170 F.3d 708 (7th Cir. 1999), 97-2021, United States v. Johnson

Docket Nº:97-2021, 97-2414.
Citation:170 F.3d 708
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Juan Benet JOHNSON, Defendant-Appellee.
Case Date:March 12, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 708

170 F.3d 708 (7th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellant,

v.

Juan Benet JOHNSON, Defendant-Appellee.

Nos. 97-2021, 97-2414.

United States Court of Appeals, Seventh Circuit

March 12, 1999

Argued Dec. 5, 1997.

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[Copyrighted Material Omitted]

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Melvin K. Washington (argued), Thomas P. Schneider, Office of the Attorney General, Milwaukee, WI, for Plaintiff-Appellant.

David E. Sloan (argued), Waukesha, WI, for Defendant-Appellee.

Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

When the people of the United States decided to include the Fourth Amendment in the Bill of Rights, they did so for a reason. They wanted to place constraints on the power of the police to conduct searches and seizures based on no more than a general warrant, because they knew that such unchecked power could lead to serious abuses. Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("[I]ndiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment.") (footnote omitted). See generally Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 19-42 (1966).

Although the Supreme Court has found exceptions to the warrant requirement in a number of compelling situations, it has never deviated from the rule that generalized suspicion alone is not enough to justify a warrantless search of a home, or a seizure of a person incident to such a search. In this case, Juan Johnson convinced the district court that he had been the victim of exactly this kind of prohibited action. It therefore granted Johnson's motion to suppress evidence that the police seized. The United States has appealed under 18 U.S.C. § 3731, and we affirm in part and remand in part for further proceedings. In so doing, we do not in any way underestimate the danger or difficulty of the job of the patrolman on the beat; we hold only that before a police officer targets a particular house and decides to seize literally anyone who might emerge from that house, he or she must either have a warrant or fall within one of the warrant exceptions that the Supreme Court has recognized.

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I

In December 1996, the Milwaukee Police Department (MPD) received a citizen report that drug activity was probably taking place in an apartment building located at 1033 West Atkinson Avenue, in Milwaukee. The information came from a community organization known as MICAH, which apparently is a group that gathers information on possible drug dealings in the area and forwards any information along to the police vice squad. MICAH had been contacted by Philip Aggen, the property manager of 1033 West Atkinson. Aggen identified four particular apartments as trouble spots, including apartment 7.

Detective Mark Mathy, Officer Glenn Bishop, Officer Brian Reilly, and Officer Suzanne Becker, all of the MPD, decided to respond to the complaint using their "knock and talk" technique. As the district court explained, in a "knock and talk," the police approach a house or apartment in which they suspect drug dealing is occurring. They listen outside the door for a brief period of time, and then they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia or contraband is in plain view. If it is, then they make a warrantless entry. As this description makes plain, the "knock and talk" procedure typically does not involve the prior issuance of a warrant.

Before the four officers went to the West Atkinson address, they called Aggen and confirmed with him that he had filed the report. At that time, Aggen admitted that he had been told about alleged drug activity, but that he had no personal knowledge of it. Thus, it was plain when the officers decided to check out MICAH's (and Aggen's) complaint (and the state does not argue otherwise) that they could not have obtained a warrant based on the information they then had.

New Year's Eve 1996 was the time the four officers decided to try their "knock and talk" at 1033 West Atkinson. Wearing plain clothes, they went to the building and gained admission from a maintenance worker, Michael Spolowitz. Mathy informed Spolowitz that the MICAH complaint listed apartments 1, 3, 4, and 7 as places where drug dealing might be going on. Spolowitz confirmed that apartment 7 was a busy place and that he believed there could be drug dealing going on there. He also commented that he had observed a lot of people going to apartment 7, leaving quickly, and then departing through the rear building exit.

With this additional information, the foursome walked around to the rear of the building and ascended a rear stairway to the second floor. As they walked up, they heard an upstairs door close at the south end of the building, and they heard footsteps in the hall. Mathy then heard a door slam shut. As they approached apartment 7, Mathy could hear voices inside it, but he could not distinguish what anyone was saying.

