United States v. Ellis, Darnell L.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3137
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARNELL L. ELLIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 107—Rudolph T. Randa, Chief Judge.
____________
ARGUED MARCH 27, 2007—DECIDED AUGUST 27, 2007
____________
Before MANION, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. Darnell Ellis was convicted of
possessing in excess of 500 grams of cocaine and was
sentenced to 70 months’ imprisonment. The drugs were
discovered by DEA agents and local police officers during
a search of Ellis’s home. Ellis did not consent to the
search and the agents and officers did not have a warrant
when they entered the home. The district court concluded
that there was probable cause and exigent circumstances
sufficient to uphold the search. Following the district
court’s decision, Ellis entered into a plea agreement but
retained the right to appeal the district court’s decision on
the legality of the search. We conclude that the search
was improper and therefore reverse.
2 No. 06-3137
I. HISTORY
On March 21, 2005, DEA agents in Milwaukee, Wiscon-
sin were contacted by a cooperating informant (“CI”). The
CI told them that he had been contacted by Daniel Garrity
who wanted to sell the CI some crack cocaine. The DEA
agreed to go forward using the CI in the transaction. The
CI and Garrity arranged to meet that day at a parking lot
outside a fast food restaurant in the 3300 block of 23rd
Street in Milwaukee. The DEA agents established a
surveillance of the parking lot and placed electronic
devices on the CI to record the CI’s conversations and
track his movements.
The CI and Garrity each arrived in separate vehicles.
The CI got into Garrity’s vehicle and they negotiated the
transaction. Approximately thirty minutes into the dis-
cussions, Garrity called his supplier on a cell phone
and instructed the supplier to deliver the drugs to the
parking lot. The supplier was unknown at that time but he
later would be identified as Mitchell Wilson. Wilson
arrived at the parking lot in a third vehicle and delivered
the crack cocaine to Garrity. Garrity and the CI then
completed the transaction and all three individuals
went their separate ways in their own vehicles.
The DEA agents decided to follow Wilson. Wilson went
to 3758 N. 40th Street, a duplex home. Wilson remained
at the 40th Street home for a few minutes and then left.
The agents then ended their surveillance and Wilson’s
identity remained unknown at that time.
A few days later, the agents decided to arrange a second
controlled buy from Garrity through the CI. The agents
apparently hoped that Garrity would use the same sup-
plier. A second transaction was arranged for March 29th.
However, Garrity was arrested before the second transac-
tion could occur. The record does not explain why Garrity
was arrested before he was able to complete the second
No. 06-3137 3
transaction. The agents questioned Garrity but he refused
to disclose the identity of his supplier.
Hitting a dead end with Garrity, the DEA agents decided
to perform a “knock and talk” investigation of the 40th
Street home. A five person team was assembled consisting
of Milwaukee police officers Chu, Lopez and McNeil and
DEA agents Krueger and Ludington. The DEA learned
that Rufus Jackson was the listed tenant for the home and
that Jackson had two prior drug convictions. However, the
team members were told other incorrect information. Team
members were inaccurately informed that the 40th Street
home was involved in drug transactions. Officer Lopez
erroneously believed that a prior drug purchase had
occurred at the 40th Street home.
Once arriving at the 40th Street home, the officers and
agents surrounded the home. Officers McNeil and Chu
went to the front door. Officer Lopez positioned himself at
the side door and Agents Krueger and Ludington were at
the back door. McNeil and Chu then knocked on the front
door and announced themselves as police officers. Officers
McNeil and Chu are patrol officers and were wearing their
Milwaukee Police Department uniforms. Ellis did not
open the door and instead spoke to McNeil and Chu
through the door. McNeil and Chu asked Ellis to open the
door so that they could come into the home. Officers
McNeil and Chu claimed that they were investigating a
missing child and asked Ellis’s consent to search the home.
Ellis said no and responded that he did not live there, no
one who lived at the home was present at the time and
that the police should come back later when the residents
would be home. During the conversation between Ellis
and Officers McNeil and Chu, Officer Lopez heard move-
ment in the home and a person running up and down the
stairs.
The movement turned out to be a second person in the
home, Demarius Dean. Hearing Dean’s movement, Officer
4 No. 06-3137
Lopez concluded that the occupants in the home were
trying to destroy drugs. Lopez called out to the other
officers and agents telling them that the residents were
trying to destroy evidence. Officer Chu then came over to
Officer Lopez’s position at the side door and Officers Chu
and Lopez broke down the side door entering the home.
