United States v. Griffin
| Decision Date | 07 August 2012 |
| Docket Number | Case No. 11–CR–253. |
| Citation | 884 F.Supp.2d 767 |
| Parties | UNITED STATES of America, Plaintiff, v. Saint GRIFFIN IV, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
OPINION TEXT STARTS HERE
Melvin K. Washington, United States Department of Justice, Milwaukee, WI, for Plaintiff.
DECISION AND ORDER
The government charged defendant Saint Griffin with attempted possession of marijuana with intent to distribute and two counts of possessing firearms as a felon. Defendant filed a motion to suppress, arguing that the police violated his Fourth Amendment rights by unlawfully seizing him. During his subsequent detention defendant made statements and consented to the search of his car, cellular phones, storage locker, and residence (leading to the discovery of the contraband forming the basis for his indictment), which defendant sought to suppress as fruit of the unlawful seizure.
The magistrate judge handling pre-trial proceedings in this case held an evidentiary hearing, at which the officer who seized defendant was the sole witness, then issued a recommendation that the motion be granted. The magistrate judge agreed that the police unlawfully seized defendant and concluded that all evidence subsequently obtained should be suppressed.
The government objected, requesting a de novo evidentiary hearing. SeeFed.R.Crim.P. 59(b). The government argued that the magistrate judge improperly limited the testimony, hampering its ability to make an attenuation argument. See United States v. Johnson, 383 F.3d 538, 544 (7th Cir.2004) (). After conducting two status conferences on the matter, I directed the parties to confer and create a time-line concerning defendant's seizure and subsequent events. The parties complied with my order and, finding no material factual disputes, I declined to hold another hearing on attenuation. (R. 41.) I gave the parties time to file supplemental briefs on attenuation, which they have now done; the entire matter is ready for decision. My review is de novo. Fed.R.Crim.P. 59(b)(3).
This case arises out of the controlled delivery of a suspicious package by United States postal inspectors, assisted by Detective Eugene Nagler of the Milwaukee HIDTA (High Intensity Drug Trafficking Area) task force. (Jan. 6, 2012 Evid. Hr'g Tr. [R. 17] at 9–10.) Inspector Daniel Kakonis had been investigating a series of packages mailed from a particular address in Sacramento, CA, a source area for controlled substances, to various locations in Milwaukee, including an address on N. 54th Street. (Jan. 6, 2012 Hr'g Ex. 1 at 2–4.) On August 2, 2011, Nagler and his drug-detecting canine assisted Kakonis in obtaining a search warrant for one of these packages, which was found to contain currency. (Ex. 1 at 4; Tr. at 12, 44.)
On September 1, 2011, Kakonis again contacted Nagler regarding a suspicious package from the Sacramento address directed to the 54th Street location in Milwaukee. (Tr. at 10.) Nagler's dog alerted on the package, but the officers did not obtain a search warrant due to the press of time, as the package was scheduled to be delivered that morning. (Tr. at 12–14.) The officers instead decided to attempt a delivery of the package to the 54th Street address. Accompanied by postal inspectors Haraway and Spellman, Kakonis and Nagler traveled to the 54th Street address, where Spellman made the delivery; Nagler was to provide cover and look for counter-surveillance. (Tr. at 15–16.) As Spellman approached the house, Nagler saw a vehicle approach and park on Chambers Street to the south of the target residence; 1 the driver, later identified as defendant, appeared to watch Spellman and Kakonis approach the house. (Tr. at 17–18, 41, 56.)
Nagler testified that in his experience the recipients of suspicious packages collect them in various ways: they may approach the carrier on foot; they may come out of the gangway; they may approach in vehicles; or they may be inside the target residence. He indicated that sometimes the listed address is a “drop house” where the package will be delivered and nothing will happen; the recipient may be sitting some distance away from the house doing counter-surveillance, looking for law enforcement. (Tr. at 18–19.)
