CHICAGO – U.S. District Judge Stephen McGlynn correctly rejected a claim that police who seized a rifle from suspect Paige Davis violated his rights, Seventh Circuit judges Amy St. Eve and Thomas Kirsch decided on Aug. 11.
Circuit Judge Jackson-Akiwumi dissented.
St. Eve wrote that reversing McGlynn would suggest she and Kirsch found his conclusion wildly off the mark, “and we have no facts which suggest that.”
Jackson-Akiwumi wrote that McGlynn got the standard of evidence backwards and none of his justifications supported his decision.
Davis lived with Antionette Ewing-Jimerson in St. Clair County.
On Oct. 18, 2020, a witness to a shooting in Randolph County told officers Davis shot Kenny Stacker from a moving vehicle.
After doctors treated Stacker for gunshot wounds to his legs and an arm, he told officers he believed Davis shot him.
On Dec. 8, 2020, St. Clair County officer Xavier Blackburn led a task force to Davis’s home to serve a warrant for aggravated battery.
Ewing-Jimerson wasn’t there.
Davis came through the front door with a dog on a leash.
He didn’t resist arrest and he said children were inside.
Officers entered and brought out a child and an adult 19 years of age.
Officers searched the residence and found a rifle against the wall of an open closet.
In about 45 minutes, Ewing-Jimerson arrived.
Officers asked her for consent to search and she signed for it.
As officers left Davis said, “Hey where are you going? That’s my gun.”
Grand jurors in district court agreed, and they indicted him on a charge of firearm possession by a felon.
Federal public defender David Brengle moved to exclude the rifle from evidence.
He claimed officers lacked a reasonable basis for the sweep, their search tainted Ewing-Jimerson’s consent, and they didn’t ask Davis for consent.
McGlynn denied the motion last July, finding the Supreme Court declared exclusion a last resort and not a first impulse.
He found that in certain circumstances, police could conduct a lawful search without a warrant.
He found officers as a precautionary matter could look in closets and other spaces from which an attack could be launched.
He found that a lack of detail in the statement that children were in the house provided justification for a protective sweep. He also found it reasonable to infer that a threat remained in the house.
“Importantly, the officers limited their search to areas where an individual would have the ability to hide,” he wrote.
He found they didn’t search drawers or cabinets.
He found that even if the search was unlawful, Ewing-Jimerson subsequently consented to an entire search.
He found she consented without threat or promise of any kind.
Davis pleaded guilty of the firearm charge and reserved a right to appeal.
At a sentencing hearing McGlynn said, “Your history clearly shows that you have very violent tendencies and you have incorporated the use of firearms to advance crimes you want to commit or to injure people.
“It’s just not enough to be able to punch them in the face.”
He sentenced Davis for seven years and three months.
On appeal, St. Eve and Kirsch found Davis didn’t dispute that Ewing-Jimerson’s consent was voluntary.
They found the initial entry didn’t taint her consent, and that officers had good faith reasons to go in and conduct a limited sweep.
Dissenter Jackson-Akiwumi wrote that she’d vacate the conviction.
She found police had discovered the rifle when they sought Ewing-Jimerson’s consent for a second search.
She found the only items of evidence from the second search were Davis’s clothes, wallet, and bank card, confirming he lived there. She found it wasn’t clear whether officers would have sought Ewing-Jimerson’s consent if they hadn’t already been aware of the rifle.
“I see no basis to characterize the rifle as a product of her consent,” she wrote.
She stated her concern was how officers discovered it, not how they seized it.
Assistant U.S. attorneys David Dean and Alexandria Burns represented the people.