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United States v. Doherty

United States District Court, E.D. Wisconsin

February 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NICKOLAS A. DOHERTY, Defendant.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         On 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.

         1. BACKGROUND

         Defendant 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).

         Defendant 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.

         The 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 was suppressed.

         On 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.

         2. STANDARD OF REVIEW

         When 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.

         3. ANALYSIS

         3.1 Magistrate Joseph's Report and Recommendation

         Magistrate 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).

         After 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).

         Based 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 ...


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