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United States v. McMillian

United States Court of Appeals, Seventh Circuit

May 22, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TYRONE MCMILLIAN, Defendant-Appellant

Argued January 20, 2015.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-CR-281 -- Rudolph T. Randa, Judge.

For United States of America, Plaintiff - Appellee: Joseph R. Wall, Attorney, Office of The United States Attorney, Milwaukee, WI.

For Tyrone Mcmillian, Jr., Defendant - Appellant: Peter W. Henderson, Attorney, Office of The Federal Public Defender, Urbana, IL; Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL.

Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY, District Judge.[1]

OPINION

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Kennelly, District Judge.

Tyrone McMillian was found guilty after a bench trial on one count of possession of fire-arms and ammunition as a felon in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). McMillian now appeals the denial of his motion to suppress. We affirm.

I. Background

On July 6, 2011, Milwaukee Police Officer Brian Shull reviewed a " suspect card," an internal document issued by the Milwaukee Police Department, which detailed probable cause to arrest Tyrone McMillian for his alleged involvement in a 2007 double homicide. After conducting a brief investigation, Officer Shull went to McMillian's home in Brown Deer, Wisconsin to arrest him. Because the arrest was considered a " high felony arrest" or a " dangerous arrest," officers from the Milwaukee Police Department's tactical enforcement unit were called to assist. Officers from the Brown Deer Police Department were also called. In total, six or seven additional officers arrived at McMillian's house at approximately 1:00 pm. They did not have an arrest warrant or a search warrant.

The officers surrounded the house. Shull knocked and announced that he was a police officer. Ashley Knueppel, McMillian's cohabiting girlfriend, came to the door and confirmed that McMillian was inside. She stepped outside, and Officer Shull called for McMillian. When he came to the door, Officer Shull arrested him. Tactical officers then conducted a protective sweep of the house. During the sweep, officers observed a rifle case in one of the bedrooms.

As the sweep was taking place, Officer Shull noticed that McMillian was barefoot and asked if he wanted shoes. McMillian responded that he wanted his black Air Jordan Nike flip flops. Officer Shull asked if he wanted the black flip flops that were near the doorway. McMillian responded that those were his girlfriend's shoes and that his were in the back bedroom.

Officer Shull took this exchange as a request by McMillian to get his flip flops from the back bedroom. After the protective

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sweep was completed, Officer Shull asked Knueppel if she knew where the flip flops were located. Knueppel responded that she did and, according to Shull, one of them said something like, " Let's go get them." The two entered the back bedroom. As Officer Shull bent to pick up the shoes next to the bed, he saw two gun cases between the bed and the nightstand.

After the arrest, an officer on the scene contacted Milwaukee Police Detective Rodolfo Gomez. Detective Gomez drafted an affidavit for a warrant to search McMillian's residence. The affidavit said that an AK-47 assault rifle had been observed during the protective sweep (the government admitted this was wrong and that it should have stated that the officers observed a rifle case ). The affidavit also referenced the gun cases Officer Shull had observed when he retrieved the flip flops. The affidavit also described an informant's statement that McMillian had confessed his involvement in two 2007 homicides. A state court judge issued the search warrant.

When Detective Gomez arrived at McMillian's residence with the search warrant, he noticed a typographical error in the warrant and affidavit. Although McMillian lived at 6333 West Darnell Avenue, Detective Gomez had typed 6633 West Darnell Avenue. He called the judge, who instructed him to correct the mistake by hand. Detective Gomez did so and noted that the judge had approved the correction. Detective Gomez was not placed under oath when he revised the address. Officers searched McMillian's house and recovered firearms and ammunition.

The July 6, 2011 search and arrest led to two indictments. McMillian was first indicted on September 7, 2011 on sex trafficking charges. See United States v. McMillian, No. 11-CR-193, (E.D. Wis.) (Clevert, J.).[2] The sex trafficking charges are not part of this appeal. McMillian was indicted on the charge that is the subject of this appeal on December 6, 2011. A grand jury charged him with one count of possession of firearms and ammunition as a felon in violation of ...


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