ORDER
On January 19, 2011, a federal grand jury issued a two count indictment against the defendant, Luis G. Delgado (“Delgado”). (Docket # 1). At the first count, the indictment charged that on or about December 29, 2010, Mr. Delgado violated 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which collectively make it unlawful for a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess any firearm or ammunition. Id. ¶¶ 1-3. Specifically, the indictment alleged that Mr. Delgado possessed one 20 gauge short barreled pump shotgun, one 410 gauge bolt action shotgun, and approximately 314 rounds of ammunition. Id. ¶¶ 2-3. At count two, the grand
Less than a month later, on June 1, 2011, Mr. Delgado, through his attorney, moved to suppress: (1) “any and all physical evidence recovered by City of Milwaukee police officers, on or about December 29, 2010, during their ... search of his home,” including the two firearms and the ammunition that are the basis of the charges in the underlying indictment; and (2) “any and all statements [the defendant] made in response to questioning by” a City of Milwaukee police officer “while outside of his residence and handcuffed and seated inside a police squad car.” (Docket # 8). In conjunction with his motion to suppress, Mr. Delgado proffered a series of facts summarizing the factual predicate for his motion. Id. ¶ 5. Five days later, the government wrote a letter to Magistrate Judge William E. Callahan, Jr., the assigned magistrate judge who would initially review the defendant’s motion, to advise the court that “no material disputed facts are known with respect to the motion to suppress ... that would require an evidentiary hearing.” (Docket # 9). A week later, the government provided its response to the motion to suppress, including its view of the facts underlying the matter. (Docket # 10). After the defendant had an opportunity to respond to the government’s brief in opposition (Docket # 11), Magistrate Callahan issued a recommendation that this court should grant Mr. Delgado’s motion in its entirety. (Docket # 12). The government has filed an objection to the report and recommendation (Docket # 13), and this court is now obliged to make a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Delgado v. Bowen,
BACKGROUND
In the early afternoon of December 29, 2010, City of Milwaukee Police Officer Glenn Podlesnik (“Podlesnik”) was dispatched to the 1900 block of South 12th Street in Milwaukee due to a report that “shots” were fired in a nearby alley. (Docket # 8 ¶ 5(a); Docket # 10 at 1). Upon arriving at the location he was dispatched to, Officer Podlesnik witnessed a Hispanic male running from the alley area toward 1830A South 13th Street, a location to the northwest of the initial dispatch area. (Docket # 8 ¶ 5(b); Docket # 10 at 1). The police officer noted that the Hispanic male was clutching his left waistband as he was sprinting from the alley, making it appear as if he was holding some sort of firearm. Id. The 1830A South 13th Street location is a second-floor apartment in a building that also houses a tavern (“1832”) and another apartment (“1830”). (Docket # 8 ¶ 5(c)). The only means to access the apartment at 1830A South 13th Street is to open a door located in the back of the central building and to proceed up a flight
As Officer Podlesnik followed the Hispanic male toward 1830A South 13th Street, a citizen witness approached the police officer, informing him that the witness’ cousin, Adrian Aviles (“Aviles”), had just called the witness to state that he had been shot and was inside the second-floor apartment. (Docket # 8 ¶ 5(e); Docket # 10 at 2). The witness further explained that Mr. Aviles told her that a black male, a neighbor of the witness, had shot the witness’ cousin in the alley, prompting Mr. Aviles to flee to the 1830A apartment. Id. Officer Podlesnik, joined by fellow officers, proceeded to the entrance of the 1830A apartment and knocked on the apartment door.
Police officers then entered the building and proceeded into the 1830A apartment to perform a sweep of the residence. (Docket # 8 ¶ 5(k); Docket # 10 at 2). Upon looking in a closet in Mr. Delgado’s bedroom, the officers found three rifles and three shotguns, including a sawed-off shotgun and ammunition. (Docket # 8 ¶ 5(1); Docket # 10 at 2). After the discovery of the weapons in the apartment, Officer Podlesnik returned to the police squad car to ask Mr. Delgado who lived at the 1830A apartment and to seek consent to search the apartment. (Docket # 8 ¶ 5(m); Docket # 10 at 2). Mr. Delgado informed the police officer that the defendant’s mother’s name was on the lease, but he rented the apartment from his mother. Id. The defendant consented to a police search of the apartment, and, as a consequence, a second search followed. (Docket # 8 ¶ 5(m-n); Docket # 10 at 2).
