United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge
government charged defendant Jarvis Garrett with felon in
possession of a firearm. 18 U.S.C. § 922(g)(1).
Defendant moved to suppress the gun, recovered by police from
his vehicle after a traffic stop. Defendant argued that the
police lacked probable cause for the traffic stop and that,
even if the stop was valid, they lacked probable cause to
search the car. The magistrate judge handling pre-trial
proceedings in this case received a stipulation of facts
regarding the officer's observations preceding the stop,
maps of the area in which it occurred, and a police squad
dash-cam video of the actual stop and search, then issued a
recommendation that the motion be denied. Specifically, she
concluded that the officer had probable cause to stop
defendant for making an illegal left turn, and that the
officer saw the firearm (in the driver's side door
pocket) in plain view.
objects to the magistrate judge's finding as to the
validity of the stop, requiring me to review that issue de
novo. Fed. R. Crim. P. 59(b)(3). However, he does not object
to the recommendation regarding the search and thus has
waived further review of that issue. Fed. R. Crim. P.
magistrate judge set forth the following undisputed facts:
On October 28, 2015, Police Officer Edward Tyrpak stopped his
squad car at a red light at the intersection of Harmonee
Avenue and Harwood Avenue in Wauwatosa. While stopped at the
red light, Officer Tyrpak saw a car traveling in the
right-turn only lane to go onto westbound Harwood Avenue.
Officer Tyrpak saw the vehicle go partially into the
intersection from the right-turn only lane, and then make a
left turn. The vehicle traveled directly in front of Officer
Tyrpak's squad car that was still stopped at the red
light. Officer Tyrpak then followed the vehicle and made a
traffic stop nearby at 1220 Dewey Avenue.
After Garrett [the driver] provided his driver's license,
Officer Tyrpak did a standard records check. He learned that
Garrett was a convicted felon and held an open warrant for
knowingly violating a domestic abuse injunction. Officer
Tyrpak and Officer Marcus Klink - who had come to the scene -
directed Garrett to exit his vehicle. Garrett opened the
driver's door, and then Officer Tyrpak briefly flashed
his flashlight at the driver's door pocket. Officer
Tyrpak saw the handle of a firearm in the pocket of the
driver's door. Officer Tyrpak, with the assistance of
Officer Klink, then handcuffed Garrett. After handcuffing
him, Officer Tyrpak said, “What's with the
gun?” Officer Tyrpak removed the firearm, a 9 mm Ruger
with a fully loaded magazine, from the driver's door.
(R. 34 at 1-2, record citations omitted.)
indicated above, the only issue before me is the validity of
the stop. The police may conduct a stop based on reasonable
suspicion of a traffic violation. See, e.g.,
United States v. Miranda-Sotolongo, 827 F.3d 663,
666 (7th Cir. 2016). While a stop cannot be based
on a mere hunch, id., the officer need not be
absolutely certain of a violation, id. at 669.
“[T]he degree of suspicion needed to justify a traffic
stop is ‘considerably less than proof of wrongdoing by
a preponderance of the evidence, ' and ‘obviously
less' than that needed for probable cause.”
Id. (quoting United States v. Sokolow, 490
U.S. 1, 7 (1989)); see also Heien v. North Carolina,
135 S.Ct. 530, 536 (2014).
traffic code provides: “The approach for a left turn or
U-turn shall be made in the lane farthest to the left which
is lawfully available to traffic moving in the direction of
travel of the vehicle about to turn left. Unless otherwise
marked or posted, this means the lane immediately to the
right of the center line or center dividing strip of a 2-way
highway and the lane next to the left-hand curb or edge of
the roadway of a one-way highway.” Wis.Stat. §
346.31(3)(a). It is uncontested that Officer Tyrpak saw
defendant drive in a right turn only lane on Harmonee Avenue
(as if to proceed west on Harwood Avenue), partially enter
the intersection, and then turn left (east) onto Harwood. The
maps of the scene show that there is a dedicated left turn
lane from Harmonee into Harwood (see R. 31 at 4, Map
4); defendant did not turn from this lane. These
circumstances gave Tyrpak reasonable suspicion, if not
probable cause, to believe that defendant violated
Wisconsin's rule on left turns. As the magistrate judge
noted, the absence of signs or markings on the pavement
designating the right turn lanes is of no moment under the
objections, defendant argues that his driving did not violate
a “bright line” traffic law, such as running a
red light or even failing to properly signal. Section
346.31(3)(a) states unequivocally that left turns shall be
made from the lane farthest to the left; that this traffic
rule may be less well known than others is also of no moment.
Defendant further argues that his left turn was not unsafe.
But defendant was not stopped for reckless or unsafe driving,
and nothing in § 346.31(3)(a) says that a driver can
turn left from the right lane so long as it is safe to do so.
Finally, defendant argues that the facts do not establish a
“clear cut” violation of the traffic law giving
rise to grounds for a stop. As indicated above, an officer
need not be certain of a violation before he conducts a stop;
reasonable suspicion will suffice, and Officer Tyrpak's
observations more than met that standard here. See
Heien, 135 S.Ct. at 539-40 (upholding stop based on
objectively reasonable belief of a traffic violation).
IT IS ORDERED that the magistrate judge's recommendation
(R. 34) is adopted, and defendant's ...