United States District Court, E.D. Wisconsin
ORDER CONSTRUING LETTERS FROM COUNSEL (DKT. NOS. 95,
96) AS MOTIONS TO SET SCOPE OF EVIDENTIARY HEARING, AND
GRANTING THOSE MOTIONS
PAMELA PEPPER United States District Judge.
January 6, 2016, defendant Street filed a motion to suppress.
Dkt. No. 34. He asked to suppress “information and/or
items allegedly obtained by law enforcement during the police
initiated encounter with Mr. Street in the parking lot of
Walmart at 15205 West Greenfield Avenue, Brookfield, WI on
October 24, 2015.” Id. at 1.
Judge David E. Jones held an evidentiary hearing on the
motion on February 4, 2016. Dkt. No. 38. After the hearing,
he ordered supplemental briefing. Text-only order dated
February 25, 2016. At the conclusion of the briefing, Judge
Jones issued a report, recommending that this court grant the
motion to the extent that Street sought “suppression of
his cell phone number and the information that he provided to
Deputy Knipfer about why he was at the Walmart store.”
Dkt. No. 51 at 25. He recommended that the court deny the
motion as to the other information Street sought to
suppress-his name, address, DNA “and the out-of-court
identifications.” Id. In making that
recommendation, Judge Jones found that the officers who
stopped Street in the parking lot of the Walmart in
Brookfield stopped him in violation of the Fourth Amendment,
because they did not have reasonable suspicion to believe
that Street was involved in criminal activity. Id.
at 51. Judge Jones found, however, that under the attenuation
doctrine, as well as the purpose-and-flagrancy doctrine,
foreclosed suppression of Street's name, address, DNA and
the out-of-court identifications by, among others,
Street's co-defendant based on Street's driver's
license photo. Id. at 19-23.
objected to Judge Jones' report and recommendation. Dkt.
No. 53. After the objection had been fully briefed, this
court adopted Judge Jones' recommendation. Dkt. No. 56.
The court agreed with Judge Jones that “Deputy
Knipfer's stop of the defendant violated the Fourth
Amendment.” Id. at 56. During that stop,
Street gave Deputy Knipfer his name and his cell phone
number. Id. at 3. He also told Knipfer that he was
from Illinois, and that some friends had dropped him off at
the Walmart to get a video game, which he had in a bag with
him. Id. After confirming Street's information
with dispatch and making sure Street had no outstanding
warrants, Deputy Knipfer told Street he was free to leave.
Id. at 3-4.
they released Street, the deputies “learned from
Walmart employees that the surveillance video of the parking
lot did . . . show three people getting out of the white SUV;
one of these individuals was the defendant.”
Id. at 4. The officers then obtained the
defendant's Illinois driver's license photo, which
they showed to people-including a co-defendant-who identified
the photo as defendant Street. Id. at 6.
court found that even if Deputy Knipfer never had stopped
Street, the deputies would've obtained the parking lot
surveillance photo. They would have learned that there was a
third defendant; they would have pulled a still photo of that
third person from the surveillance photo; they would have
shown that to various people; and they would have obtained an
ID of the defendant. Id. at 7-8.
little over three months later, Attorney Donovan made his
appearance as defendant Street's new counsel (after prior
counsel moved to withdraw). Dkt. No. 72. After familiarizing
himself with the case, Attorney Donovan filed two motions.
First, he filed a motion asking the court to reconsider its
ruling denying the motion to suppress. Dkt. No. 81. In the
motion, Attorney Donovan specifically stated, “Mr.
Street does not ask the Court to reconsider any portion of
its order that found that he was illegally stopped because
Judge Jones' recommendation and this Court's adoption
of that finding are correct.” Id. at 1. He
also argued that “the government has waived any
objection to the stop's illegality because it only
referenced any possible objection to it in passing reference
within a footnote in its response to Mr. Street's
objection to Judge Jones' recommendation.”
Id. Attorney Donovan asked the court to reconsider
Judge Jones' and this court's findings that the
attenuation and inevitable discovery doctrines precluded
suppression; he argued that this court had
“misapprehended key facts and law relating to those
arguments to deny suppression.” Id. at 2.
Counsel based his argument on both judges' interpretation
of United States v. Carter, 573 F.3d 418 (7th Cir.
