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United States v. Starnes

United States Court of Appeals, Seventh Circuit

December 23, 2013

UNITED STATES of America, Plaintiff-Appellee,
Fernell A. STARNES, Defendant-Appellant.

Argued Nov. 8, 2013.

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[Copyrighted Material Omitted]

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Mark T. Karner, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Glenn J. Jazwiec, Elgin, IL, for Defendant-Appellant.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

After receiving citizen complaints of drug trafficking, the Rockford Police Department arranged an undercover controlled purchase of crack cocaine from a lower level apartment at 922 North Church Street in Rockford, Illinois. [1] Three days later, the police secured a warrant to search " 922 N. Church Street lower apartment, Rockford Illinois." The warrant described the premises to be searched as a " two story, two-family dwelling, white with black trim, located on the west side of street with the numbers '922' appearing on the front of the residence with lower apartment being located on the ground floor." The lower apartment was actually the lower level of a two-story house that had been converted from a single family residence into a two-flat.

The police knew that they would be facing two obstacles when they executed the search. The first was that mere hours before the planned raid, a shooting occurred at the residence. Police officers conducting raids assume that drug dealers are armed (and the assumption is generally correct, as weapons are a necessary tool of the drug trade. United States v. Gulley, 722 F.3d 901, 908 (7th Cir.2013)), but the recent shooting increased the risk that the weapons were loaded and ready and the possessors of those weapons were agitated and on high alert. The police officers also knew that two aggressive pit bulls lived on the premises.

After knocking on the front door of the house and receiving no response, investigators forced their way into the building. The first officer to enter the house found himself in a small foyer with two open

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doors. One door led to the first floor apartment. The other door led to an initial set of ascending stairs, four or five of which were visible before they turned at a landing. The office immediately encountered a pit bull who initially turned and ran away from the officer, through the open door to the stairway, and up a few steps toward the upper apartment, before altering course and charging toward the officer. The officer shot and killed the dog on the first landing and then proceeded up those same stairs to perform a protective sweep of the upper apartment. As he ran through the kitchen of the upper apartment, he noticed on the counter various mixing bowls, several large chunks of an off-white substance, some scales and rubber gloves. In the bedroom he discovered the defendant, Fernell Starnes, and a woman in bed. The officer detained Starnes and the woman and escorted them downstairs. Other officers then left to seek a second warrant to search the upstairs apartment, leaving one officer behind at the bottom of the stairs to prevent anyone from entering the apartment.

While some officers were seeking the second warrant, other detectives searched the lower apartment (for which they already had a warrant) and seized two semi-automatic rifles, two loaded ammunition magazines, a loaded .45 caliber semiautomatic hand gun, and drug trafficking paraphernalia. After executing the search warrant on the second floor, the officers seized Starnes' photo identification cards, approximately 290 grams of cocaine, 72.5 grams of cocaine base, $36,186 in cash, and more drug trafficking paraphernalia.

The government charged Starnes with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) and possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Starnes moved to suppress the evidence seized from the second floor after the execution of the second search warrant. After an evidentiary hearing, the district court denied the motion to suppress. Eventually Starnes entered a guilty plea but reserved his right to challenge the denied motion. The lower court sentenced Starnes to serve consecutive sentences of 63 months on Count 1, and 60 months on Count 2. He now challenges the district court's ruling on the motion to ...

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