United States v. Ivory

• Decision Date: 22 December 2014
• Docket Number: Case No. 13–CR–225.
• Citation: 67 F.Supp.3d 1011
• Parties: UNITED STATES of America, Plaintiff, v. Stephen IVORY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

67 F.Supp.3d 1011

UNITED STATES of America, Plaintiff

v.Stephen IVORY, Defendant.

Case No. 13–CR–225.

United States District Court, E.D. Wisconsin.

Signed Dec. 22, 2014.

Margaret B. Honrath, United States Department of Justice, Milwaukee, WI, for Plaintiff.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

On August 27, 2013, a Milwaukee police officer conducted a pat-down of defendant Stephen Ivory, discovering a firearm. The officer arrested defendant for carrying a concealed weapon (“CCW”) under state law, and defendant was later convicted of that offense in Milwaukee County Circuit Court, receiving a sentence of 180 days in jail. Meanwhile, on November 19, 2013, the government obtained an indictment charging defendant with making a false statement in connection with the purchase of a firearm (count one), contrary to 18 U.S.C. § 922(a)(6), and possessing a firearm as an unlawful drug user (count two), contrary to 18 U.S.C. § 922(g)(3). Count one pertained to defendant's attempted purchase of a firearm from Cabela's, a federal firearms dealer, on November 2, 2011, while count two pertained to the firearm seized from defendant's person on August 27, 2013.

On May 6, 2014, defendant filed a motion to suppress all evidence and derivative evidence, including all of his statements, obtained as a result of the search and seizure by Milwaukee police on August 27, 2013. The following day the government moved for leave to dismiss count two, which I granted on May 21, 2014. On June 12, 2014, the magistrate judge handling pre-trial proceedings in this case conducted an evidentiary hearing on the motion to suppress. The parties did not at that hearing discuss the impact of the dismissal of count two or otherwise address the scope of the suppression order sought. On August 5, 2014, the magistrate judge issued a recommendation that the motion be denied, finding that defendant consented to the pat-down. Defendant objected, and I held a de novo hearing on October 20, 2014, at which the parties again did not address the scope of the suppression order sought. On November 4, 2014, I granted the motion, finding that defendant did not consent and that the police unlawfully searched his person.

At a November 20, 2014, status conference, the government requested and I granted permission to brief the scope of suppression. In its submission, the government notes that the only pending charge is count one, which alleges that defendant made a false statement to a federally licensed firearms dealer on November 2, 2011, nearly two years prior to the police encounter that was the subject of the evidentiary hearings. The government indicates that in order to prove count one it would submit the ATF Form 4473 defendant completed on November 2, 2011, in which he represented that he was not a fugitive from justice, as well as evidence showing that at the time defendant made this statement there was a warrant out for his arrest for failure to appear in Clark County, Indiana on a marijuana possession case emanating from a March 23, 2011 traffic stop. The government contends that this evidence need not be suppressed based on my finding of an unlawful search on August 27, 2013. Defendant counters that the government pursued this evidence only because of statements he made following his unlawful arrest on August 27, 2013, and that the government cannot establish any independent source that would have led them to this evidence. The matter is fully briefed and ready for decision.

I. FACTS

In my November 4 order, I summarized the facts regarding the August 27 search and seizure as follows:

On August 27, 2013, Milwaukee police responded to a fatal shooting in the area of 27th and Burleigh Streets, shutting down traffic, securing the scene, and canvassing the area to identify witnesses and suspects. During the canvass, officers secured a Chicago Subs shop, identifying six witnesses, including defendant. Three officers were stationed inside the shop to make sure no one came in or left, to ensure that the witnesses did not taint their statements by conferring, and to protect the witnesses' identities. The witnesses remained in the shop for between 30 and 60 minutes. The scene commander, Sgt. Wesam Yangham, secured squad cars so the witnesses could be questioned separately. Five of the six witnesses were questioned in squads, the sixth inside the sub shop.

