United States District Court, E.D. Wisconsin
ORDER OVERRULING DEFENDANT'S OBJECTION TO THE
MAGISTRATE RECOMMENTATION (DKT. NO. 51), AND DENYING
DEFENDANT'S MOTION TO SUPPRESS (DKT. NO. 20)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
September 8, 2017, the defendant filed a motion to suppress
the gun that gave rise to his felon-in-possession charge; he
argued that law enforcement stopped him, and seized the gun,
in violation of the Fourth Amendment. Dkt. No. 20. Magistrate
Judge David E. Jones began an evidentiary hearing on October
11, 2017, then adjourned it to October 23, 2017 to allow the
defendant, over the government's objection, to question
the arresting officer relating to reports he'd written in
other cases. Dkt. Nos. 27, 30. On December 29, 2017, after
post-hearing briefing, Judge Jones issued a report,
recommending that this court deny the motion. Dkt. No. 51.
Judge Jones's decision came down to credibility; he
determined that the arresting officer's testimony that
the defendant had fled after having seen the squad car was
more credible than the defendant's testimony that the
arresting officer had told him to stop, then tried to grab
him. Id. at 10-15. He concluded that the officers
also had probable cause to arrest the defendant, under the
totality of the circumstances-his confirmed status as a
felon, his flight from the officers
(“unprovoked”), and the fact that he tossed the
gun during the chase. Id. at 15-16. The defendant
objected to the recommendation, dkt. no. 52, and the
government responded, dkt. no. 53. Because Judge Jones based
his recommendation on credibility of the witnesses, the court
held its own evidentiary hearing on April 24, 2018, and
reviewed the witnesses' credibility de novo. The
court concludes that the defendant's testimony was not
credible; it will overrule the defendant's objection to
Judge Jones's recommendation and will deny the motion to
STANDARD OF REVIEW
59(b) governs dispositive motion practice initiated before
magistrate judges. Fed. R. Crim. P. 59(b). Parties have
fourteen days to file “specific written
objections” to a magistrate judge's report and
recommendation on a dispositive motion. Fed. R. Crim. P.
59(b)(2). When reviewing a magistrate's recommendation,
the district judge must review de novo the
recommendations of the magistrate judge to which a party
timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P.
59(b)(2), (3). The court can “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate.” 28 U.S.C. §636(b)(1).
October 11, 2017 Evidentiary Hearing
October 11, 2017, Judge Jones began the evidentiary hearing;
the defendant and arresting Officer Anthony Milone offered
conflicting versions of the events. Dkt. No. 33.
defendant recalled talking on the phone while walking home
from a gas station on Congress Avenue the evening of June 26,
2016. Id. at 9, 17. He testified that he turned
right onto 64th Street, when two officers pulled up alongside
him and one officer, in a regular voice, said, “Hey,
you, come here.” Id. at 6, 9, 17 and 28. The
officer's car was “catty-corner” toward the
defendant-angled with its tail end about five to ten feet
from the curb. Id. at 9, 19; see also
Defendant's Ex. 1. The defendant hung up the phone and
asked, “What you stopped me for?” Id. at
10. The officer said nothing in response. Id.
defendant saw another squad pulling up behind the parked
squad car. Id. at 10, 19. A streetlight illuminated
the area above where the defendant was standing, so “it
[was] pretty light.” Id. at 25. The passenger
in the second squad was “already out [of] the car with
his door open like he was like crouched behind it or
something.” Id. at 11, 13. The defendant could
not see the officer or a gun, but testified that it
“seemed like” the officer had a weapon drawn.
Id. at 12, 27. The defendant focused on the officer
in the first car. Id. at 12.
defendant described a fluid situation in which the officer
reached out of the door of the car and lunged at the
defendant while the defendant was “clicking his phone
down.” Id. at 13, 26. The defendant testified
that the officer was “getting out of the car, ”
but that the door was not in between the officer and the
defendant. Id. at 13. The defendant said that the
officer grabbed the defendant's shirt, but that the
defendant “jumped away and took off running.”
cross-examination, the government asked the defendant how the
officer was able touch his shirt when the defendant was on
the sidewalk and the car was parked so far from the curb.
Id. at 19. The defendant explained that the
defendant had taken a couple of steps towards the officer
when the officer said, “come here.” Id.
at 19-20. The defendant said that he never turned his back as
he walked toward the officer, because the defendant had a gun
“on [his] backside.” Id. at 28. He
testified that that situation changed when the officer
lunged, and the defendant took off running through a yard and
across the street, cutting back through the yards to 65th
Street. Id. at 21. The defendant testified that he
ran because he had a gun on him. Id. at 29. He ran
for three to four minutes before the officer chasing him made
the arrest Id. at 13-14, 22.
the defendant arrived at the station, he gave a statement to
the police (which was videotaped). Id. at 14-15. While
the defendant conceded at the hearing before Judge Jones that
he had not included “every detail piece by piece”
in the statement he gave to Detective Vartanian, he also
testified that he did not intentionally leave out any
details. Id. at 15. The defendant told Judge Jones
that he did not think the details about the arrest were
relevant at the time he gave the statement to the police.
