United States District Court, E.D. Wisconsin
STADTMUELLER U.S. District Judge.
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
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).
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). 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.
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).
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).
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).
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;
to the magistrate’s report, as Mr. Griffin was exiting
his car, and before he was placed in handcuffs,
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.
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.
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 ...