Dkt. No. 51. Because the court agrees with Judge Joseph
that officers had probable cause to believe that the defendant was in the upper
unit of the duplex at the time they forced entry, the Fourth Amendment
authorized the officers to enter the unit to execute the warrant. The court finds
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that the officers did not exceed the scope of the protective sweep and that the
subsequent application for a search warrant was supported by probable cause
and the good faith exception. The court will adopt the recommendation and
deny the motion to suppress.
I. Proceedings Before Magistrate Judge Joseph
A. Defendant’s Motion to Suppress and Motion for Evidentiary
Hearing (Dkt. No. 24)
The defendant begins with the factual background. An anonymous
citizen told Officer Ayala that the defendant was wanted, armed and staying in
the area of 13th Street and Fiebrantz Avenue in Milwaukee. Dkt. No. 24 at 2.
Ayala confirmed that the defendant had outstanding warrants. Id. at 3. After
obtaining approval for a pen register and trap and trace search warrant for the
phone linked to the defendant (414-676-5813), Officer Randazzo traced the
defendant’s phone to the address of 4108 N. 13th Street. Id. at 2.
On June 22, 2022, Ayala and eleven officers went to 4108 N. 13th St. Id.
at 3. They knocked for nearly forty minutes before using a battering ram to
enter. Id. The officers immediately placed the defendant in handcuffs and
conducted a protective sweep during which Officer Cline opened the bedroom
closet door and observed a drum magazine for a .40 caliber pistol. Id. at 3-4.
The officers froze the scene and applied for a search warrant based on (1) a
shooting that had occurred on April 13, 2022 at 2707 N. 54th Street in
Milwaukee and allegedly involved the defendant; (2) CCAP entries that revealed
numerous warrants for the defendant; (3) the fact that the defendant had a
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probation violation and (4) Cline’s recovery of the drum magazine for the .40
caliber pistol from the bedroom closet of the upper unit one hour earlier. Id.
The defendant raises four legal issues. First, he argues that the officers
did not have reason to believe that the defendant was in the residence before
breaching the door. Id. at 6. Second, he argues that Cline’s search of the floor
of the closet exceeded the scope of a protective sweep because the officers
already had made the arrest and there was no reason to believe there was
anyone else in the unit. Id. at 8. Third, the defendant says that the application
for the search warrant lacked probable cause without the reference to the drum
magazine found during the protective sweep. Id. at 9. Fourth, the defendant
argues that the failure to return the pen register/trap and trace warrant made
any information derived from the warrant illegal and that the government never
identified the handheld device used to conclude that the defendant’s cell phone
was pinging from the upper unit. Id. at 10.
B. Government’s Response (Dkt. No. 26)
The government objected to the defendant’s request for an evidentiary
hearing on the ground that the defendant had failed to identify a disputed
material fact. Dkt. No. 26 at 1. The government argued that law enforcement
had probable cause because they received information from an anonymous
source that the defendant was wanted, lived in the area of 13th and Fiebrantz
and used the cellular telephone number 414-676-5813. Id. at 2. The
anonymous source said that within the last two weeks, they had
communicated with the defendant using that number. Id. Using the law
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enforcement database, Officer Ayala confirmed that the defendant’s profile was
linked to that phone number and confirmed that the defendant had an
outstanding warrant. Id. at 1-2. The government said that Ayala requested a
pen and trap on the phone number and that Officer Randazzo later determined
the phone was pinging from a location at 4108 N. 13th Street. Id. at 2. On June
22, 2022, Milwaukee police officers arrived at the N. 13th Street address and
Officer Cline knocked on the door to the upper unit and repeatedly asked the
defendant to come out. After approximately 27 minutes, the defendant
responded to Cline. Id.
The government stated that the defendant didn’t assert a factual basis
suggesting that the protective sweep was improper and maintained that the
sweep was justified. Id.
The government further argued that the application for the search
warrant was supported by probable cause. Id. The government explained that
the records of the pen and trap and handheld device were not produced
because neither T-Mobile nor the Milwaukee Police Department had retained
the records associated with the pen and trap, which was requested in state
court. Id. Regarding the defendant’s argument that the search warrant for the
pen and trap was illegal based on the failure to make the return, the
government says that the defendant stated no authority supporting that
argument, but that regardless, the failure to return the warrant is a
“ministerial duty which [does] not affect the validity of the search absent
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prejudice to the defendant.” Id. (citing Avery v. Wiegert, Case No. 12-CV-52,
2012 WL 4760792, *6 (E.D. Wis. Oct. 5, 2012)).
C. Defendant’s Reply (Dkt. No. 49)
The defense replied that the factual issues had to be resolved in a
hearing. Dkt. No. 49.
D. Evidentiary Hearing (Dkt. Nos. 44, 45)
Judge Joseph conducted an evidentiary hearing on September 7 and 18,
2023. In advance of the hearing, the parties reached a stipulation regarding the
call Officer Ayala received from the anonymous citizen on May 24, 2022, in
which the citizen advised Ayala that they knew the defendant, knew the
defendant was wanted, knew his phone number, knew where he was living and
knew that he was dangerous and in possession of a firearm. Dkt. No. 32 at ¶1.
The parties agreed that after the citizen’s call, Ayala checked the MPD Tri-Tech
reporting system and confirmed that the defendant had the phone number
414-676-5813 listed to his profile numerous times (and as recently as March 4,
2022). Id. at ¶2. The parties also stipulated regarding Ayala’s wanted check
and criminal history check of the defendant and his confirmation that
defendant had existing warrants and was a convicted felon, id. at ¶3, the date
and time of the execution of the arrest warrant, id. at ¶4, Cline’s conversation
with the resident in the lower unit, id. at ¶5, Cline’s actions to clear the
basement, id. at ¶6, Cline and Officer Dewitt’s efforts to get the defendant to
come out of the unit and Cline’s body cam evidence regarding the arrest, id. at
¶8, Officer Elm’s body cam evidence regarding discussions with the resident of
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the lower unit, id. at ¶9, the fact that entry was forced forty-four minutes after
officers approached the door, id. at ¶10, Cline and other officers’ sweep of the
unit Cline finding the magazine drum on the closet floor, id. at ¶11, Officer
Lastrilla’s body cam footage of the protective sweep, id. at ¶12, and Ayala’s
body cam footage of his interaction with the defendant following his arrest, id.
at ¶13. The parties agreed to the introduction of the body cam footage. Id. at
¶14.
On the first day of the evidentiary hearing, Officer Randazzo testified,
explaining that he had been employed by the City of Milwaukee for almost
seventeen years, that he was assigned to the fugitive apprehension unit and
that his primary role was tracking cell phones. Dkt. No. 44 at 8, lines 7-24.
Randazzo testified that the warrant authorized a pen register trap and trace on
the target number, historical call detail records, subscriber information,
historical location records and the ability to track the cellular device. Id. at 11,
lines 19-24. Using the historical and real-time data location, Randazzo
determined that the target number was frequently located in the area of 13th
Street and Fiebrantz. Id. at 16, line 7 through 26, line 25. Randazzo testified
that Ayala had provided him with the tip from an anonymous citizen that the
defendant would be in the area of 13th and Fiebrantz. Id. at 27 lines 1-9.
Randazzo testified that on June 22, 2022, he used a cell site simulator to
narrow the cell phone signal to the building at 4108 North 13th Street. Id. at
29, line 5 through 34, line 15. Randazzo testified that after officers were called
in, he saw them make contact with someone from the lower unit and heard
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them say over the radio that they would be going in the upper unit. Id. at 36,
lines 24-25; 37, lines 1-23. Randazzo was made aware that officers had
observed the drum magazine and that Officer Ayala had applied for a search
warrant. Id. at 38, lines 2-12. Randazzo was part of the subsequent search and
recovered items from the northwest bedroom, including two drum magazines
filled with approximately fifty rounds of ammunition each, a ghost gun (a gun
that’s not traceable) and a red Apple iPhone. Id. at 39, lines 5-24.
On cross-examination, Randazzo admitted that prior to the arrest, he
was not aware of any surveillance of 4108 North 13th Street or the
surrounding area specifically looking for the defendant. Id. at 56, lines 4-11.
He admitted that he, personally, did not have information suggesting that there
were other people in the upper unit. Id. at 57, lines 4-14.
On the second day of testimony, Officers Ayala and Cline testified for the
government and James Hutchinson testified for the defense. Dkt. No. 45 at 2.
Hutchinson, who is a captain with the Milwaukee Police Department, was
called for the sole purpose of establishing that Ayala worked eleven days
between May 29 and June 22. Id. at 6, lines 16-18; 7, lines 11-25; 8 lines 1-
17.
Ayala testified that he worked as a City of Milwaukee police officer for
twenty-four years, was assigned to the special investigations division and was a
federal task force officer to the Bureau of Alcohol, Tobacco, Firearms and
Explosives. Id. at 10, lines 13-24. Ayala testified that an anonymous citizen
had contacted him on May 24, 2022 and that, in addition to the information to
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which the parties stipulated, the citizen had warned Ayala that the defendant
was armed at all times. Id. at 11, lines 14-22. Ayala testified that he then
learned the defendant had outstanding warrants. Id., lines 23-25; 12, lines 1-2.
Ayala testified that on June 3, 2022, he applied for and received the
order for the trap and trace warrant of the defendant’s cell phone and that once
it was authorized, he provided the information to Officer Randazzo. Id. at 12,
lines 7-21. Ayala testified that Randazzo told him on June 22, 2022 that the
phone was pinging at the address of 4108 North 13th Street. Id., lines 22-25;
13, lines 1-7. Ayala testified that he and eleven other officers went to the
location at approximately 11:00 a.m. Id. at 15 lines 5-8; Dkt. No. 32 at ¶5.
