In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3804
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OMELL R. L EWIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cr-00255-RTR-1—Rudolph T. Randa, Judge.
A RGUED A PRIL 20, 2010—D ECIDED JUNE 14, 2010
Before F LAUM, W OOD , and E VANS, Circuit Judges.
E VANS, Circuit Judge. Believing that they had obtained
his consent, two Milwaukee police detectives entered
the apartment of the defendant, Romell Lewis (actually, as
we’ll explain later, it was his girlfriend’s apartment),
and seized a short-barreled shotgun from a bedroom.
Lewis was arrested and charged with being a felon
in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and possession of a short-
2 No. 09-3804
barreled shotgun, in violation of 26 U.S.C. §§ 5861(d)
and 5871.
Lewis filed a motion to suppress the weapon. After a
hearing, Magistrate Judge Aaron E. Goodstein issued a
detailed report recommending that Lewis’s motion be
denied, which the district judge summarily adopted.
Lewis entered a conditional guilty plea to the second
count and was later sentenced to a term of 46 months.
He now appeals, arguing that his motion to suppress
was improperly denied because the detectives never
obtained his consent to enter the apartment or the bed-
room. The government, on the other hand, asserts that
the district judge (or rather, the magistrate judge) cor-
rectly concluded that Lewis voluntarily consented in
both instances.
On July 9, 2008, Richard Lucas, a private security
guard, telephoned Milwaukee police detective Michael
Crivello about a problem at an apartment complex in
the city. Lucas said that he received complaints that a
black male had fired gunshots from the window of an
apartment in that complex and that drugs were being
sold there. Lucas also stated that the man was not sup-
posed to be living in the apartment because it was
federally subsidized housing, see 42 U.S.C. § 1437f, and
leased only to the man’s girlfriend. Lucas, concerned
for his safety, requested that the police accompany
him when he followed up on an earlier violation
notice regarding the illegal guest.
Three days later, Crivello and his partner, Christopher
Ederesinghe, went with Lucas to the apartment. The
No. 09-3804 3
detectives were in plain clothes but wore their police
identification around their necks, badges on their
waists, and guns on their hips. Ederesinghe later
testified that they intended to conduct a “knock and
talk”—that is, have a consensual, information-gathering
encounter—as there was no exigency or probable cause
for a warrant. Lucas knocked on the door as Crivello and
Ederesinghe stood behind him. A man inside the apart-
ment asked, “Who is it?” to which Lucas replied, “Lucas”
and stated his intention to serve a notice. The man
told Lucas to wait a minute. At some point, there was
movement inside the apartment followed by a thud,
indicative of a heavy object hitting the floor.
A few seconds later, Lewis answered the door, clad
only in loose-fitting boxer shorts. Lucas asked, “Can we
come in” or “Can I come in” so as not to “put [Lewis’s]
business out in the hallway?” Lewis said, “Come in” or
“Step in” and backed up. At this time, the detectives
identified themselves as law enforcement and said that
they were with Lucas. Inside the apartment, there was
an adolescent male, known to Lucas as “DooDoo,” on
the floor of the living room. After performing a pat-
down search of Lewis, Ederesinghe asked Lewis and
DooDoo to sit down in the nearby kitchen, placing his
hand on Lewis’s elbow and directing him to a table
and chairs.
One of the detectives asked Lewis for identification.
Lewis replied that his identification was on a speaker in
the bedroom. Crivello, in Lewis’s line of sight, went to
retrieve the identification. Upon opening the door
4 No. 09-3804
and entering the bedroom, Crivello saw a short-
barreled shotgun under the bed next to the speaker.
Crivello returned from the bedroom and said that Lewis
was a “c-one,” meaning that he should be arrested. Lewis
was arrested, and the gun was seized. All of these
events took place within a minute of the detectives’
entry into the apartment.
In his motion to suppress, Lewis argued that he never
voluntarily consented to the detectives’ entry into the
apartment or the bedroom and that the detectives
were not permitted to seize the gun. The government
disputed those arguments and also questioned Lewis’s
standing to object to the officers’ entry into the apart-
ment. The magistrate judge found that: (1) Lewis had
standing to challenge the search because he was an over-
night guest; (2) Lewis voluntarily consented to the detec-
tives’ entry into the apartment; (3) Lewis voluntarily
consented to Crivello’s entry into the bedroom; and
(4) the detectives were permitted to seize the gun once
the bedroom had been accessed.
Lewis objected to the magistrate judge’s report, arguing
for the first time that he had been illegally seized at
the time he purportedly consented to Crivello’s entry
into the bedroom. The government contended that the
argument had been waived, that there was no seizure,
and that, even if Lewis had been seized, it was a lawful
detention based on reasonable suspicion. Rather
than address these and other arguments, however,
the district judge adopted the magistrate judge’s recom-
mendation “in toto,” saying only that “[r]eview of all of
No. 09-3804 5
the facts indicates to the Court that law enforcement
had Constitutional permission to enter the premises
and seize the weapon in question.” 1
When considering a motion to suppress, we review
legal questions de novo and findings of fact and credi-
bility determinations for clear error. United States v.
Wesela, 223 F.3d 656, 660 (7th Cir. 2000). A factual
finding is clearly erroneous if we are “left with the
definite and firm conviction that a mistake has been
made.” United States v. Gravens, 129 F.3d 974, 978 (7th Cir.
1997). Given the fact-specific nature of a motion to sup-
press, “we give special deference to the . . . court that
heard the testimony and observed the witnesses at the
suppression hearing.” Id.
