United States District Court, E.D. Wisconsin
ORDER ADOPTING RECOMMENDATION (DKT. NO. 24), DENYING
MOTION TO SUPPRESS AND SETTING DEADLINE FOR JOINT STATUS
PAMELA PEPPER United States District Judge.
Report and Recommendation
August 14, 2018, the grand jury indicted defendant Xavier
Carter on three counts: being a felon in possession of a
firearm (18 U.S.C. §922(g)(1)), possession of cocaine
base with intent to distribute (21 U.S.C. §841(a)(1))
and possession of a firearm in furtherance of a drug
trafficking offense (18 U.S.C. §924(c)(1)(A)(i)). Dkt.
No. 1. A little over two months later, the defendant filed a
motion to suppress evidence, asking for an evidentiary
hearing. Dkt. No. 17. He argued that in taking him out of his
car and searching the car and the defendant's pockets,
officers violated the Fourth Amendment. Id. The
government responded that the officers had probable cause to
arrest the defendant because he'd violated a traffic
stop, and that they had authority to search him and the car
because they observed a gun in plain view and had the
authority to search incident to arrest. Dkt. No. 19. In his
reply, the defendant also argued that his arrest was
unlawful, because the officers didn't arrest him for the
traffic violations or the gun, but for the observation of the
cocaine base on the floor of the car. Dkt. No. 21. He
disputed that the officer could have observed the crack on
the floor. Id. at 4-5. While Magistrate Judge Jones
scheduled an evidentiary hearing, the government filed a
supplemental response arguing that the hearing was not
necessary, because one of the officers had activated his body
camera, and the video footage showed that the officers had
probable cause to arrest the defendant. Dkt. No. 23.
Jones canceled the evidentiary hearing, and on March 12,
2019, issued a report recommending that this court deny the
motion to suppress. Dkt. No. 24. He found that under
Pennsylvania v. Mimms, 434 U.S. 106 (1977), officers
had a legitimate reason for ordering the defendant out of the
car. Dkt. No. 24 at 4. He also concluded that the officers
had probable cause to stop the defendant (his car didn't
have current registration plates), cause to order him out of
the car (because he did not have identification on him), that
the valid traffic stop constituted an arrest supported by
probable cause, and that the arrest with probable cause
justified the search. Id. at 5-6. Judge Jones
recommended that this court deny the motion to suppress.
defendant has not objected to that recommendation. Under Fed.
R. Crim. P. 59(b), a party must object within fourteen days
of the issuance of the report and recommendation.
“Failure to object in accordance with this rule waives
a party's right to review.” Id.
“Portions of a recommendation to which no party objects
are reviewed for clear error.” United States v.
Wright, Case No. 09-CR-287, 2010 WL 1727918 (Apr. 27,
2010) (citing Johnson v. Zema Systems Corp., 170
F.3d 734, 739 (7th Cir. 1999) (citations omitted)).
Jones committed no clear error. The defendant appears to
realize that the officers had reason to pull him over; he
gave little attention to that argument in his reply brief. As
for the search, the defendant makes much of the fact that he
believes the officers arrested him based on items that he
says were not in plain view. Judge Jones correctly noted,
however, that the traffic stop itself constituted an
arrest-and one that was supported by probable cause. Perhaps
the officers decided to take the defendant into custody
because of the gun, or the drugs, but the Fourth Amendment
issue is whether they had a valid basis for conducting the
traffic stop (which was, for all intents, an arrest). They
did, and Judge Jones did not commit clear error in finding as
court adopts Judge Jones's report and recommendation.
court had ordered them to do, the parties filed a status
report on April 12, 2019. Dkt. No. 28. It indicates that the
parties likely have reached a resolution, but that they need
additional time to formalize the agreement. They asked the
court to schedule another status date in about thirty days,
and note that if they are able to reach agreement before the
next status report is due, they'll file the plea
agreement and contact chambers to ask for a change-of-plea
hearing. The court will grant the parties' request.
court ADOPTS Judge Jones's report and
recommendation. Dkt. No. 24.
court ORDERS that the defendant's motion
to suppress is DENIED. Dkt. No. 17.
court ORDERS that by the end of the day on
May 16, 2019, the parties shall file a joint status report,
advising the court whether they need new final pretrial
conference and trial dates (in which case the court will set
a scheduling conference), or whether they anticipate needing
a change-of-plea hearing (the court will schedule a change of
plea hearing once an executed plea agreement has been filed),
or additional time (in which case, the court asks the parties
to indicate how much additional time they need). If the
parties file an executed plea agreement prior to May 16,
2019, they do not need to file the status report.
court further ORDERS that the time between
April 13, 2019 and May 16, 2019 is EXCLUDED
from the Speedy Trial calculation under 18 U.S.C.
§§3161(h)(7)(A) and (h)(7)(B)(iv), because the
interests of justice outweigh the interests of the parties
and the public in a speedy trial, and because failure to do
so would deny the ...