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United States v. Robinson

United States District Court, E.D. Wisconsin

October 23, 2017




         On June 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.

         On July 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.

         I. Factual Background

         Judge 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.

         Milwaukee 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.

         Three 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.

         Five 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).” Id.

         II. Judge Jones' Report and Recommendation

         The 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.

         Judge 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.

         As to 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 itself.” Id.

         Finally, 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.

         III. The ...

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