To repeat, the issue here is whether Lewis voluntarily
consented to the detectives’ entry into the apartment
and the bedroom. A warrantless search without exigent
circumstances is presumptively unreasonable and gener-
ally requires suppression of the evidence obtained from
the search. United States v. McGraw, 571 F.3d 624, 628
(7th Cir. 2009). An exception to this rule is the
defendant’s voluntary consent to the search. Id. The
existence of voluntary consent is a question of fact to be
1
At oral argument, we inquired about the frequency of this
particular procedural posture—that is, where the district
judge adopts the magistrate judge’s recommendation without
any independent analysis. Unfortunately, we were informed
that it has become the rule, rather than the exception, in
that district.
6 No. 09-3804
determined based on the totality of the circumstances.
United States v. Figueroa-Espana, 511 F.3d 696, 704 (7th
Cir. 2007).
Magistrate Judge Goodstein found that Lewis
voluntarily consented to the detectives’ entry into the
apartment. We find no clear error here. From Lewis’s
position at the door, the detectives and their identifica-
tion were visible. Lewis was also informed that they
were police officers and were accompanying Lucas. In
response to Lucas’s request to enter, Lewis backed
away and said to step in. Importantly, there was no
evidence that Lewis ever objected to the entry of the
two detectives. All of these facts support the magistrate
judge’s determination. See, e.g., United States v. DiModica,
468 F.3d 495, 499 (7th Cir. 2006) (finding consent where
the defendant failed to object to entry); United States v.
Walls, 225 F.3d 858, 863 (7th Cir. 2000) (stating that
consent need not be verbal and finding consent where
the defendant stepped back to allow officers to enter).
Lewis’s primary argument is that his consent was
invalid because Lucas, and not the detectives, engaged
him and asked for permission to enter the apartment.
But Lewis points to nothing in the case law that requires
an explicit, verbal exchange between the police and the
defendant as a predicate to a finding of consent. Cf.
Wesela, 223 F.3d at 661 (“The fact that there was no
direct verbal exchange between [the police] and [the
defendant’s wife] in which she explicitly said “it’s o.k.
with me for you to search the apartment,” is immaterial, as
the events indicate her implicit consent.”). It is true that
No. 09-3804 7
Lucas led Lewis to believe that he was there about a
tenancy issue. But there is no evidence suggesting that
this was a ruse; Lucas was at the apartment to follow up
on the violation notice. He asked the police to ac-
company him for his safety because gunshots had been
fired from the apartment a few days earlier. And the
facts remain that, after he opened the door, Lewis
could clearly see that the two other men were police
officers, the men identified themselves as such and said
they were with Lucas, and Lewis, after being given
an opportunity to do so, did not object to entry. Accord-
ingly, Lewis’s consent was valid.
The magistrate judge also found that Lewis voluntarily
consented to Officer Crivello’s entry into the bedroom.
Again, we find no clear error. When asked for his identifi-
cation, Lewis immediately replied that it was on a
speaker in the bedroom. He did not say, “Yes” or “I don’t
have it with me” or “I’ll go get it,” which would not have
implied consent to enter the bedroom. And although
Crivello was in Lewis’s line of sight, there was no
evidence that Lewis ever objected to the entry or that
any coercion was used. We are troubled, however, by
the fact that all these events happened so quickly and
that the detectives never asked for clarification from
Lewis regarding his somewhat ambiguous response. But
we are not “left with the definite and firm conviction
that a mistake has been made” by the magistrate judge
in finding consent.
Lewis’s primary argument on this issue is that any
consent he gave was invalid because he was illegally
8 No. 09-3804
seized at the time. See Florida v. Royer, 460 U.S. 491, 507-08
(1983).2 A seizure occurs when a reasonable person in
the position of the defendant would believe that his
liberty has been restrained. United States v. Thompson, 106
F.3d 794, 798 (7th Cir. 1997). At the time of Lewis’s pur-
ported consent, he had been asked to sit at the kitchen
table while the detectives and Lucas stood behind him.
On these facts, a straight-faced argument could be
made that Lewis was not seized. But because the gov-
ernment chose not to develop this argument on appeal,
it is waived. United States v. Knox, 573 F.3d 441, 450
(7th Cir. 2009). Rather, the government contends that
the seizure amounted to a lawful stop under Terry v.
Ohio, 392 U.S. 1, 30 (1968). See United States v. Brignoni-
Ponce, 422 U.S. 873, 881 (1975) (extending Terry to situa-
tions other than a stop-and-frisk for weapons). To make
such a stop, the detectives needed reasonable sus-
picion that Lewis was engaged in criminal activity.
Id. at 81-82.
Here, although the detectives admittedly did not
possess probable cause, they did have reasonable sus-
picion that criminal activity might be close at hand.
Lucas had received complaints that a black male was
illegally inhabiting the apartment and had fired shots a
2
As we previously discussed, Lewis first raised this argu-
ment in his objections to the magistrate judge’s report. Ac-
cordingly, in its response to Lewis’s objections, the govern-
ment claimed that the argument had been waived. The gov-
ernment does not, however, repeat that assertion on appeal.
No. 09-3804 9
few days earlier. Shortly after knocking on the apart-
ment door, there was movement inside the apartment
followed by a thud, indicative of a heavy object hitting
the floor. When Lewis came to the door, his appearance
supported the conclusion that he was the illegal
inhabitant who had discharged the firearm, which was
likely still in the apartment. Considering all these facts
together, the limited detention of Lewis at the kitchen
table was justified. Lewis’s consent to Officer Crivello’s
entry into the bedroom was therefore valid.
For all these reasons, the judgment of the district court
is A FFIRMED.
6-14-10