United States v. Breit, Michael ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1372
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL J. BREIT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 CR 50024—Philip G. Reinhard, Judge.
____________
ARGUED SEPTEMBER 15, 2005—DECIDED NOVEMBER 22, 2005
____________
Before FLAUM, Chief Judge, and RIPPLE and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Michael Breit was charged in
an indictment with unlawfully receiving explosive mate-
rials, in violation of 18 U.S.C. § 842(a)(3)(A), and receipt
of explosive materials with intent that they would be
used to kill, injure, or intimidate another individual, or to
unlawfully damage or destroy any building, vehicle, or other
real or personal property, in violation of 18 U.S.C. § 844(d).
He was convicted on both counts after a jury trial, and he
was sentenced to 41 months’ imprisonment. Breit now
challenges his convictions on appeal. For the reasons set
forth below, we affirm in all respects.
2 No. 05-1372
I. HISTORY
On April 18, 2004, at approximately 9:00 p.m., Rockford,
Illinois police department patrol officers Daniel Fick and
Apostolos Sarantopoulos were separately dispatched to 3012
Sunnyside Drive in Rockford to investigate a weapons
violation. Fick had been advised by the communica-
tion center that an anonymous female caller reported
hearing a gunshot, that one of her neighbors (later identi-
fied as Breit) told her that he accidently fired a blank round
from his rifle, and that this neighbor was acting weird. Fick
and Sarantopoulos arrived at Breit’s apartment complex at
approximately the same time and attempted to locate
Breit’s apartment. Upon arriving at Breit’s apartment door,
but prior to the officers knocking, Breit came outside of his
apartment and stated, “I screwed up.”
The officers asked Breit if they could enter his apartment
and talk to him. Breit agreed, and the officers entered the
apartment. Once inside the kitchen area, the officers asked
Breit what happened. Breit stated he was trying to disman-
tle his newly purchased AK-47 assault rifle. He did not
realize there was a round in the rifle, and it fired during
disassembly. Breit led the officers into the living room and
showed them where the bullet traveled, which was through
the patio door frame and out of the apartment. During this
time, the officers noticed a large amount of ammunition on
the kitchen table, as well as two handguns, one on a
bookcase in the living room and one on top of the entertain-
ment center. They also observed additional ammunition on
top of the entertainment center. Breit stated the handgun
on top of the entertainment center was loaded, and that it
was a black powder handgun. At this time, Sarantopoulos
quickly walked through the apartment to make sure that no
one else was in the apartment and that no one had been
injured.
No. 05-1372 3
Sergeant Danny Foltz, Fick’s and Sarantopoulos’s super-
visor, then arrived. Upon being apprised of the situation,
Foltz ordered Breit put in handcuffs “for everyone’s protec-
tion.” Approximately eleven minutes later, Fick read Breit
his Miranda rights. Breit did not ask for an attorney and in
fact was completely cooperative.
Foltz then asked Breit for permission to search the
apartment as well as Breit’s vehicle. Foltz stated he wanted
permission to search “for any other guns or anything
related to them.” Breit orally agreed. Sarantopoulos
retrieved two identical consent-to-search forms.
Sarantopoulos removed Breit’s handcuffs and gave Breit
one copy of the consent form. Sarantopoulos kept the other
form and read it to Breit verbatim. The form stated, “I,
Michael Josiah Breit, knowingly and voluntarily give
consent to City of Rockford police officers to con-
duct a complete search of the following.” Breit’s apart-
ment and vehicle were then set forth on the form. The
bottom of the consent form read, “These officers are autho-
rized by me to seize property which they determine may
pertain to a crime investigation they are conduct-
ing. I understand and have been informed by at least one of
the undersigned officers that I have the right to refuse this
consent.” Breit did not ask any questions, and he signed
both forms. Breit was removed from his residence and
placed in a squad car.
The police then initiated their search. Sarantopoulos
recovered a paintball gun and a journal from Breit’s car.
