United States v. Tolbert
| Decision Date | 07 February 2012 |
| Docket Number | Case No. 11-CR-186 |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. MICHAEL TOLBERT Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
The government charged defendant Michael Tolbert with failing to register as a sex offender, 18 U.S.C. § 2250, and possessing firearms and ammunition as a felon, 18 U.S.C. § 922(g)(1).1 Defendant moved to suppress physical evidence, arguing that the police violated the Fourth Amendment in seizing the firearms and ammunition. The magistrate judge handling pre-trial proceedings in this case held an evidentiary hearing, then issued a recommendation that the motion be granted.
The government does not object to the magistrate judge's findings of fact or the recommended suppression of the firearms, but it does object regarding suppression of the ammunition. Defendant supports the recommendation of suppression but objects to one of the magistrate judge's specific factual findings. The district court must review de novo those portions of a magistrate judge's recommendation to which specific objection is made. See Fed. R. Crim. P. 59(b); 28 U.S.C. § 636(b)(1); United States v. O'Neill, 27 F. Supp. 2d 1121, 1126(E.D. Wis. 1998). Neither side requests a de novo evidentiary hearing in this case, and I find the record made before the magistrate judge sufficient for me to rule on the motion. See United States v. Raddatz, 447 U.S. 667, 673 (1980).
City of Kenosha Police Officer Jack Decker testified that he received a tip that defendant, a convicted sex offender, failed to register after moving to Wisconsin. Decker also had a printout showing that defendant had previously murdered a child. (Oct. 11, 2011 Evid. Hr'g Tr. at 5-6.) Decker checked Kenosha Police Department records and learned that defendant had received a traffic citation driving a vehicle registered to a Rainie Warren at an address on 13th Avenue in Kenosha. (Tr. at 6.)
Decker, along with Kenosha Police Officer Larson, went to Warren's address on the morning of August 12, 2011. (Tr. at 7.) Decker made contact with Warren, explained that he was looking for defendant, who had failed to register as a sex offender, and asked if defendant resided there. (Tr. at 8.) Warren told Decker that defendant had lived at the address since February, that he was there now, and that Decker could come in and search for him. (Tr. at 8.)
After back-up arrived, the officers conducted a search of the residence, locating ten children but not defendant. (Tr. at 9-10.) After concluding that defendant wasn't home, all of the officers except Decker left. (Tr. at 24, 25, 35.) Decker took a written statement from Warren, then asked her for permission to photograph the bedroom she shared with defendant. (Tr. at 10, 43.) Warren agreed. Decker testified that his purpose in taking photographs was to establish defendant's residency at the address; he wasn't looking for other evidence. (Tr. at 10-11, 17.)
Warren accompanied Decker into the bedroom, where defendant had stacked clothing, books, and other belongings on the bookshelves. Decker estimated the shelves to be seven to eight feet high (Tr. at 26)2 and indicated that he stands about 6'1" tall (Tr. at 27). After Decker started taking photographs, he noticed a box of ammunition on the second shelf from the top. He moved some things out of the way to get a better view to photograph the ammunition; however, he did not move the ammunition before taking photographs; nor did he move anything in order to see the ammunition initially. (Tr. at 20-21, 29-30.) After taking photographs, Decker took the boxes of ammunition down from the shelf and placed them on the bed. (Tr. at 22.)
Decker then noticed a gray cloth bag next to the ammunition, which he suspected to contain firearms. (Tr. at 13.) Around this time Decker received information that defendant had been contacting dispatch and was going to return to the residence. (Tr. at 13.) Decker decided to check the bag, which felt "heavy and consistent with a gun being there" (Tr. at 13), although it "wasn't readily apparent" to him what was in the bag (Tr. at 22). He took the bag down, set it on the bed, heard a "metal clink," opened it up, and found two pistols inside. (Tr. at 13, 22.) Warren told Decker that she had never seen the firearms before and did not own the guns or ammunition. (Tr. at 15.) Decker took the guns and ammunition into evidence. (Tr. at 16.) Decker denied using a stool to initially spot the ammunition; he testified that he may have used a stool later, but he could not recall for sure having done so. (Tr. at 18, 22, 30.) At no point during the discovery of the ammunition and firearms did Warren seek to limit or withdraw her consent to photograph the bedroom or otherwise object to Decker's actions. (Tr. at 15.)
