U.S. v. Breit, 05-1372.

• Decision Date: 22 November 2005
• Docket Number: No. 05-1372.,05-1372.
• Citation: 429 F.3d 725
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BREIT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 725

429 F.3d 725

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BREIT, Defendant-Appellant.

No. 05-1372.

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2005.

Decided November 22, 2005.

Michael Iasparro (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Peter Nolte (argued), Sreenan & Cain, Rockford, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Michael Breit was charged in an indictment with unlawfully receiving explosive materials, in violation of 18 U.S.C. § 842(a)(3)(A), and receipt of explosive materials with intent that they would be used to kill, injure, or intimidate another individual, or to unlawfully damage or destroy any building, vehicle, or other real or personal property, in violation of 18 U.S.C. § 844(d). He was convicted on both counts after a jury trial, and he was sentenced to 41 months' imprisonment. Breit now challenges his convictions on appeal. For the reasons set forth below, we affirm in all respects.

I. HISTORY

On April 18, 2004, at approximately 9:00 p.m., Rockford, Illinois police department patrol officers Daniel Fick and Apostolos Sarantopoulos were separately dispatched to 3012 Sunnyside Drive in Rockford to investigate a weapons violation. Fick had been advised by the communication center that an anonymous female caller reported hearing a gunshot, that one of her neighbors (later identified as Breit) told her that he accidentally fired a blank round from his rifle, and that this neighbor was acting weird. Fick and Sarantopoulos arrived at Breit's apartment complex at approximately the same time and attempted to locate Breit's apartment. Upon arriving at Breit's apartment door, but prior to the officers knocking, Breit came outside of his apartment and stated, "I screwed up."

The officers asked Breit if they could enter his apartment and talk to him. Breit agreed, and the officers entered the apartment. Once inside the kitchen area, the officers asked Breit what happened. Breit stated he was trying to dismantle his newly purchased AK-47 assault rifle. He did not realize there was a round in the rifle, and it fired during disassembly. Breit led the officers into the living room and showed them where the bullet traveled, which was through the patio door frame and out of the apartment. During this time, the officers noticed a large amount of ammunition on the kitchen table, as well as two handguns, one on a bookcase in the living room and one on top of the entertainment center. They also observed additional ammunition on top of the entertainment center. Breit stated the handgun on top of the entertainment center was loaded, and that it was a black powder handgun. At this time, Sarantopoulos quickly walked through the apartment to make sure that no one else was in the apartment and that no one had been injured.

Sergeant Danny Foltz, Fick's and Sarantopoulos's supervisor, then arrived. Upon being apprised of the situation, Foltz ordered Breit put in handcuffs "for everyone's protection." Approximately eleven minutes later, Fick read Breit his Miranda rights. Breit did not ask for an attorney and in fact was completely cooperative.

Foltz then asked Breit for permission to search the apartment as well as Breit's vehicle. Foltz stated he wanted permission to search "for any other guns or anything related to them." Breit orally agreed. Sarantopoulos retrieved two identical consent-to-search forms. Sarantopoulos removed Breit's handcuffs and gave Breit one copy of the consent form. Sarantopoulos kept the other form and read it to Breit verbatim. The form stated, "I, Michael Josiah Breit, knowingly and voluntarily give consent to City of Rockford police officers to conduct a complete search of the following." Breit's apartment and vehicle were then set forth on the form. The bottom of the consent form read, "These officers are authorized by me to seize property which they determine may pertain to a crime investigation they are conducting. I understand and have been informed by at least one of the undersigned officers that I have the right to refuse this consent." Breit did not ask any questions, and he signed both forms. Breit was removed from his residence and placed in a squad car.

