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United States v. Nelson

United States District Court, S.D. Indiana, Indianapolis Division

January 31, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTOINE NELSON, Defendant.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          James Patrick Hanlon United States District Judge

         This 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.

         This 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).

         For the following reasons, the Court OVERRULES Defendant's objection, dkt. [78], ADOPTS the Report and Recommendation, dkt. [71], and DENIES the Motion to Suppress, dkt. [39].

         I. Background

         On 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.

         The 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.

         Officer 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.

         While 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). Dkt. 11.

         On June 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.

         On 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.

         The 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. [71], and denies the Motion to Suppress, dkt. [39].

         II. Discussion

         The 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 ...


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