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United States v. Howard

United States District Court, E.D. Wisconsin

February 26, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DEVON HOWARD, Defendant.

DECISION AND ORDER SUSTAINING OBJECTION TO MAGISTRATE JUDGE’S RECOMMENDATION, REJECTING IN PART AND ADOPTING IN PART RECOMMENDATION (DOC. 108), AND DENYING MOTION TO SUPPRESS (DOC. 18)

C.N. CLEVERT, JR., U.S. DISTRICT JUDGE.

Devon Howard, one of several defendants in this case, moves to suppress evidence obtained by the government after Howard’s arrest. Following an evidentiary hearing, Magistrate Judge Patricia J. Gorence recommended that this court find that Howard was arrested without probable cause but that the motion be denied based on the inevitable discovery doctrine. The United States objects to the recommendation regarding lack of probable cause for arrest, while Howard has objected to the recommendation as to inevitable discovery and the ultimate ruling. This court held a second evidentiary hearing and allowed supplemental briefing.

Although a magistrate judge has authority to decide many motions, for a motion to suppress evidence a magistrate judge may only propose findings and make recommendations; the ultimate decision is for the district judge. 28 U.S.C. § 636(b)(1)(A), (B); Fed. R. Crim. P. 59(b)(1). The district court judge must review de novo the recommendations of the magistrate judge to which a party timely objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(2), (3). Portions of a recommendation to which no party objects are reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The clear error standard means that the court can overturn the magistrate judge’s ruling only if it is left with the definite and firm conviction that a mistake has been made. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997).

The parties have not objected to Magistrate Judge Gorence’s proposed findings of fact as stated, except that Howard contends that they are incomplete. Moreover, neither party objects to Magistrate Judge Gorence’s recitation of law. In different ways both parties object to Magistrate Judge Gorence’s application of that law to the facts. Therefore, as discussed below, the court adopts the proposed findings and recitation of law, with supplementation.

PROBABLE CAUSE FOR ARREST

On April 4, 2014, a Verizon Wireless store on Sumner Street in Hartford, Wisconsin, was robbed at gunpoint. (1 Tr. 4-5, 41.[1]) Hartford Police Department (HPD) Sergeant Timothy Hayes responded to the store after a call came in about 11:46 a.m., and was the first officer on the scene. (1 Tr. 39.) The store is located in a corner of a strip mall. (1 Tr. 40; Exs., 1, 2.) Hayes spoke to two witnesses: store employee Eric Safranski and a customer named Marshall Retler. The witnesses stated that a man had come in from the rear of the building, threw a black duffle bag on the ground, and said he wanted phones. (1 Tr. 40-41.) Initially, Safranski thought it was a joke, but the man pulled out a pistol, cocked it, ordered the two men to a part of the store where the phones were located, and told them to put the phones into the duffle bag. (1 Tr. 41, 48-49.) The witnesses described the robber as a black male, about 6’3”, and skinny, about 150 pounds. (1 Tr. 40, 43, 48.)

Prior to the robbery, Safranski and Retler observed a tan Mercedes in front of the store. According to Hayes, the two witnesses

Said that shortly before the robbery took place there was a tan Mercedes that was in front of the store with two subjects inside; and they appeared - in their opinion were watching them, watching the store.
The individuals in the car do not go into any of the stores. They simply stayed and watched the store.
After doing this for a few minutes, the Mercedes drove to the rear of the building out of their sight.
And shortly after they went back there, the individual came up and robbed the store.

(1 Tr. 42.) The witnesses stated that after the store was robbed and the robber had fled out the back door, the robber ran in a direction to the left of the Mercedes and probably would not have been able to get in the vehicle. (1 Tr. 45, 49-50.) The Mercedes then came “flying from the back - one said zoomed at a high rate of speed and went onto Sumner Street.” (1 Tr. 42.) Safranski commented that “he thought that this vehicle was some sort of decoy, getting the attention away from the actual robber where he was going after he committed the robbery.” (1 Tr. 45, 51 (indicating that Safranski gave Hayes his opinion that the Mercedes might be involved in the crime).)

Neither witness was able to tell Hayes that the person who robbed the store came in the Mercedes. (1 Tr. 51.) However, Safranski was able to get the license plate number as the vehicle left the store, and Retler told Hayes that there was some sort of tape on the driver’s side of the front bumper of the Mercedes. (1 Tr. 61.)

Hayes relayed the information he received from Safranski and Retler to HPD dispatch. (1 Tr. 52-53.) Hartford dispatch put out an “an armed robbery in progress” at the Verizon store on Sumner Street and that a vehicle involved was a tan Mercedes with license plate number 308-VYP. (1 Tr. 5.) At approximately 11:45 to 11:50 a.m., Village of Slinger Police Officer Marshal Sutter, a 19 year veteran, heard the announcement of a robbery at a Verizon Store on Highway 60 in the City of Hartford. (1 Tr. 4-5.) The dispatch advised it was believed that the vehicle involved was a tan or beige Mercedes-Benz with plates similar to 308 Victor Young Paul or VYP and two occupants. (1 Tr. 5, 9.) Within approximately two minutes Officer Sutter saw the vehicle. (1 Tr. 5.) He advised the Hartford Police Department and the Washington County Sheriff of his observation and that he was behind the vehicle. (1 Tr. 6.) Officer Sutter noticed a lot of movement by the passenger who looked like “he was doing something with underneath the seat; moving his hand and arms a lot.” (1 Tr. 6, 10.) At the request of the Hartford Police Department, Officer Sutter stopped the vehicle and treated it as a high-risk felony stop based on the Hartford dispatcher stating it was involved in an armed robbery ...


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