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United States v. Osborne

United States District Court, E.D. Wisconsin

January 25, 2016




On March 9, 2015, while investigating a report that a driver had fled the scene of a hit-and-run car accident, two officers from the Milwaukee Police Department pursued the defendant, Cordell D. Osborne, into an Advance Auto Parts store. After the officers stopped Osborne to speak with him, one of the officers conducted a pat-down of the defendant’s person, and found to a concealed firearm. On April 7, 2015, the grand jury indicted the defendant on one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§922(g)(1) and 924(a)(2). Dkt. No. 1. The defendant moved to suppress evidence of the firearm, alleging that the police found it through an unreasonable search. Dkt. No. 15. The magistrate judge held an evidentiary hearing on June 11, 2015, Dkt. No. 19, and on July 14, 2015, issued a recommendation that this court find (a) that the officers’ pat-down of the defendant was unreasonable, and (b) that the inevitable discovery doctrine did not save the constitutionality of the search, and that the court grant the defendant’s motion. Dkt. No. 24.

The case now is before the court on review of the government’s objections to the magistrate judge’s report and recommendation. Upon consideration of the parties’ briefs, and after a hearing at which the court heard testimony from the officers who arrested the defendant, the court declines to adopt the magistrate judge’s recommendation, and denies the defendant’s motion to suppress.


Under 28 U.S.C. §636(b)(1)(A)-(B), a magistrate judge cannot issue a final order on a motion to suppress evidence in a criminal case. Instead, the magistrate judge submits proposed findings of fact and recommendations to the district court. If a party files a timely objection to the magistrate judge’s report and recommendation, §636(b)(1) provides that

the district judge is to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The court may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge also may receive further evidence or recommit the matter to the magistrate judge with instructions.

In this case, the magistrate judge made a credibility determination adverse to the officer who conducted the pat-down (Officer Valeria Zorich); that determination was central to his recommendation that this court grant the motion to suppress. The government contests the magistrate judge’s credibility determination. In 1980, the United States Supreme Court explained that the district court’s “broad discretion includes hearing the witnesses live to resolve conflicting credibility claims, ” and “assume[d] it is unlikely that a district judge would reject a magistrate judge’s proposed findings on credibility when those findings are dispositive and substitute the judge’s own appraisal . . . .” U.S. v. Raddatz, 447 U.S. 667, 681 n.7, 100 S.Ct. 2406, 2415, n.7 (1980). Because Officer Zorich’s credibility is dispositive of whether her search was supported by reasonable suspicion, the court held an evidentiary hearing, and heard testimony from the officers involved in the investigation which ultimately revealed a firearm concealed under Osborne’s clothing.


At around 5:00 p.m. on March 9, 2015, Milwaukee Police Officers Valeria Zorich (an eight-year police veteran) and Chad Wilson (a thirteen-year police veteran) were on patrol in their squad car. Officer Zorich testified that she and Officer Wilson received information over their police dispatch radio that a hit-and-run accident had occurred near their location. A citizen witness reported that the driver of one of the vehicles had fled the scene on foot and entered an Advance Auto Parts store. The citizen witness provided a description of the individual, and the officers decided to investigate. Officers Zorich and Wilson testified that, in their experience, people who flee the scene of a traffic accident want to avoid police contact, often because they have outstanding warrants or are on probation or parole, were operating a stolen vehicle, or have drugs or guns on their person.

The officers arrived at Advance Auto Parts less than one minute after learning of the accident. They parked in the parking lot of the store and approached the entrance, in uniform. Before they entered the store, the citizen witness identified himself, and pointed out an individual who had just walked in the store, identifying him (the defendant) as the person who had fled the accident scene. Officer Zorich testified that the officers could see the defendant inside the store while they were still outside, because the storefront is comprised of glass windows and doors.

The officers entered the store, which was open for business. Officer Zorich testified that the store was well lit, and that there were employees and customers inside. She continued to observe the defendant as she moved into the store. She testified that his back was toward the officers, his phone was in his left hand, and he was pacing the aisles at the back of the store. Officer Zorich testified that the defendant looked at the officers, then kept walking to the back of the store, away from them. Officer Zorich and her partner separated and pursued the defendant from different directions, attempting to prevent his escape. She testified that she knew the defendant already had fled an accident scene, and she did not want him to be able to flee from the officers, too.

Officer Zorich testified that the defendant appeared to be nervous and to be trying to ignore the officers, though he realized they were there. She testified that he kept looking around the store, as if he was looking to evade the officers. From about ten feet away, Officer Zorich observed the defendant was wearing a black winter hat, a black short-sleeved t-shirt, charcoal pants, and black tennis shoes. She found it odd that the defendant was wearing only a t-shirt in March.

Officer Zorich stopped walking toward the defendant when she was about two to three feet away from him. She asked him if he had been involved in a car accident. The defendant replied, “I wasn’t even driving.” To Officer Zorich, that indicated that the defendant was, in fact, involved in a car accident. Officer Zorich testified that, at that time, she believed that the defendant had violated the law, because she had been advised by citizen witness that the defendant was a driver who had fled the scene of a hit-and-run.

While Officer Zorich was speaking to the defendant, he was standing “bladed away” from her, not facing her directly. She could see his right side better than his left side; Officer Wilson was on the defendant’s left side. Officer Zorich testified that even earlier, she’d noticed that the defendant’s shirt fell strangely; at this close range, the way the defendant’s clothing was falling appeared to be unnatural and suggested that an object was present in his right front waist area. Based on her training and experience, she believed the object might be a firearm, because that is a location where individuals keep firearms. Officer Zorich then told the defendant that she was going to pat him down. She testified that she did this for her safety and for the safety of others in the store. In addition to the appearance of something hidden under the defendant’s clothing, Officer Zorich testified that the factors that informed her decision to conduct the pat-down at that time were: (1) the defendant had fled an accident scene; (2) people who flee accident scenes often want to avoid police contact due to outstanding warrants or the possession of firearms or drugs; (3) the defendant had made a statement which she believed confirmed that he was involved in the ...

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