United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION (DKT. NO. 27) AND DENYING DEFENDANT'S
MOTION TO SUPPRESS (DKT. NO. 21)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
January 18, 2017, a grand jury returned a three-count
superseding indictment charging defendant Charles N. Edwards
with (1) possessing a firearm after having been convicted of
a felony; (2) possessing crack cocaine with intent to
distribute; and (3) possessing a firearm in furtherance of a
drug trafficking offense. Dkt. No. 16. The defendant filed a
motion to suppress, seeking to exclude all evidence recovered
as a result of the search of the defendant's home on
August 30, 2016. Dkt. No. 21. Specifically, the defendant
challenged whether the affidavit supporting the search
warrant of the defendant's home established probable
cause that criminal evidence would be found at the target
residence, or that the residence belonged to the defendant.
Id. at 2-3. Judge Duffin issued a report and
recommendation on April 4, 2017, dkt. no. 27, and the
defendant objected on May 19, 2017. Dkt. No. 33. The court
adopts Judge Duffin's report and recommendation, and
denies the motion.
Duffin's report lays out the relevant facts. Dkt. No. 27
at 2-4. For the purposes of the motion, the relevant facts
are brief: A Milwaukee police officer responding to a report
of a fight saw the defendant with a gun on the ground near
him. The officer asked the defendant if the gun was his; the
defendant responded that it was, and that he had a permit to
carry a concealed weapon. The officer also saw a clear,
plastic baggie with corner cuts, containing what the officer
thought looked like cocaine. It turned out that the substance
was cocaine, and that the defendant was a convicted felon.
Id. at 2. The issue in the motion to suppress is
this: The officer who submitted the affidavit in support of
the search warrant for the defendant's residence stated
only that a different law enforcement agent had verified that
the address to be searched was the defendant's, and that
the affiant (based on his training and experience) knew that
people hid guns in their residences, as well as indicia of
ownership of guns. He also averred that people keep guns for
long periods, and that evidence of gun possession often is
found on people's cell phones. Id. at 3.
Judge Duffin's Report and
defendant argued to Judge Duffin that Officer Newport's
affidavit (1) failed to establish probable cause that the
target residence, 3284 N. Sherman Boulevard, #2 was his; and
(2) that the affidavit did not contain a nexus between the
criminal conduct alleged and the location to be searched.
Dkt. No. 21 at 3. The defendant argued that these errors
rendered the affidavit so facially deficient that the
officers could not have relied on it in good faith. Dkt. No.
26 at 11.
Duffin recounted Officer Newport's affidavit and
highlighted the sections relating to the target residence.
Dkt. No. 27 at 2-3. After reviewing relevant Fourth Amendment
precedent, Judge Duffin concluded that the affidavit
“provided the issuing judge with probable cause for
concluding that [the defendant] was involved in selling
drugs.” Id. at 9. Judge Duffin noted that an
issuing judge “‘is entitled to draw reasonable
inferences about where evidence is likely to be kept, based
on the nature of the evidence and the type of offense[,
]'” id. (quoting United States v.
Jones, 763 F.3d 777, 795 (7th Cir. 2014)), and that
“‘in the case of drug dealers, evidence is likely
to be found where the dealers live, '” id.
(quoting United States v. Sewell, 780 F.3d 839, 846
(7th Cir. 2015)). He concluded that the affidavit provided
probable cause for him to issue a warrant to search the
defendant's residence. Id. The remaining
question was whether the affidavit sufficiently established
that the defendant resided at the target residence.
question, Judge Duffin concluded that Newport's affidavit
did not contain a substantial basis upon which an issuing
judge could find probable cause to believe that Edwards
resided at 3284 N. Sherman Boulevard, #2. Id. at
10-11. He noted that the affidavit indicated “[t]hat
affiant states that Special Agent Tim Rorabeck went into 3284
North Sherman Boulevard and verified that Charles Edwards is
residing in 3284 North Sherman Boulevard #2.” Dkt. No.
24 at 4, ¶7. The affidavit provided no information as to
how agent Rorabeck verified that the defendant resided at the
target residence. Id. at 10. Judge Duffin cited
United States v. Roach, 582 F.3d 1192 (10th Cir.
2009) for the proposition that “‘[i]t has long
been established that a warrant must be supported by
facts demonstrating probable cause, not by police
summaries of what they have concluded from such
facts.'” Id. at 10-11 (quoting
Roach, 582 F.3d at 1203)). Judge Duffin found that
Newport's affidavit “did not contain a substantial
basis upon which the issuing judge could find probable cause
to believe that Edwards resided at 3284 N. Sherman Boulevard,
#2.” Id. at 11.
Duffin went on to analyze, however, whether the warrant was
so lacking in probable cause that the searching officers
could not reasonably have relied on it in good faith.
Id. Judge Duffin pointed out that Newport's
affidavit said more than “the defendant resides at 3284
N. Sherman Boulevard #2.” Id. It stated that
Special Agent Rorabeck had verified that the defendant lived
at the target residence. Id. Judge Duffin concluded
that it was “not unreasonable for an officer to believe
that [Newport's] affidavit [wa]s sufficient when
[Newport] state[d] that information ha[d] been verified by
another officer, without articulating how the information was
verified.” Id. He relied on the reasoning in
the Roach case, where the Tenth Circuit found that
although the affidavit lacked probable cause, it nonetheless
met the good faith standard of a “minimal nexus”
connecting the defendant to the address. Id. (citing
Roach, 582 F.3d at 1204).
while Judge Duffin found that the affidavit did not contain
the substantial basis to find probable cause that the
defendant resided at the relevant address, he found that the
officers had a good-faith basis for relying on the warrant.
Id. at 11. He recommended that this court deny the
motion to suppress. Id. at 12.
The Defendant's Objections
defendant objects to Judge Duffin's recommendation on two
grounds. First, he argues that Judge Duffin improperly found
that Special Agent Rorabeck had conducted “some
investigation” into a connection between the defendant
and the residence. Dkt. No. 33 at 2-3. The defendant argued
that this conclusion was too speculative, because no specific
facts in the affidavit support such an inference.
the defendant argues that the court should not adopt Judge
Duffin's report because “Officer Newport's
affidavit does not even contain hypothetical methods that
Agent Rorabeck may have utilized to ‘verify' [the
defendant's] connection to the residence. Indeed, we do
not even know whether Newport knows how Rorabeck allegedly
verified this information.” Id. at 5. The
defendant further asserts that the “bare bones
statement from Officer Newport, who has no personal
knowledge, that another agent somehow
‘verified' that Edwards lived at the residence
searched . . . cannot satisfy the good faith standard of a
‘minimal nexus' as was the case in
Roach.” Id. (emphasis in original).
In short, the defendant argues that the court should find
that the affidavit lacked even the minimal nexus required to
meet the ...