Ayala testified that although his report indicated that Randazzo used a
handheld device to determine that the phone was pinging from the upper unit,
Ayala later discovered that the device mentioned in the report was not used.
Dkt. No. 45 at 14, lines 13-25; 15, lines 1-4.
Ayala testified that he spoke with two neighbors who wanted to stay
anonymous due to fear of retaliation, so his body cam was turned off at that
point. Id. at 16, lines 3-9. Ayala testified that he knew there was an upper and
lower unit at 4108 North 13th Street and that the upper unit was supposed to
be vacant, which he later confirmed with the City of Milwaukee, the owner of
the property. Id., line 24 through 19, line 6. Ayala testified Cline told him that
while they were clearing the residence for any additional individuals, he came
across a magazine for a firearm that was loaded with ammunition. Id. at 19,
lines 7-19. Ayala testified that officers froze the scene to obtain a warrant for
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the search of the residence. Id., lines 20-24. Ayala knew that it would be illegal
for the defendant to possess ammunition because the defendant had a prior
conviction. Id., line 25; 20, lines 1-6.
On cross-examination, Ayala admitted that on June 22, 2022, the only
thing he knew about the occupancy of the upper unit at 4108 was what Officer
Randazzo told him about the location of the phone. Id. at 21, lines 8-24. Ayala
testified that he knew the defendant was in the upper unit after speaking to the
occupants of the lower residence and to two neighbors, who, after looking at a
booking photo, said they believed he lived in the upper unit. Id. at. 22, lines
23-25; 23, line 2; 26, lines 11-25; 27, lines 1-2. Ayala testified that the
defendant answered to his name when the officers called out as they knocked
on the door. Id. at 23, lines 3-15. Ayala testified that he did not see the
defendant in the area of the arrest between May 24th and June 22nd, 2022. Id.
at 25, lines 8-19.
Ayala testified that the officers were on the scene “[a]t least an hour”
before they arrested the defendant. Id. at 26, lines 4-6. He testified that he
could not recall if he had mentioned his conversation with the two anonymous
citizens to other officers. Id. at 29, lines 3-20. Ayala testified that at some
point, he told his supervisor that he was talking to the citizens and that they
had told him that the defendant lived upstairs. Id. at 30, lines 3-13.
Ayala testified that the anonymous citizen referenced in his June 3, 2022
application for the trap and trace warrant and his June 22, 2022 narrative
report were the same individual. Id. at 36, lines 3-11. He testified, however,
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that the “confidential source” that pinpointed the defendant to 4108 13th
Street actually was the trap and trace results. Id., lines 24-25; 37, lines 1-13.
Ayala testified that the phone number associated with the red iPhone recovered
during the search was not the subject of the trap and trace, and that the
officers never recovered the phone associated with 414-676-5813. Id. at 39,
line 14 through 41, line 1. Ayala testified that on the date of the arrest he had
no information that the defendant had company in the upper unit. Id. at 50,
lines 1-5.
Officer Cline testified that he had worked for the Milwaukee Police
Department for approximately nineteen years and had been assigned to the
fugitive apprehension unit. Id. at 54, lines 8-18. He testified that he knew the
defendant had a felony warrant and violation of probation. Id. at 57, lines 1-10.
Cline testified that he was aware that Randazzo had tracked the phone for the
defendant. Id. at 58, lines 3-9. Cline testified that he heard someone say on the
radio that the defendant most likely would be located at the address of 4108
North 13th Street. Id., lines 24-25; 59, lines 1-7. Cline and others arrived at
the scene at approximately 11 a.m. Id., lines 11-13.
Cline testified that once at the scene, he contacted the resident in the
lower unit, Debra, while his body camera was active. Id. at 60, lines 10-21.
Cline testified that the resident of the lower unit told him that there were
people in the upper unit the night before and that the property was owned by
the City of Milwaukee. Id. at 61, lines 16-24; 62, lines 9-11. Debra agreed to
open the side door to allow the officers to go to the basement and to access the
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stairs to the entry door for the upper unit. Dkt. No. 32 at ¶6. Debra stated that
her son used the bedroom in the basement. Id. Cline and two other officers
cleared the basement. Id. at ¶7.
Cline and other officers went up the stairs; Cline and Officer Dewitt were
located on the landing adjacent to the entry door to the upper flat. Id. at ¶8. At
approximately 11:16 a.m., Cline knocked on the door three times but received
no response. Id. Cline testified that he and Dewitt heard movement inside the
residence (described as someone possibly running around) on at least two
occasions and reported that to other officers on the scene. Id. Cline continually
announced that they were the Milwaukee Police Department, stated that the
defendant had a felony warrant for his arrest and requested that the defendant
open the door. Id. Cline testified that he heard something similar to a firearm
with its slide being racked. Dkt. No. 45 at 63, lines 21-25. At the 27:45
timestamp on Cline’s body cam, a male voice stated, “Dang, I’m coming out.”
Dkt. No. 32 at ¶8. No one came out. Id.
Forty-four minutes after officers approached the door to the upper unit,
they forced entry and immediately arrested the defendant, who was standing
on the other side of the door. Id. at ¶10. Cline asked if anyone else was in the
apartment (the answer can’t be heard on the body cam footage) and at
approximately 12:04 p.m., officers escorted the defendant out of the residence.
Id.
Cline testified about several reasons for the protective sweep. Debra had
told him there were others there the night before; it took a long time for the
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defendant to come out and Cline was concerned for his own safety and the
safety of the other officers; and Cline was concerned about the “running
around” movement he heard inside the unit and the sound that he believed to
be someone racking a slide. Dkt. No. 45 at 65, lines 23-25; 66, lines 1-11.
Cline testified that inside the upper unit there was a hallway, a kitchen
to the right, a living room a bathroom and two bedrooms. Id. at 66, lines 19-25;
67, lines 1-7. There also was a closed opening in the ceiling leading to an attic
or storage space. Dkt. No. 32 at ¶11. Cline testified that he swept the two
bedrooms and a bathroom. Dkt. No. 45, at 68, lines 14-19. According to Cline,
the northwest bedroom had a closed closet door that he opened, which led to a
walk-in closet. Id. at 69, lines 1-11. Cline testified that when he opened the
door, he saw a firearm magazine in plain view and determined that it was
loaded. Id., lines 24-25; 70, lines 1-5. The officers continued to clear the
residence from 12:04 to 12:23 p.m. Dkt. No. 32 at ¶11. Cline testified that after
the residence was cleared, he and his partner transported the defendant for the
booking process. Dkt. No. 45 at 71, lines 22-25
On cross-examination, Cline testified that at the time of the arrest,
officers did not have a search warrant to go into the house and that he had
never had contact with the defendant prior to June 22, 2022. Id. at 73, lines 8-
14. Cline testified that Officer Dewitt breached the door with the battering ram,
the defendant was in the doorjamb and another officer put cuffs on the
defendant at the top of the stairs. Id. at 74, lines 17-25; 75, lines 1-12. Cline
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testified that he communicated to the other officers that he thought he heard a
firearm in the upper unit. Id. at 76, lines 23-25; 77, lines 1-10.
Judge Joseph asked for clarification and Cline stated that officers
breached the door only after they had given the defendant every opportunity to
surrender, advised the defendant that he had a felony warrant and that they
would breach the door if he didn’t come out, identified themselves as officers
and gave him “an incredible amount of time to come on out, and he did not.”
Id. at 84, lines 4-15. Cline estimated that it was about the twenty- or thirty-
minute mark when the defendant said “Dang, I’m coming out.” Id., lines 20-23.
The parties stipulated to the admission of Officer Lastrilla’s body cam
footage. Dkt. No. 32 at ¶12. Lastrilla entered the upper unit at approximately
12:04 p.m. and her body cam was on from that time as she assisted other
officers looking for other subjects in the residence until the upper unit was
deemed clear at 12:22 p.m. Id. No one else was found in the upper unit. Id. The
scene was frozen while Ayala applied for the search warrant based on the drum
magazine filled with ammunition found by Cline. Id.
E. Defendant’s Post-Hearing Brief (Dkt. No. 46)
In his post-hearing brief, the defendant argued that there was “no
credible evidence that the police knew that the defendant was in the upper unit
on June 22, 2022 before the police forced entry.” Dkt. No. 46 at 5. The
defendant emphasized that Officer Ayala did not refer to the anonymous citizen
in the application for the trap and trace warrant, that Officer Randazzo testified
that he did not tell Ayala that the defendant’s phone was in the upper unit and
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that the defendant said that the existence of the “2 phantom anonymous
citizens first appeared in Officer Ayala’s error-ridden supplemental report.” Id.
at 5-6. The defendant said that the trap and trace information that placed the
defendant’s cell phone at 4108 N. 13th Street was not supported by
documentation. Id. at 6. According to the defendant, the “shadow of doubt is
only darkened because the defendant’s phone was not recovered during the
exhaustive searches of the upper unit following the defendant’s arrest.” Id. The
defendant asserts that because the officers lacked probable cause to believe
that the defendant was in the unit and because they illegally forced entry, the
court must suppress the fruits of the subsequent search. Id.
With respect to the arrest warrant, the defendant argued that that
warrant did not authorize officers to enter a third person’s home to execute a
search warrant. Id. at 7 (citing Steagald v. United States, 451 U.S. 204, 213-14
(1981)). The defendant asserted that there were no exigent circumstances
permitting forced entry. Id. at 8.
