United States v. Jackson

910 F. Supp. 2d 1146, 2012 WL 6569353, 2012 U.S. Dist. LEXIS 178066
CourtDistrict Court, E.D. Wisconsin
DecidedDecember 17, 2012
DocketCase No. 12-CR-122
StatusPublished
Cited by1 cases

This text of 910 F. Supp. 2d 1146 (United States v. Jackson) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jackson, 910 F. Supp. 2d 1146, 2012 WL 6569353, 2012 U.S. Dist. LEXIS 178066 (E.D. Wis. 2012).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

The government charged defendant Donaven Jackson with possessing ammunition as a felon, contrary to 18 U.S.C. § 922(g)(1). Defendant moved to suppress evidence seized from his home pursuant to a consent search and from his cell phone pursuant to a search warrant. He argued that his ex-girlfriend lacked authority to admit the police into his home and that the warrant did not authorize a search of the contents of his phone. A magistrate judge held an evidentiary hearing on the consent issue and recommended that defendant’s motion be denied. Defendant objects, and I now consider the matter de novo. See Fed.R.Crim.P. 59(b).

I. FACTS1

On May 7, 2012, City of Kenosha police officers Knight and Torres responded to a domestic violence complaint from Shantrice King at 7104 87th Avenue. (R. 19 at 1 ¶ 2). Defendant was the lessee of the residence located at that address. His was the only name on the lease. The lease specified that the premises were to be used as the residence of defendant and his two minor children; it prohibited occupancy by guests for more than two weeks absent the landlord’s written consent. [1148]*1148(8/1/12 Evid. Hr’g Tr. [R. 24] at 45-17; Hr’g Ex. D-2.)

Outside the residence, the officers encountered defendant, King, their two or three year old child Jamauri and King’s friend Jamaica Presha. Torres noticed a small rip in the back of defendant’s T-shirt. (R. 19 at 1 ¶ 2.) King told Knight that defendant had directed her to move out of the residence and that he began removing her clothes from a closet on the second floor. She then followed him upstairs, and the two argued. Defendant went downstairs to the dining room and began to take keys off King’s key ring. King snatched the keys from defendant, and defendant grabbed her by the face and neck and pushed her against the wall. King resisted and grabbed defendant’s shirt. Defendant then pushed King over a love-seat, and King called 911. While King was on the phone, defendant went downstairs and returned with a firearm but King did not see what he did with it. Defendant did not have the gun when the police arrived. (R. 19 at 1-2 ¶ 3; Ex. B at 6.) Upon arrival, Knight observed that King was shaking, appeared nervous and had a cut on her finger; however, he saw no marks on her face or neck.2 (R. 19 at 2 ¶ 5.)

After the interview, Knight and King looked for the gun but did not find it. The police arrested defendant and subsequently discovered that he was a felon. Knight then called King and asked her to try to find the gun and to call him if she found it. King, who was not at the residence when she received the call, did not call Knight to report finding the gun. (Id. at 2 ¶ 6.) Detective Johnson then took over the domestic violence matter, reviewed Knight’s report and King and Presha’s witness statements, and spoke to Torres. (Tr. at 11-12.) Knight’s report listed King as the complainant and stated that she, Jamauri and Presha lived at 7104 37th Avenue. (Tr. at 14-15; Ex. B at 1-2.) However, in her statement, Presha listed a Sycamore, Illinois address. (Ex. B at 5; see also Tr. at 36.) Johnson asked Torres to prepare a report based on his interaction with defendant. In that report, Torres stated that defendant “denied striking his live-in girlfriend, Shantrice King” and “said he did not touch her other than to push her away when he tried to get his keys.” (Ex. B at 11; see also Tr. at 17.)

The next day, May 8, Johnson called King and asked her if the police could come to the 37th Avenue residence to look for the gun. (Tr. at 18.) King was not at the residence when she received the call. She agreed to meet Johnson at the residence at 5:00 p.m. (Id. at 19.) When Johnson arrived at the residence, King was not there. She subsequently arrived in a vehicle accompanied by Jamauri and Presha. (Id.) The residence has an enclosed front porch through which one can enter a living room through a wooden door. (Id. at 21-22; see also Ex. C, a photo of the front entrance.) King and Johnson entered the porch through an unlocked door, and King then used a key to unlock the wooden door. (Tr. at 22.) At that point, Johnson stated that the police wanted to look for the handgun and asked King to consent to a search of the home. (Id. at 24.) Johnson testified that:

... when I search a home, of course, the first thing I want to do is establish that [1149]*1149the person that'I’m asking for consent from lives there. And in this case she indicated she did. And from there I go on to explain the form that I fill out and the consent form, and eventually ask for her to sign the form giving us consent to search.

(Id.) King consented to a search of the premises and signed a consent form. (Id. at 25; Ex. 3 A; R. 19 at 2 ¶ 7.) Johnson advised police officer Schaal and three assisting officers to look for the gun. (Tr. at 26.)

Schaal noticed some boxes, bags and children’s toys on the porch. (Id. at 42.) The living room was empty except for an entertainment center with a large-screen TV, some DVDs, movies and games. (Id. at 42-43.) In the basement, Schaal noticed a mat reading “Snoop’s man cave.” He knew that defendant’s nickname was “Snoop.” (Id. at 43.) In the basement, in a living area with a couch and television, officers recovered ammunition, a quantity of crack cocaine, drug paraphernalia, a gun lock and personal effects but no gun. (R. 19 at 2 ¶ 8.)

After assisting with the search, Johnson spoke again with King. She told him that she had lived at the residence for about a year with defendant and their son.3 (Tr. at 27.) She stated that she had full access to the home including the man cave area in the basement.4 (Id. at 28.) The officers asked King if there were other areas where defendant might have hidden the gun, and she mentioned the garage. (Id.) Officers searched the garage locating a 2006 Chrysler 300 Sedan registered to a Tasha Booker. King told officers that defendant owned the car and gave them a key. The officers searched the vehicle and found money in the glove box and trunk but no gun. (R. 19 at 2-3 ¶ 9.) Schaal observed a red Jeep Cherokee parked in front of the residence which Bang said belonged to defendant. The officers then obtained and executed a search warrant for the Jeep but did not find a gun. (R. 19 at 3 ¶¶ 10-11.)

On May 10, officer Viola obtained a search warrant for a cell phone taken from defendant after his arrest. The phone was with defendant’s other personal property at the Kenosha detention center. (R. 19 at 3 ¶¶ 12-13.) In his supporting affidavit, Viola relied on evidence gathered during the search of defendant’s home. (Ex. D-3 at 6.) A court commissioner issued the warrant,5 but the phone was password-[1150]*1150protected causing the officers to download the contents of the phone’s SIM/Memory Card onto 3 CDs and log them in evidence. (R. 19 at 3 ¶¶ 14-17.)

II. DISCUSSION

A. Consent Search of a Home

1. Applicable Legal Standards

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Cite This Page — Counsel Stack

Bluebook (online)
910 F. Supp. 2d 1146, 2012 WL 6569353, 2012 U.S. Dist. LEXIS 178066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jackson-wied-2012.