Lopez then saw Ellis at the front door. Agent Krueger
entered into the home and went to the top of the stairs
leading to the basement. He saw Dean holding an object.
Krueger pointed his gun at Dean and told him to lay on his
stomach. Krueger then determined that Dean was holding
his cell phone. The agents and officers then conducted
protective sweeps of the first floor and basement areas.
They discovered cocaine residue in a bedroom on the
first floor. They obtained a search warrant and then
searched the home. The search discovered a firearm and
two and half kilograms of cocaine.
Ellis filed a motion to suppress arguing that the govern-
ment entered the home unlawfully and therefore conducted
an illegal search and seizure. The magistrate judge
recommended that the motion to suppress be denied and
the district court adopted the recommendation in toto.
II. ANALYSIS
“In reviewing the district court’s denial of a motion to
suppress, we review questions of law de novo and factual
findings for clear error.” United States v. Groves, 470 F.3d
311, 318 (7th Cir. 2006) (citing United States v. Denberg,
212 F.3d 987, 991 (7th Cir. 2000)). “The determination of
probable cause is normally a mixed question of law and
fact, but when ‘what happened’ questions are not at issue,
the ultimate resolution of whether probable cause existed
is a question of law, which we review de novo.” Smith v.
Lamz, 321 F.3d 680, 684 (7th Cir. 2003) (citing Ornelas v.
No. 06-3137 5
United States, 517 U.S. 690, 696 (1996); Cervantes v.
Jones, 188 F.3d 805, 811 (7th Cir. 1999)).
Although Ellis denied living in the home when speaking
to Officers McNeil and Chu through the closed front door,
the government agrees that Ellis did live in the home. He
had a legitimate expectation of privacy in his home and
therefore he has standing to challenge the search of the
home. See generally United States v. Mendoza, 438 F.3d
792, 795 (7th Cir. 2006) (noting that a defendant must
demonstrate a legitimate expectation of privacy in order
to raise a Fourth Amendment challenge). We therefore
turn to the merits of the Fourth Amendment issue.
“The ‘physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed’,
and accordingly, warrantless entries are considered
presumptively unreasonable.” United States v. Rivera, 248
F.3d 677, 680 (7th Cir. 2001) (quoting Payton v. New York,
445 U.S. 573, 585-86 (1980); United States v. United States
District Court, 407 U.S. 297, 313 (1972); United States v.
Saadeh, 61 F.3d 510, 516 (7th Cir. 1995)). “[Warrantless]
searches [of a home] are constitutionally permissible . . .
where there is probable cause and exigent circumstances
create a compelling need for official action and insufficient
time to secure a warrant.” United States v. Andrews, 442
F.3d 996, 1000 (7th Cir. 2006) (quoting United States v.
Marshall, 157 F.3d 477, 481-82 (7th Cir. 1998)).
“[D]etermining whether probable cause exists involves
a ‘practical, common-sense decision whether, given all the
circumstances set forth . . . there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.’ ” United States v. Hines, 449 F.3d 808,
814 (7th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983); United States v. Markling, 7 F.3d 1309, 1317
(7th Cir. 1993)). “Probable cause is a fluid concept based
on common-sense interpretations of reasonable police
6 No. 06-3137
officers as to the totality of the circumstances” known at
the time the event occurred. United States v. Breit, 429
F.3d 725, 728 (7th Cir. 2005) (citing United States v.
Brown, 366 F.3d 456, 458 (7th Cir. 2004); United States v.
Sholola, 124 F.3d 803, 814 (7th Cir. 1997)). “The principal
components of a determination of . . . probable cause will
be the events which occurred leading up to the . . . search,
and then the decision whether these historical facts,
viewed from the standpoint of an objectively reasonable
police officer, amount to . . . probable cause.” Ornelas, 517
U.S. at 696.
The magistrate judge identified three items to support
the determination that probable cause existed when the
officers entered the home. First, the unknown supplier
had gone to the 40th Street home immediately after
completing the March 21st transaction and the govern-
ment determined that the listed resident, Rufus Jackson,
had two prior drug convictions. Second, Ellis had refused
to open the door and denied that he lived at the home
when he spoke with Officers Chu and McNeil. The magis-
trate’s decision stated that “[w]hile citizens certainly have
the right to refuse law enforcement officials’ requests to
enter their home, officers are not obligated to ignore
reasons for a refusal that they deem unusual or suspi-
cious.” R. 43 at 7. Agent Krueger’s testimony, as credited
by the magistrate, was that Ellis’s statement that he was
not a resident of the home was suspicious. Agent Krueger
explained that in his experience, a person will deny being
an occupant of the home in anticipation of a search by
the police so that the denying person can later claim that
he was not responsible for drugs found during the search.
