United States v. Ellis

• Decision Date: 27 August 2007
• Docket Number: No. 06-3137.,06-3137.
• Citation: 499 F.3d 686
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darnell L. ELLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

499 F.3d 686

UNITED STATES of America, Plaintiff-Appellee, v. Darnell L. ELLIS, Defendant-Appellant.

No. 06-3137.

United States Court of Appeals, Seventh Circuit.

Argued March 27, 2007.

Decided August 27, 2007.

Jonathan H. Koenig (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Brian Kinstler (argued), Kohler & Hart, Milwaukee, WI, for Defendant-Appellant.

Before MANION, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge.

Darnell Ellis was convicted of possessing in excess of 500 grams of cocaine and was sentenced to 70 months' imprisonment. The drugs were discovered by DEA agents and local police officers during a search of Ellis's home. Ellis did not consent to the search and the agents and officers did not have a warrant when they entered the home. The district court concluded that there was probable cause and exigent circumstances sufficient to uphold the search. Following the district court's decision, Ellis entered into a plea agreement but retained the right to appeal the district court's decision on the legality of the search. We conclude that the search was improper and therefore reverse.

I. HISTORY

On March 21, 2005, DEA agents in Milwaukee, Wisconsin were contacted by a cooperating informant ("CI"). The CI told them that he had been contacted by Daniel Garrity who wanted to sell the CI some crack cocaine. The DEA agreed to go forward using the CI in the transaction. The CI and Garrity arranged to meet that day at a parking lot outside a fast food restaurant in the 3300 block of 23rd Street in Milwaukee. The DEA agents established a surveillance of the parking lot and placed electronic devices on the CI to record the CI's conversations and track his movements.

The CI and Garrity each arrived in separate vehicles. The CI got into Garrity's vehicle and they negotiated the transaction. Approximately thirty minutes into the discussions, Garrity called his supplier on a cell phone and instructed the supplier to deliver the drugs to the parking lot. The supplier was unknown at that time but he later would be identified as Mitchell Wilson. Wilson arrived at the parking lot in a third vehicle and delivered the crack cocaine to Garrity. Garrity and the CI then completed the transaction and all three individuals went their separate ways in their own vehicles.

The DEA agents decided to follow Wilson. Wilson went to 3758 N. 40th Street, a duplex home. Wilson remained at the 40th Street home for a few minutes and then left. The agents then ended their surveillance and Wilson's identity remained unknown at that time.

A few days later, the agents decided to arrange a second controlled buy from Garrity through the CI. The agents apparently hoped that Garrity would use the same supplier. A second transaction was arranged for March 29th. However, Garrity was arrested before the second transaction could occur. The record does not explain why Garrity was arrested before he was able to complete the second transaction. The agents questioned Garrity but he refused to disclose the identity of his supplier.

Hitting a dead end with Garrity, the DEA agents decided to perform a "knock and talk" investigation of the 40th Street home. A five person team was assembled consisting of Milwaukee police officers Chu, Lopez and McNeil and DEA agents Krueger and Ludington. The DEA learned that Rufus Jackson was the listed tenant for the home and that Jackson had two prior drug convictions. However, the team members were told other incorrect information. Team members were inaccurately informed that the 40th Street home was involved in drug transactions. Officer Lopez erroneously believed that a prior drug purchase had occurred at the 40th Street home.

Once arriving at the 40th Street home, the officers and agents surrounded the home. Officers McNeil and Chu went to the front door. Officer Lopez positioned himself at the side door and Agents Krueger and Ludington were at the back door. McNeil and Chu then knocked on the front door and announced themselves as police officers. Officers McNeil and Chu are patrol officers and were wearing their Milwaukee Police Department uniforms. Ellis did not open the door and instead spoke to McNeil and Chu through the door. McNeil and Chu asked Ellis to open the door so that they could come into the home. Officers McNeil and Chu claimed that they were investigating a missing child and asked Ellis's consent to search the home. Ellis said no and responded that he did not live there, no one who lived at the home was present at the time and that the police should come back later when the residents would be home. During the conversation between Ellis and Officers McNeil and Chu, Officer Lopez heard movement in the home and a person running up and down the stairs.

