856 F.2d 975 (7th Cir. 1988), 87-3158, United States v. D'Antoni

Docket Nº:87-3158.
Citation:856 F.2d 975
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Todd A. D'ANTONI, Defendant-Appellant.
Case Date:September 14, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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856 F.2d 975 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Todd A. D'ANTONI, Defendant-Appellant.

No. 87-3158.

United States Court of Appeals, Seventh Circuit

September 14, 1988

        Argued May 18, 1988.

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        Bonnie S. Musial, Musial Law Office, Madison, Wis., for defendant-appellant.

        Daniel P. Bach, and John W. Vaudreuil, Asst. U.S. Attys., Madison, Wis., for plaintiff-appellee.

        Before WOOD, Jr. and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

        HARLINGTON WOOD, Jr., Circuit Judge.

        On July 6, 1987, a complaint was filed in the Western District of Wisconsin charging the defendant with distributing cocaine to a

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fourteen-year-old female, and to a fifteen-year-old female who had died as a result. On July 15, a federal grand jury returned a two-count indictment against the defendant charging him with two counts (one for each of the two females) of distributing cocaine to a person under the age of twenty-one, in violation of 21 U.S.C. Secs. 841(a)(1), 845(a). Count II charged the penalty enhancement set forth in 21 U.S.C. Sec. 841(b)(1)(C).

        The defendant pled not guilty, and filed two motions to suppress statements and evidence. An evidentiary hearing was held on August 27 and 28. In a report and recommendation dated October 16, Magistrate James Groh recommended that suppression be granted, finding that the defendant had been unlawfully detained under a pretext. The magistrate recommended that suppression be denied on all other grounds. In an order dated October 28, the district court denied the motions.

        On October 31, the defendant entered a conditional plea of guilty to one count of distributing a controlled substance to a person under age twenty-one. On the same day, in a companion case, the defendant pled guilty to a charge of conspiring to murder a government witness against him in this case. The district court accepted the conditional plea on December 17, and dismissed one count of distribution and the penalty enhancement. The defendant was sentenced to imprisonment for a term of thirty-five years on the charge of distributing cocaine to the fifteen-year-old female, and to a consecutive five-year term on the charge of conspiring to kill a witness. He filed his notice of appeal on December 28. 1


        On June 7, 1987, at 5:45 a.m., Officer Cameron McLay of the Madison Police Department was dispatched to 1558 Simpson Street, Apartment 7, in Madison, Wisconsin. Officer McLay, the first officer on the scene, had been dispatched to the apartment regarding a possible drug overdose. Officer McLay saw a young female, later identified as Tricia Schuh, on the floor of the apartment to whom paramedics were applying cardiopulmonary resuscitation. Officer McLay spoke with Richard Ales. Ales told McLay that it was his apartment and that he had been asleep in his bedroom when a person staying with him, the defendant Todd D'Antoni, had knocked on his door asking Ales to call an ambulance.

        Officer McLay then spoke with the defendant, asking him what had happened. McLay did not place the defendant under arrest. The defendant identified himself and stated that he had met Schuh at a party earlier that evening and invited her back to his apartment to watch a movie.

        McLay attempted to verify the defendant's identity because the defendant had no identification papers. At approximately 6:07 a.m., McLay ran a driver's license check through the law enforcement computer. The check revealed that a warrant was outstanding for the defendant based on a traffic conviction for operating a motor vehicle after license revocation. The warrant required the defendant to pay $738.40. Officer McLay then advised the defendant that he was under arrest, based on the outstanding warrant.

        The officer transported the defendant to the Madison Police Station in his police car. En route to the station, McLay advised the defendant of his constitutional rights. Officer McLay then asked the defendant about the incident at the apartment.

        McLay and the defendant arrived at the police station at approximately 6:30 a.m. The defendant was placed in an interview room pending the arrival of detectives.

        At approximately 8:00 a.m., Detectives Jon Sippl and Kenneth Couture met with the defendant in the interview room at the police station. Detective Sippl advised the defendant of his rights, reading from a card provided by the Madison Police Department. Sippl asked the defendant if he understood his rights and whether he wished to speak with the detectives. The

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defendant stated that he had already given his story to the police officers. Sippl told him that they merely wanted to ask him more detailed questions. The defendant then answered the detectives' questions, although he indicated that he was tired and that he had been consuming various intoxicants earlier.

        Toward the end of the defendant's interview, Detective Sippl asked him whether he would consent to a search of the apartment on Simpson Street. The defendant responded that he wanted to call his roommate, Richard Ales. He also asked to call an attorney. The detectives provided him with a telephone. The defendant made numerous, unsuccessful, phone calls to locate his attorney. He testified that he then called Ales, and talked with him regarding the search of the apartment. The defendant then agreed to sign the consent-to-search form.

        Detective Sippl went to Simpson Street to search the apartment. Richard Ales signed another consent form. Meanwhile, Detective Couture and another detective asked the defendant if he would be willing to show them the location of the party where he had met Schuh. The defendant agreed to show the detectives the location, but he wanted to wait until a friend arrived at the police station with some bail money for him. After waiting for one-half hour, the defendant agreed to accompany the two detectives to the location of the party and meet with the defendant's friend when they returned.

        After the three returned from viewing the party location, the defendant was taken to the Dane County Jail and booked on the traffic warrant. He was released from custody after posting the amount of money required by the warrant.

       II. ISSUES

        The defendant presents the following issues for review. He first asserts that the police used the traffic warrant as a pretext to arrest the defendant and detain him at the police station in order to investigate the suspected overdose. Because of this pretextual arrest, the defendant contends, the defendant's statements, his consent to the search, and the identity of witnesses discovered after the defendant showed the police the location of the party, should all have been suppressed. The defendant next argues that after he invoked his right to remain silent, the police refused to honor it but instead continued to question him. On a similar vein, the defendant contends that after he requested the assistance of counsel the police, rather than suspending questioning until counsel was obtained, continued their interrogation of the defendant. The circumstances of detention and the defendant's personal condition rendered his statements involuntary, according to the defendant, and his consent to the search of his apartment was also involuntary. Finally, the defendant asserts that the district court abused its discretion by refusing to suppress the defendant's statements recorded in Officer McLay's reports as a sanction against the government on the grounds that the defendant was not prejudiced by the government's Rule 16 violation.


  1. Standard of Review

            A district court's denial of a motion to suppress evidence will be affirmed on appeal unless it is clearly erroneous. See generally United States v. Binder, 794 F.2d 1195, 1199 (7th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 234, 93 L.Ed.2d 159 (1986). We will rely on the district court's findings of fact absent a showing of clear error. United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987). This standard applies to the district court's findings on the credibility of witnesses, findings that will not be reversed unless clearly erroneous. Binder, 794 F.2d at 1199. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). "Where there are two permissible views of the evidence, the factfinder's choice between

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    them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

  2. Pretextual Arrest

            The magistrate found that because the defendant had been detained on a pretext, his statements and the evidence the police obtained as a result of this pretextual detention should be suppressed. The district court disagreed, finding that the arrest was objectively reasonable because, as the magistrate had found, the defendant "would have been taken into custody regardless of the fact that he was suspected of another offense." United States v. D'Antoni, No. 87-CR-61-S, slip op. at 13 (W.D.Wis. October 28, 1987) (order denying defendant's motion to suppress).

            As the government concedes, it is well established that an arrest may not be used as a mere pretext to avoid the warrant requirement of the fourth amendment. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). This rule generally has been confined to certain narrow circumstances. For example, when law enforcement officials...

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