Id. Rather, he told the court that he believed the
purpose of the statement was to discuss possible cooperation
with authorities. Id. at 16. The defendant said that
he did not realize he might be held to the exact statement in
the future, but he remembered telling the detective during
the interview that he ran from police because he had a gun.
Id. at 16, 24. The defendant admitted that he knew
it was illegal for him to carry a gun because he he had two
prior felonies: (1) possession with intent to distribute
cocaine in 2007; and (2) assault with a dangerous weapon in
2012. Id. at 23, 24.
Officer Milone's Version
had a different version of the events. Milone, an eleven-year
veteran of the Milwaukee Police Department, works the
“late power shift” (between 7 p.m. and 3 a.m.) in
District 5. Id. at 33. On the evening of June 26,
2016, Milone was the passenger in a squad driven by his
partner, Officer Chad Boyack. Id. at 33-35.
Detective Bill Feely informed Milone and Boyack (and two
other squads) that a confidential informant, who had provided
information as recently as eight days before this incident,
had said that a person named Brian Bell, a convicted felon,
had a hand gun. Id. at 35-36. The informant said
that Bell was somewhere in the area of North 60th and West
Congress Streets. Id. at 36. Milone and Boyack
verified that the defendant was a convicted felon,
id. at 37, and began to search for the defendant
around 60th Street and Congress, using his mug shot photo,
which they'd pulled up on the computer in their car,
id. at 36-37.
who had his window down, said that the two were traveling
westbound on West Congress Street in the 6300 block (between
63rd and 64th) when they saw the defendant walking westbound
on the north sidewalk of Congress. Id. at 38. As
they approached, the defendant looked back for a
“second, second and a half, ” and Milone
recognized him (noting his long braided hair). Id.
The officers were approximately thirty feet away when the
defendant turned to look back at them. Id. After he
turned away, the defendant grabbed his right front pocket
with his right hand, as he turned right to start walking
northbound on the east sidewalk of 64th Street. Id.
to Milone, the officers (still in the car) were about fifteen
feet away when the defendant looked back at them for a second
time, then began running north, then east through
people's yards. Id. at 39. The squad was still
in motion at this point. Id. Milone did not say
anything to the defendant before the defendant started to
run. Id. at 40. Milone started chasing the defendant
on foot, shouting, “Stop, police.” Id.
at 41. Milone described the pursuit:
He refused to stop and continued running north eastbound
towards the alley. As he reached-or was just about to reach
the alley I observed some type of dark object drop from his
person. I wasn't sure what it was, and then as he began
to make the turn northbound of the alley I observed his right
hand come towards his front right side and come away with
some type of dark colored hand gun in his hand, in his right
He then began-he continued running northbound through the
alley. At that point I lost sight of him behind a garage. I
was finally able to reach the alley myself. As I'm
running behind him he's still running northbound. At that
point I don't observe a firearm in either of his hands.
Id. at 41-42. Milone testified that he was about
forty-five feet away from the defendant while pursuing him,
and that he had a flashlight pointed on the defendant the
whole time. Id. at 43. Milone testified that he
eventually caught up with the defendant behind 4476 North
65th Street; the defendant was standing by a shed with his
hands up. Id. at 42.
testified that he did not have a body camera at the time of
these events-he did not receive one until the following
month. Id. at 44. He testified that the squad he and
Boyack were driving had a squad camera, which they could
activate by turning on the lights and siren, or by manually
activating it. Id. at 47-48. He testified, however,
that he did not activate the squad camera. Id. at
49. He also testified that, although he was the person who
chased the defendant, Officer Boyack wrote the police report,
based on Milone's observations. Id. at 53-54.
October 23, 2017 Evidentiary Hearing
cross-examination of Milone, counsel for the defendant handed
him a binder labeled Exhibit 4. Id. at 54-55. The
government objected, speculating that the binder contained
police reports the defense had obtained through an open
records request from the Milwaukee Police Department, and
noting that the government had asked for reciprocal discovery
of any documents the defense obtained. Id. at 55-56.
The government objected to not having received copies of the
reports. Id. at 56. After discussion and argument,
Judge Jones found that the reports were relevant, and
overruled the government's objections to the ...