2009). Id. He argued that the sequence of events in
Street's case was different than the sequence in
Carter, such that had the deputies not learned from
Street his address (the fact that he lived in Illinois, in
particular), they would not have pulled his Illinois
driver's license photo (which was shown to his
co-defendants and others). Id. at 3-4.
also filed a motion asking the court to allow him to file a
second suppression motion-this one alleging that rather than
showing co-defendant Oliver a photo array, officers showed
him only Street's Illinois driver's license photo.
Dkt. No. 88 at 1-2. He argued that this constituted a
presumptively suggestive show-up. Id. at 2.
January 24, 2017, the court held a hearing, and informed the
parties that it was going to “grant both motions, and
schedule an evidentiary hearing.” Dkt. No. 94. The
court made clear that it wasn't granting the motions
themselves; it was allowing counsel to file both motions, and
“scheduling an evidentiary hearing to take evidence on
both motions.” Id. at 1.
February 10, 2017, ahead of the February 16 evidentiary
hearing, counsel for the government filed a letter with the
court. Dkt. No. 95. Counsel stated that he understood that by
granting the motion to reconsider and the motion to schedule
an evidentiary hearing, he understood “the Court to be
reopening litigation on the original motion to
suppress.” Id. at 1. He noted that it had been
the government's position all along that Deputy
Knipfer's stop was not illegal, and he stated that the
government “anticipates calling additional law
enforcement witnesses in support of that position that may
add to the collective knowledge of law enforcement at the
time of the stop.” Id. He also argued that
even if the court was not open to reconsidering its decision
on the legality of the stop, testimony about the stop
“would still be relevant to the application of the
exclusionary rule-which was the subject of Mr. Street's
motion for reconsideration.” Id. He noted that
one factor in the decision regarding whether to apply the
exclusionary rule is the question of “how egregious the
constitutional violation was, so that the additional
testimony that might mitigate the egregiousness of the
alleged constitutional violation is relevant.”
government also referenced, by implication, defense
counsel's argument that the reason the court ought to let
him file a second suppression motion was because he'd
discovered new information (such as information regarding how
defendant Oliver pronounced Street's first name) that
previous defense counsel had not. The government argues that
if the defense gets to use “possibly new”
information to reopen the original motion to suppress,
“it seems only fair” that the government be
allowed to use “possibly new information” to ask
the court to reconsider whether the stop was illegal.
Id. Counsel concluded by asserting that because the
court granted Street's request for an evidentiary hearing
to examine the “totality of the circumstances, ”
“the government now has the burden of proving that the
officers did not violate Mr. Street's constitutional
rights.” Id. at 2. Thus, the government
indicated that it planned to call as many as six witnesses to
testify at the February 16, 2017 evidentiary hearing, and
anticipated that it would not take more than three hours to
do so. Id.
Donovan responded with a letter on February 11, 2017. Dkt.
No. 96. He first objected to the government's assumptions
as to the scope of the evidentiary hearing, noting that the
motion to reconsider did not ask the court to reconsider its
ruling that the stop was illegal. Id. at 1. He also
notes that the government never has asked the court to
reconsider its ruling in that regard. Id. He argued
that “[t]he government should be allowed to present
evidence on the purpose and flagrancy of the illegal stop,
but it should not be allowed to re-argue that the stop was
legal in the first place.” Id.
also indicated that he had not anticipated that the
government would call up to six witness, or re-litigate the
legality of the stop, and thus that he could not be prepared
to cross-examine that many witnesses on that broad an issue
at the February 16, 2017 hearing. Id. at 2. He goes
through his schedule for the week of February 13,
demonstrating that he does not have much time to prepare for
new issues that he did not anticipate. He also explains that
the government informed him on February 10, 2017 that there
may be some discovery he is missing. Id. Finally, he
indicates that the parties have held some plea discussions;
he could not represent that the parties were close to an
agreement, but expressed hope that the government might
consider some of his proposals. Counsel concluded by asking
“that the Court provide clarification as to the scope
of the hearing and, if it deems appropriate, an adjournment
to allow more time to address the issues raised here.”
court first refers the parties to its procedures, posted on
the Eastern District web site on Judge Pepper's page. If
a party wants the court to do something-adjourn a hearing,
clarify an issue-the appropriate vehicle for asking for that
“something” is via a motion. The CM/ECF system
that lets judges know when a party wants them to take action
on something does not flag letters; it flags motions. The