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United States v. Griffin

United States District Court, E.D. Wisconsin

July 22, 2016



          J.P. STADTMUELLER U.S. District Judge.

         On February 17, 2016, a grand jury in this district returned a single count indictment charging Derrick Griffin with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Docket #8). The indictment is based on a search and seizure conducted by law enforcement on February 10, 2016, during which time a loaded Astra 9 millimeter pistol was recovered from Griffin’s vehicle. (Docket #8).

         In anticipation of the jury trial for this matter, Mr. Griffin filed a motion to suppress the gun seized during the February investigative stop. (Docket #16). On April 19, 2016, Magistrate Judge David E. Jones held an evidentiary hearing to address various issues of fact underlying that motion. (Docket #23). Based on the facts developed therein, Magistrate Jones issued a report and recommendation in which he concludes that this Court should grant Mr. Griffin’s motion to suppress because the stop was not supported by reasonable suspicion of criminal activity. (Docket #30).

         Pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and Federal Rule of Criminal Procedure 59(b)(2), both Mr. Griffin and the government filed objections to Magistrate Jones’s report and recommendation. (Docket #33, #34). Those objections have now been fully briefed by the parties. (Docket #33, #34, #37, #38, #39).[1] For the reasons stated herein, the Court will adopt Magistrate Jones’s recommendation that Mr. Griffin’s motion to suppress be granted (Docket #30) and will, accordingly, grant the motion. (Docket #16).


         On February 8, 2016, a confidential informant (or “informant”) gave information to ATF Officer Anthony Randazzo (“Officer Randazzo”) that Mr. Griffin was a felon who regularly carried a gun. (Docket #23 at 7). The informant told Officer Randazzo that Mr. Griffin works at a salon called Hair Fantasies located on Martin Luther King Drive, and that Mr. Griffin takes breaks in front of the barbershop to smoke marijuana. (Docket #23 at 7, 13-19). The informant indicated that Mr. Griffin kept a firearm with him in his vehicle and that he drove a black Nissan Altima with no tint. (Docket #23 at 7-9).

         Prior to the stop, Officer Randazzo ran Mr. Griffin’s record and determined that he was a felon and that he had been previously convicted on firearm violations. (Docket #23 at 10). The informant also confirmed Mr. Griffin’s identity in a photograph. (Docket #23 at 10). Officer Randazzo relayed this information to his partner, ATF Special Agent Loren Common (“Agent Common”), who had previously arrested Mr. Griffin in connection with a federal firearms offense. (Docket #23 at 23-24).

         Later that day, Officer Randazzo and Agent Common, drove past Hair Fantasies, but they did not observe Mr. Griffin because the salon was closed. (Docket #23 at 12). Two days later, on February 10, 2016, Officer Randazzo and Agent Common drove past the salon again and saw Mr. Griffin sitting in the driver’s seat of an Altima, with no tint, parked in an off-street lot located in front of the salon. (Docket #23 at 13). The vehicle’s Wisconsin license plate, 385-THY, matched the license plate number provided to the ATF by the informant. (Docket #23 at 10-14). When observing the Nissan, the officers saw the occupant bend over the center console. (Docket #23 at 18-19). They did not see him smoking. (Docket #23 at 19, 43, 70).

         After spotting Mr. Griffin in the parking lot, the officers called for back-up and began surveillance of the vehicle. (Docket #23 at 20). During this time, law enforcement observed no suspicious behavior. (Docket #23 at 70). When the back-up arrived, approximately fifteen to twenty minutes later, the four officers flashed their lights (Docket #23 at 21), drew their weapons (Docket #23 at 29), and approached Mr. Griffin on foot with the intent to remove him from the vehicle (Docket #23 at 20-21; 28). From their vantage point, the officers could see into the front of the vehicle, including the dashboard and the driver’s seat where Mr. Griffin was sitting. (Docket #23 at 21). The officers removed Mr. Griffin from the vehicle and subsequently frisked him and handcuffed him. (Docket #23 at 30-31; 77-78). Mr. Griffin put his hands up, exited the car, exhibited no aggressive behavior, and did not attempt to flee. (Docket #23 at 30-33; 67).

         According to the magistrate’s report, as Mr. Griffin was exiting his car, and before he was placed in handcuffs, [2] Agent Common performed a safety search of the “lunge area” that Mr. Griffin could have accessed within the car. (Docket #23 at 22; 56; 73). During this search, Agent Common found a loaded pistol in the center console (Docket #23 at 22; 56) and Mr. Griffin was then formally arrested.

         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 parties have 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 report or recommendations made by the magistrate.” Id. In other words, the Court’s de novo review of Magistrate Jones’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.

         3. ANALYSIS


         In his motion to suppress, Mr. Griffin argues that the gun that law enforcement recovered during the February 2016 traffic stop should be suppressed because both the search and the seizure of Mr. Griffin violated the Fourth Amendment. (Docket #15 at 5-8). Specifically, he argues that Mr. Griffin’s warrantless seizure was not supported by probable cause or reasonable suspicion and that the subsequent search of Mr. Griffin’s car exceeded the scope of a proper investigative stop. (Docket #16 at 5-8). The government responds that: (1) at the least, the investigative stop was proper under the reasonable suspicion standard articulated ...

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