In keeping with their "knock and talk" routine, Mathy and Reilly positioned themselves on the right side of the door of No. 7, while Bishop and Becker moved to the left. Reilly stood behind Mathy, and the two listened to the voices inside the apartment. After 15-20 seconds, Mathy prepared to knock. At virtually the same instant, however, a man later identified as Johnson suddenly opened the door. Both Mathy and Johnson were startled to see the other. At that point, Mathy moved to the center of the 36-inch doorway, displayed his badge, and identified himself as a police officer. Johnson, who stands about 5'9" and weighs about 220 pounds, and who was wearing a bulky, black, triple fat goose jacket and blue jeans, stood opposite Mathy in the center of the doorway. Mathy is approximately 5'10" or 5'11" and weighs 185-190 pounds. During this time, Reilly remained behind Mathy, which meant that both Mathy's body and Johnson's body interfered with his view into the apartment.

The surprise encounter at the door set off a scramble inside the apartment, which Mathy observed. Johnson then tried to walk past Mathy out into the hallway, but Mathy stuck out his hand to stop Johnson and directed Reilly to take control of him. In testimony that the district court discredited,

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Reilly asserted that at that moment he saw a woman inside the apartment, seated at a table, throw what he believed to be a crack pipe to the floor.

Following his usual practice during a "knock and talk," Reilly prepared to frisk Johnson, even though (as the district court found) Reilly indicated that he did not have reason to believe that Johnson had a weapon. Instead, he relied only on his general knowledge that persons involved in narcotics offenses are often armed and the information furnished in the MICAH complaint. Reilly asked Johnson whether he had a weapon, but Johnson did not respond. While this part of the encounter was occurring, Johnson's hands were visible, away from his body, and Reilly could see that he was not holding anything. Reilly extended his own hands, getting ready for the frisk, and Johnson brought his hands up to Reilly's hands and pushed Reilly's hands outward, mirroring Reilly's gesture. Reilly interpreted this as a sign that Johnson was not going to allow Reilly to pat him down.

In the meantime, Mathy, Bishop, and Becker had walked into apartment 7. Reilly ordered Johnson to go back into the apartment, too, but Johnson refused twice to do so. When Johnson again tried to leave, Reilly grabbed him; Johnson struggled; and Reilly (joined by Mathy and Bishop, who returned to assist Reilly) forced Johnson to the floor. At that point, Bishop felt a gun in Johnson's pocket and retrieved a loaded .38 caliber revolver. The officers then handcuffed Johnson, and after that, he admitted that he also had a loaded .357 magnum in his pocket (which the officers naturally retrieved).

This prompted Reilly to ask Johnson if he had anything else that he should not have had, and Johnson indicated that he did and that it was in his right coat pocket. The forbidden fruit turned out to be a denim bag containing 50 corner-cuts of cocaine base and 27 paper folds of cocaine powder. Later at the police station, Mathy took a statement from Johnson after reading him his Miranda rights and obtaining a waiver.

II

Three days later, on January 3, 1997, a criminal complaint was issued against Johnson charging him with violations of 18 U.S.C. § 922(g) (convicted felon in possession of a firearm), and 21 U.S.C. § 841 (possession with intent to distribute controlled substances). On January 7, 1997, the grand jury returned an indictment charging those offenses, as well as the violation of 18 U.S.C. § 924(c) (possession of a firearm during and in relation to a drug trafficking offense) and § 924(e) (career offender). Johnson pleaded not guilty to all charges the next day.

On January 16, 1997, Johnson filed a motion to suppress the evidence that was seized from him during the police investigation: the two firearms, the cocaine, and his confession at the police station. Magistrate Judge Patricia J. Gorence held a hearing on the motion on February 3, and issued a report and recommendation (R & R) that it be denied on February 14. Johnson filed objections to the R & R on February 21, which the district court took under advisement. In a letter received on March 3, defense counsel advised the court that Johnson planned to change his earlier not guilty plea...

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