United States v. Duncan
| Decision Date | 20 October 2021 |
| Docket Number | 20-cr-169-pp |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. XAVIER I. DUNCAN, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER OVERRULING DEFENDANT'S OBJECTION (DKT. NO 29), ADOPTING JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 28) AND DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT. NO 16)
On February 1, 2020, the defendant was detained by officers outside of a home on Milwaukee's south side. Dkt. No. 28 at 5. Officers detained him under suspicion that he had fired a gun in the neighborhood. Id. at 4-5. Officers found a gun during a search of the home the defendant had entered and exited before being detained. Id. at 10. On September 15, 2020, the government obtained an indictment charging the defendant under 18 U.S.C. §§922(g)(1) and 924(a)(2) with being a felon in possession of a firearm. Dkt. No. 1. The defendant has asked the court to suppress the evidence seized from the home, arguing that the search of the property violated the Fourth Amendment. Dkt. No. 16.
On April 28, 2021, Magistrate Judge William E. Duffin issued a report recommending that this court deny the motion. Dkt. No 28. The defendant timely objected. Dkt. No. 29. The government responded to the objection, dkt. no. 30, and the defendant replied, dkt. no. 34.
Federal Rule of Criminal Procedure 59(b) governs a district court's referral of motions to suppress to magistrate judges. Parties have fourteen days to file “specific objections” to a magistrate judge's report and recommendation to a motion to suppress. Fed. R. Crim. P. 59(b)(2). When reviewing a magistrate judge's recommendation, the district judge must review de novo the portions of the magistrate judge's recommendations to which a party timely objects. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(2), (3). The court may “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).
The defendant asked the court to suppress “evidence unlawfully obtained pursuant to an unconstitutional search and an unlawfully obtained statement.” Dkt. No. 16 at 1. Because the government subsequently stated that it does not plan to offer the defendant's on-scene statements into evidence, dkt. no. 20 at 6, 20, 22, Judge Duffin determined that the portion of the defendant's motion pertaining to that issue was moot, dkt. no. 28 at 2. Judge Duffin based his report and recommendation solely on the defendant's motion to suppress physical evidence. Id. Although the defendant did not specify what evidence he sought to suppress, Judge Duffin assumed the motion related solely to the gun that was the subject of the charge in the indictment. Id. Judge Duffin also denied the defendant's request for an evidentiary hearing. Id.
On February 1, 2020, a man calling 911, reporting that he heard gunshots in a neighborhood on Milwaukee's south side.[1] Milwaukee Police Officer Guadalupe Ramirez-Cervantes was one of the first officers to respond to the scene; he met with the caller by an alley behind the caller's house and the caller explained the circumstances of the gunshots. Dkt. No. 20-1 (). The caller told Ramirez-Cervantes that he had seen a man walk down the alley behind his house three times and each time heard a gunshot coming from near the cemetery at the end of the alley. Id. After hearing the third round of gunshots, the caller saw a man carrying a gun returning toward and entering a house across the alley. Id. The caller told Ramirez-Cervantes that the man was wearing a gray hoodie and was accompanied by a man in a polka dot sweatshirt. Id. The caller also stated that he had recorded the man on his security camera and described the man as well as a second man who had entered the alley with him. Id. The caller told the officer that he saw a gun in the hand of the man in the grey sweatshirt and had it on camera. Id. The caller then indicated to Ramirez-Cervantes which house he saw the man enter by pointing to and describing the house. Id.
Officer Ramirez-Cervantes and at least one more officer walked across the alley through the backyard of the house which the two men had allegedly entered. Id. While walking through the backyard, the officers saw two girls playing and asked where their brothers were, explaining, “the one with the gun.” Id. As the officers approached the home, two men exited. Id. One of the men was wearing a grey hoodie and the other a black hoodie. Id. Upon seeing the two men, Ramirez-Cervantes detained the man in the gray hoodie, later identified as the defendant. Id. A second officer on the scene detained the man in the black sweatshirt. Id. The officers did not see or detain an individual in a polka dot sweatshirt. See id.
At this time, Pamela Sanders came to a door on the side of the house near where the two men were being detained. Id. Officer Ramirez-Cervantes began communicating with Ms. Sanders through the glass security door. See id. He told Sanders that he was going to get a search warrant and explained that the men had entered the home after firing a gun. Id. Sanders denied that anyone entered her home carrying a gun. Id. Ramirez-Cervantes then directed Sanders to get everyone out of her home. Id. The officer asked how many people were in the home, stating “we don't want anyone to get hurt” and telling her there were more officers coming. Id. The officer asked how many kids were in the home and said that he needed to make sure there was not someone in the home pointing a gun at him. Id. Sanders explained that her children were not dressed and told the officers to wait. Id. Ramirez-Cervantes then told Sanders that he was going to come inside; he opened the glass security door further and entered the home into a small stairwell. Id. He entered the home at 6:13 p.m. Id. Upon his entry, Sanders stated that Ramirez-Cervantes did not have permission to enter the home, to which he responded, “Yeah, we do.” Id.
Ms. Sanders continued to protest the entrance into her home. Id. When Sanders would not cooperate with the officers' instructions, Officer Ramirez-Cervantes threatened to place her in handcuffs for her non-compliance. Id. Officers then performed a protective sweep of the home, checking large spaces such as bedrooms and closets. Id. Ramirez-Cervantes quickly searched a couch in the living room before directing the family to collect on the couch. Id. When Sanders said something-either arguing about or questioning the search- Ramirez-Cervantes explained that the officers were permitted to search the house for people. Id. He then elaborated on the reason they were there, what they were doing and explained that their initial search was limited to looking for people. Id. During that time, Sanders paced around the living room and, at times, spoke on the phone. Id. The other members of the household sat around the living room. Id. The youngest child, whom Sanders said was autistic, was held by various members of the family throughout. Id.
While other officers remained in the home, Officer Ramirez-Cervantes walked back to the 911 caller's home and reviewed the security camera video. Id. The footage appeared to confirm what the 911 caller had reported. See Id. Ramirez-Cervantes also saw Sanders' daughter walking with the man in the gray sweatshirt on one of the trips. Id. Ramirez-Cervantes returned to Sanders' home. Id. By this time, there were a number of officers standing in the home, including at least one standing with a long firearm in hand. Id. As the distress level in the home rose, Ramirez-Cervantes stated that he would arrest Sanders' fourteen-year-old daughter unless someone either showed officers where the gun was located or gave consent to search the home for the gun. Id. Ramirez-Cervantes repeated this ultimatum numerous times, leading to significant stress and chaos. See id.
Around this time, Officer Ryan Casey become involved in the discussion. Dkt. No. 20-4 (). He spoke directly with Ms. Sanders's mother who, along with Sanders, vehemently denied the existence of a gun in the house. Id. At one point, the mother said, Id. Sanders' mother then gave officers permission to look through her van, which Officer Ramirez-Cervantes searched. Id. Sanders remained confused about why the police wanted to search the house again, but the officers informed her that they were now looking for a gun, rather than a person. Id. Casey tried to de-escalate the tension by clarifying with Sanders that her daughter was not going to be arrested. Id. He stated that he was concerned about one of the children finding a gun. Id. A discussion ensued in which Casey asked Sanders for her full name and address and Casey went to the back bedroom with one of Sanders's sons to look for the son's sweatshirt. Id. Although Casey again assured Sanders that her daughter was not going to be arrested, the officers continued to take biographical information from the daughter. Id. Casey then obtained a consent form from an officer outside the home and came back into the home accompanied by a presumed friend of Sanders. Id.
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