U.S. v. Coleman

• Decision Date: 12 April 1994
• Docket Number: No. 92-4143,92-4143
• Citation: 22 F.3d 126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip COLEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 126

22 F.3d 126

UNITED STATES of America, Plaintiff-Appellee, v. Phillip COLEMAN, Defendant-Appellant.

No. 92-4143.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1993.

Decided April 12, 1994.

Matthew L. Jacobs, Asst. U.S. Atty. (argued), Office of the United States Atty., Milwaukee, WI, for plaintiff-appellee.

Kent R. Carlson (argued), Chicago, IL, for defendant-appellant.

Before BAUER, WOOD, Jr. and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

A jury found Phillip Coleman guilty of four counts of being a felon in possession of a firearm, see 18 U.S.C. Sec. 922(g)(1) (as well as one count of unlawful possession of an unregistered firearm, see 26 U.S.C. Sec. 5861(d); a conviction not in issue here). Coleman attacks the gun convictions on three grounds: 1) that the four felon-in-possession counts were misjoined (or, in the alternative, erroneously not severed); 2) that for one of those counts the government's evidence was insufficient to establish that the gun traveled in interstate commerce--a necessary element of the offense; and 3) that for the same count the underlying search and seizure was unreasonable. We are not persuaded by any of these submissions and accordingly affirm all of the convictions.

I.

The four possession counts were premised upon four separate incidents occurring on April 18, 1990, January 14, 1992, May 23, 1992, and June 2, 1992. While the first two are essentially unconnected with each other and with the latter two, there is slightly more than mere temporal proximity linking the events of May 23 and June 2. On May 23, Milwaukee police officers observed Coleman pointing a small gun at another man and gave chase on foot. After catching up with Coleman and recovering a small gun from underneath a dumpster located along the route Coleman took, the officers ran a warrant check on Coleman and found none outstanding. Coleman told the officers that he was chasing three men who had tried to break into his house, and because of a mixup among the officers, Coleman was released. Five days later one of the officers telephoned Coleman's parole officer, Susan Dybul, and told her that Coleman was seen chasing another man with a handgun. (Coleman was on parole after serving prison time for weapon possession, burglary and attempted murder; possession of firearms violated the conditions of his parole.) The officer also told Dybul that he was planning to refer the case to federal authorities. Later that day, Coleman called Dybul and reported that he was arrested and released the previous day in a separate incident--driving with a revoked license. Planning to take him into custody because of the weapon possession report, Dybul told Coleman to report to her office on June 2 at 9:30 a.m. Meanwhile, a federal agent, who had been contacted by the Milwaukee police, called Dybul and arranged to arrest Coleman on federal charges when Coleman appeared at Dybul's office.

On June 2, before Coleman was due to arrive, Dybul received a call from Cheryl Williams who claimed that Coleman had stolen her pistol from her purse six days earlier because she owed him seventy dollars for cocaine he had provided. In the conversation, Williams identified herself, provided an address and two telephone numbers, described the gun and confirmed that it was bought and registered in her name. Dybul told Williams to file a police report, which she did. Because of Williams' call, Dybul then met with her supervisor, and they discussed conducting a search of Coleman's home. (Under applicable procedures, Dybul and her supervisor would need the approval of their assistant regional chief to conduct a home search.) A short time later, the federal agents arrived as arranged, and Dybul informed them about Williams' call and the parole search which was being planned as a result. She asked them, and they agreed, to assist in the search by providing backup. In the meantime, Dybul's supervisor received permission to carry out the search, and the Milwaukee police phoned Dybul to inform her that Williams had filed a report regarding her missing gun. When Coleman arrived at Dybul's office at 9:30, the federal authorities arrested him. Soon afterwards, Dybul, her supervisor and two federal agents drove to Coleman's residence and entered the home using a key that was seized from Coleman. After the federal agents conducted a brief protective sweep, Dybul and her supervisor searched the house. On the second floor, Dybul found a sawed-off shotgun which was to become the subject of Count III of the indictment.

II.

A.