The journal was closed with a vinyl cover, and it had a
velcro strap around it. Sarantopoulos had to use his
flashlight to actually open the journal. The journal con-
tained something of a “hit list” of Senators, government
officials, and celebrities. Next to each name was the
word “marked.” In addition, the journal contained a draw-
ing of a limousine that appeared to be under attack. In
Breit’s apartment, the police recovered five long guns, two
4 No. 05-1372
black powder pistols, a large amount of ammunition in
various calibers, several books, and two notebooks. The two
notebooks contained diagrams of rocket launchers
and bombs, along with writings such as “Fight, fight,
fight, kill, kill, kill.” The various books recovered dealt with
the making of explosives and drugs or espoused “political
views of a terrorist nature.” Finally, the officers recovered
items consistent with bomb-making materials, such as
threaded pipe, shotgun shells, black powder, and fuse cord.1
After Breit was indicted, the district court denied Breit’s
motions to suppress the evidence seized from his apartment
and vehicle as well as his subsequent statements to police.
The denials of the motions to suppress comprise the bulk of
Breit’s appeal. Breit also argues the district court’s admis-
sion of his guns, ammunition, knives, sword, and books at
trial was an abuse of discretion because this evidence was
irrelevant and unfairly prejudicial.
II. ANALYSIS
A. Probable Cause for an Arrest
Breit first argues the police did not have probable cause
to arrest him for the reckless discharge of a firearm. As a
result, Breit’s consent to search was invalid, and all
evidence seized (and statements made) thereafter should
have been suppressed, or so the argument goes. Because we
have no trouble concluding there was probable cause for
Breit’s arrest, we need not reach the remainder of
his argument on this particular issue.
Probable cause exists if, at the time of arrest, the officers
possess knowledge from reasonably trustworthy informa-
1
Although not entirely clear from the record, it appears the
police recovered several knives and a sword at this time as well.
No. 05-1372 5
tion that is sufficient to warrant a prudent person in
believing that a suspect has committed, or is committing, a
crime. United States v. Brown, 366 F.3d 456, 458 (7th Cir.
2004) (citing United States v. Schaafsma, 318 F.3d 718, 722
(7th Cir. 2003)); Woods v. City of Chicago, 234 F.3d 979, 987
(7th Cir. 2000). Probable cause is a fluid concept based on
common-sense interpretations of reasonable police officers
as to the totality of the circumstances at the time of arrest.
Brown, 366 F.3d at 458 (citing United States v. Sholola, 124
F.3d 803, 814 (7th Cir. 1997)). Because police officers are
entitled to rely on their experience in assessing probable
cause, their judgments deserve deference. Id. (citing
Ornelas v. United States, 517 U.S. 690, 699-700 (1996)). Our
review of the district court’s determination of probable
cause is de novo, while our review of the district court’s
findings of fact is for clear error. Id. (citing Ornelas, 517
U.S. at 699).
The applicable Illinois statute provides: “A person
commits reckless discharge of a firearm by discharging
a firearm in a reckless manner which endangers the
bodily safety of an individual.” 720 ILCS 5/24-1.5. Specifi-
cally, a person commits the offense of reckless discharge
of a firearm when he (1) recklessly discharges a firearm;
and (2) endangers the bodily safety of an individual. People
v. Collins, 824 N.E.2d 262, 265 (Ill. 2005).
When Foltz arrested Breit,2 Foltz had sufficient infor-
mation before him to believe probable cause existed to
arrest Breit for the reckless discharge of a firearm. First, a
neighbor had called 911 to report a gunshot had been fired
2
The court makes no determination as to whether Breit was
arrested when he was handcuffed or eleven minutes later when he
was read his rights. The determination is immaterial, as
Foltz testified he learned of no new information during those
eleven minutes.
6 No. 05-1372
from within Breit’s apartment. Second, the neighbor
reported Breit had been acting strangely. Third, the
neighbor also indicated in that call that Breit had stated to
her that he accidentally fired a blank round from a
new gun, which was inconsistent with Breit’s later state-
ment that he fired a real bullet. Fourth, Breit met the
officers at the door of his apartment and stated (with no
provocation), “I screwed up.” Fifth, Breit admitted acci-
dentally firing his AK-47 while taking it apart. Sixth, the
bullet actually exited Breit’s apartment and traveled
toward a neighbor’s home directly behind his apartment.
