U.S. v. James

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Flaum
• Citation: U.S. v. James, 571 F.3d 707 (7th Cir. 2009)
• Decision Date: 09 July 2009
• Docket Number: No. 08-3327.,08-3327.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jarrett M. JAMES, Defendant-Appellant.

571 F.3d 707

UNITED STATES of America, Plaintiff-Appellee, v. Jarrett M. JAMES, Defendant-Appellant.

No. 08-3327.

United States Court of Appeals, Seventh Circuit.

Argued May 7, 2009.

Decided July 9, 2009.

John W. Vaudreuil, Attorney (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

R. Rene Friedman, Attorney (argued), Wildman, Harrold, Allen & Dixon, Chicago, IL, for Defendant-Appellant.

Before FLAUM and WILLIAMS, Circuit Judges, and LAWRENCE, District Judge.¹

FLAUM, Circuit Judge.

Facing trial on two counts of armed bank robbery and two counts of brandishing a firearm during those robberies, Jarrett James moved to suppress evidence obtained from a safe seized from his mother's home. The district court denied James's motion to suppress. Following a three-day trial, a jury returned guilty verdicts against James on the four counts. The district court sentenced James to 42 years in prison. James has appealed the district court's ruling on his motion to suppress, and we now affirm.

I. Background

On March 16, 2006, a robbery occurred at the Middleton, Wisconsin, branch of Bank Mutual. The robber confronted all three tellers present and took money from each of their drawers. He then asked about an unmarked, closed door behind the teller counter, and the tellers led him into the bank vault. The robber demanded, and received, the cash from the vault. The robber fled with $62,288.71.

The tellers described the robber as an African American male who wore gloves and concealed most of his face with a stocking cap and hood. They estimated he was in his late twenties to early thirties, stood approximately 5'7" to 5'10", and weighed approximately 180-200 pounds. The tellers described the weapon used in the hold-up as a small gun, with reddish or rusty discoloration. A witness from a nearby apartment complex saw a large black car, either a Crown Victoria or Grand Marquis, in the vicinity around the time of the robbery. The vehicle had distinctive, five-spoke rims. Police uncovered tire tracks in the snow.

On April 14, 2006, another robbery took place at the same Middleton branch of Bank Mutual. Without asking for money from teller drawers, the robber immediately ordered the tellers to unlock the unmarked, closed door behind the counter. He entered the vault with two tellers and obtained $58,700.00. Tellers recounted that the robber wore dark clothing, a hooded sweatshirt, a scarf which obscured his face, and pink fleece gloves. They described him as an African American male, approximately 25-30 years old, standing approximately 5'7" to 5'9" tall, and weighing 180-200 pounds. Tellers described the gun used in the second robbery as a large, black, semi-automatic weapon. Again, a witness saw a large, black vehicle parked near the bank shortly before the robbery. The vehicle had the same distinctive rims.

On April 16, 2006, two days after the second robbery, police received a phone call reporting that an African American male had pulled up to a dumpster in a black Mercury and had thrown away a pink or red colored item. Police retrieved a pink fleece glove.

On April 19, 2006, a police officer observed a black 1994 Mercury Grand Marquis with shiny rims matching the witness descriptions obtained after the bank robberies. The officer conducted a traffic stop of the vehicle for failure to have a front license plate, a violation in Wisconsin. He identified the driver of the vehicle as defendant Jarrett James. Dane County jail records showed James' date of birth as 7/31/79 and described him as an African American male, 5'10" tall, and 180 pounds.

On October 24, 2006, with James suspected of both robberies, detective Darrin Zimmerman of the Middleton police department interviewed James's mother, Linda Martin. Martin told Zimmerman that James resided with her at her home at 4009 Claire Street in Madison, Wisconsin, in early 2006. James used 4009 Claire Street as his address on important documents such as his car title. Martin indicated that she had seen a gun in her residence when James resided with her. She recounted that when she found it, she told James to remove it from the residence. Beginning in March 2006, James rented an apartment at 803 North Thompson Drive in Madison pursuant to a six-month lease. Martin informed Zimmerman that James had been arrested in Nebraska in May 2006 and was incarcerated there awaiting trial. When James's lease on the North Thompson Drive apartment expired in September 2006, Martin retrieved James's belongings from the apartment and took them back to her house. At the end of the October 24 interview, Zimmerman left Martin his business card to enable her to contact him if she had any questions or further information.

