United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION (DKT. NO. 10) AND DENYING DEFENDANT'S
MOTION TO SUPPRESS (DKT. NO. 4)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
6, 2017, a grand jury returned a four-count indictment
charging defendant Terry Robinson with (1) possessing and
training animals for animal fighting; (2) possessing
marijuana with intent to deliver; (3) possessing a firearm
after having been convicted of a felony; and (4) possessing a
firearm in furtherance of a drug trafficking offense. Dkt.
No. 1. One month later, on July 5, 2017, the defendant filed
a motion to suppress all evidence recovered from the March
29, 2017 search of the residence at 5254 N. 28th Street in
Milwaukee. Dkt. No. 4. The defendant lived at 5254 N. 28th
Street, although not alone. Id. at 2. In challenging
the March 29, 2017 search, the defendant attacked the
validity of a previous search warrant-executed on March 24,
2017-that authorized a drug-sniffing canine search of the
curtilage of the 5254 N. 28th St. residence. Id. The
defendant argued that the affidavit supporting the March 24,
2017 canine search warrant failed to establish probable
cause, and that the results of that search led to
the issuance of the warrant for the March 29, 2017 search.
Id. The government responded, dkt. no. 8, and the
defendant replied, dkt. no. 9.
28, 2017, Magistrate Judge David Jones issued a report and
recommendation denying the motion to suppress. Dkt. No. 10.
On August 9, 2017, the defendant objected to Judge Jones'
report. Dkt. No. 12. The court adopts Judge Jones' report
and recommendation, and denies the motion to suppress.
Jones' report details the contents of the affidavit that
provided probable cause for the March 24, 2017 search
warrant. Dkt. No. 10 at 2-5. The court briefly recounts those
facts here. The affidavit mentioned two confidential
informants (“CIs”), a subject with the nickname
“Fat Boy” and surveillance of the residence at
5254 N. 28th Street. Dkt. No. 4-1 at 2-3. In early February
2017, a confidential informant shared information with
Milwaukee police officer Christopher Navarrette that
“Terrance AKA ‘Fat Boy'” was dealing
cocaine. Id. at 2. Officer Navarrette, a
fifteen-year veteran in law enforcement (id. at 1),
would later complete the affidavit in support of the March
24, 2017 search warrant. Id. CI #1 described
“Fat Boy” as a five-foot, ten-inch, 300-pound
African American man with short hair and a light complexion.
Id. at 2, ¶8.
police officers set up a controlled buy between confidential
informants and “Fat Boy” for February 27, 2017.
Id. at 2, ¶9. On that day, CI #1 called
“Fat Boy” and arranged to meet at 5254 N. 28th
Street to buy cocaine. Id. Officers gave the
confidential informants $600.00 to complete the controlled
buy and set up surveillance in the 5200 block of N. 28th
Street. Id. at 2-3, ¶10. The officers then
watched as CI #1 and CI #2 drove together to the 5200 block
of 28th St. and parked their car on the street Id.
The officers saw a car arrive, and saw an approximately
five-foot, ten-inch, 300-pound African-American man exit the
car and get into the passenger seat of the CIs' vehicle.
Id. CI #2 gave this man - who fit the description of
“Fat Boy” - $600.00. Id. “Fat
Boy” then entered the 5254 N. 28th St. residence for a
short period of time before returning to the CIs'
vehicle. Id. “Fat Boy” gave CI #2 a
clear plastic sandwich bag containing a white powdery
substance - later tested and found to be cocaine - and
returned to his car. Id. After the CIs drove away,
officers saw “Fat Boy” go back up to the 5254 N.
28th St. residence and speak with a man who had exited
through the front door. Id. When their conversation
finished, “Fat Boy” drove away, and the officers
recorded the rear license plate of his car as “909-BMD,
” later confirmed to be registered to Terrence D.
Adams. Id. at p. 3, ¶¶10-11.
weeks later, on March 19, 2017, undercover officers again
surveilled the 5254 N. 28th Street residence. Id. at
p. 3, ¶12. This time, they saw three events in a
five-minute span: (1) a vehicle parked in front of the house;
(2) a woman exited the vehicle and entered the home; and (3)
the same woman left the home and drove away. Id. The
officers believed this to be a drug transaction. Id.
