United States v. Delgado

• Decision Date: 26 August 2011
• Docket Number: Case No. 11–CR–16.
• Citation: 814 F.Supp.2d 874
• Parties: UNITED STATES of America, Plaintiff, v. Luis G. DELGADO, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

814 F.Supp.2d 874

UNITED STATES of America, Plaintiff,

v.Luis G. DELGADO, Defendant.

Case No. 11–CR–16.

United States District Court, E.D. Wisconsin.

Aug. 26, 2011.

Stephen A. Ingraham, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

Calvin R. Malone, Federal Defender Services of Wisconsin Inc., Milwaukee, WI, for Defendant.

ORDER

J.P. STADTMUELLER, District Judge.

On January 19, 2011, a federal grand jury issued a two count indictment against the defendant, Luis G. Delgado (“Delgado”). (Docket # 1). At the first count, the indictment charged that on or about December 29, 2010, Mr. Delgado violated 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which collectively make it unlawful for a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess any firearm or ammunition. Id. ¶¶ 1–3. Specifically, the indictment alleged that Mr. Delgado possessed one 20 gauge short barreled pump shotgun, one 410 gauge bolt action shotgun, and approximately 314 rounds of ammunition. Id. ¶¶ 2–3. At count two, the grand jury charged that Mr. Delgado knowingly possessed a firearm that was not registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5681 and 5871. On May 12, 2011, the defendant was arraigned and entered a plea of not guilty to both charges. (Docket # 2).

Less than a month later, on June 1, 2011, Mr. Delgado, through his attorney, moved to suppress: (1) “any and all physical evidence recovered by City of Milwaukee police officers, on or about December 29, 2010, during their ... search of his home,” including the two firearms and the ammunition that are the basis of the charges in the underlying indictment; and (2) “any and all statements [the defendant] made in response to questioning by” a City of Milwaukee police officer “while outside of his residence and handcuffed and seated inside a police squad car.” (Docket # 8). In conjunction with his motion to suppress, Mr. Delgado proffered a series of facts summarizing the factual predicate for his motion. Id. ¶ 5. Five days later, the government wrote a letter to Magistrate Judge William E. Callahan, Jr., the assigned magistrate judge who would initially review the defendant's motion, to advise the court that “no material disputed facts are known with respect to the motion to suppress ... that would require an evidentiary hearing.” (Docket # 9). A week later, the government provided its response to the motion to suppress, including its view of the facts underlying the matter. (Docket # 10). After the defendant had an opportunity to respond to the government's brief in opposition (Docket # 11), Magistrate Callahan issued a recommendation that this court should grant Mr. Delgado's motion in its entirety. (Docket # 12). The government has filed an objection to the report and recommendation (Docket # 13), and this court is now obliged to make a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986). As such, the district court can adopt the magistrate's recommendation in part or in its entirety or reject the magistrate's findings. Id. at 82. Moreover, if necessary, the district court “may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). In sum, the district court has the “widest discretion” possible when deciding whether to adopt a magistrate's report. United States v. Jaramillo, 891 F.2d 620, 628 (7th Cir.1989). With these principles in mind, the court begins by noting the facts that underlie Mr. Delgado's motion based on the record that exists to date.

BACKGROUND

In the early afternoon of December 29, 2010, City of Milwaukee Police Officer Glenn Podlesnik (“Podlesnik”) was dispatched to the 1900 block of South 12th Street in Milwaukee due to a report that “shots” were fired in a nearby alley. (Docket # 8 ¶ 5(a); Docket # 10 at 1). Upon arriving at the location he was dispatched to, Officer Podlesnik witnessed a Hispanic male running from the alley area toward 1830A South 13th Street, a location to the northwest of the initial dispatch area. (Docket # 8 ¶ 5(b); Docket # 10 at 1). The police officer noted that the Hispanic male was clutching his left waistband as he was sprinting from the alley, making it appear as if he was holding some sort of firearm. Id. The 1830A South 13th Street location is a second-floor apartment in a building that also houses a tavern (“1832”) and another apartment (“1830”). (Docket # 8 ¶ 5(c)). The only means to access the apartment at 1830A South 13th Street is to open a door located in the back of the central building and to proceed up a flight of stairs.¹ (Docket # 8 ¶ 5(c); Docket # 10 at 1–2).

