United States v. James Vanderweele

545 F. App'x 465
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 13, 2013
Docket12-2237
StatusUnpublished
Cited by9 cases

This text of 545 F. App'x 465 (United States v. James Vanderweele) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Vanderweele, 545 F. App'x 465 (6th Cir. 2013).

Opinion

KETHLEDGE, Circuit Judge.

James Vanderweele pled guilty to possession of unregistered firearm silencers in *467 violation of 26 U.S.C. § 5861(d). In his conditional plea agreement, Vanderweele waived his right to appeal, except “to seek review of the U.S. District Court’s denial of his motion to suppress evidence.” He now appeals the district court’s denial of that motion on two grounds. First, he argues that his statements to an ATF agent should be suppressed on grounds not argued below. Second, he argues that there was not probable cause to issue a search warrant. We affirm.

I.

On July 28, 2010, an informant told ATF Agent James Petschke that, four to five months earlier, he had seen James Van-derweele with a .22-caliber pistol and a silencer at the Rebels Motorcycle Clubhouse in Escanaba, Michigan. The informant also said that Vanderweele demonstrated how the silencer screwed on to the barrel of the pistol. Six weeks later, Petschke checked Vanderweele’s records and found that Vanderweele had three .22-caliber pistols registered to his name, but no silencers. Petschke then sought a warrant to search Vanderweele’s house for evidence that he possessed unregistered silencers. A magistrate judge issued the warrant.

On September 22, Petschke and a search team, consisting of ATF and local law enforcement officers, executed the warrant. Fifteen minutes before the search, a white male drove a moped past them. Detectives Jeffrey Erickson and his partner were posted on an undercover watch of the alley behind Vanderweele’s house. Suspecting that the moped’s rider was Van-derweele, the detectives pulled next to the moped at an intersection five blocks from the house. Detective Erickson rolled down his window and, as a ruse, said, “Hey, Mike.” The driver responded that his name was James. Then the detectives exited their car and asked Vanderweele for identification. Erickson called Petschke to notify him that he was with Vanderweele.

Erickson checked the police database and found that Vanderweele’s driver’s license was restricted — he was only allowed to drive to work and medical appointments. Erickson asked Vanderweele where he was going. Vanderweele replied that he was headed to the grocery store for cigarettes. Erickson asked Vander-weele to return home for the search. Van-derweele consented.

Erickson and his partner could not transport Vanderweele in their unmarked car, so they called for backup. Officer Sovey responded. The officers told Van-derweele that he was not under arrest, but that they were required to handcuff him for the front-seat ride to his house because Sovey’s police dog was in the backseat. Sovey handcuffed Vanderweele and then drove him five blocks back to his house.

Meanwhile, Petschke’s team searched Vanderweele’s house. Petschke left the house to talk to Vanderweele and advised him of his Miranda rights. Vanderweele agreed to answer questions, telling Petsch-ke that he had four silencers in the house and where to find them. Sovey again placed Vanderweele in his police vehicle while the search continued.

The search team found four silencers, three handguns, a rifle, gun parts, and tools that could be used to make silencers. One of the handguns had a threaded barrel so that a silencer could be screwed onto it. Police found that gun, a silencer, two loaded magazines, and several boxes of ammunition in a black nylon bag beneath Van-derweele’s bed.

After finding the silencers, Petschke read Vanderweele his Miranda rights, for the second time. This time Vanderweele requested an attorney. Petschke asked no *468 further questions. After the search was complete, Petschke’s team took the contraband, but left Vanderweele at his home.

In February 2011, a federal grand jury indicted Vanderweele for possession of unregistered silencers in violation of 26 U.S.C. § 5861(d). Vanderweele filed a motion to suppress the items seized from his house and his statements to Petschke. He argued that the search warrant failed to establish probable cause because it was based on stale information and did not show a connection between the silencers and his home. He also argued that he was not read his Miranda rights and that Petschke coerced him to make statements.

A magistrate judge held an evidentiary hearing at which Petschke, Erickson, So-vey, and Vanderweele testified. Afterward, the magistrate judge recommended that the district court find that the affidavit in support of the search warrant sufficiently showed probable cause to search Vanderweele’s home, and that in any event the officers executed the warrant in good faith. The magistrate judge also recommended finding that Petschke gave a Miranda warning to Vanderweele before he made his initial statement. The district court adopted these findings, but remanded the case for an additional finding on whether Petschke coerced Vanderwheele. Accordingly, the magistrate judge prepared a second report and recommendation, in which he found no coercion. The district court adopted that finding over Vanderweele’s objection.

On April 18, 2012, Vanderweele pled guilty to unlawful possession of silencers pursuant to a conditional plea agreement. In the plea agreement, Vanderweele waived his right to appeal, except “to seek review of the U.S. District Court’s denial of his motion to suppress evidence.”

This appeal followed.

II.

A.

Vanderweele argues that the district court erred when it denied his motion to suppress his statements to Petschke. In support, Vanderweele cites the Supreme Court’s recent decision in Bailey v. United States to contend that his statements were a product of an illegal detention, and therefore must be suppressed. — U.S. -, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013).

We review de novo whether Vander-weele waived his right to make this argument on appeal. United States v. McGilvery, 403 F.3d 361, 362 (6th Cir.2005). Conditional guilty pleas must “reserv[e] in writing the right to have an appellate court review an adverse determination of a specified pre-trial motion.” Fed. R.Crim.P. 11(a)(2). The defendant has an “affirmative duty” to “preserve any issues ... by specifying them in the plea itself.” United States v. Ormsby, 252 F.3d 844, 848 (6th Cir.2001).

Vanderweele’s plea only “reserves the right ... to seek review of the U.S. District Court’s denial of his motion to suppress evidence.” This language preserves only the arguments he made below. See United States v. Woosley, 361 F.3d 924 (6th Cir.2004).

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545 F. App'x 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-vanderweele-ca6-2013.