United States v. Lijewski

39 F. Supp. 3d 917, 2014 WL 3894366, 2014 U.S. Dist. LEXIS 109582
CourtDistrict Court, E.D. Michigan
DecidedAugust 8, 2014
DocketCase No. 13-cr-20832
StatusPublished
Cited by1 cases

This text of 39 F. Supp. 3d 917 (United States v. Lijewski) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lijewski, 39 F. Supp. 3d 917, 2014 WL 3894366, 2014 U.S. Dist. LEXIS 109582 (E.D. Mich. 2014).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO SUPPPRESS

THOMAS L. LUDINGTON, District Judge.

On November 13, 2013, Defendant Kevin James Lijewski was charged with four violations of the National Firearms Act and two counts of possession of an unregistered firearm. On March 19, 2014, Lijew-ski filed a motion to suppress three firearms that were seized from his business during the execution of a search warrant. Lijewski asserts that the affidavit supporting the warrant lacked probable cause and that the plain view exception does not apply to the firearms.

On June 3, 2014, the Court conducted a hearing regarding Lijewski’s motion to suppress. Two ATF agents, John Murphy and Misty Moran, testified at the hearing, and at the conclusion of the hearing the Court invited Lijewski to file a supplemental brief. On June 12, 2014, Lijewski filed a supplemental brief that provided details concerning a 2012 ATF compliance check.

Although the warrant is supported by probable cause, the firearms at issue here were not covered by the warrant. One of the firearms, the Stag Arms shotgun, is subject to the plain view exception and will not be suppressed. However, the other two firearms—the Stag Arms rifle and the Sten Gun machine gun parts kit—are not subject to the plain view exception and will be suppressed.

I

The search of Lijewski’s gun store was a result of an investigation by Bay .City law enforcement into allegations of Lijewski’s sexual misconduct. On March 22, 2013, an officer with the Bay City Public Safety Department interviewed B.H., who related the events that occurred three months pri- or, in December 2012. At that time, B.H. was 15 years old and working odd jobs in Lijewski’s gun store, Gunrunners. B.H. claims that Lijewski made him have oral and anal sex in the store. That same day, the officer also spoke with Tyler Schmidt, who claims that Lijewski held him against his will imLijewski’s apartment.

On April 10, 2013, B.H. was interviewed at the Children’s Advocacy Center in Bay City regarding his allegations against Li-jewski. During the interview, B.H. [920]*920claimed that he was sexually assaulted in Lijewski’s apartment. He explained that Lijewski raped him in the apartment during a party sometime around Christmas. Lijewski had provided B.H. with marijuana and they smoked it together. During the incident, Lijewski locked the bedroom door and placed his .45 caliber handgun on the table. Lijewski told B.H. “that he wasn’t allowed to leave and to get back in the. bed.” Affidavit 2. B.H. also stated that Lijewski had cameras throughout his apartment, and that Lijewski carries a laptop between his apartment and his gun store. B.H. states that, at Lijewski’s store, Lijewski “rubb[ed] his back or inner thigh in a manner that freaks [B.H.] out.” Mot. Suppress 2.

That same day, Tyler Schmidt was also interviewed at the Children’s advocacy Center. Mr. Schmidt explained that Li-jewski has cameras all over his apartment that record to DVRs and that he has a laptop computer'that he carries with him back and forth to the gun shop and the apartment. Mr. Schmidt also noted that Lijewski “frequently carries a 45 caliber handgun. Affidavit 2.

A

Based on these interviews, Detective Roberts of the Bay City Police Department requested a warrant to search Lijew-ski’s gun shop for a .45 caliber handgun, drug paraphernalia, and digital information stored on computers, hard drives, flash drives, CDs, or DVDs. In. addition to describing the alleged criminal sexual conduct outlined above, Detective Roberts also included the following information:

I know from this investigation and previous investigations that Kevin Lijewski’s residence is an apartment approximately 3 blocks from the location described in paragraph three, and I have seen Lijew-ski travel to and from his apartment to his place of business on multiple occasions. I know that Kevin Lijewski’s place of business is a gun shop, and that he is the sole proprietor.
I know from my training and experience that persons who engage in Criminal Sexual Conduct involving juveniles will sometimes supply the victim with drugs and/or alcohol in an effort to lower the victim’s inhibitions regarding the sexual act, and that when one type of controlled substance is found, other controlled substances are frequently found. I know that subjects can and occasionally will store controlled substances such as marijuana and/or any other controlled substances or drug paraphernalia at their place of business when they are the sole proprietor. I know that persons who have digital recording devices such as DVRs can and occasionally will store video segments and still images on various devices such as laptop computers, portable digital storage devices such as flash or zip drives, external hard drives, CDs and DVDs, or other digital storage devices, and that these items can be easily transported to their place of business. I know that digital information can be transferred and/or stored on available computers at a person’s place of business. I know that a person who operates a gun shop frequently has a secure storage container on the premises such as a safe to store handguns or other weapons, and that the subject can and occasionally will secure personal items including handguns inside the secure container.

Affidavit 3. The magistrate judge signed the warrant on May 8, 2013.

B

The next day, on May 9, 2013, Bay City law enforcement executed the warrant and search of Lijewski’s gun shop. In addition [921]*921to the Bay City police officers, two special agents and two industry operations investigators participated in the search.

During the search for the laptop, marijuana, and .45 caliber pistol, the officers began inspecting four other firearms in the shop. Three of these four firearms were determined by law enforcement to be illegal firearms and form the basis of the indictment.

The first, a Stag Arms model 775A shotgun (“the shotgun”) was brought to the attention of ATF Agent John Murphy by a member of the Bay City Police Department. The shotgun was in a rack visible behind the counter of the store. Agent Murphy testified that, based on his visual observation of the shotgun in the rack, the barrel length appeared to be too short to comply with federal guidelines. Therefore, another ATF agent removed the shotgun from the rack, inserted a dowel rod into the barrel, and used a tape measure to measure the length of the barrel. The agent determined that the shotgun barrel measured 14.5 inches—thereby confirming that the shotgun barrel did not comply with federal law requiring a minimum of 18 inches.

After discovering the first shotgun, Agent Murphy testified that he suspected there may be other illegal firearms in the store. Agent Murphy noticed another firearm, the Stag Arms Model Stag-15, 556 caliber (“the rifle”), in a gun rack behind the counter. Agent Murphy testified that upon visually inspecting the rifle, he could not determine whether the rifle barrel length met the legal requirement. He therefore removed the rifle from the gun rack to examine it. He first investigated whether the barrel was detachable by twisting the barrel. Upon discovering that the rifle barrel was detachable, he then measured the barrel length without the attachment. Measuring the barrel confirmed that the barrel was too short.1

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Cite This Page — Counsel Stack

Bluebook (online)
39 F. Supp. 3d 917, 2014 WL 3894366, 2014 U.S. Dist. LEXIS 109582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lijewski-mied-2014.