United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
November 3, 2015, a grand jury in this district returned an
eleven-count superseding indictment against the defendants
with charges including: (1) conspiring to possess, attempting
to possess, and possessing heroin, with an intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and (C), and 846; and (2) money laundering, in
violation of 18 U.S.C. §§ 1956(a)(1)(B)(I) and 2.
anticipation of the jury trial for this matter, which is
currently set for July 11, 2016 (Docket #155), Defendant
Terry Cunningham ("Mr. Cunningham") filed two
pretrial evidentiary motions (Docket #63, #64). Specifically,
Mr. Cunningham filed: (1) a motion to suppress evidence found
pursuant to a search warrant executed in Mr.
Cunningham’s home in 2015 (Docket #64); and (2) a
motion to suppress evidence found as a result of a traffic
stop in 2013 (Docket #63).
addition, Tamara McArthur ("Ms. McArthur") filed a
motion for the return of certain property. (Docket
April 15, 2016, and April 19, 2016, Magistrate Judge William
Duffin conducted evidentiary hearings to address the pendent
motions. (Docket #133, #134). Based on the facts developed
therein, Magistrate Duffin issued a Report and Recommendation
in which he concludes that this Court should deny both of Mr.
Cunningham’s motions to suppress. (Docket #144).
Magistrate Duffin did not rule on Ms. McArthur’s motion
for the return of property. (Docket #144).
to 28 U.S.C. §§ 636(b)(1)(B) and (C) and Federal
Rule of Criminal Procedure 59(b)(2), Mr. Cunningham filed
numerous objections to Magistrate Duffin’s Report and
Recommendation. (Docket #158). Those objections have now been
fully briefed by the parties. (Docket #160, #161, #163). For
the reasons stated herein, the Court will adopt Magistrate
Duffin’s recommendation that Mr. Cunningham’s
motions to suppress be denied (Docket #144) and will
accordingly deny those motions in their entirety (Docket #63,
#64). In addition, as explained more fully below, the Court
will deny Ms. McArthur’s motion for a return of
property. (Docket #106).
government’s investigation into the Cunningham
family’s involvement with drug trafficking began in
2011. (Docket #64, Ex. 2 at 6). The government
contends that drug trafficking is not strictly a family
business, however, as the Cunninghams are allegedly involved
in a broader criminal network led by Kevin Arms. (Docket #64,
Ex. 2 at 6). That group is known to the government as the
Kevin Arms Drug Trafficking Organization ("DTO").
(Docket #64, Ex. 2 at 6).
Cunningham’s motions arise out of two separate
incidents: a traffic stop in 2013 and a house search in 2015.
(Docket #63, #64). The government, in part, relied on the
evidence obtained during the 2013 traffic stop in order to
obtain the 2015 search warrant of the Cunninghams’
home. (Docket #64, Ex. 2 at 7-8). Because the government
allegedly violated various aspects of the Fourth Amendment
during the course of the traffic stop and house search, Mr.
Cunningham asks that all evidence obtained as a result of
these incidents be suppressed. (Docket #63, #64).
to the traffic stop, and beginning in approximately 2011,
confidential sources had informed law enforcement that the
DTO trafficked cocaine and other illicit drugs from outside
the State of Wisconsin. (Docket #64, Ex. 2 at 6; #74 at 1-2).
The organization often relied on rented vehicles, known as
"traps, " to help cover the transport of the drugs.
(Docket #74 at 2). At some time prior to the traffic stop in
dispute, law enforcement learned that Kevin Arms’
newest cocaine source was Timothy Cunningham, Mr.
Cunningham’s brother, who operated out of Florida.
(Docket #74 at 2).
25, 2013, a confidential informant reported that Jovan
Cunningham ("Jovan"), Mr. Cunningham’s son,
was traveling in a rented vehicle to Atlanta, Georgia.
(Docket #74 at 2). He was allegedly traveling with other
known heroin distributors, Antoine Woodland and Anthony
Woodland. (Docket #74 at 102). A court order authorized law
enforcement to track Jovan’s mobile phone, which
confirmed Jovan’s presence in Douglasville,
Georgia-approximately twenty (20) miles outside of Atlanta.
(Docket #74 at 2). Court-authorized cellsite and GPS data
also revealed that Kevin Arms was in Atlanta at this time.
