US v. Brown

Citation861 F. Supp. 1415
Decision Date07 September 1994
Docket NumberNo. 93-CR-204.,93-CR-204.
PartiesUNITED STATES of America, Plaintiff, v. Tyrond BROWN, Defendant.
CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin

COPYRIGHT MATERIAL OMITTED

Steven M. Biskupic, Asst. U.S. Atty., Milwaukee, WI, for plaintiff.

Martin E. Kohler, Kohler & Hart, Milwaukee, WI, for defendant.

ORDER

RANDA, District Judge.

This matter comes before the Court on defendant Tyrond Brown's ("Brown") motion to suppress evidence seized from an apartment located at 9010 N. 97th Street in Brown Deer, Wisconsin. On January 12, 1994, the motion was heard before Magistrate Judge Aaron E. Goodstein. On March 15, 1994, pursuant to Local Rule 13.03(a), the Magistrate recommended to this Court that the motion be granted and the evidence suppressed. On May 18, 1994, pursuant to Local Rule 13.03(c), this Court directed the parties to submit supplemental briefs on the issue of whether Brown's disclaimer of an interest in the apartment precludes a subsequent Fourth Amendment challenge to the warrantless search. For the reasons set forth below, Brown's motion to suppress is denied.

FACTUAL BACKGROUND

On November 18, 1993, at approximately 4:30 p.m., Drug Enforcement Administration Special Agent Raymond Melick ("Melick") was at a McDonald's restaurant awaiting a controlled purchase of crack cocaine from an individual named Chris Johnson ("Johnson"). After his arrest, Johnson and his car were searched. Found on Johnson's person was an ounce of crack cocaine, a loaded pistol, other powder cocaine and marijuana. In the glove box of the car, Melick found a car rental agreement for an individual named Fannie Bonds, residing at 9010 N. 97th Street, Apartment 203. While the rental agreement was not for the car Johnson was driving, a registration check revealed that one Fannie Bonds was the owner. Johnson told Melick that he had borrowed the car from a friend, and that he did not know Fannie Bonds. Johnson then told Melick that the person who was to receive the proceeds of the cocaine sale lived near 95th and Brown Deer. Johnson agreed to cooperate with Melick. At that point, Johnson's mobile phone began to ring. Johnson answered the phone, spoke to a person named "Ty," told him everything was fine, and indicated that he would call Ty back. Johnson then informed Melick that Ty was the person who was to receive payment for the crack. Johnson described Ty as a black male around 22 years of age.

Johnson and Melick proceeded to Johnson's apartment where Johnson phoned Ty and arranged to meet Ty outside the latter's residence to deliver the money from the sale. Johnson, Melick and other officers proceeded to the vicinity of 9010 N. 97th Street As they approached the area, Melick saw a black male standing "outside of or near" 9010 North 97th Street (Transcript at 13). Losing his cooperative spirit, Johnson declined to affirmatively identify the individual as Ty. Melick testified that he exited the car, approached the individual, identified himself as a police officer, and:

asked him some general questions and asked him if I could have his telephone, he gave me the telephone and then I asked him if I could push the redial on the telephone, he stated I could. When I pushed the redial on the telephone, Chris Johnson's telephone rang.

Transcript at 14.

After concluding that this was the person to whom Johnson had previously communicated, Melick placed Brown under arrest, searched him, and discovered a key chain. (Transcript at 15).

The substance of the verbal exchange which transpired during this initial encounter between Melick and Brown is both contested and pivotal to the motion to suppress. Brown contends that he first told Melick that he was waiting for a ride. With respect to where he lived, Brown contends that he told Melick that he stayed with his sister, then he refused to say where he lived, and finally, that he stayed with his mother, Fannie Bonds, in Apartment 203, at 9010 N. 97th Street. Melick's recollection is notably different. Melick testified that Brown told him he was locked out of his apartment and that when asked where he lived, Brown, who could have "very easily" pointed to 9010 N. 97th Street, the building in front of him (Transcript at 12-18), pointed away from the direction of 9010 N. 97th Street.1 Melick then testified that when Brown was asked if he knew Fannie Bonds, he refused to answer more questions.2 Special Agent James Craig's ("Craig") recollection is consistent with Melick's. Craig testified that as he approached Melick and Brown, he heard Brown say that he was waiting for a ride and "that he didn't live here." (Transcript at 58).

