United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION (DKT. NO. 31) AND DENYING DEFENDANT'S
MOTION TO SUPPRESS (DKT. NO. 20)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
February 17, 2017, the defendant filed a motion to suppress a
gun seized from behind the screen door of the defendant's
home as the fruit of an unconstitutional search. Dkt. No. 20.
Magistrate Judge William E. Duffin conducted an evidentiary
hearing on March 31, 2017, dkt. no. 28, then issued a report,
recommending that this court deny the motion to suppress,
dkt. no. 31. After finding that the officers had the
reasonable suspicion necessary for an investigative
Terry stop, Judge Duffin concluded that the
officers' protective search of the area behind the screen
door did not violate the Fourth Amendment. The defendant
objected to the recommendation on the grounds that (1) the
officers did not know whether the defendant was a concealed
carry (CCW) permit holder and had no reason to believe that
the defendant possessed a gun; (2) the gun posed no
reasonable danger to the officers; (3) the Fourth Amendment
protects the curtilage of the home; and (4) the officers did
not testify consistently about the defendant's location
at the time of the search. Dkt. No. 35. This court held an
evidentiary hearing, to conduct a de novo review of
the evidence. Dkt. No. 42. The court overrules the
defendant's objection, adopts Judge Duffin's
recommendation and denies the motion to suppress.
court held its evidentiary hearing on July 12, 2017 at 2:30
p.m.; Officers Chad Boyack and Anthony Milone testified. Dkt.
No. 43. Boyack, a twenty-year veteran of the Milwaukee Police
Department, works the late power shift-7 p.m. to 3 a.m.-in
District 5. Id. at 5. At 11:40 p.m. on October 11,
2017, Boyack and Milone drove north on North Teutonia Avenue
before taking a right onto West Vienna Avenue, heading
eastbound. Id. at 7. The federal and city
governments refer to the area as the Capitol Street Corridor,
which is known for the high intensity of drug trafficking,
robberies and shootings. Id. at 17.
officers observed the defendant walking northbound on 19th
Place, to the left of a streetlight, with his right hand
inside of a kangaroo pouch-style pocket and his left hand
free at his side. Id. at 7 and 22. According to
Boyack, the defendant's right hand grasped some type of
medium-sized object inside the pocket on the right side.
Id. at 8. In Boyack's years of training in the
academy and his on-the-job experience, he had seen something
similar numerous times, and, more often than not, he
testified, the object was a firearm. Id. at 8 at
defendant made direct eye contact with the officers in the
marked squad car. Id. at 9. As the officers made a
U-turn, the defendant picked up his pace, left the sidewalk,
and crossed the grass in front of a duplex at 1933/35 West
Vienna Avenue. Id. at 9. The officers parked and got
out of their car, while the defendant walked up a set of
wooden steps onto the porch of that address. Id. at
10-11, and 30. The defendant opened the outer screen door to
1933 with his left hand, pulled his right hand away from his
side, and placed a dark object-larger than the outline of his
hand-between the threshold of the inner and outer doors.
Id. at 11, 30 and 33. Boyack suspected the object
was a gun, and, in the officer's experience, he
didn't think the defendant was acting the way someone who
had a CCW permit would act. Id. at 12. At that
point, Boyack stood approximately twenty to twenty-five feet
from the defendant. Id.
to Boyack, the defendant turned around and took a couple of
steps down from the top of the porch, and Officer Milone
walked behind the defendant toward the door. Id. at
13. Boyack said something to the defendant like “Hey,
buddy, Milwaukee Police.” Id. at 35. At that
point, Boyack had safety concerns, because the defendant was
“very well-built, muscular, ” and things could
have gotten “dicey, especially if he decided to
fight.” Id. at 14. Milone immediately turned
around after “looking for not even a second” and
said “C1, ” which, in the understanding of these
two officers, was code for an adult arrest over eighteen, but
they also use it to mean that a gun is involved. Id.
at 15. Boyack took the defendant into custody after the
defendant confirmed that he was a felon; felons cannot have
CCW permits. Id. at 15-16. Soon after the officers
placed the defendant in the back of the squad car, a woman
came to the door, identifying the defendant as her boyfriend
or husband. Id. at 16. According to Boyack, the
entire incident took approximately twenty-five to thirty
seconds. Id. at 17.
a seven-year veteran of the Milwaukee Police Department,
testified that he also worked the power shift on October 11,
2016, with his partner of four-and-a-half years, Boyack. Dkt
No. 45. As the passenger in the squad car, Milone looked to
his right (south) and observed the defendant walking
northbound on the east sidewalk wearing a red t-shirt with a
kangaroo pouch. Id. at 46. Milone observed the
defendant's right hand in his pocket, and a significantly
large bulge coming from the pocket (larger than the size of a
hand). Id. at 47. In Milone's experience, such
an object “ends up being a firearm.” Id.
like Boyack, testified that as the officers made a U-turn,
the defendant picked up the pace and crossed to the front
porch of the duplex at 1933/35 West Vienna. Id. at
48, 49. The porch light was on; Milone observed a black,
medium-sized object in the defendant's right hand.
Id. The defendant opened the screen door, and placed
the object in between the screen and front door. Id.
at 49. Milone suspected the defendant had a gun because, with
one exception, he had never seen someone with a CCW permit
act in the same manner as the defendant. Id. at 50.
walked to the top of the porch while Boyack spoke with the
defendant. Id. at 50. Milone crossed to the screen
door and tried to open it as little as possible, so as not to
alert the defendant for fear the defendant would lunge or
fight. Id. at 50. Milone also expressed concern that
someone behind the door (someone from inside the house) could
grab the gun. Id. at 52. After seeing a black, Smith
& Wesson .40 caliber handgun inside the screen door,
Milone said “C1, ” meaning that he'd located
a firearm and that, unless the defendant had a CCW permit,
the officers should arrest him. Id. at 51. The
defendant admitted to Boyack that he was a felon.
testified that everyone was on the top landing of the porch.
Id. at 57. According to Milone, the space between
the door and the front step was approximately ten feet.
Id. at 59. Reluctant to say that Boyack was mistaken
in his recollection that the defendant had come down the
porch steps a bit, Milone nonetheless testified that the
defendant was very close to the door, to the point that the
door would have hit the defendant had it been fully opened.
Id. at 59.
CONCLUSIONS OF LAW
Terry v. Ohio, 392 U.S. 1, 21 (1968), police
officers may detain a suspect for a brief investigatory stop
if they have a “reasonable suspicion based on
articulable facts that a crime is about to be or has been
committed.” United States v. Williams, 731
F.3d 678, 683 (7th Cir. 2013) (quoting United States v.
Carlisle, 614 F.3d 750, 754 (7th Cir. 2010)). Reasonable
suspicion “is more than a hunch but less than probable
cause and considerably less than preponderance of the
evidence.” Jewett v. Anders, 521 F.3d 818, 823
(7th Cir. 2008) (internal quotations omitted). It requires
“some minimal level of objective justification for
making a stop, ” given the “totality of the
circumstances” and “common-sensical judgments and
inferences about human behavior.” Id.
(internal quotations omitted).
used by trained law enforcement officers, “objective
facts, meaningless to the untrained, can be combined with
permissible deductions from such facts to form a legitimate
basis for suspicion of a particular person and for action on
that suspicion.” United States v. Cortez, 449
U.S. 411, 419 (1981). Because courts evaluate reasonable
suspicion in light of the totality of the circumstances,
“behavior which is susceptible to an innocent
explanation when isolated from its context may still give