United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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.
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. 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).
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).
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.
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.
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.
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). 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.
time, Defendant did not submit an objection to the
determination as to the timing of seizure. 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 ...