Following the second search of the apartment, Officer Podlesnik approached Mr. Delgado, who remained seated inside the police squad car, and inquired if he had ever been arrested. (Docket # 8 ¶ 5(o); Docket # 10 at 3). Mr. Delgado responded that he had been arrested for “armed robbery party to a crime.” Id. The police officer followed up by asking if the defendant had been convicted of that charge, to
ANALYSIS
The motion to suppress raises three distinct arguments: (1) the police handcuffing of Mr. Delgado outside of the building at 1830A South 13th Street and placing him in a squad car was unlawful; (2) the searches of the apartment were unlawful, and (3) the statements made by Mr. Delgado in response to Officer Podlesnik’s questioning were obtained in violation of the defendant’s Miranda rights. (Docket # 8 ¶ 13). The court will address each argument in turn.
A. Did the police act unlawfully in handcuffing the defendant and placing him in a squad car?
The court begins with the government’s justification for handcuffing Mr. Delgado and placing him in the squad car after the police encountered the defendant at the 1830A apartment. The government contends, and the magistrate agreed, that Mr. Delgado’s detention occurred under the auspices of a Terry investigative stop. Pursuant to the seminal case of Terry v. Ohio,
1. Did the police have reasonable suspicion to detain the defendant?
To determine whether the police officers who detained Mr. Delgado were “able to point to specific and articulable facts that give rise to a reasonable suspicion of criminal activity,” United States v. Tilmon,
Applying these principles to the case at hand, the court can readily conclude that Officer Podlesnik had reasonable suspicion to suspect a crime had or was occurring. Indeed, the situation that the police officer faced on December 29, 2010, was quite grave. The police officer, after being dispatched to investigate a mid-day shooting in an urban area, witnessed a man sprinting from the scene of shooting — and presumably the police — toward the 1830A South 13th Street address while suspiciously holding his side.
2. Was the degree of intrusion Mr. Delgado encountered during his detention reasonably related to the known facts?
The defendant’s central argument for why his initial detention on December 29, 2010, was unlawful is that his detention exceeded the scope of a Terry stop. Specifically, the defendant contends that the seizure constituted an arrest, as opposed to an investigative stop, because he was handcuffed and placed in a squad car. (Docket #11 at 2-3). These arguments are non-starters. The court finds nothing unreasonable about a squad car, as opposed to a city alley, being the site of an investigatory stop occurring in the middle of a winter day in Milwaukee. Moreover, given the reasonable suspicion that Mr. Delgado was just involved in a shooting, the police acted reasonably in placing the defendant in a location that minimized the threat to public safety and maintained the status quo. See Jewett v. Anders,
The defendant argues that the police should have first interrogated Mr. Aviles and Mr. Delgado before they detained the defendant. (Docket # 11 at 4). The court will not indulge in such Monday morning quarterbacking. First, had the police first questioned the two individuals who ran out of the apartment, the officers would have left themselves potentially vulnerable to threats lurking in the apartment. Given the inherent limits on the resources of the police, the court finds that the strategy of detaining the defendant and securing the apartment and the surrounding area before questioning Mr. Delgado was a sound one. Second, and more importantly, as the Supreme Court has noted, a “creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.” United States v. Sharpe,
B. Did the police act unlawfully in performing two searches of the 1830A apartment?
The Fourth Amendment to the United States Constitution “protects the ‘right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” United States v. Jackson,
Warrantless searches and seizures within a home are considered presumptively unreasonable and a violation of the Fourth Amendment. United States v. Bell,
1. Exigent Circumstances
The government first argues that “exigent circumstances” allowed the police officers to search the defendant’s residence without a warrant. Indeed, “one well-recognized exception” to the warrant requirement for searches inside a home is “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, — U.S. —,
With respect to the government’s emergency aid exception argument, the central issues are the level of proof the government needs to demonstrate that their warrantless entry into the house was lawful and whether the government has met their burden. The magistrate’s recommendation posited that the requirement the government needed to demonstrate that exigent circumstances existed was “probable cause.” (Mag.’s Rep. at 6). The reference to probable cause confuses the issue substantially, however.
