NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2012
Decided August 13, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐3805
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 1:09‐CR‐103‐TLS
STANLEY BENNETT,
Defendant‐Appellant. Theresa L. Springmann,
Judge.
O R D E R
After a two‐day jury trial, Stanley Bennett was convicted of possession of a firearm
by a felon,
18 U.S.C. § 922(g)(1), and sentenced to 60 months’ imprisonment. On appeal,
Bennett challenges the denial of his pretrial motion to suppress the firearm as the product of
an illegal, warrantless search. Because the inevitable‐discovery doctrine justifies the
warrantless search, we affirm.
In October 2009, Officer Phillip Ealing was dispatched to Pontiac and Oliver Streets
in Fort Wayne, Indiana, where a black male wearing a black jacket and jeans was reportedly
shooting a gun. When Ealing arrived on Oliver Street he saw Bennett, in a black jacket and
No. 11‐3805 Page 2
jeans, firing a small, silver revolver into the air. Ealing drew his gun, pointed it at Bennett,
and ordered him to drop the gun. Bennett looked in Ealing’s direction and then darted into
the house. About 30 seconds later, he returned to the porch without the revolver and sat
down on the top step. Ealing was soon joined by Officer John Drummer, and the officers
ordered Bennett to get on the ground. Ealing handcuffed Bennett—who appeared to the
officers to be heavily intoxicated—and put him in the patrol car.
After Bennett was secured, Drummer and several other officers who had arrived at
the scene entered the house to conduct a protective sweep. The officers found Bennett’s
mother, Mary, and brother, Charlie, but did not find the gun. Drummer asked Mary for
consent to search the house, which she gave. Under a couch in the living room, Officer Dale
Llewellyn then discovered a small revolver containing three live and four spent rounds.
Ealing identified the revolver as the same gun he had seen Bennett fire earlier.
Bennett was indicted on one count of possession of a firearm by a felon and pleaded
not guilty. He then moved to suppress the gun, alleging that his mother’s consent to search
the home was invalid because she is “permanently disabled, has limited formal education,
and was under duress due to the chaotic nature of the [police] presence at her home.”
Bennett conceded that his mother—who owns the home—consented immediately, and was
neither detained by police nor physically coerced, but he argued that there was no evidence
that “she had been properly advised of her rights by police.”
The district court held a hearing at which the government glossed over the consent
issue and argued that the gun was admissible based on the inevitable‐discovery doctrine.
Three officers testified that the gun was recovered after obtaining consent for the search but
Mary stated that she did not understand what she was signing when she gave consent.
Ealing testified that he would have obtained a search warrant if he had not believed there
was valid consent, and the government argued that Ealing could have obtained a warrant to
find the gun because he had probable cause to believe Bennett had committed felony
criminal recklessness, IND. CODE § 35‐42‐2‐2(b), (c)(2)(A).
The district court agreed with the government’s position and denied the motion.
The court concluded that officers inevitably would have discovered the gun because it was
reasonable to believe that they would have sought and obtained a warrant had they not
obtained consent to search. The court found that the police already had evidence, before
entering the home, of Bennett’s reckless gun use and the officers would have continued
their efforts to find it by obtaining a search warrant.
On appeal Bennett argues generally that the gun was obtained through an illegal
search and that the evidence is thus permanently tainted and the inevitable‐discovery
No. 11‐3805 Page 3
doctrine does not apply. But the district court correctly concluded that the gun was
admissible based on inevitable discovery. Even an illegally seized item need not be
suppressed if officers would have inevitably discovered it through lawful means. United
States v. Stotler,
591 F.3d 935, 940 (7th Cir. 2010). Here the government showed that, even
without the challenged search, officers would have obtained a search warrant and
recovered the gun. United States v. Marrocco,
578 F.3d 627, 637–38 (7th Cir. 2009); United
States v. Tejada,
524 F.3d 809, 813 (7th Cir. 2008). Ealing had probable cause to believe that
Bennett committed felony criminal recklessness when he fired a gun in the air in a
residential neighborhood, IND. CODE § 35‐42‐2‐2(c)(2)(A), and he saw Bennett enter the
house with the gun but return to the porch without it. As the district court noted, it is
reasonable to conclude that the police would have continued their efforts to locate the
missing gun by obtaining a search warrant, which would have been issued given the “fair
probability” that evidence of a crime would be found in the house. See United States v.
Miller,
673 F.3d 688, 692 (7th Cir. 2012). Ealing thus could have, and testified that he would
have, obtained a search warrant to recover the gun had he not thought that Bennett’s
mother validly consented to the search.
AFFIRMED.