The defendant argued that after the forced entry, the officers cuffed the
defendant but continued to sweep the unit without any basis to believe that
there was anyone else there. Id. at 9. Officer Cline observed the drum magazine
on the floor of a closet only after he opened the door; the other officers looked
under a mattress, picked up laundry baskets and peeked into an attic’s
interior. Id. The defendant argued that there were no specific, articulable facts
that could reasonably have led the officers to believe there was anyone else in
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the upper unit to justify the protective sweep and that the court should
suppress the evidence seized during the sweep.
Finally, the defendant argued that the application for the search warrant
cited the drum magazine from the protective sweep, but that that sweep was
illegal. Id. at 11. The defendant argued that without the discovery of the drum
magazine, the officers lacked probable cause for the search of the upper unit.
Id. The defendant attached the warrant and the affidavit supporting the
warrant to the post-hearing brief. Id. at 12-21.
F. Government’s Post-Hearing Opposition Brief (Dkt. No. 47)
The government responded that the defendant had no legitimate
expectation of privacy because he was a trespasser or squatter. Dkt. No. 47 at
5-6. Officer Ayala had confirmed that the upper unit was supposed to be
vacant. Id. at 5. The City of Milwaukee owned the residence and the last two
known tenants had vacated in May of 2022. Id. The defendant had no legal
right to be at the property because he did not have a lease with the landlord.
Id. at 6.
Next, the government argued that “for Fourth Amendment purposes, an
arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to
believe that suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980);
United States v. Jackson, 576 F.3d 465, 468 (7th Cir. 2009). The government
explained that Payton doesn’t completely resolve the issue because it involved
an in-home arrest in a defendant’s home while here, the defendant insisted
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that he was just “staying” at the unit. Id. at 6-7. The government argued that
Jackson authorizes the execution of an arrest warrant in a third-party
residence where the officer has reasonable cause to believe the defendant is
present. Dkt. No. 47 at 7 (citing Jackson, 576 F.3d at 468). The government
acknowledged that the Seventh Circuit has not determined whether “reason to
believe” in this context is synonymous with probable cause but argued that,
under either standard, the totality of the circumstances demonstrated a
reasonable probability that defendant was present. Id.
The government pointed out that at the time of the arrest, officers had
corroborated the information by the anonymous source that defendant was
wanted, armed and lived near 13th and Fiebrantz. Id. The anonymous source
had said that the defendant used a cell phone ending in 5813. Id. Officer Ayala
had confirmed that the defendant had felony warrants and had applied for a
search warrant. Id. at 7-8. Results from the warrant obtained to locate the
phone number ending in 5813 revealed that the phone was located at 4108 N.
13th Street. Id. Two separate officers confirmed with three different neighbors
that the defendant resided there. Id. The officers knocked and announced their
presence and, after they said they were there for the defendant, the defendant
said “Dang, I’m coming out.” Id.
With respect to the protective sweep, the government argued that the
sweep was justified under both prongs of Maryland v. Buie, 494 U.S. 325, 334
(1990). Id. at 11. First, the defendant was arrested in a hallway and the
government argued that areas adjacent to the arrest site are searchable
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without reasonable suspicion or probable cause to protect officer safety. Id.
Second, the officers reasonably believed that there might be others in the unit
because the lower tenant said that many people were in and out and Officer
Cline heard movement and a clicking noise similar to a slide being racked Id.
Further, Cline knew that the defendant had a prior conviction for being a felon
in possession and was wanted for recklessly endangering safety. Id. at 11-12.
The government noted that the portion of the sweep at issue lasted
approximately three minutes, or “no longer than necessary to dispel the
reasonable suspicion of danger;” Cline opened the closet door and immediately
observed the drum magazine filled with ammunition in plain view. Id. at 12.
Cline testified to his experience that an officer—-during another arrest—had
been ambushed and killed by a subject hiding under a pile of clothing. Id.
(citing Dkt. No. 45, at 70, line 25; 71, lines1-7). The remaining time spent in
the protective sweep—approximately twenty minutes—involved the attic space,
which “was both difficult and dangerous to access and clear.” Id.
The government argued that the search warrant affidavit “reflected that
there was a fair probability that evidence of a crime would be found in 4108 N.
13th Street.” Id. at 15. The government cited the following:
The affidavit established that defendant possessed a firearm and
was identified by two sources as being involved in a shooting on April
13, 2022. Defendant was also known to possess firearms given his
recent prior conviction for being a felon in possession of a firearm.
Officer Ayala, who has nineteen years of experience as a law
enforcement officer and who has executed numerous search
warrants for firearms, also knew that defendants often keep firearms
for long periods of time at their residences. To that end, on
Wednesday June 22, 2022, after knocking on the door for thirty
minutes, the defendant was arrested at 4108 N. 13th Street. And
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while the affidavit reflects defendant stated he did not live at that
location, it is reasonable to infer that he resided there given officers
located him at the residence early in the day on a weekday.
Defendant also took more than thirty minutes to answer the door
supporting the inference that he may have had something to hide
and further, that such a delay provided the means for him to hide
something in the residence. Taken together, the judge reviewing the
affidavit, even without evidence of the drum magazine filled with
ammunition in the closet, could reasonably infer that there was a
fair probability that evidence of a crime could be found in the home.
Id.
Finally, the government argued that the good faith exception applied and
that the defendant had not rebutted the presumption. Id. at 15-16. The
government argued that there was a fair probability that evidence would be
uncovered at the location because (1) the defendant was involved in a shooting
and was arrested at 4108 N.13th Street a few months after the shooting
incident; (2) the protective sweep revealed the drum magazine loaded with
ammunition; (3) the defendant had a prior conviction for being a felon in
possession; and (4) the defendant took thirty minutes to open the door after the
officers knocked and announced their presence. Id. at 16.
G. Defendant’s Post-Hearing Reply (Dkt. No. 49)
The defendant replied that there was no credible proof that the prior
tenant had moved out of the upper unit in May 2022. Dkt. No. 49 at 1.
Immediately following the arrest, “Lee” told Detective Rom that he moved out
but that he hadn’t told anyone. Id. The defendant reasoned that it was not
unlikely that any tenant whose leased dwelling contained contraband and was
surrounded by officers would lie and say he no longer lived in the unit. Id. The
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defendant said that this was the only evidence of law enforcement’s knowledge
of whether someone lived in the unit. Id. at 1-2.
The defendant also pointed out that government never produced the
arrest warrants at the evidentiary hearing. Id. at 2. The defendant argued that
Debra, the resident in the lower unit, said she hadn’t heard anyone in the
upper unit since the previous night. Id. The defendant insisted that the court
could not rely on Officer Ayala’s alleged interview with two neighbors because
he never mentioned the interview until he wrote a “mistake laden” report on
March 15, 2023. Id. at 2-3.
As for the protective sweep, the defendant stated that he told officers that
he was allowed to stay in the unit when he “[came] through” and needed a
place to sleep. Id. The defendant alleged that he should have been considered a
guest and that an invited guest has a reasonable expectation of privacy. Id.
(citing Minnesota v. Olson, 495 U.S. 91, 96-97 (1990)). The defendant pointed
to body cam evidence suggesting that the officers had no idea of the occupancy
status before and after the arrest. Id. at 4. For example, Officer Cline said, “To
be honest with you Kim don’t even know this guy’s full name.” Dkt. No. 41, Ex.
4 at 38:18. Cline could be heard in the body cam footage saying, “Stand by on
that. I don’t know if this is his; I don’t know who has standing here. He’s on
papers. I just don’t know enough. I know the lady downstairs is real
cooperative so maybe ask her. Just talk to her real quick. I don’t think she
owns this upper though. That’s the only thing but I could be wrong.” Dkt. No.
41, Ex. 2 at 56:55-57:16.
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The defendant reiterated that the provider deleted the cell phone records,
and that contrary to Ayala’s testimony, Officer Randazzo never told Ayala that
the cell phone was in the upper unit. Id. at 5. The phone never was recovered
from the unit. Id. The defendant also pointed out that Debra never said that
the defendant “lived in the upper” and that no officer had ever seen or heard
the defendant prior to June 22, 2022 (so they couldn’t have identified his
voice.). Id. at 6. The defendant said that Cline’s “hunch” wasn’t enough to
justify forced entry or issuance of the search warrant. Id.
The defendant emphasized that there was no reason to believe that there
were other people in the upper unit at the time of the arrest. Id. at 7. The
defendant asserted that Cline and Lastrilla’s body cam footage showed them
searching in places where people couldn’t be located. Id. at 8. The defendant
argued that the government did not have an expert testifying that the
defendant was dangerous, that there were no allegations of drug trafficking,
that there were no people present in the residence, that there was no need for
officers to spend time with the defendant in proximity of the residence and
there were no other indicia of other people present in the upper unit. Id. at 11.
As for the good faith doctrine, the defendant argued that Ayala knew or
should have known that there was no reason to believe anyone else was
present in the upper unit and that Cline’s search of the closet situated fifty to
sixty feet from where the defendant was arrested went beyond the protective
sweep. Id. The defendant asserted that it was “apparent that Officer Ayala
misled the issuing magistrate by stating that the drum magazine was found
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during a legal search for lurking confederates when Officer Ayala knew or
should have known that the ‘protective sweep’ was unnecessary and exceeded
the scope permitted by the ‘protective sweep’ doctrine.” Id. at 13.
II. Magistrate Judge Joseph’s Report and Recommendation
(Dkt. No. 50)
In her recommendation that this court deny the motion to suppress,
Judge Joseph addressed the defendant’s arguments that (1) law enforcement
lacked probable cause to believe that the defendant was located in the upper
unit when they forced entry and arrested him; (2) the protective sweep
exceeded the allowable parameters of Maryland v. Buie, 494 U.S. 325 (1990);
and (3) the warrant for the search lacked probable cause and could not be
saved by the good faith exception. Dkt. No. 50 at 6.
