United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
25, 2017, the defendant, Demetrius D. Bogan
(“Bogan”), was indicated by the grand jury on one
count of unlawfully possessing a firearm after having
previously been convicted of a felony. (Docket #1). On
September 7, 2017, Bogan filed a motion seeking suppression
of the firearm suggesting that the seizure of himself and of
the firearm violated his Fourth Amendment rights. (Docket
#14). On September 25, 2017, Magistrate Judge William E.
Duffin conducted a hearing on the defendant's motion,
(Docket #17, #19, #20), and, the next day, issued a Report
and Recommendation (“Report”) recommending denial
of the defendant's motion, (Docket #18). The defendant
filed an objection to the magistrate's Report, (Docket
#23), and the government filed a response thereto, (Docket
#24). For the reasons explained below, the Court will adopt
the Report and deny the defendant's suppression motion.
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 Duffin's 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.
April 16, 2017, Milwaukee Police Officers Robert Gregory
(“Gregory”), Justin Schwarzhuber
(“Schwarzhuber”), and Casey Donahue
(“Donahue”) were on patrol in a single marked
squad car, driving north on North 26th Street in Milwaukee.
They observed a white Chevrolet Impala parked on the side of
the street, facing south, with its headlights on. The front
driver's side window of the Impala was rolled down about
halfway. Gregory, who was driving the squad, testified that
he believed the car's windows, particularly the
driver's side windows, were illegally tinted. Gregory
testified that he is familiar with the legal standards for
window tint and that he has stopped hundreds of vehicles for
illegally tinted windows.
slowed the squad and turned on the squad's spotlight to
illuminate the Impala. The officers observed a man in the
driver's seat and a woman in the front passenger seat.
Within a matter of a second or two after turning on the
spotlight, Gregory stopped the squad and activated its
lights. All three officers got out of the squad and
approached the Impala. As they did, the driver, defendant
Demetrius Bogan, attempted to put the car in reverse, but the
car did not move.
Gregory approached the Impala, he illuminated the interior
with his flashlight and observed a gun on Bogan's lap
under Bogan's left hand. Gregory drew his own gun and
called out to the other officers, “He's got a
gun!” Bogan refused to comply with verbal commands to
get out of the car, leading Schwarzhuber to open the
driver's door to the car, remove the gun, and, along with
Donahue, forcibly remove Bogan from the Impala. The officers
handcuffed Bogan in the middle of North 26th Street.
recorded from the squad's dashboard camera captured the
events of that night. The video is not of sufficient quality
to show the tint of the Impala's windows. However, it
shows the proximity of the squad to the Impala, and shows the
illumination of the Impala when Gregory turned on the
spotlight. The video does not have sound.
later determined that the Impala's front driver's
side window was tinted to allow only 15 percent of light
through, rendering it in violation of the Wisconsin
Administrative Code. (Docket #15-2 at 5).
Duffin found, first, that Bogan was seized under the Fourth
Amendment when Gregory activated the squad's emergency
lights. (Docket #18 at 3 (citing Gentry v. Sevier,
597 F.3d 838, 844-45 (7th Cir. 2010)). “A traffic stop
of a car communicates to a reasonable passenger that he or
she is not free to terminate the encounter with the police
and move about at will.” Arizona v. Johnson,
555 U.S. 323, 333 (2009). The Fourth Amendment prohibits
unreasonable seizures, and a seizure is ordinarily considered
unreasonable absent individualized suspicion of wrongdoing.
United States v. Taylor, 596 F.3d 373, 376 (7th Cir.
2010) (citing City of Indianapolis v. Edmond, 531
U.S. 32, 37 (2000)). “One such type of individualized
suspicion occurs when police have probable cause to believe
that a person had committed even a minor traffic
offense.” Id. (finding seizure of vehicle was
reasonable based on officers' observation that driver was
not wearing seatbelt) (citations omitted).
determining whether the officers had a lawful basis to detain
Bogan, the magistrate considered the officers' stated
reason for detaining Bogan-illegally tinted windows. The
Wisconsin Administrative Code, Chapter 305, prescribes
equipment requirements for vehicles and lays out the fines
assessable to violators. Section 305.32 regulates the window
tint for automobiles, requiring that at least 50 percent of
visible light be passable through the front side windows of