Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07 CR 56-J. P. Stadtmueller, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before KANNE, WILLIAMS, and TINDER, Circuit Judges.
On March 6, 2007, a grand jury in the Eastern District of Wisconsin returned a two-count indictment against the defendant, Christopher Hicks, alleging (1) possession of a firearm by a felon, violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (2) possession of a firearm not registered to him in the National Firearms Registration and Transfer Record, violating 26 U.S.C. §§ 5861(d) and 5871. The firearms had been seized in a search conducted by Milwaukee police officers. On March 27, 2007, Hicks filed a motion to suppress physical evidence. The magistrate conducted an evidentiary hearing on April 12, 2007, and recommended on May 1, 2007, that the motion be denied. Hicks filed his objections to the recommendation on May 11. The district court adopted the magistrate's recommendation and denied the motion to suppress in an order issued June 1, 2007. Hicks filed a motion for reconsideration on June 15, 2007. Also on June 15, the parties filed a plea agreement. On June 18, the judge denied the motion to reconsider and accepted Hicks's guilty plea. The plea reserved the right to appeal the denial of the motion to suppress. The sentencing hearing was held on October 18, 2007, where the court sentenced Hicks to 37 months' imprisonment to be followed by three years' supervised release and a $100 special assessment. Hicks is now appealing the denial of his suppression motion.
We outline the basic facts here and delve into the specifics below, as necessary, in our analysis. Detective Wayne Armon of the Milwaukee Police Department was conducting an investigation of a shooting that occurred on October 11, 2006. On December 24, 2006, Armon asked Detective Donald Brown to go to Hicks's flat at 944B North 37th Street, Milwaukee, Wisconsin and instructed Brown to get consent to search. According to Brown, Armon told him there was enough to get a warrant, but Brown him-self did not have knowledge of any facts that would establish probable cause. In addition to a suspected connection to the October 11 incident, there were two municipal warrants for Hicks's arrest. After establishing that Hicks's residence was the upper rear flat of the duplex, Brown and other officers went up and knocked. Hicks answered and was immediately handcuffed and placed under arrest. The officers conducted a protective sweep and discovered Hicks's girlfriend, Samella Smith, and four children, all of whom had been asleep. Smith, upon request, got clothes for Hicks who was in the kitchen, and then Smith and the children were told to wait in the living/dining area. During all of this, Hicks was upset and vocal, asking why the police were there and so on. After getting dressed, Hicks was removed from the residence and taken out to the squad car. At some point relatively soon thereafter, he was taken down-town to the police station.
After Hicks's removal, Detective Brown sought consent to search from Smith. Smith resisted, telling Brown that the police should get a warrant. Brown continued talking with her and at some point in the conversation, Brown told her that he could obtain a search warrant, but that it could take some time. He told her it was Christmas Eve and that with her cooperation he would not destroy her house in the search. He also told her he believed there were guns in the residence with children in the home. Smith told Brown to "go ahead." Nevertheless, she refused to sign a consent statement in his memo book. In the search, officers found, in Smith and Hicks's bedroom, a loaded Smith and Wesson, .40 caliber, semi-automatic handgun, additional ammunition, and a loaded sawed-off Mossberg .12 gauge shotgun, with a pistol grip.
II. Analysis & Discussion
Hicks is presently appealing the denial of his motion to suppress because he believes that the warrantless search was unlawful. He raises three particular issues: (1) whether the district court erred in finding that Hicks did not object to the search and that the removal of Hicks to the squad car was not intended to prevent him from objecting to the search; (2) whether the district court erred in concluding that Smith consented to the search; and (3) whether the district court erred in determining that the police had a genuine belief that a warrant could be obtained. We will address each in turn, although they do overlap considerably. Our review of the legal questions is de novo and the factual findings for clear error. United States v. DiModica,468 F.3d 495, 498 (7th Cir. 2006).
Hicks argues that his comments (along the lines of "What are you doing here?") made to the officers while they were all in his flat prior to his removal constitute an objection to the search. He explains that as an overnight guest his right to object is clearly established, see Minnesota v. Olson, 495 U.S. 91, 98 (1990), and that as a physically present co-occupant his stated refusal to permit entry renders the search invalid as to him, nullifying any con-sent from Smith, see Georgia v. Randolph, 547 U.S. 103, 109 (2006). In support, he focuses on the following testimony from Detective Brown:
Q: He objected to your being present?
A: Probably did, yes, he did.
The district court, however, concluded otherwise, finding that "there was no evidence that he objected to a search taking place; to be sure, he objected to his arrest and removal, but he did not specifically object to a search of the premises." Hicks disagrees, arguing that it's more likely his statements were directed to the police and their protective sweep, which is a sort of search, and, regardless, an objection to police presence should be equated to an objection to a search. He cites a district court case, United States v. Henderson, No. 04 CR 697, 2006 WL 3469538 (N.D. Ill., Nov. 29, 2006), rev'd, United States v. Henderson, No. 07-1014, 2008 WL 3009968 (7th Cir. Aug. 6, 2008), for support.
We do not agree with Hicks and find that the district court did not clearly err. At the time of his protestations, Hicks was being arrested-no officers had even mentioned a search to him, and he was not asked to give his consent at any point. It is likely that many individuals being arrested are going to object, and many of them might even be vocal and upset about it. (Especially when getting arrested in your home, immediately upon waking, while scantily clad, in front of your girlfriend and children, on Christmas Eve.) It was reasonable for the district court to understand his remarks as responsive to the police who were there arresting him. As a factual finding, this is only ...