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United States v. Bell

United States District Court, E.D. Wisconsin

April 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN LARIETH BELL, Defendant.

          ORDER OVERRULING DEFENDANT'S OBJECTION TO THE MAGISTRATE RECOMMENTATION (DKT. NO. 51), AND DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT. NO. 20)

          HON PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On 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 suppress.

         I. STANDARD OF REVIEW

         Rule 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).

         II. FACTS

         A. October 11, 2017 Evidentiary Hearing

         On 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.

         1. Defendant's Version

         The 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.

         The 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.

         The 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.” Id.

         On 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.

         Once the defendant arrived at the station, he gave a statement to the police (which was videotaped).[1] 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.

         2. Officer Milone's Version

         Milone 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.

         Milone, 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. at 38-39.

         According 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 hand.
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.

         Milone 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.

         B. October 23, 2017 Evidentiary Hearing

         During 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 ...


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