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United States v. Cunningham

United States District Court, E.D. Wisconsin

June 7, 2016



          J.P. Stadtmueller U.S. District Judge.

         On 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. (Docket #83.)

         In 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).[1]

         In addition, Tamara McArthur ("Ms. McArthur") filed a motion for the return of certain property. (Docket #109).[2]

         On 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).

         Pursuant 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).

         1. BACKGROUND

         The government’s investigation into the Cunningham family’s involvement with drug trafficking began in 2011.[3] (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).

         Mr. 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).

         Prior 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).

         On July 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).

         On July 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).

         At 2:26 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).

         Detective 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).

         After 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).

         Approximately 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).

         2. LEGAL STANDARD

         Pursuant 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.

         The Court will address each pending motion in turn.

         3. THE TRAFFIC STOP

         Mr. 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).

         3.1 Detention of the Suburban

         The 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 stop." Id.

         "[T]he 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 ...

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