Finally, the police observed in plain view a large amount of
ammunition, black powder, and fireworks, along with
a loaded black powder pistol and a pellet gun.
Under these unusual circumstances, the police had
sufficient knowledge to believe that Breit had committed a
crime. In other words, there was probable cause for
the arrest. While no one factor is determinative, it does
at least appear reckless to disassemble an AK-47 without
first ensuring that no rounds remained in the weapon,
especially given the presence of other individuals in adjoin-
ing apartments. Furthermore, not only were other individu-
als potentially in harm’s way, but Breit had endangered
himself with bodily injury, which is sufficient under the
statute. Combining this information with the fact that the
rifle did discharge could properly lead to Breit’s arrest.
Although there may be a question as to whether Breit was
in fact reckless, as opposed to simply negligent, we need not
make that determination here. Our only role is to determine
whether Officer Foltz had probable cause that night to
arrest Breit for the reckless discharge of a firearm, and we
easily conclude that he did.
B. Scope of Consent
Breit next argues that, even if his consent was valid, the
subsequent search by the police exceeded the scope of
No. 05-1372 7
his consent. As Breit points out, Foltz testified he told Breit
the police wanted to search for any other guns or anything
related to them.3 Breit argues this would not reasonably
include a search for receipts and paperwork relating to guns
that, in turn, allows the officers to retrieve and read Breit’s
private notebooks and journals. The government simply
argues Breit’s written consent was a general one, one that
gave the police the authority to conduct a complete search
of Breit’s apartment and vehicle. The government’s position
completely ignores the discussion between Breit and the
officers prior to his signing of the consent form. As will
be seen, the resolution of the issue is more involved
than what the government would have us believe.
As the Supreme Court has stated, “the scope of a search
is generally defined by its expressed object.” Florida
v. Jimeno, 500 U.S. 248, 251 (1991) (citation omitted).
We have explained how “[t]he scope of a consent search
is limited by the breadth of actual consent[,] and [w]heth-
er the search remained within the boundaries of the consent
is a question of fact to be determined from the totality of all
the circumstances.” United States v. Torres, 32 F.3d 225,
230-31 (7th Cir. 1994) (citations omitted). In Torres, we
stated the standard as follows: “what would the typical
reasonable person have understood [the scope of consent to
be] by the exchange between the officer and the suspect?”
Id. (citation omitted). Along the same lines, we have
repeatedly emphasized that a general consent form does not
override a more explicit statement specifying the object of
3
Actually, at oral argument, Breit’s attorney argued Foltz
stated the police wanted to look for any other guns. Counsel made
no mention of the phrase “or anything related to them,” nor did
the Government contest counsel’s representation. However, a
review of the record (and Breit’s own briefs) makes clear
Foltz’s discussion with Breit included the phrase “or anything
related to them.”
8 No. 05-1372
the search. See, e.g., United States v. Lemmons, 282 F.3d
920, 924 (7th Cir. 2002) (“Although the consent form is
probative of the voluntariness of [the defendant’s] consent,
it helps little in determining its scope[,]” especially when
the officer specified the object of the search.). While we
review the district court’s legal conclusions de novo, we
review its finding of fact for clear error. United States v.
Robeles-Ortega, 348 F.3d 679, 681 (7th Cir. 2003) (citation
omitted).
As this court has recognized, “[g]overnment agents may
not obtain consent to search on the representation that they
intend to look only for certain specified items and subse-
quently use that consent as a license to conduct a general
exploratory search.” United States v. Dichiarinte, 445 F.2d
126, 129 (7th Cir. 1971); United States v. Berke, 930 F.2d
1219, 1222 n.7 (7th Cir. 1991); see Lemmons, 282 F.3d at
924; cf. United States v. Turner, 169 F.3d 84, 87 (1st Cir.