As Officer Podlesnik followed the Hispanic male toward 1830A South 13th Street, a citizen witness approached the police officer, informing him that the witness' cousin, Adrian Aviles (“Aviles”), had just called the witness to state that he had been shot and was inside the second-floor apartment. (Docket # 8 ¶ 5(e); Docket # 10 at 2). The witness further explained that Mr. Aviles told her that a black male, a neighbor of the witness, had shot the witness' cousin in the alley, prompting Mr. Aviles to flee to the 1830A apartment. Id. Officer Podlesnik, joined by fellow officers, proceeded to the entrance of the 1830A apartment and knocked on the apartment door.² (Docket # 10 at 2). After getting no response, the police prepared to force their way “into the building” (Docket # 8 ¶ 5(f)), but before they could, the door opened, and Mr. Aviles came outside. (Docket # 10 at 2). Upon examining Mr. Aviles, the police noted that he had a graze wound to his right wrist area. (Docket # 8 ¶ 5(g); Docket # 10 at 2). Following Mr. Aviles out of the building was the defendant, Mr. Delgado, who identified himself as the sole resident of the 1830A apartment. (Docket # 8 ¶ 5(h); Docket # 10 at 2). Officer Podlesnik recognized Mr. Delgado as the individual he had just seen running from the alley. (Docket # 8 ¶ 5(I); Docket # 10 at 2). After ordering the defendant to put his hands up, police officers at the scene handcuffed Mr. Delgado and placed him in a police squad car. (Docket # 8 ¶ 5(j); Docket # 10 at 2).

Police officers then entered the building and proceeded into the 1830A apartment to perform a sweep of the residence. (Docket # 8 ¶ 5(k); Docket # 10 at 2). Upon looking in a closet in Mr. Delgado's bedroom, the officers found three rifles and three shotguns, including a sawed-off shotgun and ammunition. (Docket # 8 ¶ 5( l ); Docket # 10 at 2). After the discovery of the weapons in the apartment, Officer Podlesnik returned to the police squad car to ask Mr. Delgado who lived at the 1830A apartment and to seek consent to search the apartment. (Docket # 8 ¶ 5(m); Docket # 10 at 2). Mr. Delgado informed the police officer that the defendant's mother's name was on the lease, but he rented the apartment from his mother. Id. The defendant consented to a police search of the apartment, and, as a consequence, a second search followed. (Docket # 8 ¶ 5(m-n); Docket # 10 at 2).

Following the second search of the apartment, Officer Podlesnik approached Mr. Delgado, who remained seated inside the police squad car, and inquired if he had ever been arrested. (Docket # 8 ¶ 5( o); Docket # 10 at 3). Mr. Delgado responded that he had been arrested for “armed robbery party to a crime.” Id. The police officer followed up by asking if the defendant had been convicted of that charge, to which Mr. Delgado responded affirmatively. Id. Finally, Officer Podlesnik, confirming the previous answers the defendant had provided, asked if Mr. Delgado was a convicted felon, which the defendant verified. Id. The police had not, to this point, given the defendant his Miranda warnings. Id. Less than a month later, the grand jury issued its indictment in this matter. (Docket # 1). With this factual background in mind, the court proceeds to determine the legal efficacy of Mr. Delgado's motion to suppress.

ANALYSIS

The motion to suppress raises three distinct arguments: (1) the police handcuffing of Mr. Delgado outside of the building at 1830A South 13th Street and placing him in a squad car was unlawful; (2) the searches of the apartment were unlawful, and (3) the statements made by Mr. Delgado in response to Officer Podlesnik's questioning were obtained in violation of the defendant's Miranda rights. (Docket # 8 ¶ 13). The court will address each argument in turn.

A. Did the police act unlawfully in handcuffing the defendant and placing him in a squad car?

The court begins with the government's justification for handcuffing Mr. Delgado and placing him in the squad car after the police encountered the defendant at the 1830A apartment. The government contends, and the magistrate agreed, that Mr. Delgado's detention occurred under the auspices of a Terry investigative stop. Pursuant to the seminal case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, a law enforcement officer “can execute ‘an investigatory stop’ ” to verify suspicions that a person has been, is, or is about to engage in criminal activity. Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir.2010) (internal citations omitted); see also United States v. Booker, 579 F.3d 835, 838 (7th Cir.2009) (“Although an officer does not need probable cause to conduct an investigatory stop, the brief detention must be based on reasonable suspicion that the stopped individual has or is about to commit a crime.”). A Terry stop is less restrictive than an arrest and is, therefore, necessarily limited in scope and duration. Id. Accordingly, when determining whether a particular seizure “exceeds the bounds of a Terry stop,” the court must...