After the arrest and search, Craig placed Brown in his car, Melick, Unger, and Saari proceeded into the apartment building.3 After examining the mailboxes, they noted that a Fannie Bonds was listed as residing in Apartment 203. After going up to Apartment 203, they knocked, and after receiving no answer, tried the keys that had been taken from Brown.4 One of the keys opened the door, and the law enforcement officers entered the apartment to do a "quick check" (Transcript at 51). According to Melick, they were not searching for drug evidence, but instead for "foul play or something amiss in there basically with this Fannie Bonds." (Transcript at 21). Craig later joined the other agents in the apartment. (Transcript at 51). While moving through the apartment, Melick noticed a cellophane bag on the night stand in one of the bedrooms containing what appeared to be cocaine. (Transcript at 21-22). During the check, Craig saw a picture of Brown and another individual on a dresser in a bedroom. (Transcript at 51 & 52). He removed the picture and took it to show to neighbors to "find out if Mr. Brown actually lived there." (Id.) When asked, two neighbors indicated that Brown lived in Apartment 203 with his mother. (Id.) At some point, an agent returned to the car where Brown was seated and showed the photograph to him.5 Melick left to apply for a warrant leaving Craig and Unger to secure the premises. (Transcript at 52). Agents Saari and Parker then transported Brown to the Waukesha County Jail. (Id.) While Craig sat outside the apartment door, a woman identifying herself as Fannie Bonds arrived. Craig explained to her what was happening. When she stated that she wanted to enter the apartment, Craig told her that he would have to accompany her. (Transcript at 53). Once inside, Craig showed Bonds the drugs and she became visibly upset. He also testified that while they were talking, Bonds consented to a search of the apartment. Bonds denies that she consented. In any event, no search was made. (Transcript 55). Craig did not perform a search because Melick "thought it was prudent to wait because it would alleviate any concern whether Bonds' consent was effective for Brown's bedroom and because a warrant was a more certain mechanism for obtaining authorization to conduct a search." (Recommendation at 6). Craig testified that no drug search was conducted before the warrant was received. (Transcript at 56). The search incident to the warrant recovered thirty (30) grams of crack cocaine. Subsequently, Brown was charged in a one-count indictment for violations of 21 U.S.C. § 841 and 18 U.S.C. § 2.

PROCEDURAL BACKGROUND

On January 5, 1994, Brown filed the instant motion pursuant to Fed.R.Crim.P. 12(b) arguing that the initial warrantless entry was in violation of the Fourth Amendment. The government identified the following issues for the hearing: (1) "According to the facts on the record, Brown has denied any connection to Apartment 203 at 9010 N. 97th Street On what basis does he now claim standing to challenge a search of the premises."; (2) whether Agent Melick's warrantless search was justified by exigent circumstances for the well-being of Fannie Bonds; and (3) whether Fannie Bonds' gave consent to search to Agent Craig. At the commencement of the motion hearing, Magistrate Goodstein indicated that "the government raises a question of whether or not Mr. Brown has any standing to challenge the search of the premises...." (Transcript at 2). At the conclusion of the examination of Fannie Bonds, the Assistant United States Attorney stated:

The government's primary position and I will state it right now, based on the testimony that there apparently is an ownership interest or some kind of possessory interest by the defendant in the residence based on the government's evidence. So I don't think standing is any longer an issue. The gist of the government's contention is that the exigent circumstances justified Agent Melick's warrantless entry.

Transcript at 89.

Later the government indicated that should the court find the warrantless entry improper, "the government would go to alternative arguments which would include inevitable discovery based on the consensual search." (Id.)

The Magistrate subsequently recommended to this Court that the motion to suppress be granted because the facts of the warrantless entry did not amount to exigent circumstances. (Recommendation at 13). Even though the Magistrate found that "... Melick entertained some concern for Fannie Bonds' well being ...", "... on an objective level, there simply are not facts which could reasonably lead to the conclusion that anyone was inside the apartment in immediate danger." (Recommendation at 12-13). Further, with respect to the issue of a consensual search, the Magistrate credited Fannie Bonds' testimony that she never told Craig "it was okay to search the apartment." (Recommendation at 14). The government filed its objection and requested a de novo evidentiary hearing. In its brief, the government contends that the Magistrate "ignored key facts" and made "factual errors in the disposition of the consent issue." (Objection at 2, 5). In addition, the government raised the theory of inevitable discovery. (Objection at 5). Brown's response in support of the Recommendation does not address the...

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  • U.S. v. Brown
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 31, 1995
    ...crack cocaine and $18,000 from Brown's apartment. Brown asked the court to suppress this evidence. After the court declined, 861 F.Supp. 1415 (E.D.Wis.1994), Brown entered a conditional plea of guilty, Fed.R.Crim.P. 11(a)(2), reserving the right to contest that ruling on appeal. The validit......

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