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United States v. Pagel

decided: August 16, 1988.


Appeal from the United States District Court for the Western District of Wisconsin. No. 87 CR 37-Barbara B. Crabb, Judge.

William J. Bauer, chief Judge, Richard A. Posner, Circuit Judge, and Wilbur F. Pell, Senior Circuit Judges.

Author: Bauer

WILLIAM G. BAUER, Chief Judge.

Ronald Pagel appeals from his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). He argues that certain evidence discovered in the search of a vehicle he was driving should have been suppressed at trial because the search violated his Fourth Amendment rights, and that the trial court erred in refusing to admit certain of his proffered evidence at trial. We reject both arguments and affirm his conviction.



In the spring of 1987, Detective Thomas Kretschman of the Dane County, Wisconsin Sheriff's Department was investigating a burglary that had occurred in Verona, Wisconsin. During the course of his investigation, he interviewed two people who had overheard two men talking in a Verona tavern about the burglary. He also learned that a parolee named Wade Larsen was living in a motel in Verona. Kretschman decided to see if Larsen matched the description of either of the men the interviewees had overheard at the Verona tavern.

Kretschman called Officer Ensloe of the Verona Police Department, who happened to live at the same motel. Ensloe told Kretschman that another motel resident, Robert Jacobson, had recently observed Larsen with a handgun. Kretschman contacted the manager of the motel, a Mr. Krueger, who stated that he had heard gunshots from the area of Larsen's apartment, and that other residents had complained of shots. Kruger also told Kretschman that Larsen had told him that he kept a gun in his room and that he had fired it on occasion. Kretschman then contacted Jacobson, who told him that on April 12, 1987, he saw Larsen drive into the motel parking lot in a 1973 Oldsmobile. Jacobson said he saw Larsen get out of the car, go into the motel, and return to the car carrying a .25 or .32 caliber handgun. According to Jacobson, Larsen put the gun in his pocket and hurriedly drove away.

Sensing a potential parole violation, Kretschman called Larsen's parole agent, Neil Lane, and told him of Larsen's possible possession of a handgun. Lane decided to search for the gun during a scheduled home visit with Larsen the next day, and asked Kretschman to accompany him and, if necessary, assist him in handling Larsen. Lane then told his supervisor, Kristine Flood, about Kretschman's information concerning Larsen and asked for permission to search Larsen's home pursuant to Wis. Admin. Code, HSS § 328.21(c), which provides that "[a] search of a client's living quarters or property may be conducted by field staff if there are reasonable grounds to believe that the quarters or property contain contraband. Approval of the supervisor shall be obtained unless exigent circumstances, such as suspicion the parolee will destroy contraband or use a weapon, require search without approval."*fn1 Pursuant to the regulation, Flood gave Lane verbal authorization to search Larsen's residence.

The next day, at approximately 5:15 p.m., Lane met Kretschman and a Detective Hughes at Larsen's motel in Verona. While the detectives waited in their car, Lane knocked on Larsen's door. No one answered. Soon after, Kretschman saw Larsen walking toward the motel. When Kretschman got out of his car, Larsen turned around, walked around the side of the motel, and disappeared. After a brief search of the area, the detectives and Lane returned to Larsen's apartment, where Larsen reappeared a short time later. Lane then told Larsen that he was going to search Larsen's apartment because he had information that Larsen had a gun and was a robbery suspect. Larsen voiced no objection.

When the group entered Larsen's living area, Larsen said something like, "You're probably thinking of this," and picked up a plastic pellet gun from a nearby stand. When Kretschman took the plastic gun and showed it to Jacobson, however, Jacobson said it was definitely not the same gun he had seen two days before. Lane then expanded his search to Larsen's kitchen and bedroom, looking for the gun described by Jacobson. In the bedroom, Lane lifted a mattress and found a loaded .38 caliber revolver with a package of cartridges. Lane gave the gun to Kretschman, who unloaded it and showed it to Jacobson. But Jacobson said it, too, was definitely not the gun he had previously observed. At that point, Larsen was taken into custody for a parole violation and the apartment search ended.

While the apartment search was in progress, Dane County Deputy Norbert Peter Endres arrived at the scene to see if the detectives needed assistance. Kretschman told Endres to look for Larsen's 1973 Oldsmobile and suggested that Endres talk to Jacobson for a more detailed description of the car. Jacobson described Larsen's vehicle to Endres as a gold Oldsmobile Cutlass Supreme with a brown top, license number AHE-511. A short time later, Jacobson told the officers he had just seen Larsen's car driving past the motel. The officers then passed this information on to Lane, who by now had discovered the .38 caliber revolver beneath the mattress in Larsen's bedroom. Lane requested the officers to stop Larsen's car so it could be searched and, at the direction of either Kretschman or Hughes, Endres went off to stop Larsen's car. Endres was not instructed to arrest the driver, nor did he know the reason for stopping Larsen's car; he only knew that a question of a weapon was involved.

After driving a few miles in the direction toward which Jacobson saw the Oldsmobile heading, Endres spotted Larsen's car and activated his warning lights. Pagel was driving. Instead of stopping on the side of the road, however, Pagel drove the Oldsmobile into the parking lot of an apartment complex and parked in a stall directly in front of one of the apartments. Endres pulled up right behind and perpendicular to the vehicle, and contacted Hughes and Kretschman, who were still back at the motel. Hughes told Endres to get the driver out of the Oldsmobile and to detain him until the detectives could speak with him. Lane then left for the apartment complex in his own car. Detective Hughes followed in an unmarked car, with Kretschman and a handcuffed Larsen in the back seat.

After stopping behind the Oldsmobile, Endres got out of his car carefully. According to Endres, at the same time, Pagel also got out of the Oldsmobile in an "unusual manner"-stooped over with his back to Endres, then slowly turning and standing upright to face Endres. Endres ordered Pagel to come toward him and, near the trunk of the Oldsmobile, performed a pat-down search. Finding no weapons, Endres placed Pagel in the back of the squad car. The only verbal exchange initiated by Endres ...

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