That same day, both CIs identified a photo of Terrence D.
Adams as “Fat Boy” and officers learned through
police intelligence files that Terry S. Robinson resided at
5254 N. 28th Street and paid utilities for that address.
Id. at ¶11. As Judge Jones noted, however,
“[t]he affidavit does not explain what the relationship
was, if any, between Mr. Adams and [the defendant].”
Dkt. No. 10 at 4.
days later, on March 24, 2017, Milwaukee County Judicial
Court Commissioner Maria S. Dorsey signed a search warrant
authorizing a drug sniffing canine search of the curtilage of
5254 N. 28th Street. Dkt. No. 4-1 at 8. During the execution
of that warrant, a canine alerted at the front door, and
officers used that alert to apply for and obtain a warrant to
search the interior of the residence for drug trafficking
activity. Dkt. No. 10 at 4. During the residential search,
“officers recovered a loaded firearm, five pounds of
marijuana, two grams of crack cocaine, and four American
Pitbull terriers (three of which were fight-scarred).”
Judge Jones' Report and
defendant argued to Judge Jones that: (1) the affidavit
supporting the search warrant failed to supply probable cause
because it provided no information about the confidential
informants' credibility or reliability; and (2) the
evidence supporting the warrant was from February 27 and
March 9, making it stale by the March 24, 2017 warrant date.
Dkt. No. 4 at 3-4. The defendant also argued that if the
court agreed that the affidavit did not establish probable
cause, it should hold an evidentiary hearing to determine
whether the good-faith exception to the exclusionary rule
applied. Id. at 5.
Jones began his recommendation by recounting the events
described by Officer Navarrette's affidavit in support of
the March 24, 2017 canine warrant. Dkt. No. 10 at 3-5. He
then laid out the law governing search warrants and the
standard that a reviewing court uses to evaluate the
warrant-issuing judge's finding of probable cause.
Id. at 5-6. Judge Jones rejected the defendant's
argument that the case turned solely on the affidavit's
failure to provide information regarding the credibility or
reliability of the confidential informants; instead, he
focused on the totality of the circumstances surrounding the
investigation of the 5254 N. 28th St. residence. Id.
at 7. He noted that officers directly observed the February
27, 2017 controlled buy and that “‘controlled
buys add great weight to an informant's tip.'”
Id. at 8 (quoting United States v. Mullins,
803 F.3d 858, 863-64 (7th Cir. 2015)). He concluded that
“[t]he totality of the circumstances described in the
affidavit, including the CIs' statements and Officer
Navarette's extensive experience with narcotics crimes,
combined with the controlled buy, provides ample support for
the issuing judge to believe that evidence would be found at
Mr. Robinson's residence.” Id. at 8.
staleness, Judge Jones reiterated that the court owes
deference to the issuing judge's conclusion on probable
cause: “‘[c]ourts should defer to the issuing
judge's initial probable cause finding if there is
substantial evidence in the record that supports his
decision.'” Id. at 10 (quoting United
States v. Sutton, 742 F.3d 770, 773 (7th Cir. 2014)).
While Judge Jones commented that the more than three-week
period between the controlled buy and the issuance of the
warrant “[wa]s not ideal, ” he concluded that
“it is not so great a period of time as to cause this
Court to disturb the Milwaukee County Commissioner's
judgment that the affidavit indicated ongoing criminal
activity.” Id. (citing United States v.
Mitten, 592 F.3d 767, 776 (7th Cir. 2010)). He also
commented that the officers observed what they believed to be
an additional drug transaction on March 19, 2017, and that
“the affidavit sought a canine sniff of the curtilage
rather than the more intrusive search of the residence
Judge Jones found that even if the warrant lacked probable
cause, “suppression would be an inappropriate remedy in
this case.” Id. at 10-11. He highlighted the
prima facie evidence of good faith that attaches
where officers seek and obtain a search warrant, and
concluded “[u]nder these circumstances, I do not
believe the affidavit would have given the executing officers
any reason to doubt that the warrant was supported by
probable cause.” Id. at 11.