The movement turned out to be a second person in the home, Demarius Dean. Hearing Dean's movement, Officer Lopez concluded that the occupants in the home were trying to destroy drugs. Lopez called out to the other officers and agents telling them that the residents were trying to destroy evidence. Officer Chu then came over to Officer Lopez's position at the side door and Officers Chu and Lopez broke down the side door entering the home. Lopez then saw Ellis at the front door. Agent Krueger entered into the home and went to the top of the stairs leading to the basement. He saw Dean holding an object. Krueger pointed his gun at Dean and told him to lay on his stomach. Krueger then determined that Dean was holding his cell phone. The agents and officers then conducted protective sweeps of the first floor and basement areas. They discovered cocaine residue in a bedroom on the first floor. They obtained a search warrant and then searched the home. The search discovered a firearm and two and half kilograms of cocaine.

Ellis filed a motion to suppress arguing that the government entered the home unlawfully and therefore conducted an illegal search and seizure. The magistrate judge recommended that the motion to suppress be denied and the district court adopted the recommendation in toto.

II. ANALYSIS

"In reviewing the district court's denial of a motion to suppress, we review questions of law de novo and factual findings for clear error." United States v. Groves, 470 F.3d 311, 318 (7th Cir.2006) (citing United States v. Denberg, 212 F.3d 987, 991 (7th Cir.2000)). "The determination of probable cause is normally a mixed question of law and fact, but when `what happened' questions are not at issue, the ultimate resolution of whether probable cause existed is a question of law, which we review de novo." Smith v. Lamz, 321 F.3d 680, 684 (7th Cir.2003) (citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Cervantes v. Jones, 188 F.3d 805, 811 (7th Cir.1999)).

Although Ellis denied living in the home when speaking to Officers McNeil and Chu through the closed front door, the government agrees that Ellis did live in the home. He had a legitimate expectation of privacy in his home and therefore he has standing to challenge the search of the home. See generally United States v. Mendoza, 438 F.3d 792, 795 (7th Cir.2006) (noting that a defendant must demonstrate a legitimate expectation of privacy in order to raise a Fourth Amendment challenge). We therefore turn to the merits of the Fourth Amendment issue.

"The `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed', and accordingly, warrantless entries are considered presumptively unreasonable." United States v. Rivera, 248 F.3d 677, 680 (7th Cir.2001) (quoting Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); United States v. Saadeh, 61 F.3d 510, 516 (7th Cir.1995)). "[Warrantless] searches [of a home] are constitutionally permissible . . . where there is probable cause and exigent circumstances create a compelling need for official action and insufficient time to secure a warrant." United States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006) (quoting United States v. Marshall, 157 F.3d 477, 481-82 (7th Cir.1998)).

"[D]etermining whether probable cause exists involves a `practical, commonsense decision whether, given all the circumstances set forth . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Hines, 449 F.3d 808, 814 (7th Cir.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Markling, 7 F.3d 1309, 1317 (7th Cir. 1993)). "Probable cause is a fluid concept based on common-sense interpretations of reasonable police officers as to the totality of the circumstances" known at the time the event occurred. United States v. Breit, 429 F.3d 725, 728 (7th Cir.2005) (citing United States v. Brown, 366 F.3d 456, 458 (7th Cir.2004); United States v. Sholola, 124 F.3d 803, 814 (7th Cir.1997)). "The principal components of a determination of . . . probable cause will be the events which occurred leading up to the . . . search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to . . . probable cause." Ornelas, 517 U.S. at 696, 116 S.Ct. 1657.

The magistrate judge identified three items to support the determination that probable cause existed when the officers entered the home. First, the unknown supplier had gone to the 40th Street home immediately after completing the March 21st transaction and the government determined that the listed resident, Rufus Jackson, had two prior drug convictions. Second, Ellis had refused to open the door and denied that he lived at the home when he spoke with Officers Chu and McNeil. The magistrate's decision stated that "[w]hile citizens certainly have the right to refuse law enforcement...