United States v. Tyrone McMillian, Jr.
2015 U.S. App. LEXIS 8567
| 7th Cir. | 2015Background
- Milwaukee police, acting on a 2007 double-homicide suspect card, went to Tyrone McMillian’s residence on July 6, 2011 to effect a "high felony" arrest; no arrest or search warrant accompanied the initial entry.
- After surrounding the house and announcing, Officer Shull arrested McMillian at the door; tactical officers conducted a warrantless protective sweep during which a rifle case was observed (government later conceded the sweep was unlawful).
- Officer Shull asked McMillian about shoes; McMillian said his flip-flops were in the back bedroom. Shull and McMillian’s girlfriend entered the bedroom and Shull observed two gun cases near the bed.
- Detective Gomez prepared a search-warrant affidavit referencing the rifle (later corrected to rifle case) and the observed gun cases, plus an informant’s uncorroborated tip linking McMillian to the 2007 homicides; a state judge issued a warrant.
- The government struck the rifle observation and the district court found no probable cause to search for homicide evidence but upheld probable cause to search for firearms based on the gun-case observation and found officers acted in good faith; McMillian was convicted after a stipulated bench trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of arrest | McMillian: arrest inside doorway was unlawful under Payton | Government: arrest was lawful; also dispute on whether inside at time of arrest | Forfeited on appeal — McMillian failed to raise this claim below; appeal barred for lack of good cause |
| Legality of protective sweep | McMillian: sweep was unlawful and its fruits tainted subsequent actions | Government conceded the sweep was unlawful but sought to preserve other evidence | Court: protective sweep unlawful; government correctly struck rifle reference from affidavit |
| Legality of entry into bedroom / consent | McMillian: consent to enter bedroom was not voluntary or was tainted by prior illegal sweep | Government: implied consent existed and was not shown to be tainted | Forfeited: court found implied consent and McMillian forfeited the taint argument for failure to raise it below |
| Validity of search warrant (probable cause & particularity) | McMillian: warrant lacked probable cause (relied on unlawful-sweep observations and an uncorroborated informant); address correction invalid without oath | Government: after striking illegal-sweep material, remaining affidavit (gun cases) supplied probable cause to search for firearms; correction was a harmless clerical fix approved by judge | Held: No probable cause for homicide evidence, but probable cause for firearms based on gun cases; typographical address correction did not invalidate warrant; warrant upheld |
Key Cases Cited
- Payton v. New York, 445 U.S. 573 (warrantless, nonconsensual home arrests generally prohibited)
- Maryland v. Buie, 494 U.S. 325 (permissible scope of protective sweeps)
- Schneckloth v. Bustamonte, 412 U.S. 218 (voluntariness standard for consent searches)
- Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances test for probable cause)
- Maryland v. Garrison, 480 U.S. 79 (particularity requirement and limits on exploratory searches)
- Steele v. United States, 267 U.S. 498 (officer must be able to ascertain intended place to be searched)
- United States v. Peck, 317 F.3d 754 (review of affidavits supporting warrants)
- United States v. Murdock, 491 F.3d 694 (preservation and forfeiture of suppression arguments)
- United States v. Robeles-Ortega, 348 F.3d 679 (taint analysis for consent after illegal entry)
- Brown v. Illinois, 422 U.S. 590 (factors for determining whether consent is purged of prior illegality)