USA v. Strache

• Citation: 202 F.3d 980
• Decision Date: 27 January 2000
• Docket Number: No. 99-2516,99-2516
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Clinton Strache, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 980

202 F.3d 980 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Clinton Strache, Defendant-Appellant.

No. 99-2516

In the United States Court of Appeals For the Seventh Circuit

Argued November 30, 1999

Decided January 27, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 CR 96--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]

Before Manion, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge.

Clinton Strache appeals two district court decisions: denial of his motion to suppress evidence seized in a search to which Strache claims that he did not consent, and a two-level enhancement under U.S.S.G. sec. 2K2.1(b)(1)(B) of his sentence for possession of unregistered firearms. We find that the district court did not commit clear error in finding that Strache consented to the search or in finding that Strache possessed seven "destructive devices" within the meaning of U.S.S.G. sec. 2K2.1(b)(1)(B) to justify enhancement of his sentence. We affirm both district court findings.

I. History

Defendant Clinton Strache was a self-proclaimed "survivalist" with an abiding fondness for explosives and apocalyptic fears about the imminent arrival of Y2K. Despite Strache's unnerving interests, David Ritchie and Pete Kowatsch invited Strache to live with them as the third roommate in their two-bedroom house in Rhinelander, Wisconsin, during the summer of 1998. The trio split the expense of installing locks on the bedroom doors, and made clear to each other that privacy was expected. Strache and Ritchie had their own bedrooms, now with locked doors, and Kowatsch slept in his own private area in the basement.

At the time, Strache and his girlfriend Regina Domaika were in the throes of a tumultuous romance, which the district court opined might have been "charitably characterize[d] as a complex relationship." Indeed, Strache had asked Ritchie to prevent him from bringing Domaika home with him in case Strache ever became drunk and entertained that unwise proposition. Evidently Ritchie failed Strache in this request because Strache returned to the house with Domaika in the early morning of Friday, August 22, 1998. They began discussing their chaotic relationship, and not long thereafter, an emotional argument between the two troubled lovers ensued.

According to Domaika, Strache leapt from bed early that morning, pointed a handgun to his head and yelled, "I'll show you how much I care." Domaika eventually managed to take the handgun from Strache and quickly absconded with it back to her own apartment only a few blocks away. Strache soon followed to her apartment and argued with her over possession of the firearm. About 5 a.m. that morning, Domaika twice called 911 emergency frantically exclaiming that Strache was suicidal and possessed a handgun. After Strache finally promised not to harm himself, Domaika returned the weapon to him, and Strache returned home. Nevertheless, Rhinelander Police Officer Lloyd Gauthier, Jr., promptly appeared at Domaika's residence in response to Domaika's 911 call and debriefed Domaika about the events of the night and Strache's current condition. Upon hearing her account, disquieted by the thought of a suicidal man armed with a lethal weapon, Gauthier rallied five police officers to Strache's house to check on him around 6:10 a.m.

Deputy Kurt Kopacz telephoned the house and spoke to Ritchie, who told him that there were four people in the house. Kopacz told Ritchie to get everybody out of the house into the backyard. All the assembled officers crouched outside with shotguns aimed at the back door as Ritchie, Kowatsch and Strache exited the house. The police immediately separated Strache from the others, handcuffed his hands behind his back and placed him inside a squad car.

Over the radio from Domaika's apartment, Gauthier directed the officers to secure the handgun that Strache, according to Domaika, had used earlier to threaten suicide. Kopacz asked Ritchie for permission to enter the house and search for additional people and weapons inside. Both Ritchie and Kowatsch consented immediately to the search, but no one asked Strache, who was segregated away from his roommates. While several officers entered the house, Strache desperately struggled to convince all within earshot that he was not suicidal as Domaika alleged. He said that Domaika would not have left him armed and alone if she really felt that he intended to commit suicide. Strache offered to show Officer Brian Zohimsky the arsenal in his bedroom to prove that Domaika's claim was unfounded and confused. Zohimsky testified that Strache "stated [the police] could go into the residence in order to locate the weapons he was referring to."

