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United States v. Alexander

July 21, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LAZZERICK M. ALEXANDER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 71-John C. Shabaz, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge

ARGUED SEPTEMBER 4, 2008

Before MANION, WOOD, and TINDER, Circuit Judges.

Lazzerick M. Alexander was convicted, following his guilty plea, of possession of two firearms and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 225 months' imprisonment. Alexander appeals from the district court's judgment, arguing that the court erred in denying his motion to suppress evidence. We affirm.

I. The Searches

In April 2007, Kathy Bastian, the manager of the Country Meadows apartment complex at 6804 Schroeder Road in Madison, Wisconsin, received an anonymous telephone call about a person staying with one of her tenants in the apartment complex. The caller, in notable detail, told Bastien that a man named Lazzerick Alexander, date of birth 10/24/80, was living with a Donelle or Vaniece Harris at 6804 Schroeder Road, Apt. 1. He described Alexander as an African American man of smaller build, approximately 5 feet 8 inches tall, 165 pounds, and he said that Alexander drove a white Buick Riviera with Wisconsin license plate number 909-LRS. The caller also told Bastien that Alexander was selling crack cocaine out of Apt. 1, charging $100 for eight-balls, $350 for half ounces, and $700 for one ounce. The caller said that Alexander cooked the crack in the apartment. The caller also told Bastien that he had heard that Alexander kept a gun hidden underneath the hood of the Buick Riviera. He advised her that Alexander was involved in a stabbing in Madison and currently was on probation or parole. Bastian called the cops and gave them the information she had received.

On April 16, 2007, Officer Daniel Nale of the Madison Police Department ("MPD") and other MPD officers were planning to arrest Alexander on the basis of an outstanding warrant for a parole violation. While planning for the arrest, Officer Nale heard over the city air channel that police dispatch was sending two officers to 6804 Schroeder Road to stand by as a vehicle-a white Buick Riviera-was repossessed. Because the description of the vehicle matched the tipster's description of the vehicle Alexander drove, Nale asked to be added to the call.

Officer Nale contacted Bryan Bowman, the agent of Ultimate Repossessors Incorporated who was going to repossess the vehicle. Bowman told Officer Nale that he had information that the vehicle was registered in a female's name in Marshall, but a male was using the vehicle and staying at 6804 Schroeder Road Apt. 1. Officer Nale asked Bowman why he wanted the police to stand by, and Bowman advised that he heard from the registered owner of the vehicle (Jennifer Fjelstad) that the person who had the vehicle might react violently to its repossession. Officer Nale told Bowman about his concern that weapons may be in the car and asked him to wait and see if the police could find the vehicle first. Bowman agreed.

That evening, officers waited for Alexander at the Country Meadows parking lot. Officer Nale observed a white Buick Riviera with Wisconsin license plate 909-LRS turn into the parking lot. Nale pulled the vehicle over. He approached and observed Alexander sitting in the front passenger seat. Officers Dustin Clark and Matt Schroedl arrived and arrested Alexander based on the outstanding warrant for his arrest. Sergeant Kosovac arrived as well. Officer Nale placed the driver, identified as Antwan Richmond, in handcuffs.

Officer Nale testified at the suppression hearing that he said something to Alexander about the car and Alexander responded that it was not his car. Alexander claimed that the car belonged to Richmond, or Richmond's girlfriend, "or whatever." Nale added that Alexander repeated three or four times that it wasn't his car. Similarly, Officer Schroedl testified that during the course of Alexander's arrest, Alexander stated that the vehicle did not belong to him, but belonged to Antwan. Officer Schroedl's report states that as he was walking Alexander back to his squad car, Alexander made reference to "my car," but when Schroedl asked whether he was referring to the Buick Riviera, Alexander stated, "No, that's Antwan's car." Subsequently, Schroedl placed Alexander in the back seat of his squad car. Nale's arrest report estimates that Alexander and Richmond were arrested at approximately 8:20 p.m.

Once Alexander and Richmond had been removed from the Riviera and arrested, Officer Nale called Bowman who was waiting at a nearby gas station and told him to come over. When Bowman and another individual arrived, Officer Nale identified Bowman based on a Wisconsin driver's license. Officer Nale asked Bowman if the Buick Riviera was the vehicle he was supposed to repossess, and Bowman answered that it appeared to be, but he would need to confirm the VIN to make sure. After Bowman confirmed the VIN with his paperwork, at approximately 8:28 p.m., Officer Nale turned the vehicle over to Bowman, indicating that the officers were done with it and had arrested two persons out of it. Bowman took possession of the Buick Riviera. Officer Nale then asked him to consent to a search the vehicle; Bowman gave his consent.

Officer Nale subsequently searched the vehicle. He opened the hood to the engine compartment and, at approximately, 8:33 p.m., found a brown cloth sack, which he pulled out of the engine compartment. Officer Nale could tell that the bag contained something heavy, like a handgun. He and Officer Schroedl opened the bag, discovering a handgun. Alexander was in Schroedl's squad car during the search of the Buick Riviera.

Shortly thereafter, Office Schroedl and two other officers, including Officer Jeffrey Felt and his canine partner, Gilden, went to Vaniece Harris's apartment at 6804 Schroeder Road, Apt. 1. Officer Felt had Gilden conduct a sniff of the doorway to Apt. 1. The dog didn't alert. Officer Schroedl knocked on the door, Harris answered and gave Schroedl and another officer permission to enter. The officers told Harris that Alexander had been arrested. Harris informed the officers that Alexander lived in the apartment. The officers reported that they had information that Alexander was cooking crack cocaine in the apartment and asked Harris if they could search the apartment. Harris declined to consent, indicating the officers would need a search warrant. With that, the officers exited the apartment.

The officers had the dog conduct a second sniff at Harris's apartment door. This time he sat-an alert for drugs. As a result, Officer Schroedl again knocked on the door. When Harris opened it, he and two other officers entered without asking for permission. Officer Schroedl testified that they wanted to secure the apartment to ensure that no evidence, especially drugs, was destroyed. Officer Schroedl advised Harris that the dog had alerted to the presence of narcotics and, based on that and the information that Alexander was cooking crack cocaine in the apartment, they had probable cause and would apply for a search warrant. Harris asked how long that would take, and Officer Schroedl explained that it would take approximately two hours to draft a warrant application which would then have to be reviewed and approved by a judge. He advised Harris that they would stay until a search warrant was obtained. Officer Schroedl also informed her that she could consent to a search and it wouldn't take as much time. Harris said she would consent to a search of the apartment. When presented with the consent to search form, however, she said she didn't want to sign the form. Sergeant Linda Kosovac told Harris that they needed her to sign the form, and Harris responded that they would have to get a search warrant.

As a result, Sgt. Kosovac instructed Officer Schroedl to leave and begin drafting the search warrant application. He left to do so and the other officers remained in the apartment. Harris telephoned Alexander's mother to tell her what had been happening. Sgt. Kosovac advised Harris they would stay there until the search warrant came back and that she was free to move about. The officers maintained a normal conversational tone; they did not yell at or threaten Harris. Nor did they place her in handcuffs.

After again talking on the telephone with Alexander's mother, Harris told the officers that she would sign the consent form and they could go ahead and search. Harris testified that she had changed her mind: It was late at night, she had to be at work the next day, and she was very tired. Harris signed the form. ...


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