United States v. Juan Benet Johnson

170 F.3d 708, 1999 U.S. App. LEXIS 3993, 1999 WL 130205
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 12, 1999
Docket97-2021, 97-2414
StatusPublished
Cited by97 cases

This text of 170 F.3d 708 (United States v. Juan Benet Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Juan Benet Johnson, 170 F.3d 708, 1999 U.S. App. LEXIS 3993, 1999 WL 130205 (7th Cir. 1999).

Opinions

DIANE P. WOOD, Circuit Judge.

When the people of the United States decided to include the Fourth Amendment in the Bill of Rights, they did so for a reason. They wanted to place constraints on the power of the police to conduct searches and seizures based on no more than a general warrant, because they knew that such unchecked power could lead to serious abuses. Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“[Indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”) (footnote omitted). See generally Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 19-42 (1966).

Although the Supreme Court has found exceptions to the warrant requirement in a number of compelling situations, it has never deviated from the rule that generalized suspicion alone is not enough to justify a warrantless search of a home, or a seizure of a person incident to such a search. In this case, Juan Johnson convinced the district court that he had been the victim of exactly this kind of prohibited action. It therefore granted Johnson’s motion to suppress evidence that the police seized. The United States has appealed under 18 U.S.C. § 3731, and we affirm in part and remand in part for further proceedings. In so doing, we do not in any way underestimate the danger or difficulty of the job of the patrolman on the beat; we hold only that before a police officer targets a particular house and decides to seize literally anyone who might emerge from that house, he or she must either have a warrant or fall within one of the warrant exceptions that the Supreme Court has recognized.

[711]*711I

In December 1996, the Milwaukee Police Department (MPD) received a citizen report that drug activity was probably taking place in an apartment building located at 1033 West Atkinson Avenue, in Milwaukee. The information came from a community organization known as MICAH, which apparently is a group that gathers information on possible drug dealings in the area and forwards any information along to the police vice squad. MICAH had been contacted by Philip Aggen, the property manager of 1033 West Atkinson. Aggen identified four particular apartments as trouble spots, including apartment 7.

Detective Mark Mathy, Officer Glenn Bishop, Officer Brian Reilly, and Officer Suzanne Becker, all of the MPD, decided to respond to the complaint using their “knock and talk” technique. As the district court explained, in a “knock and talk,” the police approach a house or apartment in which they suspect drug dealing is occurring. They listen outside the door for a brief period of time, and then they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia or contraband is in plain view. If it is, then they make a warrantless entry. As this description makes plain, the “knock and talk” procedure typically does not involve the prior issuance of a warrant.

Before the four officers went to the West Atkinson address, they called Aggen and confirmed with him that he had filed the report. At that time, Aggen admitted that he had been told about alleged drug activity, but that he had no personal knowledge of it. Thus, it was plain when the officers decided to check out MICAH’s (and Aggen’s) complaint (and the state does not argue otherwise) that they could not have obtained a warrant based on the information they then had.

New Year’s Eve 1996 was the time the four officers decided to try their “knock and talk” at 1033 West Atkinson. Wearing plain clothes, they went to the building and gained admission from a maintenance worker, Michael Spolowitz. Mathy informed Spolowitz that the MICAH complaint listed apartments 1, 3, 4, and 7 as places where drug dealing might be going on. Spolowitz confirmed that apartment 7 was a busy place and that he believed there could be drug dealing going on there. He also commented that he had observed a lot of people going to apartment 7, leaving quickly, and then departing through the rear building exit.

With this additional information, the foursome walked around to the rear of the building and ascended a rear stairway to the second floor. As they walked up, they heard an upstairs door close at the south end of the building, and they heard footsteps in the hall. Mathy then heard a door slam shut. As they approached apartment 7, Mathy could hear voices inside it* but he could not distinguish what anyone was saying.

In keeping with their “knock and talk” routine, Mathy and Reilly positioned themselves on the right side of the door of No. 7, while Bishop and Becker moved to the left. Reilly stood behind Mathy, and the two listened to the voices inside the apartment. After 15-20 seconds, Mathy prepared to knock. At virtually the same instant, however, a man later identified as Johnson suddenly opened the door. Both Mathy and Johnson were startled to see the other. At that point, Mathy moved to the center of the 36-inch doorway, displayed his badge, and identified himself as a police officer. Johnson, who stands about 5’9” and weighs about 220 pounds, and who was wearing a bulky, black, triple fat goose jacket and blue jeans, stood opposite Mathy in the center of the doorway. Mathy is approximately 5’10” or 5’11” and weighs 185-190 pounds. During this time, Reilly remained behind Mathy, which meant that both Mathy’s body and Johnson’s body interfered with his view into the apartment.

The surprise encounter at the door set off a scramble inside the apartment, which Ma-thy observed. Johnson then tried to walk past Mathy out into the hallway, but Mathy stuck out his hand to stop Johnson and directed Reilly to take control of him. In testimony that the district court discredited, [712]*712Reilly asserted that at that moment he saw a woman inside the apartment, seated at a table, throw what he believed to be a crack pipe to the floor.

Following his usual practice during a “knock and talk,” Reilly prepared to frisk Johnson, even though (as the district court found) Reilly indicated that he did not have reason to believe that Johnson had a weapon. Instead, he relied only on his general knowledge that persons involved in narcotics offenses are often armed and the information furnished in the MICAH complaint. Reilly asked Johnson whether he had a weapon, but Johnson did not respond. While this part of the encounter was occurring, Johnson’s hands were visible, away from his body, and Reilly could see that he was not holding anything. Reilly extended his own hands, getting ready for the frisk, and Johnson brought his hands up to Reilly’s hands and pushed Reilly’s hands outward, mirroring Reilly’s gesture. Reilly interpreted this as a sign that Johnson was not going to allow Reilly to pat him down.

In the meantime, Mathy, Bishop, and Becker had walked into apartment 7. Reilly ordered Johnson to go back into the apartment, too, but Johnson refused twice to do so. When Johnson again tried to leave, Reilly grabbed him; Johnson struggled; and Reilly (joined by Mathy and Bishop, who returned to assist Reilly) forced Johnson to the floor.

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Cite This Page — Counsel Stack

Bluebook (online)
170 F.3d 708, 1999 U.S. App. LEXIS 3993, 1999 WL 130205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-juan-benet-johnson-ca7-1999.