Coleman argues that the shotgun should have been suppressed as a fruit of an illegal search. Acknowledging that Wisconsin's procedure for warrantless searches of probationers' homes is constitutional, ¹ see Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), Coleman asserts that federal and state authorities colluded to circumvent the warrant requirement which would normally bind a federal investigative search of his home by jointly conducting the June 2 search and pretextually labeling it a probation search. In the alternative, Coleman maintains that there were not "reasonable grounds" to believe that his home contained contraband as required by the Wisconsin procedure. See Wisconsin Administrative Code DOC Sec. 328.21(a).

These arguments we can reject in short order. First of all, while we agree that federal law enforcement officers (or the police in general) cannot utilize state probation officials to carry out warrantless searches on their behalf which they as federal agents, acting alone, could not execute without a judicial warrant, see, e.g., Shea v. Smith, 966 F.2d 127, 132 (3d Cir.1992); United States v. Harper, 928 F.2d 894, 897 (9th Cir.1991); United States v. Cardona, 903 F.2d 60, 65 (1st Cir.1990), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991), there is no basis upon which to conclude that anything of the sort occurred here. The district court found, and all testimony supports, that Dybul and her supervisors decided on their own to search Coleman's residence as a result of the tip they received from Cheryl Williams. Simply nothing except sheer speculation indicates otherwise. That final approval for the parole search was not finally obtained from the assistant regional chief until the federal agents had arrived at Dybul's office in order to arrest Coleman (as prearranged) by itself proves nothing and certainly does not render the district court's findings in this matter, which were in accordance with the testimony of all relevant parties, clearly erroneous. See United States v. Dent, 984 F.2d 1453, 1459 (7th Cir.), cert. denied --- U.S. ----, --- U.S. ----, 114 S.Ct. 169, 114 S.Ct. 209, 126 L.Ed.2d 129, 126 L.Ed.2d 165 (1993). And the state parole officials were entitled to seek the assistance of handy federal agents to ensure a safe search. Cf. Harper, 928 F.2d at 896 (stating that a "parole officer [can] cooperate[ ] with the police to achieve her own legitimate objectives"); Cardona, 903 F.2d at 66 (concluding that "police officers and parole officers are fungible when the former serve as mere implementers decisions already made by the latter").

Coleman's alternative claim that Dybul did not have "reasonable grounds" to believe his residence contained contraband as required under Wisconsin's probation search procedure is also without merit. In Griffin, the Supreme Court found that the Wisconsin procedure, with its definition of "reasonable grounds," comports with the Fourth Amendment's reasonableness requirement and thus a search carried out pursuant to it is valid. Accordingly, if Dybul's search of Coleman's home complied with that scheme, the search passes constitutional muster. ² "Reasonable grounds" denotes a degree of certainty less than that of probable cause, see Wisconsin v. Griffin, 131 Wis.2d 41, 388 N.W.2d 535, 539-44 (Wisc.1986), aff'd 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and is informed by a host of factors, ³ of which a number are clearly relevant here and show the propriety of the search in this case. In short: When Cheryl Williams made her call, Dybul already had a police report that Coleman was recently seen possessing a handgun, which indicated, in the district court's words, his "recent predisposition to carry handguns." Charged with supervising parolees, Dybul could (and should) have felt the especial need to ensure compliance with this particular condition of Coleman's parole, as violent felons and firearms are often a poor mix. Moreover, Williams' information was both detailed and accompanied by indicia of reliability. Williams provided her name and where she could be contacted and when prompted repeated the information to the police in a formal report. While Dybul knew that Williams owed Coleman money (indeed, for drugs), the fact that Williams would disclose this information in such an upfront way could reasonably reassure Dybul that Williams was being truthful. Perhaps if more were known about Williams and her relationship with Coleman, her credibility should have been discounted (or possibly enhanced). But looking solely at the information before Dybul at the time the decision was made to search Coleman's home, we are in complete agreement with the district court's conclusion that the search was conducted in compliance with Wisconsin's "reasonable grounds" standard. Coleman has not cited nor could we find a Wisconsin case offering an interpretation or construction of the standard that would indicate otherwise. The district court's denial of his suppression motion was not clearly erroneous.

B.

Coleman argues that his conviction for possession of the shotgun found by Dybul should be reversed anyway because evidence sufficient to prove beyond a reasonable doubt that the weapon moved in interstate commerce was not presented to the jury. If true, the government concedes, such an oversight would constitute a...