United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
January 25, 2017, the Court issued an order adopting
Magistrate Judge Nancy Joseph's Report and Recommendation
on Defendant's motion to suppress. (Docket #26). The
Court also dismissed both counts of the indictment with
prejudice. Id. Further review of the record reveals
that the Court's order was premature, and so it now
issues this order with the benefit of the parties'
briefing on Defendant's objection to the report and
recommendation. (Docket #25). For the reasons stated below,
the Court will adopt the report and recommendation in full
and dismiss Count Two of the indictment.
is charged with one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), and one count of possession with intent to
distribute marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(D). (Docket #1). The charges rise
from a traffic stop conducted by officers of the Cudahy
Police Department on July 11, 2015. (Docket #22 at 1). After
stopping the car in which Defendant was a passenger, officers
performed a Terry frisk on Defendant and found
marijuana. Id. at 2-11. They also found a firearm,
which Defendant admitted was his, on the floor of the
vehicle. Id.; (Docket #11 at 4-5).
filed a motion to suppress, arguing that neither the traffic
stop nor the Terry frisk was supported by sufficient
cause. See id.; (Docket #17 at 1-2). Defendant
claims that the officers lacked probable cause to stop the
vehicle for speeding. He also argues that the officers lacked
reasonable suspicion to perform the Terry frisk. In
her report and recommendation, Magistrate Joseph agreed with
Defendant on the second argument, but not the first. (Docket
#22 at 11-17). She recommended that the Court suppress the
evidence obtained as a result of the Terry frisk.
Id. at 17-18.
distinction between Magistrate Joseph's two conclusions
bears an important relation to the charges in the indictment.
Suppression of the marijuana obtained from the Terry
frisk leads to dismissal of Count Two of the indictment-the
drug charge. However, Defendant's gun was found on the
floor of the vehicle, not on his person. Moreover, he has not
challenged the search of Dunson's car which uncovered the
gun. Thus, dismissal of Count One of the indictment-the
felon-in-possession charge-would only be appropriate if all
the evidence obtained as a result of the initial traffic stop
January 20, 2017, Defendant filed an objection to Magistrate
Joseph's Report and Recommendation. (Docket #25). The
government responded on January 30, 2017. (Docket #27).
Defendant did not file a reply.
STANDARD OF REVIEW
reviewing a magistrate's recommendation, the Court is
obliged to analyze the recommendation de novo. 28
U.S.C. § 636(b)(1)(C). The Court can “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.” Id.
The Court's review encompasses both the magistrate's
legal analysis and factual findings. Id.
Magistrate Joseph's Report and Recommendation
Joseph held an evidentiary hearing on Defendant's motion
and took testimony from the officers involved in the stop and
searches. (Docket #14). Relevant here is the testimony of
Officer Janelle Jurkiewicz (“Jurkiewicz”).
Jurkiewicz is an eleven-year veteran of the police force who
performs general patrol duties, traffic enforcement, and
responding to calls, among other things. (Docket #22 at 2);
(Docket #15 5:1-10). She testified that on July 11, 2015, she
was traveling southbound on Kinnickinnic Avenue in her squad
car and observed a white Mitsubishi-the car in which
Defendant was a passenger-traveling at a high rate of speed
headed northbound on Kinnickinnic Avenue. (Docket #22 at 2);
(Docket #15 6:8-20). The car was being drive by Deshay Dunson
(“Dunson”). (Docket #22 at 2).
observing the vehicle traveling at a high rate of speed,
Jurkiewicz looked at her radar unit mounted on the dash and
saw that Dunson's vehicle was traveling at 54 miles per
hour. Id.; (Docket #15 6:21-25). She observed this
for several seconds and then saw the vehicle go up to 55
miles per hour. (Docket #22 at 2); (Docket #15 6:22-7:1). The
posted speed limit was 30 miles per hour. (Docket #22 at 2);
(Docket #15 7:2-3). Jurkiewicz testified that while she could
not remember whether she checked the accuracy of her radar
unit that day, it was a routine part of her shift to check
the radar with tuning forks and the radar's internal test
at the beginning and end of each shift. (Docket #22 at 14);
(Docket #15 18:11-19:1).
on this evidence, Magistrate Joseph concluded that Jurkiewicz
had probable cause to stop the car for speeding. Probable
cause “does not require evidence sufficient to support
a conviction, nor even evidence demonstrating that it is more
likely than not that the suspect committed a crime.”
United States v. Funches, 327 F.3d 582, 586 (7th
Cir. 2003) (internal quotation and citation omitted). In
making probable cause determinations, law enforcement agents
are entitled to draw reasonable inferences from the facts
before them, based on their training and experience.
Id. With respect to traffic stops, “the
decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has
occurred.” Whren v. United States, 517 U.S.
806, 809-10 (1996). This includes even a minor traffic
violation. Uni ...