U.S. v. Hicks

• Decision Date: 27 May 2011
• Docket Number: No. 09–2184.,09–2184.
• Citation: 650 F.3d 1058
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Christopher Daron HICKS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

650 F.3d 1058

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher Daron HICKS, Defendant–Appellant.

No. 09–2184.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 2010.Decided May 27, 2011.

Erica N. O'Neil (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.James A. Walrath (argued), Attorney, Milwaukee, WI, for Defendant–Appellant.Before KANNE, WILLIAMS, and TINDER, Circuit Judges.TINDER, Circuit Judge.

This successive appeal picks up where we left off in United States v. Hicks, 539 F.3d 566, 571–72 & n. 1 (7th Cir.2008) ( Hicks I ). Did Milwaukee Police Detective Donald Brown base his threat to obtain a search warrant on “a legitimate belief” that police could obtain a warrant, or was it a pretextual threat potentially rendering the subsequent consent involuntary? In Hicks I, we instructed the district court to determine the factual basis supporting Detective Brown's statement to Samella Smith—who initially resisted consenting to her home's search—that if she did not consent police would simply obtain a warrant. Id. at 572. Once the court answered that question, it was to reassess the totality of the circumstances to determine the voluntariness of Smith's consent. Id. at 572 n. 1.

Hicks I focused on appellant Christopher Hicks's arrest and the subsequent search of Smith's residence in which police found the weapons that formed the basis of Hicks's federal criminal charges. Id. at 567–68. Hicks entered a plea agreement that reserved the right to appeal the denial of his motion to suppress the weapons. Id. at 567. Because this appeal turns on whether the police had a reasonable factual basis to support probable cause for a warrant to search Smith's residence, we will examine what the police knew when Detective Brown told Smith that police could get a warrant. Specifically, we will focus on what Milwaukee Police Detective Wayne Armon knew because it was his statement to Detective Brown that he had “enough” evidence for a warrant that supported Brown's “legitimate belief.” As we noted in Hicks I, we do not question that Detective Brown genuinely believed that absent Smith's consent the police could get a warrant. Id. at 571. Yet because Detective Brown based his belief on Detective Armon's statement that he could get a warrant, we must examine the factual basis for Armon's belief that the police could get a warrant. If Detective Armon had a reasonable factual basis to support his belief that police had enough for a warrant, then Detective Brown's statement to Smith about the potential of a search warrant was an accurate assessment of Smith's options and not a pretextual assertion. On the other hand, if Armon lacked a factual basis then his statement to Brown about the availability of a warrant would render Brown's statement a pretextual threat that could render Smith's consent involuntary. As we explained in Hicks I, this analysis prevents police from skirting the voluntariness requirement of consent searches by compartmentalizing information. Id. at 572. If all the officer on the scene needed to support a claim that police could get a warrant were assurances from the lead investigating officer that he had “enough” for a warrant, the investigating officer's factual basis for probable cause would not matter as long as the arresting officer genuinely believed the investigating officer. We thwart this latent “cat's-paw-like circumvention of the rule” by determining “whether there was a reasonable factual basis on which to conclude there was probable cause.” Id.

At a December 18, 2008, evidentiary hearing on remand, Detective Armon testified about what he knew, how he knew it, and when he knew it. On April 24, 2009, the district court adopted a magistrate judge's recommendation that the threat to get a warrant was not pretextual and that Smith's consent was otherwise voluntary. United States v. Hicks, No. 07–CR–56, 2009 WL 1110397 (E.D.Wis. Apr. 24, 2009). Hicks is still not convinced that Smith's consent was voluntary and in this second appeal continues to assert that the results of the search should be suppressed. We will outline the district court's findings as to Detective Armon's factual basis and then review the trial court's finding that Armon had a reasonable factual basis to support his belief that he could get a warrant. (The government does not contend that Hicks lacks standing to challenge this search. As noted in Hicks I, he lived with Smith and four children at the searched residence. Id. at 567–68.)