(Docket #74 at 2). As a part of the government’s
surveillance, the Drug Enforcement Administration
("DEA") confirmed that three rental cars located at
the hotel in which Jovan was staying were rented under the
name, "Cunningham." (Docket #74 at 3).
28, 2013, a GPS tracking device on Jovan’s mobile phone
showed that it was traveling north from Georgia toward
Wisconsin. As a result, law enforcement officers from several
law enforcement departments set up an "interdiction
operation" on Interstate 94 in Racine County, Wisconsin.
(Docket #74 at 3). On July 29, 2013, at approximately 2:10
a.m. DEA Special Agent James Krueger ("Agent
Krueger") observed three vehicles-the cars that were
rented under the Cunninghams’ name-traveling closely
behind one another. (Docket #64, Ex. 2 at 7; #74 at 3). Agent
Krueger also saw the vehicle traveling in front, a Suburban,
pay the toll for the other two vehicles, giving him reason to
believe that all three vehicles were traveling together.
(Docket #74 at 4). By following the vehicles, Agent Krueger
determined that they were traveling about ten miles-per-hour
over the speed limit. (Docket #74 at 4; Docket #161 at
25-26). He reported to surveillance units located in southern
Wisconsin that the three rental vehicles were approaching
Wisconsin and that they were speeding. (Docket #161 at 26).
a.m. officers first stopped the Acadia, the vehicle in back,
in Racine County for speeding. (Docket #161 at 27). Jovan
Cunningham was in the Acadia. (Docket #74 at 4). A short time
later, other officers pulled over the Sorento, the middle
vehicle, approximately one mile north of where the Acadia was
stopped. (Docket #74 at 4). Najon Cunningham, Cierra
McArthur, and Dionte Bernard were the occupants of the
Sorento. (Docket #74 at 4). Officers Brett Huston
("Officer Huston") and Eric Donaldson
("Officer Donaldson") of the Milwaukee Police
Department then stopped the Suburban approximately five miles
north of the location where the Sorento was pulled over.
(Docket #161 at 32-33). Officer Huston testified that the
Suburban was traveling in excess of ten to fifteen
miles-per-hour over the speed limit. (Docket #161 at 107-08).
Mr. Cunningham, Cheryl McArthur, Tamara McArthur, and another
passenger were in the Suburban. (Docket #74 at 4). After
stopping the Suburban, Officer Huston approached the vehicle
to gather information from the occupants, including the
driver’s license and vehicle’s registration.
(Docket #161 at 108-09). He then returned to his vehicle to
write down the information and to call in wanted checks of
all the occupants. (Docket #161 at 108-09).
Eugene Nagler ("Detective Nagler") of the Milwaukee
Police Department, along with his narcotics detection dog,
Duke, were in a patrol car participating in the interdiction
operation. (Docket #74 at 4). Officer Huston testified that,
before he had an opportunity to write down the
occupants’ names and complete their wanted checks,
Detective Nagler arrived on the scene. (Docket #161 at 109).
Detective Nagler testified that he and Duke arrived on the
scene about five to ten minutes after the Suburban was
stopped. (Docket #162 at 149, 153-54). Although Agent
Krueger’s report from that evening originally stated
that Detective Nagler arrived at 3:39 a.m.-over an hour after
the Suburban was stopped-he testified at the evidentiary
hearing that the 3:39 a.m. note had been written in error;
rather, Detective Nagler arrived on the scene at 2:39 a.m.
(Docket #161 at 78-79).
arriving on the scene, Detective Nagler testified that he
spoke with officers on scene for about five to ten minutes
before retrieving Duke to sniff around the Suburban for the
presence of drugs. (Docket #162 at 149, 153-54). Shortly
after beginning the dog sniff, Duke alerted to the presence
of controlled substances. (Docket #162 at 149). Officers on
the scene then searched the vehicle for contraband. (Docket
#161 at 110). During the search, officers opened a bag and
found $8, 000.00 in cash, various pieces of diamond jewelry,
two small bags of marijuana, and several pills. (Docket #161
at 34-36, 110). The officers also searched a wallet and found
cards in Terry Cunningham’s name and a Wisconsin QUEST
card. (Docket #161 at 34-36, 110). In a suitcase, the
officers seized a Coffee-mate canister with removable
bottom-sometimes known as a "California Safe"-paper
towels, a bottle of Dormin containing pills, and Coffee-mate
powder. (Docket #161 at 34-36, 110). Two days later, the
police opened a paper towel found in the canister and found a
small bag of heroin. (Docket #161 at 39).
two years later, Agent Krueger submitted an affidavit to
Magistrate Judge Nancy Joseph in support of a warrant to
search three residences, including a home at 3030 N. 38th
Street in Milwaukee, Wisconsin. (Docket #42, Ex. 2). Mr.
