U.S.A. v. Wesela

• Citation: 223 F.3d 656
• Decision Date: 03 August 2000
• Docket Number: No. 99-3307,99-3307
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Louis J. Wesela, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 656

223 F.3d 656 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Louis J. Wesela, Defendant-Appellant.

No. 99-3307

In the United States Court of Appeals For the Seventh Circuit

Argued January 18, 2000

Decided August 3, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99-CR-24--Rudolph T. Randa, Judge. [Copyrighted Material Omitted] Before Easterbrook, Kanne, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

I

At approximately 1:15 a.m. on Tuesday, January 26, 1999, the Milwaukee Police Department received a 911 call from Mrs. Elizabeth Wesela. She told the operator that her husband, Louis Wesela, had a gun, had been threatening to kill her, and had shot and killed a family cat. Mrs. Wesela reported that her husband had fallen asleep, and she asked the police to come to her home.

When the police arrived, Mrs. Wesela admitted them to the couple's apartment. The officers asked where the man with the gun was; Mrs. Wesela responded that he was in the bedroom, and she volunteered that the gun was next to him on the bed. The police found Louis Wesela laying on the bed in the bedroom. After getting him up, the police ordered him out of the room and placed him under arrest. One officer then searched the bedroom for the gun and found it on a table under a pile of clothes. While in the bedroom, the officer noticed a pair of white tennis shoes stained with a drop of blood as well as a blood stain on the carpet. The officer then looked under the bed and saw cat feces against the wall. After the bedroom search, Wesela was taken to the hospital for medical treatment.

Detectives Schmitz and Corbett arrived at the Wesela home at 215 a.m. After a uniformed police officer briefed them, Detective Schmitz interviewed Mrs. Wesela in the apartment's living room. During the half-hour interview, Mrs. Wesela explained that she and her husband had been arguing since Sunday (January 24, 1999). She told Detective Schmitz that her husband had threatened to kill her. During the argument, he had behaved violently: he confronted an upstairs neighbor with the gun, shot the gun into the ceiling, and shot and killed one of the family's cats. Mrs. Wesela explained that he threw the dead cat in the garbage container behind the apartment building. After preparing himself a drink, Wesela went to sleep at around 10:00 p.m. Mrs. Wesela waited in the living room until she was certain he was sleeping. She then called the police.

As Detective Schmitz spoke with Mrs. Wesela, Detective Corbett went about collecting evidence. He did not ask Mrs. Wesela for permission to conduct the search, but Mrs. Wesela did not object to what he was doing. A uniformed police officer directed the detective to the evidence that had been discovered prior to the detectives' arrival. Detective Corbett found the dead cat in the outside garbage bin as Mrs. Wesela had reported and observed a trail of blood leading from the container to the apartment's back door. He also located a bullet hole in the ceiling and noted the location of the gun, ammunition, and blood stain in the bedroom. Detective Corbett also found an uncovered cardboard box in the bedroom, with books, paperwork, and a box for a Taurus .22 revolver inside. While searching the bedroom, Detective Corbett overheard Mrs. Wesela describe how her husband shot the cat while it was underneath the bed. Detective Corbett then looked under the bed, moved it away from the wall, and found a bullethole in the baseboard where the cat had been shot. He removed the bullet.

After a trial, Wesela was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. sec.sec. 922(g), 924(e). The only issue disputed at trial was Wesela's possession of the firearm, as the parties stipulated that Wesela had previously been convicted of a felony. Wesela raises several issues in this appeal. Because any errors made were harmless in the face of the overwhelming evidence, we affirm Wesela's conviction.

