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United States v. Swanson

December 31, 2009

UNITED STATES OF AMERICA PLAINTIFF,
v.
THOMAS L. SWANSON, DEFENDANT.



The opinion of the court was delivered by: Frederick J. Kapala, District Judge

MEMORANDUM OPINION AND ORDER

Defendant, Thomas L. Swanson, is charged with possessing a sawed-off shotgun not registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d). Defendant has moved to suppress the sawed-off shotgun and the statements he made concerning the weapon. Defendant maintains that a court order requiring him to turn over his firearms as a condition of his pretrial release on an unrelated state charge led to his surrender of the sawed-off shotgun and violated his Fourth, Fifth, and Sixth Amendment rights. The parties have filed briefs and the court has held an evidentiary hearing. For the reasons that follow, the motion is denied.

I. BACKGROUND

In April 2008, Sergeant David Ford of the Hinckley, Illinois, Police Department received information that defendant was planning to commit a bank robbery. During an interview on April 5, 2008, defendant told Ford and Federal Bureau of Investigation (FBI) Special Agent Casimer Solana that he had been considering robbing a bank and that he had a gun in his vehicle. With defendant's permission, Ford searched defendant's vehicle and located a Hi-Point.380 semi-automatic pistol and a hold-up note. Ford determined that defendant did not have a valid firearm owner's identification (FOID) card and seized the pistol. At that time, the DeKalb County State's Attorney declined to prosecute defendant for possessing the firearm without a valid FOID card.

Approximately one year later, Ford received information that defendant again was planning to rob a bank. On May 27, 2009, with the intention of preventing a bank robbery, Ford sought and obtained a warrant for defendant's arrest for the Illinois criminal misdemeanor of possession of a firearm without a valid FOID card based on defendant's possession of the Hi-Point.380 pistol in April 2008. When the criminal complaint was sworn and the warrant issued setting defendant's bail at $3,000 (10% cash to be posted), the state court judge also entered an order that provided, "[a]s further condition of bond, Defendant, Thomas Swanson is directed to turn over any firearms in his possession control to the Hinckley or Sandwich police department."

At the hearing on the motion to suppress, Ford testified to the circumstances leading up to the issuance of the turn-over order. According to Ford, he and an assistant state's attorney presented the paperwork to the judge in chambers and explained that the unlawful possession occurred back in April 2008 when defendant admitted that he was planning several bank robberies. They also informed the judge that they were seeking charges at that time because new information had surfaced that defendant had resumed his plans, and that defendant had not yet obtained a FOID card. The assistant state's attorney recommended that the judge enter the turn-over order. Ford testified that at the time he went in front of the judge, other than the fact that defendant had a firearm in April 2008, he had no reason to think that defendant was in fact in possession of any firearms. Ford also testified that when he walked out of the judge's chambers on May 27, 2009, he believed that the turn-over order was a valid court order.

On May 28, 2009, at approximately 10:01 a.m., Ford, accompanied by Detective Robert Holmes of the Sandwich, Illinois, Police Department, drove to defendant's residence and told defendant that they had a warrant for his arrest for possessing a firearm in 2008 while his FOID card was expired. Ford provided defendant with a copy of the turn-over order and explained to defendant that the judge had issued an order providing that he turn over all his firearms as a condition of his bond. Ford then asked defendant if he had any firearms in his possession that he wanted to turn over in compliance with the court order. In response, defendant stated that there were two shotgun cases under the bed in his bedroom and gave Ford permission to enter the house to retrieve the weapons. One case contained a shotgun and the other only a barrel.*fn1 Ford then told defendant that he did not want defendant to be in violation of the court's order and asked if there were any other weapons or even look-alike weapons that defendant wanted to turn over. Defendant said that there was a BB gun in his car. Defendant then retrieved a look-alike semi-automatic pistol style BB gun from the center arm console of his Pontiac Grand Am which was parked in the driveway. Ford again asked if there were any other weapons defendant could think of, and defendant said no. Defendant remained calm and cooperative during the entire interaction.

The Sandwich Police Chief transported defendant to the Sandwich Police Department while Ford and Holmes remained at defendant's residence to interview defendant's wife, Amy Swanson. Amy provided Ford with written consent to search the Pontiac. The search of the Pontiac pursuant to Amy's consent yielded no firearms. Ford explained at the hearing that when he obtained Amy's consent to search the Pontiac, she said the car was primarily defendant's. Ford asked if it was marital property, and Amy said yes. At the hearing on the motion, Amy testified that defendant was the sole owner of the Pontiac, that she never even rode in the Pontiac, and that they always took her vehicle when they went out as a family. She agreed, however, that she did not explain these circumstances to Ford, although she felt she was not given the opportunity to do so. Amy also agreed that she had no reason to believe that defendant would prevent her from driving the Pontiac if she needed to do so.

After completing their search of the Pontiac, Ford and Holmes drove to the Sandwich Police Department. As Ford entered the interview room at approximately 10:45 a.m., defendant spontaneously stated that he wanted to be honest and to comply with the turn-over order and said that there was one more shotgun underneath the rear seat of the Pontiac. Ford then requested and obtained defendant's written consent to a further search of the Pontiac. Detective Holmes returned to defendant's residence and retrieved a sawed-off shotgun from the Pontiac.*fn2 Meanwhile, Ford read defendant his Miranda rights, which defendant acknowledged verbally before voluntarily answering questions. During this interview, defendant admitted that he had conducted surveillance of local banks and that he had thought about robbing a bank. At the end of the interview, Ford transported defendant to the Hinckley Police Department where defendant had lunch and agreed to provide a written statement in question and answer form. Toward the end of the preparation of defendant's written statement, Agent Solana arrived at the Hinckley Police Department. Defendant never indicated that he did not want to answer questions and never said that he wanted to speak to a lawyer. After the written statement was completed, defendant was photographed, booked, fingerprinted, and transported to the DeKalb County Jail. Ford said that defendant would have been released on bond from the Sandwich Police Department if he had the $300 bail to post.

II. ANALYSIS

Defendant maintains that the issue raised by his motion is as follows: Where an individual is accused of possessing a firearm in violation of the Illinois Firearm Owner's Identification Card Act an order requiring him to surrender all firearms in his possession or control as a condition of his bail is a violation of the Fourth, Fifth, and Sixth Amendments to the United States Constitution and any firearms seized cannot be used in evidence in a subsequent trial for possession of those weapons.

At the outset, the court notes that the instant motion does not require this court to decide whether the state judge had the authority under Illinois law to enter the turn-over order. See Thomson v. City of Chi., 472 F.3d 444, 454 (7th Cir. 2006) (holding that a violation of state law "is completely immaterial as to the question of whether a violation of the federal constitution has been established"). Nor does the instant motion require this court to determine whether the turn-over order could have worked a constitutional violation under different circumstances. Instead, this court's analysis is limited to determining whether the turn-over order worked a violation of defendant's constitutional rights under the circumstances of this particular case. It serves the court's analysis to take the arguments based on the constitutional amendments in reverse order.

A. Sixth Amendment

The court specifically ordered defendant to state his Sixth Amendment argument in his post-hearing brief. Defendant failed to do so. Because defendant advances no discernable Sixth Amendment argument, it is waived. See United States v. Wescott, 576 F.3d 347, 356 (7th Cir. 2009) (stating that unsupported and undeveloped arguments are waived).

B. Fifth Amendment

Essentially, defendant's Fifth Amendment argument is that his self-incriminating statement revealing the location of the sawed-off shotgun to the authorities was compelled by the court order requiring him to turn over any firearms in his possession as a condition of bond. Defendant ...


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