Finally, the magistrate judge pointed to the movement in
the home heard by Officer Lopez. The magistrate judge
explained that movement can lead to the suspicion that
the occupants were trying to destroy evidence before
the police could enter.
No. 06-3137 7
However, the error in the district court was imputing
the knowledge of the officers at the front door to Officer
Lopez at the side door. Officer Lopez testified during the
suppression hearing that he made the decision to enter the
home upon hearing the footsteps within the home. Tr. at
69. Lopez also testified that although he could hear that
Ellis and Officers Chu and McNeil were talking at the
front door, Lopez “couldn’t hear exactly what was being
said back and forth.” Tr. at 66. There is also no evidence
that Officers Chu and McNeil communicated to Lopez
before Lopez entered the home. Chu moved from the
front door to the side door to assist Lopez in breaking
down the door. However, Lopez was clear to point out in
his testimony that he made the decision to enter the home
based on the running in the house and Chu apparently
came over to assist Lopez after Lopez had decided to
break down the side door. Lopez did not hear Ellis’s
allegedly “suspicious” denial that he did not live in the
home and his alleged statement that there was no one
else in the home.
The inability to impute knowledge to Lopez in this
situation must be contrasted to those situations in which
we allow the imputing of knowledge between officers.
“Under the collective knowledge doctrine, the knowledge
of one police officer is imputed to other officers when they
are in communication regarding a suspect. This doctrine
permits arresting officers to rely on the knowledge, but not
necessarily the conclusions (such as whether probable
cause exists), of other officers. . . . [An] officer need not be
personally aware of all of the specific facts supporting
probable case, so long as an officer who is aware of such
facts relay them to the other [officer].” Reynolds v.
Jamison, 488 F.3d 756, 768 n.7 (7th Cir. 2007) (citing
United States v. Hensley, 469 U.S. 221, 232-33 (1985);
United States v. Sawyer, 224 F.3d 675, 680 (7th Cir.
2000)). As there was no communication from Officers Chu
8 No. 06-3137
and McNeil at the front door to Lopez at the side door, it
was improper to impute their knowledge to Lopez.
Consequently, a recitation of the pertinent facts for the
evaluation of whether Lopez had probable cause to enter
via the side door are: (1) an unknown drug supplier visited
the home a week earlier for a few minutes, (2) the regis-
tered occupant had two prior drug convictions, (3) the
person at the front door (Ellis) would not allow Officers
Chu and McNeil to enter the home, and (4) Lopez heard
movement in the home that made him concerned that
drugs were being destroyed. On item three, we can infer
that Lopez knew that Ellis was refusing entry to Chu and
McNeil because the team’s plan was to obtain consent to
enter into the home. Consequently, a reasonable officer in
Lopez’s position would recognize that consent was not
being offered when Chu and McNeil continued to talk to
Ellis through the door.
A reasonable officer in Lopez’s position can properly
consider the fact that the then unknown supplier visited
the 40th Street home immediately after supplying drugs
to a drug transaction. Although “a person’s mere propin-
quity to others independently suspected of criminal
activity does not, without more, give rise to probable
cause,” United States v. Carpenter, 342 F.3d 812, 815 (7th
Cir. 2003) (quoting Ybarra v. Illinois, 444 U.S. 85, 91
(1979)), it is appropriate to “draw reasonable inferences
about where evidence is likely to be kept, based on the
nature of the evidence and the type of the offense.” United
States v. Mykytiuk, 402 F.3d 773, 778 (7th Cir. 2005)
(quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th
Cir. 1996); United States v. Sleet, 54 F.3d 303, 306 (7th
Cir. 1995)). “In the case of drug dealers evidence is likely
to be found where the dealers live.” Mykytiuk, 402 F.3d at
778-79 (quoting Reddrick, 90 F.3d at 1281; United States
v. Lamon, 930 F.3d 1183, 1188 (7th Cir. 1991)). Although
No. 06-3137 9
there was no evidence that the supplier lived at the 40th
Street home, the fact that the supplier went to the home
immediately after making a drug delivery is a fact to be
considered in the probable cause determination.
We have also recognized that a person’s reactions to the
police can be considered in a probable cause determination.
