United States District Court, S.D. Indiana, Indianapolis Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
Patrick Hanlon United States District Judge
matter is before the Court on Defendant Antoine Nelson's
Motion to Suppress. Dkt 39. The Court referred this motion to
Magistrate Judge Mark J. Dinsmore for a report and
recommendation under 28 U.S.C. § 636(b)(1)(B). The
Magistrate Judge issued a Report and Recommendation
recommending that the Motion to Suppress be denied. Dkt.
71. Defendant timely objected to the Report and
Recommendation. Dkt. 78.
Court reviews the Report and Recommendation under a de
novo standard of review. Fed. R. Crim. P. 59(b)(3);
see also 28 U.S.C. § 636(b)(1) (“A judge
of the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”). For the
portions of the Report and Recommendation Defendant did not
object to, “the district court judge reviews those
unobjected portions for clear error.” Johnson v.
Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
following reasons, the Court OVERRULES
Defendant's objection, dkt. , ADOPTS
the Report and Recommendation, dkt. , and
DENIES the Motion to Suppress, dkt. .
January 20, 2018, the Indianapolis Metropolitan Police
Department received a call stating that children were
screaming inside 245 South Rural Street and were asking for
someone to stop beating them. Dkt. 2 at 3. Two
police officers responded to the call: Officer Mauk and
Officer Benedict. Id.
police officers arrived at the house at the same time and
approached the door to the house together. Dkt. 59 at 9-10.
While Officer Benedict knocked on the door, Officer Mauk
looked through the window and saw Defendant, Antoine Nelson,
pointing a gun at him. Id. at 10-11, 35. The
officers then retreated to a safe location and asked
Defendant to come out of the house with his hands up.
Id. at 11, 35-36. Defendant exited the house with
his hands up, unarmed, and with an empty gun holster on the
front of his pants. Id. at 12-13, 37.
Mauk spoke with Defendant on the porch of the house while
Officer Benedict went to the police vehicle to run a
background check on Defendant. Id. at 37. While
speaking with Defendant, Officer Mauk looked through the
house's open door and saw a gun lying on a couch and two
preschool children moving around the house. Id. at
37-40. At times, the children were within feet of the gun.
Id. at 39. Officer Mauk asked Defendant if he could
go into the house and get the gun so “it was not around
the children.” Id. Officer Mauk testified that
Defendant agreed with him and said that it was not a good
idea to have the gun around the children. Id. at
39-40. Officer Mauk understood this statement to be consent,
so he entered the house, grabbed the gun, and then returned
to the porch to continue speaking with Defendant.
Id. at 40-41. Defendant claims he did not consent to
the search. Dkt. 39 at 2.
Officer Mauk was speaking with Defendant on the porch,
Officer Benedict was in the patrol car conducting a records
check, BMV records check, and a warrant check on Defendant.
Dkt. 59 at 13. Through these checks, Officer
Benedict learned that Defendant was subject to a protection
order that prohibited him from possessing or purchasing a
firearm. Id. at 13-14. Officer Benedict returned to
the porch shortly after Officer Mauk retrieved the firearm
and arrested Defendant for violating the protection order.
Id. at 15. The officers then waited in the house
with the children until their mother arrived. Id. at
16-18. On January 23, 2018, Defendant was charged with Felon
in Possession of a Firearm under 18 U.S.C. § 922(g)(1).
20, 2018, Defendant moved to suppress the evidence found in
his residence. Dkt. 39. That motion was referred to the
Magistrate Judge for a report and recommendation. After
reviewing the various briefs from the parties, dkt. 39; dkt.
45; dkt. 46; dkt. 48, and conducting a suppressing hearing,
dkt. 59, the Magistrate Judge issued his Report and
Recommendation denying the Motion to Suppress, dkt. 71.
December 17, 2018, Defendant filed a timely objection to the
Report and Recommendation. Dkt 78. On December 31, the
government responded to Defendant's objections, dkt. 80,
to which Defendant did not reply.
Court has conducted a thorough review of the Report and
Recommendation, the parties' filings before this Court
and Magistrate Judge Dinsmore, and the transcript of the
suppression hearing. After a de novo review of the
issues for which objections were filed, and after a thorough
consideration of all the issues raised in Defendant's
suppression motions, the Court hereby accepts and adopts the
Report and Recommendation, dkt. , and denies the Motion
to Suppress, dkt. .
Court's analysis of the Report and Recommendation starts
with “the presumption that warrantless searches and
arrests within a home are unreasonable and violate the Fourth
Amendment.” United States v. Richards, 741
F.3d 843, 847 (7th Cir. 2014). A warrantless search may be
constitutionally permissible, however, if a “narrowly
proscribed” exception applies. United States v.
Bell,500 F.3d 609, 612 (7th Cir. 2007). If the
government argues that it obtained evidence under one of
these exceptions, it bears the burden of establishing that
the exception applies. United States v. Denberg, 212
F.3d 987, 991 ...