A. Entry into the Residence to Execute the Arrest Warrant
Judge Joseph explained that for Fourth Amendment purposes, an arrest
warrant founded on probable cause carries with it the limited authority to enter
a dwelling in which the suspect lives when there is reason to believe the
subject is there. Dkt. No. 50 at 6 (citing Payton, 445 U.S. at 603). She
acknowledged that Payton addressed entry into a defendant’s own home but
cited the Seventh Circuit’s decision in Jackson for the reasoning that “law
enforcement officers do not need a search warrant in addition to an arrest
warrant to enter a third party’s residence in order to effect an arrest.” Jackson,
576 F. 3d at 468. She recounted that the Jackson court allowed officers to
enter a residence to execute an arrest warrant if they have “reasonable belief”
that the suspect is within and the court said it “might be inclined to adopt the
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view of the narrow majority of our sister circuits that ‘reasonable belief’ is
synonymous with probable cause.” Id.
Turning the question of probable cause, Judge Joseph found that the
officers had probable cause to believe that the defendant was in the upper unit
at the time of the forced entry. Id. at 8. She noted that law enforcement had
learned from an anonymous citizen that the defendant was living in the area of
North 13th and Fiebrantz and that his phone number was 414-676-5813; that
officers had used technology authorized by a state warrant to confirm the
phone associated with the defendant was frequently in the area of North 13th
and Fiebrantz; and that on the day of the arrest, law enforcement had used a
cell site simulator to narrow down the signal from the device associated with
the defendant to 4108 North 13th Street. Id.
Judge Joseph found that officers had made contact with the resident in
the lower unit, who confirmed that the defendant did not live in the lower unit
or basement; officers had gone down to the basement but had not found
anyone present. Id. at 8-9. Judge Joseph determined that it was reasonable for
the officers to conclude, by process of elimination, that the phone signal was
coming from the upper unit. Id. at 9.
Judge Joseph observed that rather than immediately breaching the
upper unit’s door, Officer Cline had ascended the stairs and repeatedly
announced that the Milwaukee Police Department was present and had a
felony warrant for the defendant’s arrest and that the defendant should open
the door. Id. Judge Joseph reviewed body cam video evidence and found it
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reasonable for the officers to believe that the defendant was responding to them
because Cline made repeated pleas for the defendant to come out and the male
voice said “Dang, I’m coming out.” Id. at 9. Judge Joseph found that the
officers had probable cause to enter the upper unit to execute the arrest
warrant for the defendant. Id.
Judge Joseph concluded that the officers were justified in breaching the
door under the authority of the warrant. Id. After watching the entirety of the
video, she found that the officers “showed tremendous patience in attempting
to coax [the defendant] out of the residence prior to breaching the door; Officer
Cline talked and pleaded with [the defendant] for nearly forty minutes.” Id. at
10. She found that even after officers heard the voice say he was coming out,
the officers continued to wait. Id. For those reasons, Judge Joseph
recommended that this court deny the motion to suppress based on forced
entry.
B. Protective Sweep
Although the defendant argued that the officers did not know that the
upper unit was unoccupied prior to the arrest, Judge Joseph found that
whether the defendant had a reasonable expectation of privacy in the upper
unit did not turn on the officers’ knowledge but the defendant’s subjective
expectation of privacy. Id. at 11 (citing United States v. Mendoza, 438 F.3d 792,
795 (7th Cir. 2006)).
Judge Joseph recounted that Officer Elm’s body cam footage showed him
speaking on the phone to “Lee” on June 22, 2022; Lee was the last person
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listed as a tenant in the upper unit. Id. at 11. Lee told Elm that he had moved
out a month before but had not told anyone. Id. Officer Ayala testified that he
had learned from the City in August 2023 that the upper unit was rented in
2021 to two known tenants who vacated it in May of 2022. Id. The City
initiated a notice to vacate on July 19, 2022 and the eviction occurred on
September 20, 2022. Id. Judge Joseph observed that from Ayala’s body cam
video, the defendant’s voice could be heard repeatedly stating that he didn’t
“stay” at the apartment but that a friend let him sleep there when he needed to
and that a girl let him in. Id. Judge Joseph wrestled with the fact that it wasn’t
clear whether Lee was the friend who allowed the defendant to stay; she
explained that if Lee was the legal tenant and did not give the defendant
permission to stay, then whatever “host” let the defendant in did not have legal
authority to do so. Id. at 12. Judge Joseph stated that the defendant had the
burden to establish a reasonable expectation of privacy and that his evidence
was “weak, at best.” Id.
Judge Joseph ultimately concluded that even if the defendant could
establish that he was the guest of a lawful tenant, the evidence did not support
an actual or subjective expectation of privacy. Id. The evidence revealed that
after being placed in the squad car, the defendant could be heard saying that
he did not “stay” at the apartment and that he just went there when he needed
a place to sleep. Id. at 12-13. Without a reasonable expectation of privacy in
the upper unit, Judge Joseph found no violation of the Fourth Amendment. Id.
at 13.
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Judge Joseph explained that even if the defendant had had a reasonable
expectation of privacy in the upper unit, he had not demonstrated that the
officers had exceeded the permissible parameters of the protective sweep. Id.
The officers were told by the downstairs tenant that she had not heard noises
since the previous night, but the officers themselves heard movement when
they were outside the door. Id. at 14. Judge Joseph explained that the officers
had “clearly express[ed] concern that others” in addition to the defendant could
be present in the upper unit; Cline could be heard calling to the defendant “or
anyone else inside” and announcing that anyone hiding the defendant would
be arrested for harboring a fugitive. Id. at 14-15. Judge Joseph concluded that
given the downstairs tenant’s statement that multiple people had been going in
and out and the fact that the officers heard movement, the sweep was
reasonable. Id. at 15. She wrote:
Further, I do not find the officers exceeded the scope of the protective
sweep. The body cam videos for Officers Cline and Lastrilla show law
enforcement opening closed doors to rooms, looking in closets,
looking under beds, and checking the attic. . . . The closets are full
of items on the floor, and the officers quickly move the items aside
to check if someone is underneath. Officer Cline testified that he has
arrested subjects on multiple occasions hiding in closets, attics, up
in rafters, between walls, inside sofas and mattresses, and inside
dryers and washing machines. . . . He further testified that a friend
and colleague was killed when ambushed by a wanted subject
concealed underneath items of clothing. . . . Again, a protective
sweep may extend only to a cursory inspection of those spaces where
a person may be found and only as long as is necessary to dispel the
reasonable suspicion of danger. Buie, 494 U.S. at 335–36. Given the
totality of the circumstances from the prospective of the officers on
scene, I find the officers did not exceed the scope of the protective
sweep.
Id. at 15.
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C. June 22, 2022 Search Warrant
Because Judge Joseph found that neither the entry nor the sweep were
illegal, she rejected the defendant’s argument that the evidence of the drum
magazine should be excised from the affidavit in support of the search warrant
as fruit of the poisonous tree. Id. at 16. Officer Ayala had averred in the
affidavit that the defendant was a convicted felon (Milwaukee County Case No.
2017CF371); Officer Cline had found the drum magazine with unspent
cartridges in plain view in the closet during the protective sweep; and Ayala
had averred that weapons are often secreted in residences. Id. at 17. Judge
Joseph concluded that the affidavit provided the requisite probable cause.
D. The Good Faith Exception
Judge Joseph agreed with the government that even if the June 22, 2022
warrant was legally defective, it was saved by the Leon good faith exception. Id.
at 18 (citing United States v. Leon, 468 U.S. 897 (1984)). She found that the
government had demonstrated by a preponderance of the evidence that the
police had relied in good faith on the judicial official’s decision to issue the
warrant. Id. She explained that in order to rebut the good faith presumption,
the defendant may show that 1) the magistrate issued the warrant in reliance
on a deliberately or recklessly false affidavit; (2) the magistrate wholly
abandoned his neutral, detached judicial role and simply rubber-stamped the
warrant application; or (3) the warrant was based on an affidavit so lacking in
indicia of probable cause that no reasonable officer could have relied on it. Id.
(citing Leon, 468 U.S. at 923). Judge Joseph found that Officer Ayala’s
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statement in the affidavit regarding conducting the sweep to look for hiding
confederates was not deliberately or recklessly false. Id. at 18-19. She
concluded that the defendant failed to rebut the presumption that the officers
were acting in good faith.
III. Briefing To this Court
A. Defendant’s Objection (Dkt. No. 51)
In seeking de novo review of Judge Joseph’s report and recommendation,
the defendant asserts that the background section of the report is
“substantially accurate” but says that certain facts need “additional context.”
Dkt. No. 51 at 1. For example, he emphasizes that Officer Ayala testified that
Officer Randazzo told him the phone was in the upper unit but that Randazzo
said that he was unable to determine whether the signal was coming from the
upper or lower unit. Id. at 1-2. Ayala said that he realized the report was
inaccurate a couple months after he prepared it but never issued a correction.
Id. at 2. The defendant also takes issue with the fact that Judge Joseph never
mentioned that the defendant’s phone was not recovered during the search,
even though Randazzo had a handheld device that would have allowed for its
detection. Id. He points out that Ayala testified that he was not 100% confident
that the defendant was behind the door prior to it being breached. Id.