Nagler testified that he decided to approach defendant's vehicle, even though he had no knowledge of any relationship between defendant and the package. 2 (Tr. at 19.) Nagler approached defendant's car and identified himself as a Milwaukee police detective. Defendant seemed surprised and dropped his hands from the steering wheel towards his lap, which, Nagler testified, caused him to become concerned about the presence of weapons, the secreting of evidence, or that defendant would put the car in gear and driver off. However, Nagler testified that while defendant dropped his hands out of Nagler's sight, defendant did not lean forward as if he were reaching under the seat. (Tr. at 20, 59–60.) Nagler said something to the effect of “hey, get your hands up, put your hands up, let me see your hands.” (Tr. at 20.) Defendant, who still seemed surprised or shocked, brought his hands back up to where Nagler could see them but then dropped them back down again. (Tr. at 21.) In response, Nagler pulled out his gun and commanded, “Get your hands up.” (Tr. at 21.) Defendant put his hands up and then started to open the car door. As he got close to the car, Nagler saw a child in the back. Nagler told defendant, “you can't be doing that, putting your hands down,” and directed defendant to step out of the car. (Tr. at 22.) Defendant complied. As he approached the car, Nagler testified that he saw two cell phones on defendant's lap. (Tr. at 73.) Nagler testified that, despite being concerned as defendant exited the car, he put his gun away after he saw the child. (Tr. at 63–64.)
Nagler admonished defendant about dropping his hands, stating (Tr. at 22.) Defendant replied that he had nothing like that, and that Nagler could look. (Tr. at 22.) As Nagler questioned defendant regarding why he was there, inspector Haraway approached, and defendant indicated that he was there to visit his aunt at the 54th Street address. (Tr. at 23, 68.) Nagler searched the car, while Haraway stayed with defendant,3 discovering documents related to a storage locker and “Moneygram” receipts, some of which listed the 54th Street address. (Tr. at 24, 81–82.)
Nagler continued talking to defendant, trying to determine why he was there. Defendant said something about meeting his cousin at the house to get a haircut for his son. (Tr. at 25.) That made little sense to Nagler, so he tried to clarify, and defendant indicated that his son was not in school because of a problem with his Head Start Program. (Tr. at 25–26, 68–69.) While they were talking, defendant's cell phones—which had been placed on the roof or trunk of the car—were continuously ringing and alerting. (Tr. at 26, 74.) Nagler testified that based on defendant's strange stories and nervous demeanor, he believed defendant was being deceitful regarding the reason for his presence. (Tr. at 26–27.) Nagler told defendant he didn't believe him and remarked that his phones were “blowing up.” (Tr. at 29.) Defendant responded, “there's nothing on the phones, you can look.” (Tr. at 29.) Nagler looked at the phones, recovering text messages containing the name and address from the mailing label on the suspect package. (Tr. at 31.) At that point, defendant seemed to become more nervous and balled one of his hands into a fist, at which point Nagler handcuffed him. (Tr. at 32.) He left defendant in Haraway's custody and went to speak with Kakonis and Spellman (Tr. at 32), who advised him that they had delivered the parcel to a subject at the residence, who accepted it (Tr. at 82). After making arrangements to secure the car and obtain care for the child, the officers took defendant downtown. (Tr. at 32–33.)
Defendant later gave consent to search his storage locker, in which Nagler found United States postal boxes with mailing labels, a firearm, currency, and marijuana. (Tr. at 35–36.) Nagler subsequently spoke with defendant at the HIDTA offices, where defendant had agreed to cooperate with Haraway and Kakonis. (Tr. at 37–38.) Defendant also agreed to allow Nagler to download the contents of his cell phones.4 (Tr. at 40–41.)
The magistrate judge concluded that Nagler effected a seizure by ordering defendant to put his hands up, and that the seizure was unreasonable under the circumstances. In opposing the motion before the magistrate judge, the government argued that Nagler lawfully seized defendant; it made no argument that defendant's later statements and consents were sufficiently attenuated from the seizure to be purged of the primary taint. In a footnote, the government purported to reserve the right to address attenuation should the magistrate judge find the initial stop unlawful. However, the magistrate judge concluded that if the government intended to make such arguments, “it is incumbent to do so at this juncture in the proceedings; a footnote stating that it seeks to reserve alternative arguments is merely an attempt by the government to have two bites at the apple.” (Recommendation [R. 23] at 10–11.) The magistrate judge noted that defendant's motion sought the suppression of all statements and physical evidence as fruits of the unlawful arrest. In the absence of any argument to the contrary, the magistrate judge concluded that defendant's statements and all physical evidence seized...
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