I. Factual Background

On appeal, Hicks does not raise any challenges to the district court's factual findings; his contention is that the district court erred in its bottom-line conclusion that Detective Armon's belief that he had probable cause was reasonable. Thus, we rely on the facts as found by the district court, which, unless noted otherwise, were derived from Detective Armon's testimony at the December 18, 2008, evidentiary hearing. See United States v. Taylor, 596 F.3d 373, 375 (7th Cir.) (relying on the district court's findings of fact because the defendant did not challenge them on appeal), cert. denied, ––– U.S. ––––, 130 S.Ct. 3485, 177 L.Ed.2d 1076 (2010). The events triggering Detective Armon's investigation began after a Milwaukee jury on October 11, 2006, found Gary Anderson guilty of murdering Sidney Smith. ¹ Detective Armon testified that he learned that during the trial Anderson supporters exchanged words, looks, and threats with Smith supporters. After the verdict about fifteen to twenty of Smith's family members and friends left the courthouse and congregated on the porch of the Randall family's Milwaukee home. A few houses away, supporters of Anderson gathered and moved in the direction of the Randall home. Verbal exchanges escalated into a neighborhood brawl. A few minutes later, an unseen assailant (or assailants) shot at the Smith supporters multiple times, striking Kimberly Dudley (a Smith supporter) three or four times resulting in her hospitalization. Detective Armon testified that the high number of 9–millimeter shell casings recovered at the scene and witnesses' statements that they heard shots fired in rapid succession prompted police to believe that a 9–millimeter semiautomatic handgun with an extended clip was used in the shooting. Police compiled a list of suspects that included Brandon and Kelsey Williams, Marcus Finch, Jerrell Starks, a man named Colby, Jermaine Stevens, and Christopher Hicks. Police arrested Kelsey Williams on the day of and at the scene of the shooting but Kelsey denied knowing anything about the incident.

At some point, the police arrested Finch. He told Detective Armon that after the verdict, he went with a group of people to Brandon's home, where he saw a person known as C–Dub leave after Brandon told C–Dub to “get the chopper.” Detective Armon testified that he understood the term “chopper” to be a street term for a “semiautomatic weapon.” Detective Armon later determined that C–Dub's real name was Christopher Hicks. Finch told Detective Armon that he, Brandon and Kelsey Williams, and Colby, left Brandon's home (about a half a block from the Randall home) and walked to the scene of the shooting, arming themselves with weapons en route. Finch told Armon that during the above-mentioned brawl he saw Hicks and an unidentified person drive onto the block in Hicks's vehicle and park. Detective Armon testified that Brandon later confirmed to police that he told Hicks to “get the chopper” and that he had seen Hicks with a 9–millimeter handgun. But Brandon did not tell Detective Armon precisely when he saw Hicks with “the chopper.”

Detective Armon also talked to Frankie Randall, whose aunt owned the home where the Dudley shooting occurred. Randall told him that he saw Kelsey and Brandon Williams, Jerrell Starks, Colby, and Marcus Finch approach the house before the shooting. Randall remembered seeing a car he believed belonged to Hicks. After the shooting, Randall told Detective Armon that he talked to people in the neighborhood who said that Hicks and a man known as Nephew (later determined by police to be Jermaine Stevens) were the shooters. Randall told police that he and a friend at one point attempted to purchase a 9–millimeter with an extended clip from Stevens. Detective Armon testified that Randall told him that Hicks, Stevens, and a third person (later determined to be in prison at the time of the shooting) were “always together in the neighborhood.” Randall told Detective Armon that whenever there's “drama or something about to happen, one of the three would have that gun with the extended clip.” Detective Armon testified that he believed that a 9–millimeter semiautomatic handgun with an extended clip was at the residence of either Hicks, Stevens, or Hicks's parents based on information from Randall, Finch, and three others in the neighborhood who “saw these people on a daily, daily basis.”

Detective Armon testified that he ruled out Hicks's parents' house as “the chopper's” location based on information he gathered in December from a confidential informant (CI) who knew the real names of C–Dub (Hicks) and Nephew (Stevens) and claimed to be close to them. The CI's claim that Hicks and Stevens jointly possessed “the chopper” was corroborated by Brandon Williams (who saw Hicks with the firearm at an unidentified time) and Randall (who said he tried to buy “the chopper” from Stevens). The CI directed police to Hicks's and Stevens's residences and told police that the gun they were looking for was at one of those two locations. Detective Armon testified that the CI's knowledge of Hicks's and Stevens's residences was further corroborated after police performed surveillance on the homes and visually confirmed that Hicks and Stevens lived at these respective residences.

Based on this information, Detective Armon testified that he decided to arrest Hicks and...