At the evidentiary hearing, Warren acknowledged that she gave officers permission to enter her house to look for defendant, and that she permitted Decker to take photographs of defendant's things in their bedroom. (Tr. at 45.) On direct examination, Warren testified that Decker started taking pictures and then saw the ammunition on the shelf. She continued: "After he seen [sic] the ammunition he asked for a stepping stool, and he stepped up on the stool and found the black bag, and he pulled it down off the shelf." (Tr. at 46.) The AUSA clarified:
(Tr. at 46-47.) Warren testified that she obtained the stool for Decker, he used it to take the bag from the shelf, and then pulled the guns out of the bag. (Tr. at 47.) Warren stated that at no time did she place any limitation on what Decker could do. (Tr. at 48.)
On cross examination, Warren's testimony was less clear. In response to leading questions from defense counsel, Warren testified that Decker obtained the stool from the living room, brought it into the bedroom, stood on it, looked at the shelves, and then saw the ammunition. (Tr. at 50-51.) After he saw the ammunition, Decker grabbed the bag, placed it on the bed, reached inside, and pulled out two guns. (Tr. at 51.) She further testified on cross that Decker was the one who went and got the stool (Tr. at 52), which he used to see the ammunition (Tr. at 54).
However, when asked to clarify on re-direct examination, Warren stated: "I believe he seen the ammunition, then he got the stool." (Tr. at 57.) On re-cross, defense counsel asked:
(Tr. at 58.)
Before the magistrate judge, defendant acknowledged that Warren voluntarily gave consent to enter their home to search for him and to photograph the bedroom they shared. However, defendant argued that Decker exceeded the scope of that consent when he used a stool to see the shelf where the boxes of ammunition were located and to photograph those areas not in plain view. Defendant further argued that the plain view exception did not apply because the ammunition was not incriminating under Wisconsin law, which does not bar felons from possessing ammunition.
The magistrate judge found that Warren's consent was limited to photographing the bedroom, and that it was not reasonable for Decker to assume that the scope of her consent included the ability to feel objects on the bookshelves or move them around. The magistrate judge thus concluded that any actions beyond photographing the bedroom, such as removing objects from the bookshelves, exceeded the scope of Warren's consent. The magistrate judge rejected the government's argument that Warren's failure to object to Decker's actions extended the scope of her consent.
Turning to the facts of the case, the magistrate judge found that in the course of photographing the bedroom Decker first observed a box of ammunition and then asked Warren for a stool, which he later used to pull the black bag containing the firearms off the shelf. She thus implicitly rejected defendant's argument that Decker exceeded the scope of consent (by using the stool to get a better look) when he first viewed the ammunition. Nevertheless, the magistrate judge concluded that, although Decker was lawfully present at the time he spottedthe ammunition, the incriminating character of this evidence was not immediately apparent. The magistrate judge noted that while Wisconsin law prohibits felons from possessing firearms, it does not cover ammunition. The magistrate judge further noted that the government failed to establish that Decker knew it was a federal crime for a felon to possess ammunition. She concluded that: "Ammunition is not automatically contraband that can be seized without a warrant." (Recommendation at 11, citing United States v. Lemons, 153 F. Supp. 2d 948, 959 (E.D. Wis. 2001).) She therefore recommended that the ammunition be suppressed.3
In their objections, the parties each take issue with one component of the recommendation. The government argues that the magistrate judge erred in concluding that the incriminating nature of the ammunition was not immediately apparent. Decker knew defendant was a convicted felon, making his possession of the bullets illegal under federal law, something a reasonable state officer would likely know; a reasonable officer would also know that possession of ammunition is "linked" to the state crime of possessing a firearm. See United States v. Blom, 242 F.3d 799, 808 (8th Cir. 2001); United States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997).
Defendant argues that the magistrate judge erred in finding, as a factual matter, thatDecker saw the ammunition before he used the stool. If he was able to see the ammunition only by using the stool, defendant contends, Decker exceeded the scope of Warren's...
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