Nonetheless, the court concurs with the ultimate conclusion the magistrate reached with respect to the emergency aid argument proffered by the government. It is incumbent on the government to show that “exigent circumstances justified an officer’s warrantless entry.” Venters,
2. Protective Sweep
The government’s second and far more cogent argument for why the search of Mr. Delgado’s apartment was lawful is that the search was within the permissible scope of a “protective sweep.” (Docket # 10 at 7). In Maryland v. Buie, the Supreme Court first identified the “protective sweep” as an exception to the warrant requirement of the Fourth Amendment.
The defendant first argues that the protective sweep doctrine is inapplicable here because Mr. Delgado was not arrested and a legally permissible protective sweep can only be done in the context of a search incident to arrest. (Docket # 11 at 7). The magistrate likewise stated that it was an open question as to whether the principles espoused in Buie extend to the non-arrest context. (Docket # 12 at 10 n. 1). The court does not find the issue as cloudy as the magistrate found it to be and ultimately disagrees with the defendant’s first argument. The magistrate and the defendant cite to the case of United States v. Johnson,
In addition, the defendant argues for the first time
Applying these principles to the case at hand, the court finds the government has shown articulable facts that would have warranted a reasonably prudent officer in believing that Mr. Delgado’s apartment harbored an individual posing a danger to those on the scene. While the court finds the case for a warrantless search of the defendant’s apartment is far from a “slam dunk,” the undisputed facts speak to the extreme danger that faced the police on December 29, 2010. The police were called to the scene of a violent shooting that occurred in an alley of an urban area in the middle of a winter day. Upon arriving on the scene of the incident, the police soon learned at least four critical facts. First, the law enforcement officer discovered that the person who had been shot in the alley had taken shelter in a nearby apartment. Second, the police witnessed another man, holding what appeared to be a firearm, sprinting from the alley toward the same exact apartment housing the victim of the incident. Third, the police learned of the existence of a third man, who had done the shooting in the alley and whose whereabouts were unknown. Fourth, the victim and the sprinting man emerged unarmed from the apartment where the victim had taken shelter.
Based on the specific facts known to the officers who were situated in the open doorway of Mr. Delgado’s apartment, the court finds that they could make several extremely rational inferences from those facts. First, from the fact that the victim — who was not a resident of the 1830A apartment — gained access to the defendant’s residence with relative ease in the aftermath of the shooting, the police could conclude that Mr. Delgado’s apartment was readily accessible to those who wanted to enter it. Second, based on the fact that the sprinting man who Officer Podlesnik had just witnessed to be in the apparent possession of a firearm had just exited the apartment unarmed, the police could surmise that a gun remained in Delgado’s apartment. Couple that fact with the knowledge that a third person, the alleged shooter, had not yet been captured, the police knew that possibly two firearms that were recently in the possession of people who were involved in a midday urban shootout were unaccounted for and had the strong possibility of being used in the wake of the alley shootout. Finally, and most importantly, the court finds that it was reasonable for the police to suspect that the third man — the shooter — choose to not linger in the cold alley after he shot at the victim, but instead followed that victim and his running cohort toward the easily accessible apartment sanctuary to finish what the shooter had started in the alley. In short, the police were faced with the serious probability that severe danger lurked in the 1830A apartment.