1999). In Dichiarinte, we held that the personal papers of
the defendant should have been suppressed. We found the
police had exceeded the scope of the defendant’s consent to
search his home for narcotics when they read and seized his
personal papers. Id. at 130. The papers were not related to
narcotics; rather, they implicated the defendant in tax
fraud. Id. The officers exceeded the scope of the defendant’s
consent when they went beyond what was necessary to
determine if he had hidden narcotics among his personal
papers and started to read the papers to determine whether
they evidenced other illegal activity. Id.The instant case is quite different than Dichiarinte and
similar cases that Breit relies upon. First, Breit signed
a clearly-worded consent form that gave the police per-
mission to search his entire apartment and vehicle.4 One of
4
We note this is but one factor among many, and is by no
means determinative. Furthermore, this should not be read to
(continued...)
No. 05-1372 9
the officers even read the consent form verbatim to
Breit prior to Breit signing it. Furthermore, although not
relied on specifically by the district court, Fick testified
he told Breit they were searching for anything related
to criminal activity, not just evidence related to guns. We
believe, given this information, a reasonable person would
have understood that a broader scope of consent had been
given than what Breit now argues.
More important, however, is the analysis contained in
United States v. Raney, 342 F.3d 551 (7th Cir. 2003). It
contains a useful discussion on the issue presented here. In
that case, the defendant signed written consent forms
authorizing the police to search his car, residence, and other
items for materials “in the nature of” child abuse, child
exploitation, and child erotica. Id. at 554. The defendant
argued that the seizure of homemade adult pornography
exceeded the scope of his consent. Id. at 556 (emphasis
added). We held the evidence should not be suppressed
because “[t]he use of the ‘in the nature of’ phrase
broaden[ed] the scope of the search . . . .” Id. at 558.
In making this determination, we also relied on the
following hypothetical: “[H]ad the agents in Dichiarinte
obtained consent to search for evidence ‘in the nature
of’ narcotics, the search would have been broad enough to
include the seizure of drug paraphernalia, scales, and
even drug ledgers; such language also would have en-
abled the agents to read the defendant’s private papers
and seize them if they discovered some link to narcotics.”
Id. (emphasis added). We then explained that the home-
made adult pornography could reasonably be construed
to be evidence “in the nature of” child abuse, child erotica,
4
(...continued)
imply we are expanding or otherwise modifying the general
rules explained in Torres and Lemmons.
10 No. 05-1372
or child exploitation, given the “broad nature” of the
consent. Id. Applying this reasoning to the instant case,
we conclude Breit’s consent was also of a broad nature, as
it (at a minimum) allowed the police to search for any-
thing “related to” guns. We find the phrase “related to” in
this context to be equivalent to the phrase “in the nature
of,” which was used to modify the consent given in
Dichiarinte. Thus, when Breit consented to a search for
guns “or anything related to them,” he consented to a
search of his private papers, which included notebooks
and journals.
One final point needs to be addressed on this issue. In
general, we agree with the district court’s reasoning as to
why a search of Breit’s notebooks and journal was in fact
“related to” guns. More importantly, we find, based on the
information contained in the record, that it was not
clearly erroneous for the district court to conclude as it did.
As for the notebooks, they may have uncovered relevant and
useful information, such as receipts, completed forms, or a
personal inventory of all of Breit’s guns. It may have also
revealed whether Breit possessed owner’s manuals for the
guns. Searching for this type of information was permissible
because it was “related to” the search for guns. In addition,
there may have been other guns, either hidden or out of
sight. A review of the notebooks could reasonably have
revealed the possible presence or location of such guns. As
a result, the police had the authority to look where such
paperwork might be found, which included Breit’s note-
books.
A closer question is presented with respect to Breit’s
personal journal. The reasons used above to support the
search of the notebooks apply equally to the search of the
journal as well. However, due to the intimate nature of
the journal (which was evident from its appearance
and from the presence of the velcro strap), further dis-
cussion is warranted. Given the unique circumstances of
No. 05-1372 11
this case, the police could also look in Breit’s journal not
only for the appropriate paperwork, but also for information
detailing how Breit intended to use his arsenal of weapons.
This was a legitimate question and was within the scope of
Breit’s consent, given his discussion with the officers as well
as the presence of the number and types of firearms,
explosives, and other weapons in plain sight, along with the
report that Breit had been acting strangely. In sum, given
what the police had heard and seen during the course of
their investigation of this case, they did indeed have the
authority to search Breit’s personal journal.