After about an hour, Yangham told Officers Jose Ramirez and Chad Boyack to take defendant to their squad car for an interview. Ramirez approached defendant, who was standing outside the sub shop holding a bag of food, and told defendant to follow him to the car. Ramirez pointed out the car, and defendant walked in front of Ramirez towards it. Once they arrived at the squad car, Ramirez told defendant that before he placed defendant in the squad car he would “need to pat him down just for personal procedures.” Defendant said something to the effect of “okay,” but Ramirez could not remember his exact words. Ramirez tapped defendant's elbows, defendant put his hands up, and Ramirez proceeded to pat him down, discovering a firearm in his waistband. Defendant was not at the time of the pat-down a suspect, just a witness, and the officers had no reason to believe that he was armed or dangerous.

(R. 41 at 1–2, internal citations and footnotes omitted.)

According to the supplemental materials presented by the parties,¹ based on the discovery of the firearm officers arrested defendant for CCW and took him into custody at approximately 12:40 a.m. At about 5:20 a.m., a Milwaukee detective questioned defendant about the gun found on his person and the shooting he had witnessed. At approximately 1:15 p.m., Milwaukee Detective Caballero (an ATF task force officer) and ATF Special Agent Adamson interviewed defendant again. Adamson advised defendant of his Miranda rights, and defendant agreed to talk. (R. 44–1 at 1.) During the interview, defendant indicated that he purchased the firearm he had been caught with the previous night at a gun show in June of 2013. Defendant stated that the only other time he tried to purchase a firearm was in 2011 or 2012 when he tried to buy a .40 caliber Sigma from Cabela's. Defendant stated that he was denied that firearm because he was considered a fugitive from justice. He explained that in March of 2010 during a trip to Atlanta he was caught with a sack of weed in Kentucky;² he never took care of the case, and it turned into a warrant. The agents also questioned defendant about his drug use, and he stated that he had been smoking marijuana since the age of 18, last using a couple days ago for a friend's birthday. (R. 44–1 at 2.)

Based on this information, ATF agents conducted a follow up investigation regarding defendant's prior involvement with firearms. On August 28, 2013, at about 6:45 p.m., Adamson and Caballero met with defendant's mother, Jillandra Sargent, and she stated that defendant had previously applied to purchase a firearm but was denied due to a warrant in Indiana for marijuana. (R. 44–2 at 1.) The agents also spoke to defendant's step-father regarding defendant's marijuana use. (R. 44–2 at 2.) On September 4, 2013, Adamson obtained firearm transaction reports dated November 2, 2011, related to defendant's attempted purchase of a firearm from Cabela's. On September 5, 2013, Adamson obtained information from the State of Wisconsin Handgun Hotline regarding defendant's November 2011 denial for being a fugitive from justice. (R. 44–3.) Finally, agents obtained information from Clark County, Indiana about defendant's marijuana case, including the paperwork defendant signed at the time of his release.

II. DISCUSSION

The government concedes suppression of the firearm and defendant's post-arrest statements based on my November 4 order. However, it contends that I should not suppress the additional evidence it obtained from Cabela's, the State of Wisconsin, and the Indiana court in the week following defendant's arrest.

A. Applicable Legal Standards

The exclusionary rule applies to the direct and indirect products of a Fourth Amendment violation. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Supreme Court has declined to hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Id. at 487–88, 83 S.Ct. 407. “Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488, 83 S.Ct. 407 (internal quote marks omitted). The government bears the burden of showing attenuation. See United States v. Conrad, 673 F.3d 728, 733 (7th Cir.2012) ; United States v. Fialk, 5 F.3d 250, 252 (7th Cir.1993).

The Supreme Court has identified a number of factors relevant to this determination, including (1) the temporal proximity of the illegal conduct to the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. United States v. Robeles–Ortega, 348 F.3d 679, 681 (7th Cir.2003) (citing Brown v. Illinois, 422 U.S. 590, 603–04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) ). Because there is no bright-line test for temporal proximity, it is often helpful to consider this factor in conjunction with the alleged intervening circumstances. See, e.g., United States v. Reed, 349 F.3d 457, 464 (7th Cir.2003) (citing United States v. Fazio, 914 F.2d 950, 958 (7th Cir.1990) ).

The “type of intervening events that serve to attenuate official misconduct are those that sever the causal connection between the illegal arrest and the discovery of the evidence.” Id. Examples include a confession made several days after the illegal arrest, preceded by arraignment and release from custody, id. (citin...