United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge
government charged that defendant Terrence Carter, having
previously been convicted of a misdemeanor crime of domestic
violence, unlawfully possessed a firearm. 18 U.S.C. §
922(g)(9). Defendant moved to suppress the gun, discovered
during a traffic stop, arguing that the police lacked
probable cause for the stop. The magistrate judge handling
pre-trial proceedings in this case denied defendant’s
request for an evidentiary hearing, then issued a
recommendation that the motion be denied.
objects to the recommendation, so I must review the matter de
novo. See Fed. R. Crim. P. 59(b). De
novo review does not require the district court to conduct
its own evidentiary hearing. See United States v.
Raddatz, 447 U.S. 667, 674 (1980). Defendant does not
object to the magistrate judge’s denial of an
evidentiary hearing in this case or otherwise request that I
hold such a hearing now, and the parties appear to agree that
the material facts are not in dispute.
FACTS AND BACKGROUND
magistrate judge reported the following uncontested facts:
At around 8:30 p.m. on February 4, 2016, Officer [Daniel]
Sutyak and Officer Zachary Kwiatowski were patrolling a
neighborhood of Milwaukee, Wisconsin in a marked police
vehicle. They observed a Chevy Traverse travelling southbound
on Humboldt Boulevard turn left onto East Burleigh Street.
The officers followed the vehicle. Upon turning onto East
Burleigh Street, the officers saw the Traverse “parked
in the middle of the street at the intersection of E.
Burleigh St and N Dousman St. blocking traffic.” They
were unable to read the rear license plate from fifteen feet
away because it “was extremely dirty.”
After Officer Sutyak turned on the emergency lights and
sirens, the Traverse’s rear red brake light turned on.
The Traverse then slowly turned left onto North Dousman
Street and came to a stop. The only occupant was the driver,
later identified as [defendant]. Upon approaching the
Traverse, the officers noticed [defendant] moving in a manner
consistent with “placing an item behind or under the
front passenger seat.” After observing a
three-fourths-full bottle of Taaka Vodka in the center
console, the officers escorted [defendant] to the back of the
police vehicle. They then searched the Traverse, discovering
a firearm under the passenger’s seat.
(R. 16 at 2, record citations omitted.)
magistrate judge concluded that the officers had grounds to
stop defendant because he was obstructing traffic.
See Milwaukee, Wis., Ordinances § 101-24.2
(“It shall be unlawful for any vehicle to be parked or
left standing on a highway in such a manner as to obstruct
traffic.”). The magistrate judge acknowledged an
exception to the parking prohibition “for the purpose
of and while actually engaged in loading or unloading
property or passengers, ” Wis.Stat. § 340.01(42m),
but nothing in the record suggested defendant was doing that
at the time of stop. In any event, the magistrate judge
noted, the police need not rule out every lawful alternative
before stopping an individual.
officer has probable cause for a traffic stop when he has an
objectively reasonable basis to believe a traffic law has
been violated. United States v. Reaves, 796 F.3d
738, 741 (7th Cir. 2015). The Seventh Circuit has
held that “that probable cause to believe that a
parking offense is ongoing justifies at least a brief
stop.” United States v. Johnson, No. 15-1366,
2016 U.S. App. LEXIS 9004, at *3 (7th Cir. May 17,
2016) (citing United States v. Shields, 789 F.3d
733, 744-46 (7th Cir. 2015)). Echoing the
magistrate judge’s statement in this case, the Seventh
Circuit in Johnson rejected the argument that the
police could not obtain probable cause until they had
observed the car long enough to know that it was not loading
or unloading. “Even a brief glimpse of the car revealed
probable cause, because officers need not negate all possible
defenses. They can hand out tickets (or make arrests) and
leave to the judicial process the question whether a defense
applies.” Id. at *2; see also id. at
*4 (“The Fourth Amendment requires searches and
seizures to be reasonable; it does not demand that police
resolve all possible defenses and exceptions before asking
the first question.”).
uncontested facts establish that Officers Sutyak and
Kwiatowski had grounds to stop defendant’s car to
determine why he was parked in the middle of the street in an
intersection. Defendant contends that the officers did not
have enough time to conclude that the Traverse was probably
parked, rather than that the driver was waiting for a
passenger, checking GPS, or answering the phone. As the
magistrate judge noted, however, the officers’
observation of the vehicle’s brake lights supports the
conclusion that the vehicle’s transmission “was
literally in the parked position.” (R. 16 at 4.) As the
government notes, Wisconsin law defines the term
“parking” to mean “the halting of a
vehicle, whether occupied or not, except temporarily for the
purpose of and while actually engaged in loading or unloading
property or passengers.” Wis.Stat. § 340.01(42m).
Thus, it does not matter that the Traverse was running and
occupied. And the record contains no evidence that anyone was
getting into or out of the car, triggering the exception.
Perhaps if the police had delayed a few minutes, they would
have observed loading or unloading, but Johnson
holds that the police need not wait and see before they
approach a vehicle and ask the driver what he is
claim that, because of the location of the encounter and the
absence of other cars, no traffic was actually being
obstructed fails for a similar reason. The police need not
wait for other vehicles to approach before they at least
investigate why a car is stopped in the middle of the road,
in an intersection, for no apparent reason. As the government
notes, the Milwaukee ordinance prohibits parking
“in a manner so as to obstruct traffic”;
by its terms, it does not require that other cars
actually be blocked, unlike the Tennessee statute at
issue in the case defendant cites. State v.
Williams, 185 S.W.3d 311, 319 (Tenn.
2006). The Fourth Amendment does not forbid the
police from pro-actively removing a car from the middle of
the road before other drivers are obstructed. In any event,
as the government also notes, the fact that defendant took
the car out of park and moved onto Dousman Street when the
officers approached shows that he was blocking traffic.
“If he were not blocking traffic, he simply could have
remained where he was when the officers activated their
lights.” (R. 19 at 6.)
defendant makes no claim that the police acted unreasonably
when they removed him from the car and searched it, based on
their additional observations of furtive movements and an
open bottle of alcohol. See, e.g., United States
v. Evans, 994 F.2d 317, 321 (7th Cir. 1993).