U.S. v. Hall, 05-2113.
| Decision Date | 19 July 2006 |
| Docket Number | No. 05-2113.,05-2113. |
| Citation | 462 F.3d 684 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Derick HALL, also known as Calvin Franklin, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jonathan H. Koenig (argued), Michelle L. Jabobs, Office of U.S. Atty., Milwaukee, WI, for U.S.
Beth Westman Gaus (argued), Sidley Austin LLP, Chicago, IL, for Derick Hall
Before BAUER, KANNE, and SYKES, Circuit Judges.
When Derick Hall phoned the police to report that his girlfriend smashed the windows of his car, he probably did not anticipate a 72-month prison sentence would be the result. Nor did he likely expect to be the one who would be serving that sentence. If Hall had known that his girlfriend had already complained about his retaliatory rampage at her house, maybe he would not have invited the police inside his home when they arrived. And whether Hall reasonably believed he was in custody when he told the police he was a felon and a gun was hidden in his bedroom is a question we need not answer.
On the morning of February 9, 2004, Officers Steven Strasser and Mario Gutierrez of the Milwaukee Police Department were on patrol when the dispatcher informed them of a complaint from Angela Smith. The dispatcher told them that Hall allegedly smashed Smith's front door, broke her window, and took a gun. The dispatcher also relayed that Hall drove a silver Buick and provided them with the license plate number. The two officers were sent to Hall's address, while a third officer, Matthew Knight, set off to interview Smith at her residence.
While Strasser and Gutierrez were on the way to Hall's house, the dispatcher informed them that Hall had phoned in a complaint about Smith. When the officers arrived at Hall's residence, they saw a silver Buick and ran a check of the license plate number. The license plate was registered to Hall, at his reported address, but the car associated with the license plate was a maroon Buick, not a silver one. Parked across the street was a maroon Buick.
Hall was standing in the doorway of his house. He waved at the officers and identified himself as they approached. Hall said he called in a complaint for the vandalism of his vehicle, referring to the maroon Buick, which did appear to be damaged. While the officers stood at the bottom of the stairs to the front entrance, they asked Hall if they could enter to discuss his complaint. Hall replied, "Sure, come in."
Inside the house, Hall explained that this was his residence and that his girlfriend, Smith, had come over and knocked the windows out of his maroon Buick. Hall said that in response, he went to Smith's house and kicked in a door and broke a window.
The conversation continued in Hall's living room, and Hall invited the officers to sit down. The officers declined and told Hall that Smith had reported he took a gun from her residence. Hall denied this allegation and stated that, as a convicted felon, he could not legally possess a firearm.
Hall did not ask the officers to leave, nor did the officers advise him he was free to terminate the interview. The officers asked Hall for permission to search the residence. Gutierrez wrote a statement in his log book to the effect, "I give police permission to search the premises." Gutierrez read the statement to Hall, who then read it and signed it. Gutierrez began to search the first floor. Strasser remained with Hall in the living room. Hall was seated, and Strasser stood.
Gutierrez found a locked room and asked Hall about it. Hall replied that it was his bedroom and, without being asked, gave Gutierrez a key to the room. Inside Hall's bedroom, Gutierrez found a box of ammunition and showed it to Strasser and Hall in the living room. Hall lowered his head and said he wanted to cooperate. Then Hall said that a gun was hidden above a ceiling tile in his bedroom. After Gutierrez found a gun in the place where Hall described, Hall was placed under arrest and advised of his Miranda rights.
On June 2, 2004, a grand jury returned a one-count indictment charging Hall with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Hall filed a motion to suppress both his statements to the officers and the gun they found as a result. Hall argued the evidence was illegally obtained because he was in police custody and was not read his Miranda warnings. The matter was referred to a magistrate judge.
The magistrate judge conducted an evidentiary hearing on August 18, 2004. Officer Strasser testified, and the government rested, reserving time for rebuttal should Hall testify. After a break in the proceeding to allow Hall to confer with his attorney, Hall's attorney informed the magistrate judge that Hall would not testify and proceeded to call Gutierrez and Knight (the officer dispatched to the girlfriend's house) to the stand.
On August 23, the magistrate judge issued her first recommendation that Hall's motion to suppress be denied. The recommendation concluded with the admonition, Hall did not file with the district judge an objection to the magistrate judge's recommendation.
On September 1, Hall's appointed counsel filed a motion to withdraw as counsel, citing a "breakdown in trust and communications." The district judge granted the motion. On September 8, the grand jury returned a superceding indictment that charged Hall with one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, both in violation of 18 U.S.C. § 922(g)(1).
Hall's new attorney entered an appearance on September 20, and Hall was arraigned on the superceding indictment shortly thereafter. Before the district judge ruled on the magistrate judge's recommendation, Hall filed with the magistrate judge a motion for rehearing of his motion to suppress. Hall asked to testify, and he also sought to produce the testimony of Alvin Mercado, his upstairs tenant.1 Hall argued he should be allowed to testify because his previous attorney "failed to advise him of the necessity . . . to testify on his own behalf" and would testify that the police intimidated him so that he did not believe he was free to leave. Hall claimed Mercado had been previously unwilling to testify.
The magistrate judge issued an order on October 18 granting Hall's motion in part and denying it in part. Mercado could testify at a supplemental hearing; Hall could not. The magistrate judge explained that Hall made the affirmative decision not to testify, and that the substitution of counsel was not a sufficient basis to revisit the issue. The order stated, "The evidence presented at the supplemental evidentiary hearing will be considered in determining whether or not the court's recommendation on the motion should be modified or changed."
The supplemental hearing was held on October 27. Mercado testified that he was upstairs when the police searched Hall's residence and that 45 minutes after their arrival, the officers' voices grew louder and took an intimidating tone as they demanded Hall to tell them where the gun was hidden.
On November 9, the magistrate judge again recommended to the district judge that Hall's motion to suppress be denied. At the outset, the magistrate judge stated, "The issue presented by the defendant's motion to suppress statements and to exclude evidence is whether he was `in custody' at the time he was questioned in his apartment." The magistrate judge determined that Hall was not "in custody" for Miranda purposes when he made his incriminating statements to the police during their search of his house. Similar to her first recommendation, the magistrate judge concluded,
On December 7, the district judge ruled on the issue. The order noted, The court denied Hall's motion to suppress.
Hall's case proceeded to trial, and a jury convicted him on both counts. Hall was sentenced to 72 months' imprisonment and three years of supervised release on each count of the superceding indictment, to run concurrently. Hall appeals the district court's denial of his suppression motion.
First, Hall argues he was in police custody, invoking the duty to provide Miranda warnings, when he disclosed the location of the gun. Second, Hall claims it was an abuse of discretion to deny his request to testify at the supplemental evidentiary hearing. The government argues we cannot reach the merits of these issues because Hall's failure to object to the magistrate judge's recommendation before the district court amounts to a waiver of his right to appeal these issues.
Waiver only occurs when a defendant intentionally relinquishes a known right, and no less. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; see also United States v. Johnson, 415 F.3d 728, 730 (7th Cir.2005) (...
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