The defendant argues that on page three of the recommendation, Judge
Joseph failed to mention that officers did not discover that the two tenants had
vacated the upper unit until after the officers broke down the door. Id. at 3. He
argues that Judge Joseph should have clarified that different people were in
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the upper unit in the past and that Officer Cline testified that he failed to see or
hear anything that would cause him to believe that others were present after
the arrest. Id. The defendant believes that Judge Joseph should have explained
that the northwest bedroom closet was fifty to sixty feet from the door where
the defendant was apprehended and that the door to the closet was closed. Id.
Finally, the defendant says Judge Joseph ignored the portions of Officer
Lastrilla’s body cam recordings showing the officers looking for “more than
other subjects” during the sweep, such as the search in the attic and other
spaces that could not hide someone. Id. at 4.
In terms of the legal arguments, the defendant says the officers lacked
probable cause to believe the defendant was inside the upper unit. Id. at 4-5.
The defendant focuses on the facts that the anonymous source failed to provide
the basis for his or her knowledge and that the trap and trace records located
the phone between April 18 and June 3 but that the defendant was not
arrested until June 22, 2022. Id. at 5-6.
The defendant says that Randazzo failed to produce any records
memorializing the cell site simulator’s readings and that the defendant’s phone
was never recovered. Id. at 6. The defendant argues that the reliability of the
testimony of the use of the cell site simulator is further called into question by
Ayala’s testimony that Randazzo told him the phone was in the upper unit. Id.
The defendant asserts that whether the cell site simulator actually located the
defendant’s phone was not established by a preponderance of the evidence. Id.
at 6-7.
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The defendant says that the downstairs neighbor having said that she
saw the defendant and the officers hearing someone say “I’m coming out” don’t
make the defendant’s presence in the upper unit more likely than not, pointing
out that the downstairs resident did not say where or when she had seen the
defendant and that a male voice stating he was coming out in response to
Cline’s commands does not identify the defendant as the male who said it. Id.
at 7. The defendant emphasizes that no one had seen the defendant in the
upper unit or even in the area. Id.
As for the reasonable expectation of privacy, the defendant says that he
informed officers that he was “essentially an invited guest.” Id. at 8. The upper
unit was leased to two people and the eviction didn’t occur until after the
arrest. Id. The defendant argues that the government offered no evidence to
contradict the defendant’s assertion that he was an invited guest. Id.
The defendant further argues that the officers had no specific and
articulable facts supporting a reasonable belief that there was anyone else in
the upper unit. Id.at 9. Ayala’s anonymous source didn’t mention other people.
Id. No officers saw other people in the upper unit. Id. The downstairs tenant
last heard noises the night before. Id. The defendant was standing just on the
other side of the door when it was breached. Id. According to the defendant,
Cline said he didn’t see or hear anything suggesting others were present. Id.
While Judge Joseph pointed to conversation with the downstairs tenant
about multiple people going in and out of the upper unit, the defendant argues
that there was no evidence as to when the tenant actually saw anyone. Id. at 9-
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10. Along the same lines, the defendant argues that the officers didn’t have a
reasonable fear that there were others present who posed a danger to the
officers or others, making the protective sweep illegal. Id at 10.
The defendant preserves his argument that the drum magazine should
have been excised from the affidavit in the event that this court reverses the
findings regarding the validity of the protective sweep. Id. at 11. Likewise, the
defendant preserves his objection to the application of the good faith exception.
Id. at 12.
B. Government’s Response (Dkt. No. 52)
The government responds that the officers had probable cause to believe
that the defendant both lived in the unit and was present when officers
entered. Dkt. No. 52 at 3-4. The government initially argued that Jackson
requires only that officers have probable cause to believe the subject of the
warrant would be located there. Id. at 2. In its opposition brief, however, the
government added that it doesn’t matter whether the court applies the two-
pronged Payton test or the single prong Jackson test. Id. at 2-3.
Regarding probable cause to believe the defendant was at 4108 North
13th Street, the government says that the anonymous citizen placed the
defendant in the vicinity and provided the phone number. Id. at 3. The
technology authorized by the search warrant placed the phone at 4108 N. 13th
Street. Id. Officer Cline spoke with the tenant in the lower unit and determined
that the defendant must have been in the upper unit. Id. The voice in the unit
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responded to calls for the defendant to come by saying, “Dang, I’m coming out.”
Id.
Regarding probable cause to believe that the defendant lived at the
address, the government argues that the same evidence (the anonymous tip,
the location data for the phone), combined with the fact that law enforcement
interviewed three neighbors who testified that the defendant was living at 4108
North 13th Street, reasonably supported a finding that the defendant lived at
“or, at a minimum, had a significant relationship” to the address. Id. at 3-4.
The government responds to the defendant’s privacy arguments by
emphasizing that the defendant has not shown an expectation that society is
prepared to recognize. Id. at 4. The government says that “Lee” rented the
upper unit and vacated it in May of 2022. Id. The property wasn’t rented to
anyone else after that. Id. at 4-5. The government asserts that a trespasser or
squatter or someone unlawfully present at the property doesn’t have a privacy
interest under the Fourth Amendment. Id. at 5 (citing United States v. Curlin,
638 F.3d 565, 565-56 (7th Cir. 2011)). The government argues that while the
defendant says he was a guest, he never said who allowed him to stay there. Id.
The government argues that the defendant did not have an expectation of
privacy in the upper unit: he had no property in the unit, no keys to the unit
and repeatedly said he did not stay there. Id.
The government alleges, based on the argument in its response brief and
the facts cited by Judge Joseph (all of which the government incorporates by
reference), that the officers were justified in conducting the limited protective
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sweep, which revealed the drum magazine in the closet. Id. According to the
government, the search warrant—based primarily on the discovery of the drum
magazine and the fact that the defendant was a known felon—was supported
by probable cause.
C. Defendant’s Reply (Dkt. No. 54)
The defendant continues to focus on the fact that Officer Ayala never saw
the defendant in the neighborhood in the time between the anonymous tip and
June 22, 2022. Dkt. No. 54 at 1. The defendant says no other officer had seen
the defendant prior to breaching the door. Id. According to the defendant, the
search warrant return included only records confirming the location of the
phone as of June 3, 2022 and even though Officer Randazzo testified that the
defendant’s phone was located at 4108 North 13th Street on June 22, 2022,
the phone never was recovered. Id. The defendant says that officers had never
heard the defendant’s voice so they could not confirm the voice behind the door
was his. Id. at 2.
The defendant cites the fact that the government never identified the
three people who told Ayala that the defendant was living in the upper unit. Id.
at 2. The defendant asserts that Officer Cline’s body cam video revealed the
downstairs tenant saying she had seen the defendant but never confirming that
he was living there. Id. The defendant maintains that the existence of the other
two witnesses is “especially suspect” because Ayala never mentioned them
before preparing his supplemental report on March 15, 2023. Id.
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As to an expectation of privacy, the defendant says that, contrary to the
government’s assertion that he “repeatedly stated that he did not stay in the
upper unit,” he did state that he had stayed there on multiple occasions in the
past. Id. at 3. The defendant says that the problem with the government’s
reliance on “Lee” having vacated the upper unit (making the defendant a
trespasser or squatter) is that the apartment was leased to two people and was
still fully furnished on June 22, 2022. Id. The defendant says “Lee” mentioned
that he had vacated the premises only during a June 22, 2022 phone
conversation when he was asked to return to the apartment by a member of
the apprehension team. Id. The defendant says he was permitted entrance by a
woman when he needed a place to sleep. Id. The defendant reiterates that this
establishes his status as an invited guest and thus his privacy interest.
Finally, the defendant continues to argue that officers exceeded the scope
of the protective sweep because they didn’t have reason to believe anyone else
was there. Id. at 3. He repeats that Cline testified that he hadn’t seen or heard
anyone immediately after the arrest but that Randazzo still went fifty to sixty
feet into the apartment to the bedroom and opened the door to the closet. Id. at
3-4. The defendant asserts the officers should have accompanied him out of
the stairwell and waited for the search warrant or left the property. Id. at 4.
IV. Standard of Review
Federal Rule of Criminal Procedure 59(b) governs a district court’s
referral of motions to dismiss to magistrate judges. Parties have fourteen days
to file “specific objections” to a magistrate judge’s report and recommendation
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to a motion to dismiss. Fed. R. Crim. P. 59(b)(2). The district judge must review
de novo the portions of the magistrate judge’s recommendations to which a
party timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b)(2), (3). The
court may “accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate.” 28 U.S.C. §636(b)(1).
V. Analysis
Even with the “context” provided by the defendant, the facts are largely
undisputed. The defendant’s objections focus on the forced entry to and
execution of a warrant in an upper unit not owned or rented by the defendant,
the protective sweep that uncovered a drum magazine loaded with ammunition
and the subsequent application for a warrant to search the unit.
A. Execution of the Arrest Warrant and Forced Entry
1. Applicable Law
The defendant has argued that the government did not prove by a
preponderance of the evidence that probable cause existed for law enforcement
to believe that the defendant was inside the upper unit. Dkt. No. 51 at 4. Judge
Joseph concluded that the police lawfully entered the upper unit of the duplex
on the morning that the defendant was arrested. Dkt. No. 50 at 7-10. This
court agrees.
a. Payton v. New York
The court begins its analysis with the consolidated appeals in Payton,
where the defendants “challenge[d] the constitutionality of New York statutes
that authorize police officers to enter a private residence without a warrant and
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with force, if necessary, to make a routine felony arrest.” Payton, 445 U.S. at
574. In each of the appeals, police officers had gone to the appellant’s residence
to arrest the appellant on a felony charge; in each, the officers had probable
cause but no warrant; and in each, they had entered the residence without
consent. The Court confronted the question of “whether and under what
circumstances an officer may enter a suspect’s home to make a warrantless
arrest.” Id. at 574-75 (quoting United States v. Watson, 423 U.S. 411, 418 n.6
(1976)).