“While mere presence at the scene of a crime is not
enough to establish probable cause, we know that it is
generally accepted that ‘flight can be strong evidence of
guilt.’ ” United States v. Schaafsma, 318 F.3d 718, 722 (7th
Cir. 2003) (quoting United States v. Lima, 819 F.2d 687,
689 (7th Cir. 1987)). Drugs are an easily destroyable form
of evidence and therefore an officer’s suspicions may be
raised when he or she hears movement. United States v.
Gillaum, 372 F.3d 848, 855 (7th Cir. 2004). This suspicion
could be increased if it appears that another occupant
is preventing the police from entering in another location
to buy time for his cohort.
However, the problem in this case is that the officers and
agents lacked a warrant when they approached the home
and utilized tactics that, if allowed to go unchecked, would
eliminate the Fourth Amendment warrant requirement
for a home with any connection to drugs. The 40th Street
home had some connection to drug activity but it was
rather low and by itself would not be sufficient to estab-
lish probable cause.
Knocking on a door will result in movement in any
home because an occupant will move to the door to see
who is knocking and possibly to answer the door. Others
in the home will likely also move to see what is occurring.
In this case, the home was effectively surrounded by
officers and agents at the front, side and back. The record
tells us that Officers Chu and McNeil at the front door
were uniformed officers but the record does not tell us if
the DEA agents at the back wore jackets identifying
10 No. 06-3137
themselves as DEA agents or if Lopez was identified on
the side. It is reasonable that any person, not just people
trying to destroy drugs, would be moving throughout the
home to see what was going on the front, side and back of
the home.
The key is that Lopez makes no efforts to differentiate
the movement that occurred in the 40th Street home from
the reasonable type of movement that would be found in
any home where there was a knock on the door. There is
no evidence that anyone in the 40th Street home said “It’s
the cops,” the flushing of toilets, the throwing of items out
of the windows, the immediate running out of another exit,
the slamming of doors or other actions that could lead to
a conclusion of criminal activity occurring within the
home. In short, there is no evidence in the record to
demonstrate that Lopez had any reason to single out the
40th Street home from any other home that has been
connected to drug activity.
Thus, if we affirm the district court’s decision in this
case, we have effectively created a situation in which the
police have no reason to obtain a warrant when they want
to search a home with any type of connections to drugs. If
the police knock on the door and seek to talk to the
occupant without a warrant, there likely will be movement
within any home. The police will then be able to respond
that this movement increased their suspicion and also
creates exigent circumstances that required that they
enter into the home to prevent the destruction of the drugs
that the police believed to be in the home. Alternatively,
an occupant might open the door and consent to entry
by the police. Thus, we have two choices presented to home
occupants whose homes have some type of connection to
drugs, either consent to the police when they ask to come
into your home or if you do not consent, your movement
within your own home to answer the door and the move-
ment by others in the home, along with your home’s prior
No. 06-3137 11
contact with drug activity, will create sufficient probable
cause and exigent circumstances to allow the police to
enter the home without the warrant.
We note that our conclusion relies on the fact that there
is a minimum of information presented by the government
about the 40th Street home on the probable cause issue.
There was no effort by the government to develop addi-
tional evidence of criminal activity in the home before
they decided to perform a knock and talk investigation. It
was the government’s decision to inform the occupants of
the 40th Street home that they were targets of a govern-
ment investigation when the government knocked on the
front door and asked for consent to come into the home.
The government took a gamble hoping that the occupants
would consent to their entry or would open the door
revealing contraband in plain sight. Perhaps if the gov-
ernment had come up with a better story than, “We’re
looking for a lost child, can we search the home?” they
might have been able to convince Ellis to consent to their
entry. However, once Ellis refused to consent, the occu-
pants knew of the government’s investigation of the home
and so the government was concerned that the occupants
might destroy any drugs that could be in the home.
However, it was the government’s choice to reveal itself
to the home occupants by engaging in a “knock and talk”
investigation and its decision backfired. It is perfectly
lawful for the government to knock on the front door of
home and ask to come in. However, once Ellis said no, the
government could not save its case by kicking in the side
door when it lacked either a warrant or probable cause
coupled with exigent circumstances. We return the case to
the district court to consider in the first instance whether
there are any additional arguments to save the govern-
ment’s search of the 40th Street home and with it the
government’s case against Ellis.
12 No. 06-3137
III. CONCLUSION
The decision of the district court is REVERSED and the
case is REMANDED for additional proceedings consistent
with this decision.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-27-07