United States District Court, E.D. Wisconsin
DECISION AND ORDER
LYNN ADELMAN District Judge.
Defendant Donta Holmes filed a motion to suppress a firearm the police recovered from his person, arguing that the officers lacked reasonable suspicion to seize him. The magistrate judge handling pre-trial proceedings in this case held an evidentiary hearing on the motion, then issued a recommendation that it be denied. Defendant objected, and I held a de novo hearing to explore alleged discrepancies in the testimony from the arresting officers. See Fed. R. Crim. P. 59(b). On review of the entire record, I now deny the motion.
A. Hearing Before Magistrate Judge
1. Government Testimony
The government presented testimony from Milwaukee police officers Jacob Ivy and Mark Horstmeyer. On the afternoon of May 3, 2015, Ivy and Horstmeyer responded to a tip from an anonymous caller “that a black male in his 20s, wearing all black, with dreadlocks and a ponytail was armed with a firearm in his pocket and was possibly involved in a shooting the week before.” (9/10/15 Evid. Hr’g Tr. [R. 15] at 6.) The tipster further indicated that the person was located at a specific address on North 30th Street. (Tr. at 6.) Ivy testified that he volunteered to back up officers Daniel Lewis and Timothy Toth, who were initially dispatched on the call, because he was familiar with this address, which had “been on our roll call board numerous times for drug dealing complaints.” (Tr. at 8.) Ivy further indicated that the address was located in a high crime area. (Tr. at 8, 50.) The assignment was designated “priority one, ” i.e., a situation involving great danger. (Tr. at 8, 50-51.)
The officers decided that Lewis and Toth would approach the residence from the front, Ivy and Horstmeyer from the alley to the rear. (Tr. at 9, 51.) On the way to the alley, Ivy drove past the front of the residence, and Horstmeyer pointed out that a subject matching the tipster’s description was standing in the yard, along with several other people. Ivy testified to at least six other people in the yard; Horstmeyer recalled about eight to ten. Just one person matched the tipster’s description. (Tr. at 10, 51, 53-54.)
Ivy parked in the alley, and he and Horstmeyer walked into the yard through the rear gateway, which was wide open. (Tr. at 11.) As the officers approached, the subject (later identified as defendant) looked at Ivy, making eye contact, then quickly turned his body away, placing both of his hands in the front of his waistband. (Tr. at 12.) Ivy testified that it looked like defendant was trying to move an object or take something out of his waistband. Ivy further indicated that, based on his training and experience, when somebody puts their hands in front of their waistband like this it usually means they are armed. (Tr. at 15.) Defendant walked away, slowly at first, but as Ivy came into the yard “it turned to a brisk walk.” (Tr. at 12.) Horstmeyer testified that no one else in the group of people in the yard turned and walked away from the officers. (Tr. at 54-55.)
Concerned that defendant was going to take a firearm out of his waistband and possibly shoot the officers with it, Ivy yelled at defendant to stop moving and show his hands. (Tr. at 12-13.) Ivy drew his gun and held it in the low ready position. He repeated the command to stop, but defendant kept walking away, still looking at Ivy, still with his hands in his waistband. (Tr. at 13.) Horstmeyer recalled Ivy yelling, “stop, police, ” more than once. (Tr. at 55.)
Based on defendant’s failure to stop and show his hands, Ivy ran up behind him, wrapped his arms around him, and tackled him to the ground. (Tr. at 14.) The officers testified that defendant did not cooperate with Ivy’s attempt to handcuff him, failing to bring his hands behind his back after being told several times to do so, and reaching toward his left front pocket; Horstmeyer and Lewis helped Ivy get defendant’s hands behind his back, and Ivy was able to handcuff him. (Tr. at 14-15, 55.) Toth found a revolver in defendant’s left front pants pocket. (Tr. at 15.)
Ivy estimated that about 15-20 seconds passed from the time he made eye contact with defendant to the time he tackled defendant to the ground, and that defendant moved about 50 feet. (Tr. at 16.) Horstmeyer estimated that defendant moved “at least ten feet” and about 15 seconds elapsed from the time the officers began their approach to the time Ivy tackled defendant. (Tr. at 56.) On cross examination, Horstmeyer said defendant moved for about five seconds, and he agreed that defendant “wasn’t moving very fast.” (Tr. at 64.)
