United States v. Vanderkinter
| Decision Date | 17 October 2012 |
| Docket Number | Case No. 12-CR-165 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JAMES L. VANDERKINTER, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
This case presents the question of whether evidence of a crime obtained by an investigator with the Kewaunee County Sheriff's Department should be suppressed and barred from admission at the trial of Defendant James L. Vanderkinter. Vanderkinter is charged with illegally possessing eight firearms after having previously been convicted of a felony. As is the practice in this district, Vanderkinter's motion to suppress was referred to a magistrate judge for initial determination and recommendation. In a thorough and well-reasoned decision issued on September 25, 2012, the magistrate judge recommended that the motion be granted. The government filed an objection and the defendant filed a response. Having considered the entire record in the matter, including the briefs and recommendation, I now conclude that the motion should be denied.
The underlying facts of the case are set forth in the Deputy Reports of Kewaunee County Sheriff Investigator Steven G. Haen, which are attached to the Memorandum in Support of Motionto Suppress, along with the Search Warrant Inv. Haen obtained and his supporting affidavit. (ECF No. 18.) These facts begin with a call to the Kewaunee County Sheriff's Department on or before June 14, 2012, by a woman named Gail who had been living in an apartment with Vanderkinter for a brief period of time when she was separated from her husband. Gail reported that Vanderkinter, a previously convicted felon, was in possession of firearms. Inv. Haen met with Gail and her husband, with whom she had reunited, at their home and interviewed her about the allegation that Vanderkinter was in possession of firearms.
Gail told Inv. Haen that she had worked with Vanderkinter at a Door County company and had become friends. After problems arose in her marriage, she moved out and rented an apartment in Algoma with Vanderkinter in mid-April 2012. She moved back with her husband on June 7, 2012. During the time she lived with Vanderkinter, Gail said he said some things that scared her. On June 11, 2012, Vanderkinter reported to the Door County Jail to begin serving a twenty-two day sentence for Operating While Intoxicated, and Gail had waited until he was in jail to tell law enforcement what he had said.
According to Inv. Haen's report, Vanderkinter told Gail that he had some firearms which he stored at "his 'Uncle Jack's place' which is an old barn, located on Rockledge Road." (ECF No. 18-1 at 2.) She had driven past the barn with Vanderkinter and he pointed out the barn where he stored his guns. She had never seen the guns herself, but she said she had seen two videos on Vanderkinter's cell phone that he had taken of himself with his eight-year-old son firing the guns. Gail stated that Vanderkinter was training his son to protect himself, taking him to martial arts classes and talking to him about killing people and using guns and knives to hurt them so they would never be able to get up. (Id.) Gail said that when he left with his son to go target shooting,Vanderkinter told her not to say anything to anyone about it. Later, Gail told Inv. Haen that "there is an old red jeep that sits behind the barn," and they determined that "Uncle Jack" was John Bellin, who owned the property. (Id.) Finally, Gail told Inv. Haen that Vanderkinter had talked about an arson to a vehicle he was suspected of and of damaging some of her husband's vehicles. Gail said she was afraid of Vanderkinter and of what he would do when he was released from jail.
After his interview of Gail, Inv. Haen proceeded to the Rockledge Road location to take some photographs. Several days later on June 18, 2012, Inv. Haen met with an assistant district attorney for Kewaunee County to prepare an application for a search warrant. According to his report, Inv. Haen assisted the assistant district attorney in preparing an affidavit in support of a search warrant. The affidavit was "in support of searching the barn and all other buildings at E2897 Rockledge Road address, and also a maroon colored SUV that was parked on that property and was believed to belong to James Vanderkinter." (ECF No. 18-3 at 1.) When the affidavit was completed, Inv. Haen and the assistant district attorney signed it. Inv. Haen then met with the Kewaunee County Circuit Court Judge who reviewed the affidavit and signed the warrant. The warrant authorized Inv. Haen to search "certain premises in the Town of Casco, Kewaunee County, Wisconsin, a barn and accessory structures owned by John and Jeanette Bellin, more particularly described as a large old barn with a red/maroon SUV parked in the rear with accessory buildings located at E2897 Rockledge Road, Town of Casco, Kewaunee County." (ECF No. 18-2 at 1.)
