Seventh Circuit Court finds search reasonable.

• Author: Ziemer, David

Byline: David Ziemer

Where officers did not remove a suspect in order to prevent him from objecting to a search of his home, but arrested him legally, his wife's prior consent to search renders the search reasonable, the Seventh Circuit held on Nov. 16. In 2004, Anita DiModica (Anita), the wife of Nicholas P. DiModica (DiModica), met with Special Agent Smith of the Wisconsin Department of Justice, and reported that she had been physically abused by DiModica two weeks earlier. She also told him that DiModica used drugs and likely had drugs in their home, and that he owned several firearms, even though he was a convicted felon. Pursuant to Smith's instructions, Anita filed a domestic abuse complaint with the Cottage Grove Police Department. Anita told the officer that DiModica was likely at home, and gave them a key and written consent to search the home. Instead of getting arrest and search warrants, Smith and a Cottage Grove officer drove to the home at 11 p.m. When DiModica answered, they claimed that Anita had been injured in an automobile accident. DiModica and the police disputed how the officers obtained entry into the home, but the district court accepted the officers' version at the subsequent suppression hearing: that DiModica invited them into the home's mudroom; then went to put on a shirt; and when he returned, they arrested him, and removed him from the scene. After the arrest, they searched the home, and found three firearms. DiModica was charged with felon in possession of a firearm, and moved to suppress the evidence. U.S. District Court Judge Barbara B. Crabb adopted the findings of the magistrate judge and denied the motion, and DiModica pleaded guilty, reserving his right to challenge the denial of the motion. DiModica appealed, but the Seventh Circuit affirmed in a decision by Judge William J. Bauer. Arrest The court first held that the arrest of DiModica was lawful. DiModica claimed that he never invited the officers into the mudroom, but left them standing outside while he got his shirt, and that they entered his mudroom without consent. However, the court found that the district court's findings of fact were not clearly erroneous. Because the findings of fact were: (1) the officers were lawfully in the home; and (2) they had probable cause to arrest DiModica; the court held: (1) the arrest was lawful; and (2) therefore, the arrest did not taint the subsequent search.

Search Turning to the search, the court held that...