Ivy indicated that he felt he had to act quickly given the information that defendant was possibly involved in a shooting; he did not want to get into a foot pursuit or have defendant hurt somebody else with the firearm. (Tr. at 17.) Ivy further testified that his initial intention when approaching was to get defendant’s name, make sure he was not involved in a shooting, ask if he was armed and, if so, whether he had a permit to carry the gun. (Tr. at 30, 44.) However, defendant did not give him the opportunity to do that. (Tr. at 45.)
2. Defense Testimony
Defendant’s friend Marquise Brown testified that he lived at the subject residence with his mother, and that on the afternoon of May 3, 2015, he held a small gathering at the house, about eight to ten people, including defendant. (Tr. at 69-71.) Brown testified that officers came into his yard through the alley, ran past him, and tackled defendant. (Tr. at 74-75, 78.) On cross examination, Brown clarified that he was grilling at the time, his head was down, and by the time he turned around the officers already had defendant on the ground. (Tr. at 78-79.) Brown went into the house to notify his mother and did not come back out until after the officers removed defendant from the scene. (Tr. at 76.)
Defendant’s cousin, Shontrell Calhoun, testified that on the afternoon of May 3, 2015, she had planned to pick defendant up from an address on North 30th Street and take him to see his kids. (Tr. at 82.) Defendant called Calhoun on her cell phone earlier that day to make plans, but by the time she arrived to pick him up her phone was dead so she used her ex-boyfriend’s cell phone to call defendant. (Tr. at 83.) She testified that she was on the phone with defendant while she was turning the corner onto 30th Street, driving her ex-boyfriend’s vehicle, the make and model of which she did not know. (Tr. at 83-84.) Calhoun testified that she called defendant to let him know she was pulling up outside, and he should walk to the front so she could take him to see his children. (Tr. at 85.) Calhoun testified that as defendant approached he looked a little confused because she normally drove her mother’s car. She let him know the color of the car she was driving, then hung up and watched him put his phone in his pocket. (Tr. 86.) Defendant took three or four steps forward and out of nowhere a police officer came up and tackled him. (Tr. at 86-87.) The only people Calhoun saw in the yard were defendant and his younger brother. (Tr. at 89.)
Finally, defendant testified that in late April 2015, about six days before he was arrested, his lung collapsed, requiring hospitalization. (Tr. at 93-94.) He was released from the hospital on a Friday, after two surgeries, and on the following Sunday he went to a barbecue at Brown’s house. (Tr. at 95, 97.) He admitted smoking marijuana earlier that day. (Tr. at 96, 105.) Defendant testified that he had arranged for Calhoun to pick him up from the barbecue and take him to see his kids on the south side of Milwaukee. (Tr. at 97.) Defendant further testified that just before he was arrested he was on the phone with Calhoun, who told him she had pulled up. (Tr. at 100.) He hung up the phone, placed it in his pocket, and began walking toward the car when someone came up behind him and tackled him to the ground. (Tr. at 101.)
Defendant testified that just before he was tackled he heard Brown’s younger brother yell out, “there’s the boys” (Tr. at 101), which he understood to mean the police (Tr. at 102, 109). However, he said he was not concerned about police contact that day, even though he had a pistol in his pocket, because he had a permit. (Tr. at 103.) He testified that he did not walk away from the police knowing they were trying to stop him; nor did he hear any police commands directed at him before he was tackled. (Tr. at 104.) In a post-arrest statement to the police, defendant indicated that after he heard “the boys” he turned his head to make sure his gun was in his back pocket, not sticking out. (Tr. at 110.) At the hearing before the magistrate judge, he testified that he was tackled within a split second of turning. (Tr. at 112.)
In his post-arrest statement, defendant never said anything about being on the phone with Calhoun prior to his arrest. Rather, he said he was texting. At the evidentiary hearing before the magistrate judge, defendant said on cross-examination that he was on Facebook at the time, browsing, “playing on my key ...