However, probability — that is “a good reason” to suspect that evidence of a crime exists or that an individual suspected of a crime is in a certain location — is not the standard by which the government must show that the protective sweep was justified. See Hanson v. Dane County,
The magistrate’s report recommended granting the motion to suppress because the government had at best proven that “perhaps” a dangerous person remained in Mr. Delgado’s apartment following Aviles and the defendant’s exit from the apartment. (Docket # 12 at 12). The fact that the magistrate could only conclude that “perhaps” a dangerous individual was in Delgado’s apartment is not reason alone to grant the motion to suppress. “Perhaps” merely implies uncertainty with outcome, see Random House Dictionary of the English Language 1439 (2d ed. 1987) (defining “perhaps” as “maybe, possibly”), a standard, as discussed above, inherent in police actions based on “reasonable suspicion.” Gentry,
The magistrate’s report, in passing, seems to conclude that the detention of Mr. Delgado outside the 1830A apartment somehow eliminated whatever dangers were lurking in the apartment. (Docket # 12 at 13) (“It is my opinion that the government has not demonstrated that here, especially after Delgado was handcuffed and placed in the police car.”). However, the defendant was not the only threat facing police on December 29, 2011. The police were confronted with an urban shootout in which the location of the firearm and the location of the person who had allegedly fired that gun were not completely known to the law enforcement agents at the scene. Given the apparent ease by which people could enter the 1830A apartment and the non-trivial risk that a shooter may have followed his target from the alley to their sanctuary, the court finds that Mr. Delgado’s detainment did little to curb the potential risks facing the police in the apartment.
In support of the magistrate’s recommendation, the defendant cites to the Sixth Circuit cases of United States v. Colbert,
Even if the court were to find the Sixth Circuit’s reasoning persuasive and in line
Perhaps more importantly, the facts of both Colbert and Archibald are distinguishable from the present case in that neither case presented facts, like the one before the court, in which the police were on the scene of the remnants of an urban shootout. The dangers facing the police on December 29, 2010, were real, as there was no doubt that shots had rang out mere moments before the police had arrived on the scene. Indeed, the court agrees with the conclusion of another Sixth Circuit case, which held that officers have the right to “secure [a] premises to ensure the protection of everyone on the scene and to prevent the loss or destruction of the owner’s property.” United States v. Johnson,
The defendant makes a few other arguments worthy of note. Mr. Delgado suggests that there is “no evidence the officers claimed to have heard any shuffling coming from inside the apartment.” (Def.’s Resp. Br. at 8). However, there is no basis in the law that the police need to hear some sort of a noise in an apartment to conclude that someone is in the residence. Indeed, the most devious of criminals would likely try to muffle any sounds he or she could make before attempting an ambush on the police. Here, there was other credible circumstantial evidence indicating that Mr. Delgado’s apartment harbored dangerous parties. The defendant also argues that there was “no evidence that the officers asked Mr. Delgado or Mr. Aviles whether anyone was inside the apartment.” (Def.’s Resp. Br. at 8). However, as noted earlier, the “court may not second guess how the police structure their priorities in an investigation,” United States v. Bell,
The court has one remaining comment with regard to the propriety of the protective sweep performed in this case. While the police were ultimately incorrect about whether a dangerous person remained in the 1830A apartment, and even about whether the apartment could have been accessed through another entrance, “courts must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry
C. Were the statements made by Mr. Delgado in response to Officer Podlesnik’s questioning obtained in violation of the defendant’s right against self-incrimination?
Miranda and its progeny hold that “before police can initiate custodial interrogation of a defendant, they must advise the defendant of certain rights.” See United States v. Shlater,
However, the government argues that the “kinds of questions asked of [Delgado] were in the nature of ‘general-on-the-scene’ questioning” and, therefore, are exempted from the rule of Miranda. (Docket # 10 at 9). The court agrees in part with the government’s assertion. Not all questions posed by the police to a person in custody entail “interrogation,” which, in turn, invokes the Miranda rules. See Rhode Island v. Innis,
The government also argues, citing to New York v. Quarles,
The government contends that the police would have “inevitably discovered that defendant Delgado was a convicted felon from their own records.” (Docket # 10 at 9). While the government’s argument is well taken and unrebuked by the defendant, the government’s assertion does not wholly resolve the issue. The doctrine of inevitable discovery is an exception to the exclusionary rule that renders illegally obtained evidence and its fruits admissible if the evidence would have been discovered by legal means absent the illegality. Nix v. Williams,
Accordingly,
IT IS ORDERED that Magistrate Callahan’s recommendations (Docket # 12) be and the same are hereby ADOPTED IN PART;
IT IS FURTHER ORDERED that the defendant’s motion to “suppress physical evidence based on warrantless and nonconsensual search of his residence and his statements based on Miranda violation” (Docket #8) be and the same is hereby GRANTED in part and DENIED in part; evidence in the form of “any and all statements” the defendant made “in response to questioning by City of Milwaukee Police Officer Glenn Podlesnik” with respect to the defendant’s criminal history be and the same are hereby SUPPRESSED.
