United States of America v. Bodie B. Witzlib

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1115
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
BODIE B. WITZLIB ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CR-99 — Lynn Adelman, Judge.
____________________
SUBMITTED J ULY 22, 2015 — D ECIDED A UGUST 7, 2015
____________________
Before P OSNER , EASTERBROOK , and S YKES , Circuit Judges.
P OSNER , Circuit Judge. This appeal from a conviction for
manufacturing and dealing in explosive materials (defined
in 18 U.S.C. § 841(c)–(f)) without a license to engage in such
activities, in violation of 18 U.S.C. § 842(a)(1), raises several
questions concerning the Fourth Amendment’s prohibition
of unreasonable searches.

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2 No. 15-1115
The defendant’s aunt and uncle reported to the police
that the defendant was making M-80s in the basement of his
grandmother’s house, where he as well as his grandmother
lived; the house is next door to the aunt and uncle’s house.
“M-80” is a common designation of an explosive device
used, often without legal authorization, as a firecracker. Bu-
reau of Alcohol, Tobacco, Firearms and Explosives, “ATF Fact
Sheet—Illegal Explosives Devices” (February 1, 2015), www.
atf.gov/resource-center/pr/atf-fact-sheet-illegal-explosives-de
vices (visited on August 6, 2015, as were the other websites
cited in this opinion). A federal license is required for its
manufacture. 18 U.S.C. § 842(a)(1); Wikipedia, “M-80 (explo-
sive),” https://en.wikipedia.org/wiki/M-80_(explosive). (Wis-
consin, where the crime occurred, prohibits even simple
possession of such “improvised explosive devices.” Wis.
Stat. § 941.31(2)(a)–(b).) Illegal manufacture of M-80s is at
once common and highly dangerous because of the explo-
sive potential of the pyrotechnic flash powder that is their
principal ingredient. Eleven people were killed in the explo-
sion of an illegal M-80 factory in Benton, Tennessee, in 1983.
Wikipedia, “Benton Fireworks Disaster,” https://en.wikipedia.
org/wiki/Benton_fireworks_disaster. United States v. Womack,
654 F.2d 1034, 1039–40 (5th Cir. 1981), notes that M-80s are
“50 to 75 times more explosive than legally salable firecrack-
ers,” which brings them within the federal definition of “ex-
plosives.”
The defendant was manufacturing M-80s in his grand-
mother’s basement, though on a much smaller scale than the
Benton factory. His aunt told the police that her nephew
held “anti-government beliefs,” was unpredictable, and
didn’t take the medications prescribed for his “mental health

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No. 15-1115 3
issues.” The uncle added that he’d seen Witzlib making and
storing M-80s in the grandmother’s house.
After consulting with the federal Bureau of Alcohol, To-
bacco, Firearms and Explosives, local police officers accom-
panied by a Bureau agent went to the grandmother’s house
and knocked on the door. Witzlib answered the knock and
the officers asked him to accompany them to the driveway
of the house, where they told him that they were “respond-
ing to a fireworks complaint” and needed to conduct a “safe-
ty check” of the house. He demanded to see a search war-
rant, which they didn’t have, and told them he would not
consent to a search. They ignored his expostulations, and
while he waited in the driveway of the house with one of the
officers the others returned to the house and asked the
grandmother whether she’d let them search it for fireworks.
She said yes, signed a consent-to-search form, and told the
officers that her grandson had been making fireworks in the
basement. They went there and found about a thousand M-
80s. They arrested Witzlib but for the time being left the M-
80s where they were.
The search had been conducted in the evening; early the
next morning officers removed the M-80s from the base-
ment. In the afternoon they obtained for the first time a war-
rant to search the house. A further search (the third and last),
pursuant to the warrant, ensued and uncovered additional
incriminating items.
In urging reversal of his conviction on the ground that
the first search was illegal and the evidence found in it there-
fore inadmissible, Witzlib makes much of the fact that the
officers had plenty of time, after talking to his uncle and
aunt, to obtain a warrant—indeed, four hours elapsed be-

