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United States v. Bogan

United States District Court, E.D. Wisconsin

October 23, 2017



          J. P. Stadtmueller, U.S. District Judge.

         1. INTRODUCTION

         On July 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.


         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 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.

         3. RELEVANT FACTS[1]

         On 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.

         Gregory 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.

         As 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.

         A video 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.

         It was 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).

         4. ANALYSIS

         Magistrate 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).

         In 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 ...

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