On May 22, 2015, the Seventh Circuit Court of Appeals decided the United States v. McMillian [i], which serves as an excellent review of the law pertaining to warrantless entry into private premises. The relevant facts of McMillian, taken directly from the case, are as follows:
On July 6, 2011, Milwaukee Police Officer Brian Shull reviewed a “suspect card,” an internal document issued by the Milwaukee Police Department, which detailed probable cause to arrest Tyrone McMillian for his alleged involvement in a 2007 double homicide. After conducting a brief investigation, Officer Shull went to McMillian’s home in Brown Deer, Wisconsin to arrest him. Because the arrest was considered a “high felony arrest” or a “dangerous arrest,” officers from the Milwaukee Police Department’s tactical enforcement unit were called to assist. Officers from the Brown Deer Police Department were also called. In total, six or seven additional officers arrived at McMillian’s house at approximately 1:00 pm. They did not have an arrest warrant or a search warrant.
The officers surrounded the house. Shull knocked and announced that he was a police officer. Ashley Knueppel, McMillian’s cohabiting girlfriend, came to the door and confirmed that McMillian was inside. She stepped outside, and Officer Shull called for McMillian. When he came to the door, Officer Shull arrested him. Tactical officers then conducted a protective sweep of the house. During the sweep, officers observed a rifle case in one of the bedrooms.
As the sweep was taking place, Officer Shull noticed that McMillian was barefoot and asked if he wanted shoes. McMillian responded that he wanted his black Air Jordan Nike flip flops. Officer Shull asked if he wanted the black flip flops that were near the doorway. McMillian responded that those were his girlfriend’s shoes and that his were in the back bedroom.
Officer Shull took this exchange as a request by McMillian to get his flip flops from the back bedroom. After the protective sweep was completed, Officer Shull asked Knueppel if she knew where the flip flops were located. Knueppel responded that she did and, according to Shull, one of them said something like, “Let’s go get them.” The two entered the back bedroom. As Officer Shull bent to pick up the shoes next to the bed, he saw two gun cases between the bed and the nightstand.
After the arrest, an officer on the scene contacted Milwaukee Police Detective Rodolfo Gomez. Detective Gomez drafted an affidavit for a warrant to search McMillian’s residence. The affidavit said that an AK-47 assault rifle had been observed during the protective sweep (the government admitted this was wrong and that it should have stated that the officers observed a rifle case). The affidavit also referenced the gun cases Officer Shull had observed when he retrieved the flip flops. The affidavit also described an informant’s statement that McMillian had confessed his involvement in two 2007 homicides. A state court judge issued the search warrant.
When Detective Gomez arrived at McMillian’s residence with the search warrant, he noticed a typographical error in the warrant and affidavit. Although McMillian lived at 6333 West Darnell Avenue, Detective Gomez had typed 6633 West Darnell Avenue. He called the judge, who instructed him to correct the mistake by hand. Detective Gomez did so and noted that the judge had approved the correction. Detective Gomez was not placed under oath when he revised the address. Officers searched McMillian’s house and recovered firearms and ammunition. [ii]
McMillian was indicted for various crimes to include federal firearms violations. He filed a motion to suppress the firearms and the district court denied the motion. He was convicted, and he appealed the denial of his motion to suppress to the Seventh Circuit Court of Appeals.
It is important to note that, at the outset, the state conceded that the protective sweep of McMillian’s residence when he was arrested outside his door was a violation of his Fourth Amendment rights. The court stated:
We agree that the protective sweep violated the Fourth Amendment, because the officers did not reasonably believe “that the area swept harbored an individual posing a danger to the officer or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990). [iii]
Since this protective sweep is what enabled the officers to observe the rifle case, the court held it was properly stricken from consideration by the district court when that court decided whether the search warrant was supported by probable cause.
Thus, the first issue on appeal was whether McMillian consented to the officer’s entry into his residence to get his shoes. Specifically, McMillian argued that his consent to enter the residence to retrieve his shoes was tainted by the prior unlawful entry during the protective sweep. The court stated that an illegal entry prior to consent can, in certain circumstances, render the consent involuntary. [iv] However, the court then noted that McMillian forfeited this issue on appeal because he did not raise it at the motion to suppress.
The second issue on appeal was whether the search warrant was supported by probable cause. First, the court stated that they had to exclude information about the rifle case, since that was obtained from an unlawful protective sweep. Next, the court stated that they had to exclude the information regarding McMillian possibly being involved in two homicides since the officers did not verify or independently corroborate this information. Thus, the only information left to support the probable cause for the search warrant was the officer’s observation of the two gun cases when they retrieved McMillian’s shoes. The court then held that, since they were in McMillian’s residence with valid consent to retrieve his shoes, the observation of the gun cases can be considered for probable cause in support of the search warrant. Further, the court upheld the district court’s determination that probable cause was present to support the search warrant based on the observation of the two gun case while retrieving McMillian’s shoes.
As such, the court affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-1537 (7th Cir. Decided May 22, 2015)
[ii] Id. at 2-4
[iii] Id. at 9
[iv] Id. at 10