Zimmerman then confirmed with the Omaha, Nebraska, police department that on May 16, 2006, James and a companion were arrested in Omaha after a traffic stop. They were in a Lexus and James was the driver. In the trunk of the car, police found a large black duffel bag containing marijuana, a scale, and a gun. The firearm was a Taurus semi-automatic with a silver slide and black handle, and that gun matched the description of the gun used in the second Middleton bank robbery.

On October 30, 2006, Martin left a voice message at Zimmerman's work phone number stating that she had received a letter from James telling her there was a gun inside her residence in a safe that belonged to James. Martin stated in the message that she was not going to open the safe before police came over to her residence. Zimmerman responded to Martin's message and told her he would like to come to her residence and assist her with turning the gun over to police. Martin did not object to that plan.

On October 31, 2006, Attorney Terry Frederick left a message for Zimmerman stating he had been retained by Martin and wanted all further contact to come through him. On November 1, Zimmerman returned Frederick's call. Zimmerman advised Frederick that he was interested in evidence contained in Martin's residence. Frederick said that he was not aware of Martin having any information regarding the bank robberies. Zimmerman and Frederick agreed to meet at Martin's residence concerning the evidence.

On November 2, 2006, Zimmerman and another detective met Martin and Frederick at Martin's residence. Martin opened a closet and pointed to a safe on the floor of the closet. Martin said that the safe belonged to James and that the gun she had referenced was inside. Zimmerman told Frederick and Martin that he intended to seize the safe so the evidence was not destroyed, and he would then obtain a search warrant before opening the safe. Zimmerman did not provide a formal consent form. Neither Martin nor her attorney objected to Zimmerman's plan; they remained silent. Martin provided Zimmerman with the keypad code for the safe. The meeting ended cordially, and Zimmerman left with the safe.

A state judge then issued a search warrant for the safe, and police opened the safe after the warrant issued. They recovered contraband, including a gun that matched descriptions of the gun used during the first robbery. They also recovered receipts and other evidence of large cash purchases that James had made in the time period immediately after the robberies. Based on that evidence, Middleton police contacted the previous owner of the Lexus that James had been driving in Nebraska. Police learned that in late April 2006, James had purchased the Lexus for $15,500.00. He paid in 155 sticky and crisp $100 bills, and he made the payment without checking out the used car or negotiating the price. Police also located the Grand Marquis, which had been abandoned, and matched the tire tracks found at the first bank robbery.

On December 5, 2007, a federal grand jury in the Western District of Wisconsin returned a six-count indictment charging James with two counts of armed bank robbery, two counts of brandishing a firearm during those bank robberies, one count of possessing cocaine base with the intent to distribute (there was also cocaine in the safe), and one count of possessing a firearm in furtherance of that drug crime. At the government's request, the district court later dismissed the drug charge and the drug-related firearm charge.

On May 1, 2008, James filed a motion to suppress seeking to bar the government from introducing at trial the safe, its contents, and any evidence derived from it. On May 14, 2008, Magistrate Judge Stephen Crocker conducted an evidentiary hearing on James's motion to suppress. Zimmerman and Frederick testified. Zimmerman testified that after he seized the safe, he "didn't open it without a search warrant." On May 30, 2008, the magistrate judge recommended that the district court deny James's motion to suppress evidence. The magistrate's report stated that James was conflating his possessory interest in the safe with his privacy interest in its contents. The report added that it was not even clear that removal of the safe from Martin's home constituted interference with James's possessory interest. In any event, the report concluded that Martin had the right to allow police to enter the home, and police had probable cause to secure the container before the state issued a warrant to search its contents.

On June 3, 2008, James objected to the recommendation. He argued that the magistrate erred in concluding both that police could seize his property without a warrant, and that James had no interest in the safe that was infringed by removing the safe from Martin's home without his consent.

The district court adopted the magistrate's recommendation and denied James's motion to suppress. The court stated the "only question to be decided in determining the constitutionality of the seizure of the safe [was] whether the seizure violated any possessory interest of defendant," and it concluded that "[c]learly it did not."

The case went to trial on June 16, 2008. The government...