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United States v. Winters

United States District Court, E.D. Wisconsin

June 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRELL L. WINTERS, Defendant.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         Defendant was indicted in September 2016 for being a felon in possession of a firearm. (Docket #1). On November 17, 2016, he filed a motion to suppress the police's recovery of the firearm from his person, arguing that they lacked reasonable suspicion that he was engaged in criminal activity. (Docket #14). As described more fully below, this motion has been subject to extensive briefing, evidentiary hearings, and court findings. Magistrate Judge David E. Jones' latest recommendation to this Court is to grant Defendant's motion. (Docket #45). The government objected to that recommendation. (Docket #47). For the reasons explained below, the Court will overrule the government's objection, adopt Magistrate Jones' recommendation, and grant the motion to suppress.

         2. RELEVANT FACTS

         The government's objection takes no issue with Magistrate Jones' factual findings. See generally (Docket #47). This Court will therefore adopt them in their entirety, and will briefly review them here. (Docket #45 at 3-4). Defendant and Robi Tyus (“Tyus”) stood in the street as police officers, including Sarah Beland (“Beland”), were on a bicycle patrol. Tyus dropped a gun which clattered on the pavement. Officers turned their attention to Tyus and made contact with him, discussing whose gun it was and whether it was lawfully possessed.[1] Defendant, meanwhile, began to walk across the street, away from the assembled group. Beland moved into Defendant's path with her bicycle. As she approached, Beland observed a heavy bulge in Defendant's jacket which she believed was a firearm. Once in front of Defendant, Beland told him to stop. When Defendant continued to move forward, albeit slowly, another officer grabbed him from behind. Once Defendant was handcuffed, the officers retrieved a gun from his jacket pocket, as well as drugs and cash. Defendant was charged with being a felon in possession of a firearm. (Docket #1).

         3. PROCEDURAL BACKGROUND

         Magistrate Jones initially recommended that Defendant's motion be denied. (Docket #23). To arrive at that conclusion, Magistrate Jones first found that: 1) Defendant was seized when Beland told him to stop, and 2) Beland and her fellow officers' prior observations established reasonable suspicion that he was illegally carrying a firearm. Id. at 8-16. Magistrate Jones further found that the officers' resultant frisk was reasonable and that the government failed to prove that the gun would have inevitably been discovered (though this, of course, did not alter the outcome of the recommendation).

         Defendant objected to the first recommendation. (Docket #25). In addressing his objection, this Court noted that he raised new arguments therein. (Docket #30). Before Magistrate Jones, Defendant maintained that he was seized as of the time Beland told him to stop, and Magistrate Jones agreed. Before this Court, Defendant moved the time of seizure backward, to the point at which Beland moved in front of him while she was on her bicycle. (Docket #30 at 1-2). Because Defendant did not present that contention to Magistrate Jones, and it was potentially dispositive of the motion, this Court remanded the matter to Magistrate Jones to address that narrow issue. Id. at 3.

         After further hearings and briefing, Magistrate Jones issued a new recommendation. (Docket #45). Magistrate Jones determined that Defendant was not seized at any point prior to Beland's first words to him, confirming his finding in the first recommendation. Id. at 6-10. Also in line with the first recommendation, Magistrate Jones found that Beland could have reasonably suspected that Defendant had a gun concealed in his jacket. Id. at 11-12. Magistrate Jones then deviated from the first recommendation by finding that Beland had no reason to suspect that Defendant's gun possession was unlawful. Id. at 12. Specifically, Magistrate Jones found that Beland lacked reasonable suspicion that Defendant was not permitted to carry a concealed firearm. Id. at 12-15.

         The government timely objected to Magistrate Jones' second recommendation. (Docket #47). Defendant responded to the objection, and the government declined to offer a reply. (Docket #48). As explained below, the Court concurs with Magistrate Jones' analysis in his second recommendation.

         4. 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). Thus, the Court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. In other words, the Court's de novo review of Magistrate Jones' findings and recommendations 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.

         5. ANALYSIS

         This time, Defendant did not submit an objection to the determination as to the timing of seizure.[2] Thus, all parties are in agreement that Defendant was seized when Beland told him to stop. As of the moment of seizure, Defendant's Fourth Amendment rights required that Beland have reasonable suspicion, based on “some objective manifestation, ” that Defendant “is, or is about to be, engaged in criminal activity.” United States v. Swift,220 F.3d 502, 506 (7th Cir. 2000); Terry v. Ohio,392 U.S. 1 (1968). The parties further agree that Beland, given her observation of the bulge in Defendant's jacket, had reasonable suspicion that Defendant was carrying a firearm as of the ...


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