The Payton Court recounted that while “[t]he Fourth Amendment
protects the individual’s privacy in a variety of settings,” nowhere “is the zone
of privacy more clearly defined than when bounded by the unambiguous
physical dimensions of an individual’s home.” Id. at 589. Quoting the Fourth
Amendment’s mandate that “[t]he right of the people to be secure in their . . .
houses . . . shall not be violated,” the Court explained:
That language unequivocally establishes the proposition that “[a]t
the very core [of the Fourth Amendment] stands the right of a man
to retreat into his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States, 365 U.S. 505,
511 . . . [(1961)]. In terms that apply equally to seizures of property
and to seizures of persons, the Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent circumstances,
that threshold may not be reasonable crossed without a warrant.
Id. at 589-90.
So—absent exigent circumstances, a warrant is required for law
enforcement to enter a suspect’s home. But what kind of warrant? In Payton,
the State argued that “only a search warrant based on probable cause to
believe the suspect is at home at a given time can adequately protect the
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privacy interests at stake,” and maintained that because obtaining a search
warrant was impractical, no warrant of any kind was required. Id. at 602. The
Supreme Court disagreed, concluding that “an arrest warrant founded on
probable cause implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect
is within.” Id. at 603. The Court reasoned that though “[i]t is true that an arrest
warrant requirement may afford less protection than a search warrant
requirement, . . . it will suffice to interpose the magistrate’s determination of
probable cause between the zealous officer and the citizen.” Id. at 602. In other
words, “[i]f there is sufficient evidence of a citizen’s participation in a felony to
persuade a judicial officer that his arrest is justified, it is constitutionally
reasonable to require him to open his doors to the officers of the law.” Id. at
602-03.
b. Steagald v. United States
One year after deciding Payton, the Supreme Court decided Steagald,
considering “whether, under the Fourth Amendment, a law enforcement officer
may legally search for the subject of an arrest warrant in the home of a third
party without first obtaining a search warrant.” Steagald, 451 U.S. at 205. The
Court characterized the question as a “narrow” one: “whether an arrest
warrant—as opposed to a search warrant—is adequate to protect the Fourth
Amendment interests of persons not named in the warrant, when their homes
are searched without their consent and in the absence of exigent
circumstances.” Id. at 212. Officers had an arrest warrant for Ricky Lyons, and
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information that he might be found in Gary Steagald’s home. Id. at 206. But
when officers entered Steagald’s home, they did not find Lyons. Id. While
searching Steagald’s home, however, the officers uncovered narcotics. Id. at
206-07. Steagald was arrested and indicted on federal drug charges. Id. at 207.
Steagald moved to suppress the narcotics found in his home. Id.
The Supreme Court discussed the difference between an arrest warrant
(which the officers had for Ricky Lyons) and a search warrant.
[W]hile an arrest warrant and a search warrant both serve to subject
the probable-cause determination of the police to judicial review the
interest protected by the two warrants differ. An arrest warrant is
issued by a magistrate upon a showing that probable cause exists
to believe that the subject of the warrant has committed an offense
and thus the warrant primarily serves to protect an individual from
an unreasonable seizure. A search warrant, in contrast is issued
upon a showing of probable cause to believe that the legitimate
object of a search is located in a particular place, and therefore
safeguards an individual’s interest in the privacy of his home and
possessions against the unjustified intrusion of the police.
Id. at 212-13.
The Court found that the officers’ arrest warrant for Lyons protected
Lyons’s interest in being free from an unreasonable seizure and authorized the
officers to seize him. Id. at 213. But the Court observed that the officers had
gone further than that—they had “relied on the warrant as legal authority to
enter the home of a third person based on their belief that Ricky Lyons might
be a guest there.” Id. The Court opined that “while the warrant in this case may
have protected Lyons from an unreasonable seizure, it did absolutely nothing
to protect [Steagald’s] privacy interest in being free from an unreasonable
invasion and search of his home.” Id. The only “protection” Steagald had from
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an illegal entry and search of his home, the Court said, was the officers’
personal probable cause determination—and that was not reliable enough to
justify the entry or the search. Id.
The Steagald Court explained that “[a] contrary conclusion—that the
police, acting alone and in the absence of exigent circumstances, may decide
when there is sufficient justification for searching the home of a third party for
the subject of an arrest warrant—would create a significant potential for
abuse.” Id. at 215. It hypothesized that “[a]rmed solely with an arrest warrant
for a single person, the police could search all the homes of that individual’s
friends and acquaintances,” or could use the arrest warrant as a pretext for
“entering a home in which the police have a suspicion, but not probable cause
to believe, that illegal activity is taking place.” Id. (citations omitted). The Court
concluded,
In sum, two distinct interests were implicated by the search at issue
here—Ricky Lyons’ interest in being free from an unreasonable
seizure and petitioner’s interest in being free from an unreasonable
search of his home. Because the arrest warrant for Lyons addressed
only the former interest, the search of petitioner’s home was no more
reasonable from petitioner’s perspective than it would have been if
conducted in the absence of any warrant. Since warrantless
searches of a home are impermissible absent consent or exigent
circumstances, we conclude that the instant search violated the
Fourth Amendment.
Id. at 216.
c. United States v. Jackson
Neither Payton nor Steagald involved a scenario where officers who had
an arrest warrant for person A entered the home of person B to arrest person A
and person A challenged that entry. Nor has the Supreme Court addressed that
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scenario. But over twenty-five years after the Supreme Court decided Payton
and Steagald, the Seventh Circuit did.
Eric Jackson had an outstanding arrest warrant for aggravated battery.
Jackson, 576 F.3d at 467. Officers unsuccessfully searched for him at relatives’
residences, then got an anonymous tip that he had been staying at his father’s
girlfriend’s apartment and would be there the next day. Id. On arriving at the
identified residence—the home of LanDonna Joseph—the officers were invited
into the vestibule by Joseph, and they presented her with a photo of Jackson.
Id. After Joseph stated that she didn’t recognize Jackson, the officers showed
the photo to another woman sitting nearby (as it happened, Jackson’s
girlfriend), who, when asked if Jackson was inside, nodded and began to cry.
Id. The officers entered the apartment, found Jackson asleep in the back room,
arrested him and found a “pistol within grabbing distance under the blanket on
which he had been sleeping.” Id. Jackson was charged with being a felon in
possession of a firearm. Id.
Jackson moved to suppress the firearm, arguing that “the police needed
a search warrant as well as an arrest warrant in order to enter Joseph’s
apartment in order to arrest him.” Id. Rejecting that argument, the Seventh
Circuit recounted Payton’s holding that “an arrest warrant founded on
probable cause implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect
is within.” Id. at 468 (quoting Payton, 445 U.S. at 602). The court recited
Steagald’s holding that because the “[arrest] warrant application process does
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not protect the Fourth Amendment interests of third parties,” “if officers enter a
third party’s residence in order to effect an arrest, the third party herself may
have a Fourth Amendment claim against the officers.” Id. (citing Steagald, 451
U.S. 204). The Seventh Circuit emphasized, however, that the Steagald Court
was “quite explicit that ‘the narrow issue before [the Court was] whether an
arrest warrant—as opposed to a search warrant—is adequate to protect the
Fourth Amendment interests of persons not named in the warrant.’ [Steagald] at
212 . . . (emphasis added).” Id. at 468. Accordingly, the Seventh Circuit said,
“[b]ecause it addresses only the Fourth Amendment rights of persons not
named in an arrest warrant, Steagald did not hold that the subject of an arrest
warrant has a higher expectation of privacy in another person’s residence than
he does in his own.” Id. And, the court pointed out, “nearly every court of
appeals to consider the issue has held that law enforcement officers do not
need a search warrant in addition to an arrest warrant to enter a third party’s
residence in order to effect an arrest.” Id. (collecting cases).
That said, the Seventh Circuit explained that while officers don’t “need a
search warrant to execute an arrest warrant in a third party’s home, they do
need some basis for believing that the suspect is actually present in the home.”
Id. The court pointed to Payton’s holding that an arrest warrant “carries with it
the limited authority to enter a dwelling when there is reason to believe the
suspect is within,” id. at 468-69 (emphasis in original) (quoting Payton, 445
U.S. at 602), and observed that courts of appeal were split on the meaning of
“reasonable belief,” id. at 469. The court explained that three circuits had held
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that “reasonable belief requires a lesser degree of knowledge than probable
cause,” while four other circuits had held that “‘reasonable belief’ amounts to
the same thing as ‘probable cause.’” Id. (case citations omitted).
The Seventh Circuit stated that, while it might be inclined to side with
the courts that found “reasonable belief” synonymous with “probable cause,” it
didn’t need to decide that issue because the officers in Jackson had probable
cause. Id. The court recounted that the officers had a tip that Jackson was
staying at the apartment and would be there the next morning, and that when
they arrived and asked Jackson’s girlfriend if he was there she nodded and
started crying; the court concluded that “[t]his was more than enough to lead a
prudent person to believe that Jackson was inside the apartment when he or
she entered.” Id.
