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,

Plaintiff‐Appellee,

v.

STANLEY BENNETT,

Defendant‐Appellant.                 

Appeal from the United States District

Court for the Northern District of Indiana,

Fort Wayne Division.

No. 1:09‐CR‐103‐TLS

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

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
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.