U.S. v. Groce

• Decision Date: 27 March 2003
• Docket Number: No. 02-CR-149.,02-CR-149.
• Parties: UNITED STATES of America, Plaintiff, v. Lee C. GROCE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 936

255 F.Supp.2d 936

UNITED STATES of America, Plaintiff, v. Lee C. GROCE, Defendant.

No. 02-CR-149.

United States District Court, E.D. Wisconsin.

March 27, 2003.

Elizabeth Blackwood, Racine, WI, for Plaintiff.

Thomas G. Wilmouth, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Lee Groce is charged in a two count indictment with possession of a firearm as a felon and possession with intent to distribute cocaine base. Defendant filed a motion to suppress the gun and drugs seized from his home pursuant to a search warrant. Magistrate Judge William E. Callahan, Jr. held a hearing on the motion and recommended that it be denied. Defendant objected, and upon reviewing the parties' submissions I decided to conduct a de novo hearing. See 28 U.S.C. § 636(b)(1).

In sum, here is what happened: law enforcement officers investigating a drug conspiracy went to defendant's home to conduct a "knock and talk" investigation. The officers claim that, after initially refusing, defendant's father consented to a limited search of the home, during which one of them observed cocaine in defendant's bedroom. Armed with this information, the officers obtained a search warrant for the home and during the subsequent search seized the firearm and drugs at issue.

Defendant contends that his father did not consent to the search, and that the officer lied when he claimed in the warrant application that consent was obtained. The government argues that defendant's father did consent, but even if he didn't, the search was justified as a "protective sweep." The government further argues that the officers would have obtained a search warrant even without the observation of cocaine, and thus the gun and drugs are admissible under the "inevitable discovery" doctrine.

I conclude that (1) defendant's father did not consent to the search; (2) the officers did not conduct a protective sweep nor was such a sweep justified; (3) the evidence seized pursuant to the search warrant was the fruit of the previous unlawful search; and (4) the evidence would not have inevitably been discovered by lawful means. Therefore, defendant's motion to suppress must be granted.

I. FACTS

On June 26, 2002, Detective Paul Kavanaugh and Officer David Lopez of the Milwaukee Police Department were assisting agents of the Drug Enforcement Agency (DEA) in an investigation of a drug trafficking conspiracy headed by one Marvel Belser. At about 9:30 a.m., Kavanaugh and Lopez were directed to 207 East Burleigh Street in Milwaukee to conduct a "knock and talk" investigation. The purpose of a "knock and talk" is to gain admission into the residence of a suspected drug dealer and obtain consent to search the premises. Kavanaugh and Lopez went to the door of the residence while six or seven DEA agents waited outside. Kavanaugh testified that he had no idea why he was directed to the residence. However, earlier that morning he had assisted in the execution of a search warrant related to the Belser investigation, and Rodel Babasa, the head DEA agent, testified that Kavanaugh had been de-briefed and that everyone knew they were going to 207 East Burleigh to continue the Belser investigation.

Kavanaugh and Lopez knocked on the door, and a young woman later identified as Rhandi Roberson opened it. Roberson allowed the two officers inside, and they proceeded through a porch into the living room.¹ Roberson indicated that only she and her young child were home. However, within a few moments defendant appeared.² Kavanaugh testified that defendant came from the dining room, while Lopez stated that he came from the kitchen. Defendant asked the officers why they were there; the officers did not respond and instead directed defendant and Roberson to sit on a loveseat in the living room. The officers then heard a noise from the dining room area, and Robert Groce (later identified as defendant's father) ³

emerged from the bedroom off the dining room. Kavanaugh testified that because two men had appeared he asked Lopez to summon the DEA agents into the home.

Upon learning that Robert Groce⁴ was the tenant, Kavanaugh and Babasa decided to speak with him in the kitchen. They asked him if they could search the residence for drugs. While they were speaking, defendant yelled from the living room, "don't let them search, Bob." Robert indicated that he would prefer if the officers obtained a search warrant.

Milwaukee police officer Miguel Correa then entered the home and was assigned the task of determining whether any of the occupants of the residence had outstanding warrants. Correa discovered that the Milwaukee Municipal Court had issued a warrant for defendant for nonpayment of a public drinking ticket. He advised Kavanaugh of the warrant, and Kavanaugh placed defendant under arrest. Kavanaugh checked under the cushions of the loveseat where defendant was seated and discovered a loaded clip for a pistol. He then placed defendant back on the loveseat and returned to the kitchen, where Babasa and Robert had remained.