In 2016, the Second Circuit Court of Appeals came to the same
conclusion, albeit using different language:
We here adopt this reasoning as our own and join our sister circuits
in concluding that the subject of a valid arrest warrant cannot
complain that his Fourth Amendment right to be free from an
unreasonable seizure was violated by apprehension in a third party’s
home, entry to which was not authorized by a search warrant. The
arrest-warrant subject has no greater privacy rights in such
circumstances than he would have had if the arrest had been made
in his own home. Thus, if, at the time of entry, law enforcement
officers possessed a valid warrant for the subject’s arrest and reason
to believe that he was on the premises entered, the subject of the
arrest warrant will not be heard to complaint that entry was not
authorized by a search warrant.
United States v. Bohannon, 824 F.3d 242, 251 (2d Cir. 2016).
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d. The Applicable Legal Standard in This Case
Payton held that for Fourth Amendment purposes, an arrest warrant for
a suspect, coupled with “reason to believe” that the suspect is present in his
home, is sufficient to authorize law enforcement to enter the suspect’s home to
arrest him. Payton, 445 U.S. at 602; see also United States v. Agnew, 407 F.3d
193, 196 (3d Cir. 2005) (“We note that Payton only addresses entry by officers
into the residence of the subject of the warrant.”). Because in this case, law
enforcement did not enter the suspect’s home—the defendant’s home—the
Payton requirement that the government show that the officers had probable
cause to believe that the unit on North 13th Street was the defendant’s
residence does not apply.
Steagald held that before law enforcement may search the home of a
third party where they believe a suspect to be located, they must obtain a
search warrant. If they don’t, the third-party homeowner may challenge the
search on Fourth Amendment grounds. In this case, the City of Milwaukee was
the third-party homeowner, but the city is not challenging the search. Because
the party challenging the search—the defendant—is not the third-party
homeowner, the defendant cannot avail himself of the holding in Steagald.
As Judge Joseph stated, the Jackson standard provides the applicable
framework for analyzing the facts in this case, in which officers with a valid
arrest warrant entered the home of a third party to arrest the subject of that
valid arrest warrant. Dkt. No. 52 at 10-11. Under Jackson, the officers needed
only an arrest warrant for the suspect and “some basis”—probable cause or
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something less—for believing that the fugitive was present in the third party’s
home. Jackson, 576 F.3d at 468-69. Judge Joseph correctly articulated the
applicable legal standard. The officers’ entry into the unit was lawful if the
officers had probable cause to believe that the defendant was inside.
2. Application of the Law to the Facts of This Case
The defendant first argues that the government failed to show that
probable cause existed for officers to believe that the defendant was in the
upper unit. Dkt. No. 51 at 4. The defendant maintains that no officers saw him
in the unit or even in the area. Id. at 7. In his post-hearing brief in support of
the motion to suppress, the defendant relied on Payton for the proposition that
an arrest warrant only “carries with it the limited authority to enter a dwelling
in which the suspect lives when there is a reason to believe the suspect is
within.” Dkt. No. 46 at 5 (quoting Payton, 445 U.S. at 603). It is undisputed
that the defendant in this case was not in his own home when the officers
entered to execute the arrest warrant, so as the court explained above, Payton’s
two-pronged “residence plus presence” test does not apply.
The defendant argues that an arrest warrant “does not authorize law
enforcement to enter a 3d person’s home to execute a search warrant,” and
cites Steagald. Dkt. No. 46 at 7 (citing Steagald, 451 U.S. at 213-14). But the
court has explained that the Steagald Court addressed only “the narrow issue”
of “whether an arrest warrant—as opposed to a search warrant—is adequate to
protect the Fourth Amendment interests of persons not named in the warrant,
when their homes are searched without their consent and in the absence of
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exigent circumstances.” Id. at 212. Steagald focused on the rights of the
homeowner/resident, not on the rights of the subject of the arrest warrant. Id.
Here, the defendant—the subject named in the arrest warrant—has
asserted a Fourth Amendment right based on the execution of the arrest
warrant at the unit where he went when he needed a place to sleep, but that he
has affirmatively asserted was not his residence. Those were the facts in
Jackson—the subject of the arrest warrant was arrested in someone else’s
residence. As the court has recounted, the Jackson court concluded that in
such circumstances, officers do not need a search warrant; they need a reason
to believe the defendant is in the dwelling. Jackson, 576 F.3d at 468-69. In
dicta, the Seventh Circuit said that it “might be inclined to adopt the view of
the narrow majority of our sister circuits that ‘reasonable belief’ is synonymous
with probable cause.” Id. at 469. The court didn’t reach the issue because the
evidence was “more than enough to lead a prudent person to believe that
Jackson was inside the apartment when he or she entered.” Id.
Based on this language, Judge Joseph adopted the probable cause
standard and found that officers had probable cause to believe that the
defendant was present in the upper unit of 4108 North 13th Street at the time
officers forced entry. Dkt. No. 50 at 8. The court agrees. The parties stipulated
to the conversation between Officer Ayala and the anonymous caller on May
24, 2022. Dkt. No. 32 at ¶1. The caller said that the defendant was living in the
area of North 13th Street and Fiebrantz, that his telephone number was 414-
676-5813 and that he was wanted, armed and dangerous. Id. Ayala took steps
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to confirm that the phone number was linked to the defendant and sought a
state search warrant to locate the number. Id. at ¶2. On June 3, 2022, the
state court authorized a warrant to identify and track 414-676-5813. Id. at ¶3.
Next, Officer Randazzo confirmed that the telephone associated with that
number was frequently located in the area of North 13th Street and Fiebrantz.
Dkt. No. 44 at 16, line 7 through 26, line 25. Ayala conducted a wanted check
and confirmed that the defendant was wanted on several warrants. Dkt. No. 32
at ¶4. While the defendant makes much of the delay between the authorization
of the warrant and the arrest, Randazzo used the cell site simulator to narrow
the device to 4108 North 13th Street on June 22, 2022. Dkt. No. 44, at 43,
lines 10-14; 44, lines 1-25; 45, lines 1-2. The defendant clarifies—and the
court agrees—that Randazzo could not determine whether the signal was
coming from the upper or lower unit. The undisputed testimony in the record,
however, was that the phone was pinging at that location.
When officers arrived at 4108 North 13th Street, Officer Cline spoke with
the resident of the lower unit to ensure that they were entering the correct unit.
The resident confirmed that she and a “lady friend” lived in the lower unit and
that her son—not the defendant—lived in the basement. Dkt. No. 41, Ex. 4 at
1:06-1:18. She also stated that she had heard others upstairs the night before.
Id. Officers cleared the basement. Dkt. No. 32 at ¶7. They then proceeded
upstairs to the upper unit. Id. ¶8. At that point, it was reasonable for the
officers to conclude that the signal was coming from the upper unit, because
the defendant was not a resident of the lower unit and there was no one in the
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basement. There was nothing to suggest that the phone—and the defendant—
would be located anywhere else in the house.
The body cam footage supports the finding. First, it shows that officers
did not immediately breach the upper unit’s door. The parties stipulated that at
approximately 11:16 a.m., Cline knocked three times with no response. Id. at
¶8; Dkt. No. 41, Ex. 4 at 8:54-9:59. Cline and Officer Dewitt heard movement
inside the residence on two occasions, dkt. no. 32 at ¶8, and Cline testified
that he heard a sound like someone was racking a gun, dkt. no. 45 at 63, lines
21-23. When viewing the footage, one hears Cline repeatedly state that the
Milwaukee Police Department was present, that they knew the defendant was
in the unit and that they had a felony warrant. Dkt. No. 41, Ex. 4 at 10:16-
41:34. Cline continuously asked the defendant to open the door and said that
the defendant had a felony warrant for his arrest; a male voice eventually
stated, “Dang, I’m coming out,” although no one came out. Dkt. No. 32 at ¶8.
Although the officers did not know the defendant’s voice prior to the arrest,
they knew that his phone was pinging from the location and that the duplex
was in the vicinity of the location identified by the anonymous caller. The
officers also knew that the individual inside the unit responded when they
called the defendant’s name. The officers knocked and announced their
presence and, as Judge Joseph stated, demonstrated “tremendous patience in
attempting to coax [the defendant] out of the residence,” pleading almost forty
minutes before forcing the door. Dkt. Nos. 32 at ¶8; 41, Ex. 4 at 10:16-41:34;
50 at 10.
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The defendant makes much of the fact that the trap and trace records
located the phone in the area of North 13th and Fiebrantz between April 18
and June 3, 2022 but that officers didn’t arrest the defendant until June 22,
2022. But the anonymous caller placed the defendant in that area, the trap
and trace records established that the defendant was in that area regularly
through June 3, 2022 and Randazzo testified that he used the cell site
simulator on June 22, 2022 and that it pinged to the address. Because the
officers had a valid arrest warrant and there was probable cause to believe that
the defendant would be located in the upper unit, the court will deny the
motion to suppress to the extent that it challenges the officers’ entry into the
unit.
B. Protective Sweep
Next, the defendant challenged the protective sweep incident to his arrest
on the ground that he had a reasonable expectation of privacy in the upper
unit as an “invited guest” and that the officers did not have a reasonable belief
that others who might pose a danger to the officers were in the upper unit. Dkt.
No. 51 at 8-9.
The inquiry into the reasonableness of the search “turns in large part on
the extent of [the defendant’s] legitimate expectations of privacy . . . .” United
States v. White, 781 F.3d 858, 861 (7th Cir. 2015) (citation omitted). The
Supreme Court has found that overnight guests have a legitimate expectation
of privacy in their host’s homes. Olson, 495 U.S. at 98. The Olson Court
observed that we stay in others’ homes when we travel, visit our parents or
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relatives, when we are in between jobs or homes or when we house-sit for a
friend. Id. It reasoned that finding a privacy interest under such circumstances
“merely recognizes the everyday expectations of privacy that we all share.” Id.
