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United States v. Vaccaro

United States District Court, E.D. Wisconsin

December 13, 2017



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

         1. INTRODUCTION

         On May 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).

         For the reasons explained below, the Court will adopt the magistrate's Report, overrule Vaccaro's objection, and deny his 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 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.

         3. RELEVANT FACTS

         Vaccaro 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.

         On the 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.

         Frantal, 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 or flee.

         With 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.

         At the 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 stop.

         For 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.

         4. ...

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