The police then initiated their search. Sarantopoulos recovered a paintball gun and a journal from Breit's car. The journal was closed with a vinyl cover, and it had a velcro strap around it. Sarantopoulos had to use his flashlight to actually open the journal. The journal contained something of a "hit list" of Senators, government officials, and celebrities. Next to each name was the word "marked." In addition, the journal contained a drawing of a limousine that appeared to be under attack. In Breit's apartment, the police recovered five long guns, two black powder pistols, a large amount of ammunition in various calibers, several books, and two notebooks. The two notebooks contained diagrams of rocket launchers and bombs, along with writings such as "Fight, fight, fight, kill, kill, kill." The various books recovered dealt with the making of explosives and drugs or espoused "political views of a terrorist nature." Finally, the officers recovered items consistent with bomb-making materials, such as threaded pipe, shotgun shells, black powder, and fuse cord.¹

After Breit was indicted, the district court denied Breit's motions to suppress the evidence seized from his apartment and vehicle as well as his subsequent statements to police. The denials of the motions to suppress comprise the bulk of Breit's appeal. Breit also argues the district court's admission of his guns, ammunition, knives, sword, and books at trial was an abuse of discretion because this evidence was irrelevant and unfairly prejudicial.

II. ANALYSIS

A. Probable Cause for an Arrest

Breit first argues the police did not have probable cause to arrest him for the reckless discharge of a firearm. As a result, Breit's consent to search was invalid, and all evidence seized (and statements made) thereafter should have been suppressed, or so the argument goes. Because we have no trouble concluding there was probable cause for Breit's arrest, we need not reach the remainder of his argument on this particular issue.

Probable cause exists if, at the time of arrest, the officers possess knowledge from reasonably trustworthy information that is sufficient to warrant a prudent person in believing that a suspect has committed, or is committing, a crime. United States v. Brown, 366 F.3d 456, 458 (7th Cir.2004) (citing United States v. Schaafsma, 318 F.3d 718, 722 (7th Cir.2003)); Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir.2000). Probable cause is a fluid concept based on common-sense interpretations of reasonable police officers as to the totality of the circumstances at the time of arrest. Brown, 366 F.3d at 458 (citing United States v. Sholola, 124 F.3d 803, 814 (7th Cir.1997)). Because police officers are entitled to rely on their experience in assessing probable cause, their judgments deserve deference. Id. (citing Ornelas v. United States, 517 U.S. 690, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Our review of the district court's determination of probable cause is de novo, while our review of the district court's findings of fact is for clear error. Id. (citing Ornelas, 517 U.S. at 699, 116 S.Ct. 1657).

The applicable Illinois statute provides: "A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5. Specifically, a person commits the offense of reckless discharge of a firearm when he (1) recklessly discharges a firearm; and (2) endangers the bodily safety of an individual. People v. Collins, 214 Ill.2d 206, 291 Ill.Dec. 686, 824 N.E.2d 262, 265 (2005).

When Foltz arrested Breit,² Foltz had sufficient information before him to believe probable cause existed to arrest Breit for the reckless discharge of a firearm. First, a neighbor had called 911 to report a gunshot had been fired from within Breit's apartment. Second, the neighbor reported Breit had been acting strangely. Third, the neighbor also indicated in that call that Breit had stated to her that he accidentally fired a blank round from a new gun, which was inconsistent with Breit's later statement that he fired a real bullet. Fourth, Breit met the officers at the door of his apartment and stated (with no provocation), "I screwed up." Fifth, Breit admitted accidentally firing his AK-47 while taking it apart. Sixth, the bullet actually exited Breit's apartment and traveled toward a neighbor's home directly behind his apartment. Finally, the police observed in plain view a large amount of ammunition, black powder, and fireworks, along with a loaded black powder pistol and a pellet gun.

Under these unusual circumstances, the police had sufficient knowledge to believe that Breit had committed a crime. In other words, there was probable cause for the arrest. While no one factor is determinative, it does at least appear reckless to disassemble an AK-47 without first ensuring that no rounds remained in the weapon, especially given the presence of other individuals in adjoining apartments. Furthermore, not only were other individuals potentially in harm's way, but Breit had endangered himself with bodily injury, which is sufficient under the statute. Combining this information with the fact that the rifle did discharge could properly lead to Breit's arrest. Although there may be a question as to whether Breit was in fact reckless, as opposed to simply negligent, we need not make that determination here. Our only role is to determine whether Officer Foltz had probable cause that night to arrest Breit for the reckless discharge of a firearm, and we easily conclude that he did.

B. Scope of Consent

Breit next argues...