Cunningham allegedly shared that home with his wife, Cheryl
McArthur. Based on that affidavit, Magistrate Joseph signed a
search and seizure warrant. (Docket #64, Ex. 1). Federal law
enforcement executed the warrant obtained in reliance on
Agent Krueger’s affidavit on March 5, 2015. (Docket #73
at 3). The warrant permitted the officers to seize, among
other things, items related to food stamp fraud and wire
fraud. (Docket #64, Ex. 1 at 4-5). The warrant also
authorized the seizure of computers and cell phones used to
commit those offenses, as well as evidence of ownership and
occupancy of the residence and of the electronic devices.
(Docket #64, Ex. 1 at 5-6). Mr. Cunningham seeks to exclude
all the evidence seized as a result of the March 5, 2015
search of his home. (Docket #64).
to 28 U.S.C. § 636(b)(1)(B), a magistrate judge may
consider potentially dispositive motions, such as a motion to
suppress evidence, and issue proposed recommendations to the
district judge regarding the motion. When reviewing a
magistrate’s recommendation, the Court is obliged to
analyze the portions of the report to which the defendant has
lodged objections de novo. 28 U.S.C. §
636(b)(1)(C). Thus, the Court can "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate." Id. In other words,
the Court’s de novo review of Magistrate
Duffin’s findings and recommendation is not limited to
his legal analysis alone; rather, the Court may also review
his factual findings and accept, reject, or modify those
findings as it sees fit based upon the evidence. Id.
Court will address each pending motion in turn.
Cunningham originally raised four issues in his motion to
suppress: (1) whether the officers who conducted the traffic
stop had probable cause to stop the Suburban for speeding;
(2) whether the occupants of the Suburban were unlawfully
detained after the purpose of the traffic stop was completed;
(3) whether the officers had probable cause to search the
Suburban; and (4) whether the officers had probable cause to
seize the items collected from the Suburban. (See
generally Docket #63). Following the development of the
facts at the evidentiary hearing, Mr. Cunningham conceded
there was probable cause for the stop based on the
officers’ observation that the Suburban was speeding.
(Docket #158 at 2). However, Mr. Cunningham now adds a new
argument: that the officers involved in the stop did not have
authority to enforce the traffic laws in Racine, Wisconsin.
(Docket #158 at 2).
Detention of the Suburban
Fourth Amendment prohibits unreasonable searches and
seizures. U.S. Const. amend IV. "An officer’s
temporary detention of an individual during a traffic stop
constitutes a seizure of a person and thus must be reasonable
under the circumstances." Huff v. Reichert, 744
F.3d 999, 1004 (7th Cir. 2014) (internal citations omitted).
"[T]he decision to stop an automobile is reasonable
where the police have probable cause to believe that a
traffic violation has occurred." Whren v. United
States, 517 U.S. 806, 810 (1996); see also United
States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir.
2011) ("[T]he prosecution bears the burden of proving by
a preponderance of the evidence that a warrantless stop is
supported by probable cause."). "When a police
officer reasonably believes that a driver has committed even
a minor traffic offense, probable cause supports the
use of a drug-sniffing dog during an otherwise lawful traffic
stop does not implicate a defendant’s legitimate
privacy interests." United States v. Martin,
422 F.3d 597, 602 (7th Cir. 2005) (citing Illinois v.
Caballes, 543 U.S. 405, 409 (2005)). However, "[a]
stop justified solely by the need to investigate a traffic
violation can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission."
United States v. Cooks, 168 F. App’x 93, 96
(7th Cir. 2006) (citing Caballes, 543 U.S. at 408);
accord Martin, 422 F.3d at 602. "[I]nformation
lawfully obtained while investigating the traffic offense may
provide the officer with reasonable suspicion of criminal
conduct that will justify prolonging the stop to permit a
reasonable investigation." Id. (citing
Martin, 422 F.3d at 602) (internal quotation marks