Still attempting to obtain Robert's consent to search, Kavanaugh asked Robert if the officers could search for people. Kavanaugh testified that he was concerned about the presence of others because he believed there might have been a gun in the home. Kavanaugh claimed that Robert agreed to the search, stating "that would be fine," and Lopez proceeded to search the upstairs portion of the residence. Kavanaugh also testified that he or Babasa suggested that Robert accompany Lopez, and Robert did so. Kavanaugh further testified that Lopez was gone for fifteen or twenty seconds, then returned and reported that he had observed what appeared to be cocaine on a plate in an upstairs bedroom.⁵ Based on this information, the officers decided to obtain a search warrant for the residence from a Milwaukee County court commissioner.

Lopez and Babasa also testified that Robert consented to a search for people, but their testimony differed from Kavanaugh's and from each other's. Lopez said that he went into the kitchen and heard either Kavanaugh or Babasa ask Robert for consent to search for people, and that Robert agreed—but only if he could accompany the officer conducting the search. Lopez testified that he searched upstairs accompanied by Robert, that the search took several minutes, and that he observed cocaine and a scale in one of the bedrooms. Babasa testified that after Robert agreed to a limited search he suggested that Robert accompany Lopez upstairs.

Robert testified that he did not consent to a search. He stated when an officer went upstairs anyway he yelled, "Don't go up there." Roberson testified that she heard Robert refuse consent for a search and also heard him say "don't go up there" at the same time that she heard someone going up the creaky stairs. Officer Correa corroborated this testimony. He testified that he heard Robert say "don't go up there" after defendant had been arrested and the clip discovered, in other words, at the same time Kavanaugh and Babasa were seeking consent to search for people.

II. DISCUSSION

A. Consent to Search

Warrantless entries and searches of the home are presumptively unreasonable, subject only to a few narrow exceptions. E.g., Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, officers need not acquire a warrant if consent is obtained. See United States v. Dorsey, 27 F.3d 285, 290 (7th Cir.1994). A voluntary consent "lifts" the warrant requirement. United States v. Stribling, 94 F.3d 321, 324 (7th Cir. 1996).

Consent can be express or it may be implied from the circumstances. See, e.g., United States v. Wesela, 223 F.3d 656, 661 (7th Cir.2000) (finding implied consent where defendant's wife called police, consented to their entry, did not object to search as it occurred, and provided information to officers during search). The government bears the burden of proving by a preponderance of the evidence that consent was voluntarily given. See United States v. Basinski, 226 F.3d 829, 833 (7th Cir.2000).

In the present case, Kavanaugh and Lopez were allowed into the home by Roberson. However, I find that Robert did not consent to a search; in fact, he vocally objected to it. I credit the testimony of Officer Correa, Robert and Roberson over that of Kavanaugh, Lopez and Babasa.

Correa's testimony that he heard Robert yell "don't go up there" at the same time Kavanaugh and Babasa were seeking consent to search upstairs is highly significant. Obviously, Robert would not have said this had he agreed to the search. Kavanaugh and Lopez claimed that Robert never made this statement, but the government has offered no explanation as to why Correa would contradict his fellow law enforcement officers on this critical point. In any event, I find it implausible that Correa would testify falsely in this manner.

Correa's testimony corroborated Robert's assertion that he told Lopez not to go upstairs, as well as Roberson's testimony that she heard Robert say "don't go up there" at the same time she heard someone ascending the creaky back stairs. I found the testimony of Robert and Roberson to be straightforward and convincing. Thus, I find that Lopez went upstairs without having obtained permission, prompting Robert to yell "don't go up there."

For a number of reasons, I found that the testimony of Kavanaugh, Lopez and Babasa was not credible.⁶ First, the demeanor of each was uncertain, in contrast to the assuredness I usually observe in law enforcement witnesses. Of course, just because a witness is nervous does not mean that he or she is lying. But the officers' demeanor here suggested something more than nerves.

Second, the testimony of these officers concerning what occurred after Robert allegedly gave consent did not jibe. Kavanaugh testified that he or Babasa suggested that Robert accompany Lopez upstairs, but Lopez claimed that Robert insisted on tagging along....