Inv. Haen then met with John Bellin, a/k/a Uncle Jack, at his home and advised him of the warrant and his plans to search the property. Bellin confirmed that he owned the property and that Vanderkinter stored some of his property "out at the barn." (Id.) Bellin stated that he was not actually Vanderkinter's uncle but he agreed to let him store some of his things at the farm afterVanderkinter had been kicked out of the place where he had been living. Vanderkinter had paid him about $21 in rent so far, but was long overdue.
Bellin also told Inv. Haen that the older maroon SUV belonged to Vanderkinter and had been there for a year-and-a-half to two years. At one point the vehicle had been removed, but it was then returned and had remained. It was locked, and Bellin said he did not have the keys. Inv. Haen looked inside the vehicle and noticed that the back seat was down and there was a blue tarp covering the cargo area. Assisting officers used a specialized device to unlock the door to the SUV and lifted the tarp. Underneath they found multiple firearms and ammunition. Law enforcement later searched the barn and found several boxes of property belonging to Vanderkinter, but no firearms or other contraband. Based on the firearms that were found, Vanderkinter was indicted on a charge of possession of firearms by a felon in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). The motion before the Court seeks suppression of the use of the evidence obtained from his SUV.
Vanderkinter argues that evidence of the firearms must be suppressed because the warrant did not authorize Inv. Haen to search the maroon SUV in which they were found. The warrant authorized Inv. Haen to search only the barn and, perhaps, the accessory buildings. Although the maroon SUV is named in the warrant, Vanderkinter argues that it is included only as a means of more particularly describing the barn to be searched, i.e., the one with the red/maroon SUV parked in back. Because Inv. Haen's search of the SUV exceeded the scope of the search authorized by thewarrant, he argues, the evidence obtained thereby must be suppressed. The magistrate judge agreed with Vanderkinter that it was clear from ordinary rules of grammar that the warrant did not authorize a search of the SUV.
I conclude that the warrant is ambiguous as to whether it included the SUV as a place to be searched. The contention that the SUV was listed simply as a way of further describing the barn to be searched, while perhaps grammatically more correct, makes little sense. Having provided the street address, there was no need to add the fact that an SUV was parked in the rear as a further description. Nor would a reasonable officer have used its proximity to the barn to further describe the structure that was to be searched. Had the SUV been moved, would the defendant be able to argue that the barn was not covered? Instead, it appears that the SUV was listed, like the accessory buildings and the barn itself, as places on the premises in which the guns might be found. Indeed, the affidavit mentions the "red/maroon SUV" or "old red jeep" behind the barn in two places. Gail stated that "there is an old red jeep that sits behind the barn," and Inv. Haen confirmed that he observed "a red/maroon SUV parked behind the barn" when he drove there after interviewing Gail. (ECF No. 18-2 at 3.) Although the date of Gail's observations is not set out in the warrant, it appears from the fact that she lived with him from mid-April to early June that it was at least several weeks earlier. Since no one lived at "Uncle Jack's place" (there was no farm house), the fact that an old SUV or jeep "sits behind the barn" suggests that it was more like a fixture to the property where items might be stored than a motor vehicle that was regularly used.
This seems to have been the understanding of Inv. Haen. He specifically requested authority to search the SUV in the affidavit filed in support of the warrant. (Id.) His report of his meetingwith the assistant district attorney also states that the affidavit was "in support of searching the barn and all other outbuildings at E2897 Rockledge Road address, and also a maroon colored SUV that was parked on that property and was believed to belong to James Vanderkinter." (ECF No. 18-3 at 1.) And when he arrived at the property, it was the first place he looked. Had Inv. Haen not thought the warrant authorized him to search the SUV, his affidavit, reports and conduct would have been very different.
In light of these facts, I have no difficulty in concluding that Inv. Haen reasonably believed that the warrant authorized him to search the SUV. If that is the case, then to the extent that Vanderkinter's motion challenges the search as exceeding the scope of the warrant, it must be denied. For while "an executing officer must interpret a warrant's terms reasonably, . . . the officer need not give them the narrowest possible reasonable interpretation." United States v. Aljabari,...
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