United States v. Mikulewicz

292 F. App'x 502
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 8, 2008
DocketNo. 08-1165
StatusPublished

This text of 292 F. App'x 502 (United States v. Mikulewicz) 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. Mikulewicz, 292 F. App'x 502 (7th Cir. 2008).

Opinion

ORDER

After Michael Mikulewicz moved to suppress drug evidence that police discovered while executing a state search warrant for his car, a magistrate judge conducted a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). When his motion was denied, Mi-kulewicz entered a conditional guilty plea to possession of methamphetamine with intent to distribute. He appeals, arguing that the search-warrant affidavit contained material misrepresentations and omissions and therefore any evidence found in his car should be suppressed. But a warrant is not required to search an automobile. Investigators need only probable cause, which they had in spades. Accordingly, we uphold the district court’s ruling.

Mikulewicz owned and managed a strip club, the “Jack of Diamonds,” which confidential sources told police served as a front for his methamphetamine dealing. In January 2003 the local sheriff’s department, the U.S. Attorney’s Office, and the Wisconsin Department of Justice began a joint investigation of Mikulewicz’s alleged illegal activities. Then in March 2004 a second informant corroborated allegations of Mikulewicz’s methamphetamine business, prompting investigators to stage two separate controlled buys, one from a dancer at the Jack of Diamonds and one from Mikulewicz’s live-in girlfriend, Brandi Co-legrove.

In January 2005, while the investigation was ongoing, Mikulewicz discovered that Colegrove, who also danced at the Jack of Diamonds, had broken into one of the gambling machines and stolen between $1,300 and $1,500 allegedly to support a methamphetamine habit. Upon discovering the theft, Mikulewicz alerted the police, who arrested Colegrove. She later agreed to make full restitution as part of a deferred adjudication.

Mikulewicz’s decision to rat out his girlfriend may not have been his best judgment call. On March 8, 2006, Colegrove and her mother, Beverly Colegrove, arrived at the sheriff’s department and reported that Mikulewicz had been making nonconsensual audio and video recordings of Colegrove and others. Investigator Austin Parenteau took Colegrove’s initial report. Colegrove had noticed in the house she shared with Mikulewicz a wire connected to a VCR, and when she turned on the VCR she was confronted with a video of herself. When Colegrove investigated further, she found video and audio recordings made surreptitiously in the residence and at the Jack of Diamonds, as well as nonconsensual recordings of several of her telephone conversations. Investigator Parenteau gave Colegrove a form to make a written statement, and she left the station with her mother.

Later that same day Colegrove and her mother returned to the station with Cole-grove’s handwritten statement in which she specified that the recordings contained images and audio of herself and others at her residence and at the Jack of Diamonds, in addition to images of cars [504]*504parked in the driveway. Meanwhile, Investigator Parenteau telephoned Agent James Ohm at the Wisconsin Department of Justice and filled him in on Colegrove’s allegations. Agent Ohm, who already was participating in the investigation of Miku-lewicz for drug dealing, interviewed Cole-grove and her mother by phone while they were at the station with Parenteau. Cole-grove repeated her story during the recorded conversation and promised to return the following day. She admitted stealing money from Mikulewicz but insisted that she had not used drugs for four months. Colegrove also stated that Miku-lewicz had used and dealt methamphetamine. She explained that he would go to “the city” and “bring back meth in large quantities and sell it up here at the Jack of Diamonds.” Colegrove further elaborated that she “heard that he [was] still using and dealing to people including his dancers.” Before departing the sheriffs office, Colegrove submitted a second written statement in which she reported: “Michael Mikulewicz ... now is driving a Buick lesaber tan 4 door with minn. Licensen [sic ] plates and works out of his truck. I have seen the guns in his trunk and have heard him say they were loaded.” Cole-grove’s mother also submitted a written statement in which she asserted that she had seen the videos of Colegrove and had listened to the recordings of her daughter’s phone conversations.

Agent Ohm prepared an affidavit in support of an application for a warrant to search Mikulewicz’s home, business, and Buick LeSabre for items related to illegal wiretapping. A Wisconsin state-court judge issued the warrant on March 9, 2006. A search of Mikulewiez’s residence revealed no wiretapping devices, though investigators confiscated numerous video tapes containing images from the Jack of Diamonds. Additionally, a search of the Jack of Diamonds uncovered video and audio recording equipment positioned throughout the club and numerous video tapes.

That same day, Mikulewicz was pulled over while driving his LeSabre and placed under arrest for illegal wiretapping. Investigators searched his car at the sheriffs department and found video and audio tapes, wiretapping equipment, and two tape recorders. Investigators also discovered what looked like evidence of drug use, at which point they stopped the search and obtained a second warrant to search the car for illegal narcotics. Ultimately they recovered slightly more than four grams of methamphetamine from the car and found four firearms in Mikulewicz’s trunk, one of which was kept in a case that contained some of the methamphetamine.

In a three-count indictment, federal prosecutors charged Mikulewicz with maintaining the Jack of Diamonds for the purpose of distributing and using methamphetamine in violation of 21 U.S.C. § 856(a)(1), distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1), and possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mikulewicz moved to suppress .the evidence obtained in the LeSa-bre and the Jack of Diamonds, arguing that an evidentiary hearing was needed to determine whether the warrant was based on an affidavit containing material omissions and false statements.

A magistrate judge conducted a Franks hearing, and both Investigator Parenteau and Agent Ohm testified. Parenteau testified that he received Colegrove’s report of surveillance and wiretapping and then contacted Ohm. He further testified that he was present when Colegrove and her mother returned to the sheriffs office with Colegrove’s first statement, and that he listened in on Ohm’s telephone interview [505]*505with Colegrove and her mother. Ohm testified that Mikulewicz had been under investigation for methamphetamine trafficking for some time and that, when he got the call from Parenteau, he was participating in that investigation. He confirmed that, when he interviewed Colegrove and her mother, Colegrove repeated what she had told Parenteau. According to Ohm, he learned during this interview that Cole-grove had an outstanding theft charge, but he didn’t include that information in this affidavit because the charge was still pending and he did not believe that it affected the veracity of her information. Ohm further testified that some of the information Colegrove provided had been corroborated by her mother.

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Related

Carroll v. United States
267 U.S. 132 (Supreme Court, 1925)
Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
United States v. Shawn R. Washburn
383 F.3d 638 (Seventh Circuit, 2004)
United States v. Korvell Dennis Pittman
411 F.3d 813 (Seventh Circuit, 2005)
United States v. Brian L. Hines
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United States v. Seymour
519 F.3d 700 (Seventh Circuit, 2008)
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516 F.3d 576 (Seventh Circuit, 2008)
United States v. Scott
516 F.3d 587 (Seventh Circuit, 2008)

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Bluebook (online)
292 F. App'x 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mikulewicz-ca7-2008.