II

A. Constitutionality of the Felon in Possession Statute

Wesela first argues that one of the statutes under which he was convicted, 18 U.S.C. sec. 922(g), is unconstitutional because it exceeds Congress's powers under the Commerce Clause. We have already rejected this with respect to sec. 922(g). See United States v. Williams, 128 F.3d 1128 (7th Cir. 1997). Williams distinguished sec. 922(g) from the statute the Supreme Court considered in United States v. Lopez, 514 U.S. 549 (1995), on the ground that sec. 922(g), unlike the Lopez statute (18 U.S.C. sec. 922(q)), specifically requires that the possession must be "in or affecting interstate commerce." 128 F.3d at 1133-34. Nothing in United States v. Morrison, 120 S. Ct. 1740 (2000), or in Jones v. United States, 120 S. Ct. 1904 (2000), causes us to think that a different result is now required for sec. 922(g). In Morrison, the Court struck down the Violence Against Women Act, 42 U.S.C. sec. 13981, on the ground that it exceeded Congress's power under the Commerce Clause, but the Court was careful to note that the Act did not contain a jurisdictional element. Morrison, 120 S. Ct. at 1751. In Jones, the Court held that the arson statute, 18 U.S.C. sec. 844(i), covered only arson of property that itself was currently used in interstate commerce or in an activity affecting commerce. Nothing in either case casts doubt on the validity of sec. 922(g), which is a law that specifically requires a link to interstate commerce.

B. Motion to Suppress

Before trial, Wesela filed a motion to suppress evidence gathered from his apartment and incriminating statements he made following his arrest. The district court denied the motion and allowed all of the evidence in. In reviewing a district court's denial of a motion to suppress, we review findings of historical fact and credibility determinations for clear error. United States v. Johnson, 170 F.3d 708, 712-13 (7th Cir. 1999). We review de novo mixed questions of law and fact such as determinations of probable cause or reasonable suspicion. Id., citing Ornelas v. United States, 517 U.S. 690, 699 (1996).

1. Evidence Gathered During Searches

Wesela first contests the legality of the officers' search for his gun immediately following his arrest. His theory is that Mrs. Wesela allowed the officers to enter her home for one very limited purpose: to arrest him. He contends that Mrs. Wesela did not consent to a search for the gun, or, in the alternative, that even if she impliedly consented to a search for the gun, the officers exceeded the scope of that implied consent. (He concedes that if the search for the gun was permissible, then evidence of the rest of the items discovered during that search, such as the blood-stained tennis shoes, cat feces, and blood stain on the rug, were admissible under the plain view doctrine.) Wesela also contests the admission of evidence related to items found during Detective Corbett's search of the home (the bullet in the baseboard, the gun box, and the shell casings). For the latter search, he argues again that his wife did not give her express consent and, because she was being interviewed by Detective Schmitz while Detective Corbett searched, she could not have impliedly consented either.

Following a hearing on the motion to suppress, Magistrate Judge Gorence made several findings of fact, which the district court adopted in their entirety. The district court, however, drew different legal conclusions from those findings. Both judges agreed that Mrs. Wesela consented to the police entry of her apartment to arrest her husband and to search for the gun. The magistrate judge, who found that the scope of her consent was limited to looking for the gun, would have suppressed the items Detective Corbett found, because Mrs. Wesela never broadened her consent. The district court saw things differently. It concluded that Mrs. Wesela's failure to object constituted general consent to the search, and all evidence discovered by Detective Corbett--the documents in the gun box, the bullet in the baseboard, and the two shell casings deep inside the garbage bag--was admissible.

Under the Fourth Amendment, the standard for measuring the scope of an individual's consent is "objective reasonableness": "what would the typical reasonable person have understood by the exchange between the officer and the [person giving consent]?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). The scope of a search is generally defined by its "expressed object." Id. To determine whether a search was within the boundaries of consent is determined according to the "totality of all the circumstances." United States v. Torres, 32 F.3d 225, 230-31 (7th Cir. 1994).

We agree with the district court that these facts demonstrate Mrs. Wesela's consent to search the apartment for both her husband and the gun. She called the agents for the express purpose of ridding her house of the threat posed by her (armed) husband, and she allowed the officers to enter her house in order to arrest him. At the suppression hearing, one of the officers testified that she consented to the officers' entering the apartment to secure both the man and the gun. Mrs. Wesela herself told the officers where they could find the gun. The fact that there was no direct verbal exchange between Detective Corbett and Mrs. Wesela in which she explicitly said "it's o.k. with me for you to search the apartment," is immaterial, as the events indicate her implicit consent. Mrs. Wesela was in the living room while the search was going on in the bedroom; the bedroom was not visible from the living room, but Detective Corbett was able to overhear her description of events while he was in the bedroom and she was able to hear and respond to his question about the ownership of the tennis shoes. Due to the proximity of the rooms, Mrs. Wesela was probably aware of what was going on in the bedroom and elsewhere...