Officer Gauthier arrived at the scene and interrogated Strache briefly. Strache denied that he had threatened suicide and insisted that Domaika was lying about the events of the night. Gauthier returned to Domaika's residence to challenge her story, but Domaika stuck to her account and convinced Gauthier that Strache might still harm himself that night.

Before the police entered the house, Ritchie had warned the police that Strache stored a hand grenade, gun powder and other weapons in his bedroom. Wary, the police peered into Strache's room through the open door and noticed a shotgun and mounds of camouflage paraphernalia. When asked, Strache answered that there were only uncharged grenades in his room, but still concerned, the police brought Strache inside the house near his bedroom door to show them where the explosives were located. Strache sat in a chair at the doorway to his room and saw from this vantage where the police were searching. Although Strache was never informed of his Miranda rights, Officer David Kroll asked Strache whether he would mind if Kroll "took a look" inside Strache's room.

According to Kroll, Strache answered, "No, go ahead." Several officers testified that Strache was "calm, relaxed and cooperative" this entire time. The tone of the exchanges between Strache and police was "low-key and non-confrontational." Strache appeared to be in control of his faculties and understood what was transpiring. Both Zohimsky and Kroll testified that Strache had been "very cooperative" throughout, and Kroll believed that Strache would "let [the police] know if [they] were getting into an area that was going to be dangerous."

After discovering two capped lead pipes, the police concluded that they were in danger, quickly evacuated the house and summoned the special Emergency Operations Department unit ("EOD") to contain the scene. At that point, the police shipped Strache to St. Mary's Hospital for a mental health evaluation where he would remain over the weekend for observation.

In Strache's room, EOD found a fully constructed pipe bomb, which they quickly dismantled. A subsequent police search also yielded two partially constructed metal pipe bombs, one partially constructed PVC pipe bomb and three hand grenade shells with fuses and pin assemblies. Also lying about the room were a nine millimeter semiautomatic pistol, two twelve gauge shotguns, two practice Claymore mines, sections of steel and PVC pipe and matching steel and PVC end caps, fuses and fuse cords, a five pound can of gun powder and thirty-six blasting caps. Scattered around Strache's room was a veritable library of survivalist reference literature and how-to books including titles such as Combat and Survival, American Survival Guide, Guerrilla Warfare, C-4 (Plastic Explosive)-- Better than Ever Recipes for Half the Money and Double the Fun, How to Make War and Grenade Launcher. Police also found a handwritten note that Strache had placed as a magazine advertisement in "American Survivalist Guide." Strache described himself in the note as a "SWM, 24, looking to join low profile group. Will relocate. EX military MANY diversified skills and talents. Well trained and equipped. I am real. Don't contact unless you are as well."

Three days later on Monday, Gauthier visited Strache in the hospital mental ward. Gauthier told Strache that he wanted to ask some questions, and Strache responded that he wanted a lawyer with him before he answered them. Gauthier explained that they found pipe bombs, blasting caps and additional explosive materiel in his room. Strache responded that he understood all this and acknowledged that he consented to the police search of his room.

On February 18, 1999, a federal grand jury entered a one-count superseding indictment charging Strache with violating 26 U.S.C. sec. 5861(d) for possession of the following unregistered destructive devices found in Strache's room: (a) a fully constructed PVC pipe bomb; (b) a nearly completed PVC pipe bomb with shotgun pellets loaded inside, end caps attached and a cannon fuse in place; (c) three hand grenades equipped with fuses and which needed only insertion of plugs and some gun powder to become fully functional; (d) two partially completed metal pipe bombs missing only gun powder and fuses to become fully functional. Strache filed a motion to suppress this evidence, alleging that he had not consented to the warrantless search of his room, but the court denied his motion.

On March 15, 1999, Strache pleaded guilty to possession of the functional PVC pipe bomb in violation of 26 U.S.C. sec. 5861(d). At sentencing, however, Strache challenged inclusion of the three partially completed hand grenades and two partially completed metal pipe bombs as items supporting a two-level upward enhancement of his sentence for possession of multiple firearms under U.S.S.G. sec. 2K2.1(b)(1)(B). Strache argued that he intended to use the grenades as smoke bombs for paintball and never intended to convert either the grenades or the metal piping into destructive devices. FBI Special Agent Tom Deans testified in the presentence report ("PSR") that Strache could have made each grenade functional by...