C. Other Evidence
Breit’s final argument is that his lawful possession of
guns, ammunition, knives, a sword, and publications should
not have been admitted at trial because they were irrele-
vant and unfairly prejudicial. We review challenges to the
admission of evidence only for an abuse of discretion.
United States v. Gray, 410 F.3d 338, 344 (7th Cir. 2005)
(citation omitted).
As previously indicated, Breit was charged in Count 2
of the indictment with the receipt of explosive materials
with the intent that they would be used to kill, injure, or
intimidate another individual, or to unlawfully damage
or destroy any building, vehicle, or other real or personal
property, in violation of 18 U.S.C. § 844(d). In arguing
that the firearms, ammunition, and publications were
indeed relevant, the government relies heavily on the
case of United States v. Kimberlin, 805 F.2d 210 (7th Cir.
1986). In Kimberlin, the defendant was charged with
several crimes, including maliciously damaging by explosion
the property of an entity receiving federal financial assis-
tance. Id. at 215. As the government sees it, this
court upheld the admission of the defendant’s possession of
several firearms, as well as a large amount of ammunition,
12 No. 05-1372
to establish his intent with respect to that charge. The
government mistakes our analysis in Kimberlin, however.
The firearms and ammunition the government refers to
were actually admitted at trial without objection and were
thus not a part of the analysis that the government now
quotes in its argument. See id. at 235.
As it turns out, though, Kimberlin is still useful for
resolving this case. We did have to analyze in Kimberlin
whether possession of a pistol with a silencer was rele-
vant to the intent necessary to convict on the explosives
charges. Id. Unlike the firearms and ammunition, there was
an objection at trial to admitting the pistol with a silencer,
and we ruled on the issue. Id. We found the possession of
the pistol with a silencer was “at least marginally relevant”
to the intent issue. Id. If one pistol with a silencer was at
least marginally relevant in Kimberlin, then we have no
trouble concluding two replica black powder handguns, five
long guns (some of which had been altered for possible
easier concealment), and thousands of rounds of ammuni-
tion were at least marginally relevant to Breit’s intent to
carry out a bombing and were not unfairly prejudicial. See
also United States v. Best, 250 F.3d 1084, 1091 (7th Cir.
2001) (explaining that the government may introduce
evidence of other acts to prove intent when a defendant is
charged with a specific intent crime because intent is
necessarily an issue); United States v. Gellene, 182 F.3d
578, 595 (7th Cir. 1999) (same); United States v. Lewis, 110
F.3d 417, 420 (7th Cir. 1997) (same).
It is important to note Breit simply lumps the guns,
knives, sword and literature together when he makes his
argument, as if they were all the same type of evidence. By
not separating his arguments for these different types
of evidence, Breit has not fully developed his arguments
with respect to the knives, sword, and literature, and we
need not consider them. See Hershinow v. Bonamarte, 735
F.2d 264, 266 (7th Cir. 1984) (refusing to consider issues
No. 05-1372 13
presented in a perfunctory and underdeveloped manner)
(citations omitted). Furthermore, without the specifics as to
how these items were not relevant or unfairly prejudicial,
we are unable to discern how their admission would
constitute an abuse of discretion. Moreover, even if outside
the district court’s discretion, it would have been harmless
error, given the guns and ammunition were relevant (and
not unfairly prejudicial) and rightfully admitted, as well as
the overall strength of the government’s case without this
evidence. See United States v. Reed, 259 F.3d 631, 634 (7th
Cir. 2001) (in harmless error analysis, defendant’s convic-
tion will only be reversed if district court’s decision “had a
substantial influence over the jury and the result reached
was inconsistent with substantial justice” (quotations
omitted)); see also United States v. Manske, 186 F.3d 770,
779 (7th Cir. 1999).
III. CONCLUSION
We conclude that the district court properly denied the
motions to suppress, that there was probable cause for
Breit’s arrest, that the search of Breit’s apartment was
proper, and that the evidence admitted at trial was proper.
The jury’s verdicts will not be disturbed, and the convictions
are AFFIRMED.
14 No. 05-1372
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-22-05