On the other hand, the Seventh Circuit determined that a defendant who had
been evicted two weeks prior to the search had no legitimate expectation of
privacy in his home and therefore no Fourth Amendment search occurred.
United States v. Curlin, 638 F.3d 562 (7th Cir. 2011). More recently, the
Seventh Circuit declined to answer whether a fugitive hiding in a hotel room
had a legitimate expectation of privacy as an overnight guest. U.S. v. Procknow,
784 F.3d 421, 426 (7th Cir. 2015).
On this record, the court cannot conclude that the defendant had a
legitimate expectation of privacy. Officer Ayala’s body cam captured the
defendant repeatedly stating that he did not stay at the apartment. Dkt. No. 41,
Ex. 5 at 0:49-1:12. He said that “this girl” let him in. Id. at 1:23. He mentioned
that a friend of his let him stay but said he didn’t know if the unit was in his
friend’s name. Id. at 1:25-1:31. The defendant said that he didn’t stay there but
he would “come through” when he needed a place to sleep. Id. at 1:33-1:46. He
denied having any property in the unit. Id. at 1:51-1:56. On these facts, it is
difficult to conclude that the defendant had a subjectively reasonable
expectation of privacy in the upper unit, let alone one that society is willing to
recognize as reasonable.
The court concedes that there is ambiguity surrounding this issue. The
apartment was furnished and the record is not clear as to who let the
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defendant into the unit. “Lee” told Ayala that he vacated the apartment in May
of 2022 but the defendant never said that Lee was the person who allowed him
to stay in the unit. But the question of whether the defendant had a legitimate
expectation of privacy in the unit is not dispositive. Judge Joseph concluded
that even if the defendant had had a reasonable expectation of privacy in the
unit, he failed to demonstrate that the officers exceeded the permissible
parameters of a protective sweep. Dkt. No. 50 at 13.
In Buie, the United States Supreme Court held that in limited
circumstances, a “protective sweep” constituted an exception to the warrant
requirement of the Fourth Amendment. Buie, 494 U.S. at 327. The police
executed an arrest warrant in Buie’s house because he and another individual
were suspected of armed robbery. Id. at 328. They arrested Buie as he emerged
from the basement. Id. One of the detectives entered the basement after the
arrest “in case there was someone down there” and found a red running suit
that matched the description of the clothing one of the robbery suspects had
worn. Id. The Supreme Court upheld the admission of the suit as evidence at
trial because it was seized during a reasonable protective sweep. Id. The Court
explained that police officers had a legitimate interest “in taking steps to assure
themselves” that the premises of the arrest was not harboring other dangerous
individuals. Id. at 333.
Under Buie, “as an incident to the arrest” and “as a precautionary matter
and without probable cause or reasonable suspicion,” officers may “look in
closets and other spaces immediately adjoining the place of arrest from which
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an attack could be immediately launched.” Id. at 334. Where “articulable facts
which, taken together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area to be swept
harbors an individual posing a danger,” the search may extend beyond the
parameters of the first type of protective sweep. Id. Such a sweep must not last
“longer than is necessary to dispel the reasonable suspicion of danger.” Id. at
335–36. The inquiry as to the reasonableness and validity of a protective
sweep is necessarily fact specific. United States v. Burrows, 48 F.3d 1011,
1016 (7th Cir. 1995).
Here, the officers entered the upstairs unit, where they believed the
defendant would be located, to execute the search warrant. The resident
downstairs had said that there were “different people up there” and that she
had heard others in the apartment the night before. Dkt. No. 41, Ex. 2 at 0:43-
1:23. The officers approached the upper unit at 11 a.m.; Officer Cline testified
that he was concerned about the sounds of someone running around inside the
unit and what he believed to be someone racking a slide. Dkt. Nos. 41, Ex. 2 at
1:45; 45 at 66, lines 6-11. Review of the body cam footage reveals that officers
believed someone else could be in the unit. Cline warned that others inside the
unit could be charged with harboring a fugitive and Cline called out to the
defendant “and anyone else inside.” Dkt. No. 41, Ex. 2 at 40:50-41:27. Cline
asked the defendant whether others were in the unit but the response couldn’t
be heard on the body cam footage. The combination of what the officers learned
from the downstairs tenant and heard while waiting for the defendant to come
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out of the unit made their fear—that others were present and could pose a
danger—reasonable. See U.S. v Henderson, 748 F.3d 788, 792 (7th Cir. 2014)
(search lawful where the officers, after detaining an individual, “did not know
how many occupants or what the occupants were doing inside the house
during the standoff”).
That does not end the inquiry. Buie limits the scope of a protective sweep
to a “cursory” inspection of spaces where individuals may be found and a
length no longer than is necessary to dispel potential danger; it does not allow
a full search of the premises. 494 U.S. at 326. In determining whether the
search was of a limited scope, courts should analyze “the configuration of the
dwelling, the general surroundings, and the opportunities for ambush.” U.S. v.
Starnes, 741 F.3d 804, 808 (7th Cir. 2013). “An ambush in a confined setting
of unknown configuration is just such a situation in which an officer might
need to perform a protective sweep.” Id. (citing Buie, 494 U.S. at 333; U.S. v.
Tapia, 610 F.3d 505, 511 (7th Cir. 2010)).
The defendant argues that Judge Joseph should have included in the
recommendation the fact that the closet door was closed and that it was
located fifty to sixty feet from the door where he was arrested. Those facts do
not alter the analysis. Officer Cline testified that the protective sweep was
captured on his body cam and that the time it took to sweep the two bedrooms
and the bathroom was “[a]pproximately three minutes.” Dkt. No. 45 at 68, lines
14-25. The loaded drum magazine was in plain view on the floor of the closet.
Id. at 69, lines 24-25; 70, lines 1-5. The body cam footage from Cline and
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Officer Lastrilla shows the officers quickly moving through the rooms, looking
under clothes and beds to see if someone was hiding. Dkt. No. 32, Exs. 2, 4 at
34:26-52:17.
The defendant also takes issue with the search of the attic, which
consumed the bulk of the time spent on the sweep. Cline testified about how
subjects have concealed themselves in unusual hiding spots and said that he
has arrested subjects in “walk-in closets or just regular closets, in the attic, up
in the rafters, hiding beneath—between the walls, inside of sofas, inside of bed
mattresses, inside of dryers, washing machines” and “underneath clothing
items, garbage bags.” Dkt. No. 45 at 56 at lines 3-11; 70 at lines 9-24. The
crawl space was accessible from the hallway where the defendant was standing
before his arrest and where the officers heard movement. Dkt. No. 41, Ex. 4 at
37:45-37:57. The officers were concerned that someone could be in that space
and used a broom to try to push up the entrance to the space, but that didn’t
work. Id. at 37:48-39:00. Once they pushed the attic space open, officers
repeatedly yelled to anyone in there to come to the opening with their hands
up. Id. at 39:00-4 The bathroom appeared to have a hole to the attic space. Id.
at 43:08-43:13. Officers remained in the doorways below monitoring the space
while they tried to figure out how to safely access the space to clear it. Id. at
39:00-52:17. The court agrees with Judge Joseph that the officers did not
exceed the scope of the protective sweep.
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C. Application for the Search Warrant
The defendant objects that Judge Joseph wrongly concluded that the
drum magazine was properly included in the application for the warrant. The
Fourth Amendment requires search warrants to be supported by probable
cause. U.S. CONST. AMEND. IV. “[A] neutral magistrate must decide [whether]
probable cause [exists] before the police conduct a search.” United States v.
Taylor, 63 F.4th 637, 648 (7th Cir. 2023). The court upholds the determination
so long as there is a substantial basis for concluding that a search would
uncover evidence of wrongdoing. United States v. Yarber, 915 F.3d 1103, 1105
(7th Cir. 2019).
The defendant attached Officer Alaya’s application and the warrant to his
post-hearing brief. Dkt. No. 46 at 12-17. Ayala averred that the defendant had
been linked to a shooting on April 13, 2022, that a check of CCAP revealed that
the defendant previously had been convicted of a felony, that officers arrested
him in the upper unit of 4108 N. 13th Street after knocking for thirty minutes
and that the defendant stated he did not reside at the location. Id. at 14. Ayala
averred that after arresting the defendant, Officer Cline “checked a bedroom
closet and observed in plain view, a ‘drum magazine’ which contained unspent
cartridges.” Id. Ayala stated that officers remained at the location. Id.
The application established probable cause sufficient to allow the court
commissioner to conclude that evidence of the crime of “Felon in Possession of
a Firearm” could be found in the upper unit. Id. at 12. The court also agrees
with Judge Joseph that the warrant is otherwise saved by the good faith
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exception under Leon, 468 at 897. The defendant argues that Ayala was not
acting in good faith when he averred that “officers checked the residence for
any lurking confederates.” Dkt. No. 46 at 14. The court has concluded that
officers had a reasonable basis for concern that other people could be located
in the unit. Ayala’s statement was not recklessly false and the defendant has
not rebutted the presumption that the officers acted in good faith when seeking
the warrant.
VI. Conclusion
The court OVERRULES the defendant’s objections. Dkt. No. 51.
The court ADOPTS Judge Joseph’s report and recommendation. Dkt. No.
50.
The court DENIES the defendant’s motion to suppress. Dkt. No. 24.
The court ORDERS that by the end of the day on March 29, 2024, the
parties must file a joint report, updating the court as to the status of the case
and the parties’ proposed next steps. The status report must notify the court
whether the parties are asking the court to exclude time under the
Speedy Trial Act, and if so, under what provision.
Dated in Milwaukee, Wisconsin this 6th day of March, 2024.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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