United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
2, 2017, the defendant, Travis S. Vaccaro
(“Vaccaro”), was indicted by a grand jury on one
count of unlawfully possessing a firearm after having
previously been convicted of a felony. (Docket #1). On June
14, 2017, Vaccaro filed a motion seeking suppression of the
evidence obtained as a result of a pat-down search and a
search of his vehicle by Milwaukee police officers on the
evening of February 9, 2017. (Docket #14). On July 17, 2017,
Magistrate Judge Nancy Joseph conducted a hearing on
Vaccaro's motion. (Docket #27, #28). On September 18,
2017, Magistrate Joseph issued a Report and Recommendation
(the “Report”) recommending denial of the motion.
(Docket #36). Vaccaro timely filed an objection to the
magistrate's Report, (Docket #39), and the government
filed a response thereto, (Docket #40).
reasons explained below, the Court will adopt the
magistrate's Report, overrule Vaccaro's objection,
and deny his 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 Joseph's findings and
recommendations is not limited to her legal analysis alone;
rather, the Court may also review her factual findings, and
accept, reject, or modify those findings as it sees fit based
upon the evidence. Id.
does not object to any material facts as found by Magistrate
Joseph. (Docket #39 at 2). In light of this, and having
reviewed the evidence independently, the Court accepts the
magistrate's findings of fact for purposes of resolving
Vaccaro's motion. A summary of those facts, taken from
the magistrate's Report and the evidence submitted in
conjunction with the motion, is provided here.
evening of February 9, 2017, at about 7:00 p.m., Milwaukee
police officers Aaron Frantal (“Frantal”) and
Matthew Tracy (“Tracy”), who were together in a
police squad car, observed a vehicle drive through a red
light at an intersection. Frantal activated the squad's
lights signaling the vehicle's driver, Vaccaro, to stop.
Vaccaro immediately pulled his car over and Frantal activated
the squad's spotlight. The officers noticed Vaccaro
making “furtive” movements toward the front
passenger side of the floorboard and then toward the back
seat of his vehicle. (Docket #28 at 11). While testifying at
the evidentiary hearing before the magistrate, Frantal also
described Vaccaro's movements as “ferocious”
and “aggressive.” Id. He stated that,
based on his training and experience, he believed Vaccaro was
either attempting to conceal contraband, arm himself, or
both. Tracy also testified that he believed Vaccaro was
attempting to arm himself. Id. at 11-12.
fearing for his and Tracy's safety, immediately exited
his squad, drew his service pistol, and ordered Vaccaro to
show his hands and exit his vehicle. Vaccaro complied, and
Frantal handcuffed him and conducted a pat-down search.
During the pat-down search, Frantal discovered a GPS
monitoring bracelet on Vaccaro's left ankle. He asked
Vaccaro about the bracelet, and Vaccaro responded that he was
on supervision for “false imprisonment, ” a crime
that Frantal and Tracy knew to be a felony in Wisconsin.
While Frantal conducted the pat-down, Tracy asked Vaccaro a
series of questions, including whether he had any firearms in
the vehicle. Vaccaro did not answer Tracy's question
about firearms at first, and then said, “I don't
have anything.” Tracy also asked Vaccaro about his
movements in the car, and Vaccaro denied putting anything in
the glove box, claiming he had just taken off his jacket.
Vaccaro appeared nervous and paranoid, and Tracy testified
that he believed Vaccaro was under the influence of drugs and
that there was a possibility he would grab Frantal's gun
Vaccaro handcuffed, Frantal and Tracy placed him in the back
of their squad car and shut the door. Vaccaro then began
screaming obscenities and appeared agitated. Frantal
testified that he was still concerned for his safety because
Vaccaro did not appear fully stable. However, Frantal
testified that, at this point, he considered Vaccaro secured.
Frantal called dispatch to report a traffic stop and Tracy
began searching Vaccaro's vehicle, beginning in the front
passenger area. Neither he nor Frantal asked Vaccaro for
consent to search the vehicle. Tracy asked Frantal if Vaccaro
had any other keys (it appears Tracy could not get into the
car's center console without a key), and, walking toward
Vaccaro's vehicle, Frantal responded, “Keys? I
don't believe so. He's got a fuckin' rifle in the
back? That's a rifle case.” See (Docket
#14 at 3-4 and Ex. B; #28 at 83-84). Tracy looked into the
back seat and said, “Yup, looks like it.”
Id. The officers removed a jacket from atop the
rifle case, opened the case, and discovered a firearm.
evidentiary hearing, both officers testified that they saw
the rifle case, mostly covered by a jacket, before
placing Vaccaro in their squad. For several reasons,
Magistrate Joseph did not credit this portion of the
officers' testimony. First, nothing in the officers'
conduct on the scene suggested that they saw the firearm case
as early as they now say; neither officer informed the other
of his observation when they approached Vaccaro's car or
after they had secured him in their squad. Their explanation
for their silence on this point was that they did not want to
further agitate Vaccaro, but that explanation is contradicted
by the fact that Tracy repeatedly asked Vaccaro whether he
had firearms in the car, in the face of Vaccaro's
increasing agitation. Next, had Tracy actually seen the rifle
case in the back seat before securing Vaccaro in the squad,
he likely would not have started his search of the vehicle
with the front seat. Finally, Frantal did not mention
suspicion of a firearm when he called dispatch to report the
these reasons, as set forth in the Report, the Court agrees
with Magistrate Joseph's decision to discredit the
officers' testimony that they observed a rifle case in
Vaccaro's car before securing him in their squad. The
government attempted to contest the magistrate's finding
on this point, but it raised the issue for the first time in
its response to the defendant's objection to the Report.
See (Docket #40 at 1). The government could have
submitted its own objection to the magistrate's Report,
but chose not to. The government's untimely evidentiary
dispute will not be considered.