United States v. Luedtke

125 F. App'x 732
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 10, 2005
DocketNo. 04-1216
StatusPublished
Cited by4 cases

This text of 125 F. App'x 732 (United States v. Luedtke) 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. Luedtke, 125 F. App'x 732 (7th Cir. 2005).

Opinion

ORDER

James Luedtke was convicted of one count of armed bank robbery, one count of knowingly brandishing a firearm during a crime of violence, one count of possession of a firearm by a felon, and two counts of making false statements in the acquisition of a firearm, relating to the armed robbery of the Premier Community Bank in Iola, Wisconsin on December 13, 2002. In his appeal, he argues that the district court erred in denying his motion to suppress evidence stemming from a search of his apartment. We affirm.

I. Background

In September 2002, Luedtke was released on parole from a jail sentence unrelated to this matter. When Probation and Parole Agent Michelle Davis attempted to contact Luedtke, she learned that he had neither left a mailing nor home address; the jail listed him as “homeless.” Davis filled out an apprehension request, citing Luedtke for failing to keep officials informed of his whereabouts in violation of his parole. Luedtke’s parole was originally scheduled to end on November 4, 2002, but Davis’ filing of an apprehension request for Luedtke tolled his parole term.

Meanwhile, with Luedtke still at large, a man wearing a wig and a false beard and moustache robbed the Premier Community Bank on December 13, 2002. This crime was still unsolved on January 22, 2003, when Jason Hillestad contacted his former Wisconsin probation and parole agent, Ryan Peterson. Hillestad said he was living with Luedtke, whom Peterson also had supervised, and disclosed that Luedtke “had some guns and some cash.” Peterson believed that Luedtke was on parole at the time and contacted Davis, who rightly believed that her apprehension request had tolled his parole period and confirmed to Peterson that Luedtke was a parole violator. The two agents contacted Detective Lieutenant Patrick Geenan of the Appleton Police Department and requested assistance in performing a parole search of the apartment Hillestad and Luedtke shared.

On January 23, 2003, police officers obtained from the lessee, Hillestad, a written consent to search the apartment and a hand-drawn diagram of its layout. The police officers arrived and shortly thereafter entered the apartment using Hillestad’s key and threw a flash bang grenade, which achieved its desired effect and disoriented Luedtke as they apprehended him in the kitchen. Peterson and Davis entered and searched the apartment without instruction or assistance from the Appleton police officers. The police officers did not participate in the initial search, as they had departed with Luedtke in custody. A short time after the search began, one of the parole agents contacted Detective Geenan and reported finding “a large sum of money as well as some handguns” in the apartment and again requested assistance. Geenan testified at the suppression hearing that, after returning to the apartment he observed in plain view while standing in the living room a semiautomatic handgun and a white plastic Goodwill bag that, upon later examination, contained bundles of money. It is not apparent from the record whether the bag was opened or transparent enough for the contents to be plainly visible, but the bag itself struck Geenan as significant, as he had been briefed earlier by an FBI agent about the Iola bank robbery. Geenan recalled in particular that a white Goodwill bag had been reported as being used in that robbery. Geenan telephoned the FBI [734]*734agent, who requested that he “freeze the scene.”

Geenan, Peterson, and Davis then left the apartment in order to obtain a search warrant, leaving several probation agents and a police officer behind. The affidavit Detective Geenan drafted in support of the warrant specifically notes that the initial search was conducted by probation and parole agents and identifies Hillestad as the informant and lessee of the apartment. After a state judge issued the search warrant based on the affidavit, Geenan returned to the apartment with the FBI agent and another police officer, rejoining the parole agents who had remained there. Geenan entered the apartment with the FBI agent and another police officer and seized the Goodwill bag and found that it contained bait money from the Iola bank identified by serial number, as well as currency bundling straps from the Iola bank. They also discovered pieces of the robber’s disguise as well as two rubber masks not used in the robbery, two loaded handguns, ammunition, knives, a cane containing a sword, brass knuckles, and an axe.

Thereafter, a grand jury indicted Luedtke for the armed robbery of the Premier Community Bank in Iola, Wisconsin and the related weapons offenses. The appellant moved to suppress the evidence seized from the apartment he shared with Hillestad, arguing that the initial warrant-less search by parole and probation agents Peterson and Davis was illegal because Luedtke was no longer on parole, and that the warrant obtained later was thus tainted and invalid. A magistrate judge disagreed, declined the request for an evidentiary hearing, and recommended that the district court deny the motion to suppress. Luedtke objected, and the district court held an evidentiary hearing.

The hearing included testimony from F.B.I. Agents Davis and Peterson, Detective Geenan, another police officer who participated in the initial entry, Hillestad, and Luedtke himself. The prosecution and Luedtke, acting pro se, both presented evidence of the layout of the apartment, including a floor plan. The apartment includes a central living/dining area adjacent to the only bedroom, with an oblique viewing angle from the back of the “living room” to the bed. Peterson testified that during his initial search he observed a bag labeled “Goodwill” and a gun and gun belt in plain sight, which caused him to contact Geenan. Peterson did not specify where in the apartment he had observed these things, but Geenan testified that the bag and gun were in the bedroom, plainly visible from the living room. Hillestad’s drawing shows a curtain rather than a door separating the bedroom and living area. Geenan said that he observed the Goodwill bag from the living room, and that “inside that bag you [could see] bundles of money.” It is not apparent from the record whether the plastic bag was transparent or opened enough for Geenan to see the contents clearly from the living room. As Luedtke represented himself at trial and at the evidentiary hearing, Geenan’s testimony was not developed as fully as it might have been through more vigorous cross examination.

The parties also provided testimony dealing with Luedtke’s occupancy of the apartment, and the common use of the bedroom. Luedtke paid Hillestad $180 or $185 to “rent a bed from him.” Hillestad testified at the suppression hearing that when he agreed to let Luedtke move in the two men reached an understanding that the bedroom “would be shared back and forth.” He explained that Luedtke had “more or less taken over” the bedroom shortly after moving in. Hillestad admitted that he also kept personal property in [735]*735the room. In response to the court’s questions, he explicitly stated that he did not grant Luedtke exclusive use of the bedroom. Moreover, both the floor plan and Hillestad’s testimony at the hearing demonstrate that the apartment’s one bathroom was accessible only through the bedroom. Thus, as a matter of common knowledge, Hillestad commonly passed through the bedroom to enter the bathroom.

The district court decided at the conclusion of the hearing that Luedtke was on parole at the time of the search, which obviated the warrant requirement. Luedtke’s parole term was tolled by operation of Wis. Stat.

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Bluebook (online)
125 F. App'x 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luedtke-ca7-2005.