Notes
. There is no evidence in the record to indicate that this fact was readily apparent to the officer’s at the scene, however.
. Unclear to the court, from the parties' submissions and the magistrate’s report is whether the police were knocking on the door that was the outside entrance to the apartment building or the door of the actual apartment. The defendant’s motion references officers forcing "entry into the building,” (Docket # 8 ¶ 5(f)), whereas the government’s response is ambiguous and almost seems to imply that the officers were knocking on the door inside the building. (Docket #10 at 2) ("Mr Aviles opened the door from inside the apartment ...”). Given the United States’ concession that it does not dispute the facts contained in the motion to suppress (Docket # 9), the court assumes that any ambiguity needs to be resolved in favor of the defendant's description of the event in the motion suppress — i.e., the court assumes that Mr. Aviles and Mr. Delgado first interacted with the police outside of the door to the apartment building in the alley below 1830A South 13th Street.
. The court can only surmise that the police officers reasonably concluded that the sprinting man was holding his side because he was holding an object, such as a weapon.
. The defendant does not argue that the duration of the detention was excessive. The record, while incomplete on this issue, does not provide any indication that the length of Mr. Delgado’s initial detention was any longer than necessary under the circumstances facing the police officers at the scene.
. This is not to say that the magistrate was misstating the law. Rather, the Seventh Circuit, at times, when applying the "exigent circumstances” doctrine, have wholesale adopted a separate probable cause prong to satisfy the doctrine. See United States v. Venters,
. Indeed, if there needs to be "probable cause” that a crime occurred for the emergency aid exception to be applicable that would necessarily prevent the police from entering a home without a warrant and in the absence of any evidence of criminal activity when there was substantial evidence that a person inside the home was in need of immediate medical attention. Such a rule would stand in contrast to long standing Supreme Court precedent. See McDonald v. United States,
. The government argues that the mere presence of guns "justify exigent circumstances searches.” However, in the cases cited by the government, such as Huddleston, the objectively reasonable basis for entering the residence was not just the isolated fact that a gun was in the residence — that fact standing alone would justify the government raiding any residence that was known to contain a gun — but that the gun had the potential to be used by someone.
. The government makes passing references to the argument that an entrance was needed to secure the apartment. This argument sounds more of the "protective sweep” exception to the warrant requirement, and, as such, the court will analyze the government’s contention under that rubric.
. The magistrate spent a considerable amount of his recommendation discussing whether a protective sweep of a person's residence can occur when a person is detained “just outside of the home.” (Docket # 12 at 10-11). This court concludes that this issue is not a complicated one, however, as the Seventh Circuit has already held that an "[e]ntry into a domicile” can occur without a warrant when the entry is a mere “quick inspection” justified by "lower degrees” of suspicion, such as with a “protective sweep.” United States v. Brown,
. In fact, the lower court, whose decision was affirmed in its entirety by the Seventh Circuit, in applying the Leaf decision, held that Buie applies outside of the context of an arrest. See Skrzypek v. United States, No. 07 C 5753 & 07 C 5754, No. 97 CR 516,
. Before the magistrate, the defendant limited his argument to the issue of whether the protective sweep doctrine applies to an arrest. (Docket # 11).
. Given the fact intensive nature of an inquiry into the lawfulness of a protective sweep, the court questions the wisdom of both sides failing to request an evidentiary hearing in this case, in which the facts could have been far more fully developed. Nonetheless, the court can make a decision based on the record before it.
. The court does not mean to imply that the police in the following cases were not in dangerous situations, such as executing an arrest warrant for a suspected felon. Rather, the court is merely noting that the police in the following cases did not find themselves in the midst of an urban shootout.
. The court exercises its discretion to not recommit the Miranda issue to the magistrate for further consideration. 28 U.S.C. § 636(b)(1).
. This is particularly true given the prosecutor’s statement that Mr. Delgado’s arrest was also based on his possession of a sawed-off shotgun, "an illegal act even for a non-felon.” (PL's Resp. Br. at 9).