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4 No. 15-1115
tween their talking to them and their arriving at the grand-
mother’s house to conduct the first search. But consent is an
alternative to a search warrant, provided it’s consent by
someone who has, or appears to have, the right to consent.
See, e.g., United States v. Richards, 741 F.3d 843, 850–51 (7th
Cir. 2014).
The grandmother owned the house but Witzlib also re-
sided there and he argues that therefore his consent was re-
quired. We don’t think so. It would be one thing had the po-
lice wanted to search his bedroom. To say that the owner of
the house could consent to such a search would be as unrea-
sonable as saying that a hotel’s owner or manager could
consent to a police search of all the guest rooms. See Georgia
v. Randolph, 547 U.S. 103, 112 (2006); Minnesota v. Carter, 525
U.S. 83, 88–90 (1998); cf. Minnesota v. Olson, 495 U.S. 91
(1990). Or that the person refusing consent had a lesser right
to decide whether to permit the search than the person
granting consent did, for example if they were a married
couple and the search would be of their joint household, as
in Georgia v. Randolph.
But the police wanted only to search the basement, which
was no more Witzlib’s private space than the living room
was. He could not reasonably believe that merely because
some of his possessions (the M-80s) were in the basement,
his grandmother—the owner of the home—could not au-
thorize a search of it. In other words, this is a “joint access”
case, in which “shared premises” or (equivalently) “common
authority over the premises” permit one of the joint occu-
pants of the premises to consent to a search without obtain-
ing the permission of the other or others. See id., 547 U.S. at
110–11; Fernandez v. California, 134 S. Ct. 1126, 1133 (2014);

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No. 15-1115 5
Illinois v. Rodriguez, 497 U.S. 177, 188–89 (1990); United States
v. Matlock, 415 U.S. 164, 170 (1974). Georgia v. Randolph sug-
gests that “a potential defendant with self-interest in object-
ing” (regardless of his exact status in the household) who is
“in fact at the door and object[ing]” can bar a consent search
authorized by a joint occupant, but not a potential defendant
who is “nearby but not invited to take part in the threshold
colloquy.” 547 U.S. at 121; see also Fernandez v. California, su-
pra, 134 S. Ct. at 1134–36; United States v. Henderson, 536 F.3d
776, 784 (7th Cir. 2008). Witzlib, standing in the driveway,
was in the second category.
The government argues in the alternative (unnecessarily,
and also unpersuasively) that the danger posed by the M-80s
justified an immediate search—that it would have been risky
to lose time seeking a search warrant. That is an appeal to
the “exigent circumstances” exception to the requirement of
obtaining a warrant to search a home, an exception frequent-
ly invoked in cases involving explosives. See, e.g., United
States v. Infante, 701 F.3d 386, 393–94 (1st Cir. 2012); Armijo ex
rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1071–73 (10th
Cir. 2010); United States v. Lindsey, 877 F.2d 777, 781–82 (9th
Cir. 1989); United States v. Al-Azzawy, 784 F.2d 890, 894 (9th
Cir. 1985). But in this case it is refuted by the four-hour delay
in conducting the search after the police had obtained ample
probable cause from their conversation with the aunt and
uncle. Indeed there was a delay of more than 24 hours be-
tween when the police first learned from Witzlib’s aunt and
uncle of the M-80s in the basement and when they conduct-
ed the search pursuant to the belatedly obtained warrant.
None of the cases we’ve cited involved a delay of more than
an hour, and there is no suggestion that the police could not
have obtained a warrant in an hour or less.

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6 No. 15-1115
Where exigency is pertinent to this case is in relation to
what the uncle told the police when they first spoke to him
and the aunt—that Witzlib had made M-80s and was storing
them in the basement of his grandmother’s house. These are
dangerous explosives, especially when homemade—and by
a person with “mental health issues” to boot. The police may
well have been lax in taking so long to conduct a thorough
search after hearing from the uncle, but we don’t see why
that laxity should benefit Witzlib.
There is an alternative justification, besides consent and
exigency, for the initial search (which happens also to have
been the search that turned up by far the most important ev-
idence of Witzlib’s guilt). Had the police sought a search
warrant from the moment they finished talking to the uncle
and aunt, it’s a certainty that it would have been issued—
such was the probable cause created by what they told the
police. See Nix v. Williams, 467 U.S. 431, 444 (1984); United
States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008). So whether
they got a warrant or not there was no way that Witzlib’s
fireworks stash was going to remain undiscovered by the
authorities.
We’re mindful that lawful presence alone does not trig-
ger application of the inevitable-discovery doctrine of the
Nix case. In Michigan v. Clifford, 464 U.S. 287 (1984), and
Michigan v. Tyler, 436 U.S. 499 (1978), firemen lawfully en-
tered buildings to fight fires, but were held not to be entitled
to return later for the purpose of seeking evidence of arson
by the owners, without a warrant. If the M-80s in the base-
ment of the grandmother’s house had gone off, and the fire
department had been called, and later the police had
searched the house without having either consent or a search

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No. 15-1115 7
warrant, we would have a parallel case. But the first and
second searches in this case were pursuant to consent, and
the third to a valid warrant.
A FFIRMED

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