United States District Court, E.D. Wisconsin
ORDER OVERRULING DEFENDANT'S OBJECTIONS (DKT. NO.
54), ADOPTING JUDGE JOSEPH'S REPORT AND RECOMMENDATION
(DKT. NO. 48) AND DENYING DEFENDANT'S MOTION TO SUPPRESS
(DKT. NO. 33)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
September 7, 2018, the defendant filed a motion to suppress
all evidence obtained as the result of a traffic stop and
requested an evidentiary hearing. Dkt. No. 33. Magistrate
Judge Joseph conducted an evidentiary hearing on October 23
and October 24, 2018. Dkt. No. 35. Four officers testified,
along with the defendant and the defendant's private
investigator. Id. Judge Joseph issued a report and
recommendation, dkt. no. 48, and this court granted the
defendant an extension of time to file any objections, dkt.
no. 50. The defendant objected, dkt. no. 54, and this court
scheduled an evidentiary hearing, because the defendant's
objections challenged the credibility of the government
witnesses. The court started the evidentiary hearing on July
23, 2019, dkt. nos. 63-65, and concluded the hearing on
August 8, 2019, dkt. nos. 66-70. The court overrules the
defendant's objections, adopts the magistrate judge's
recommendation and denies the motion to suppress.
Standard of Review
court reviews de novo those portions of the
magistrate judge's recommendation to which the defendant
objects. 28 U.S.C. §636(b)(1)(C).
The Motion to Suppress
defendant asserted that, according to the police reports,
officers were “conducting surveillance in the 2600
block [of North 34th Street] regarding several drug dealing
complaints.” Dkt. No. 33 at 1. They saw a Camry parked
at 2607 N. 34th Street with a black male inside. Id.
at 2. The Camry remained there for four to five minutes until
the defendant's Dodge Magnum pulled up and parked across
the street at 2602 N. 34th Street. Id. The man
exited the Camry and entered the passenger door of the
Magnum. Id. The officers saw “physical
contact” between the two but could not see the exact
actions because of the heavily tinted windows. The defendant
then drove north on 34th, left on Center, and right on 35th
Street. Id. The officers said that the defendant was
driving “at about fifty miles per hour” and that
it took several blocks to catch up. Id. The
defendant stated that the officers pulled the defendant over
at 2970 N. 35th Street. Id. He asserted that there
was no video or audio recording of the stop, and that no
officer activated a body camera or squad camera until the
defendant had been taking into custody. Id.
defendant asserted that on these facts, the officers had
neither reasonable suspicion nor probable cause to stop him.
Id. at 3. He argued that his car had legal factory
tints. Id. He also asserted that he was not
speeding. Id. at 3-4. The defendant argued that
there was no tip implicating him in illegal activity, that he
didn't flee from the police, that he didn't act
suspicious or nervous, that the hour wasn't late and the
area was residential, that he didn't engage in
counter-surveillance while driving and that he didn't
encounter a known drug dealer. Id. at 4. He asked
the court to schedule an evidentiary hearing to allow him to
present evidence on these issues, and to allow the court to
determine whether there was reasonable suspicion or probable
cause. Id. at 5.
The First Evidentiary Hearing
evidentiary hearing before Judge Joseph, the government
called four witnesses: Milwaukee Police Officers Michael
Braunreiter, Eric Rom and James Filsinger, and Detective
Thomas Obregon. Dkt. No. 35. The defendant testified, as did
his private investigator, Angela Kvidera. Dkt. Id.
second day of the hearing, the government asked the court to
strike Rom's testimony. Dkt. No. 53 at 5-11. The parties
agreed on the facts underlying the motion. After Rom and
Braunreiter had testified on the first day of the evidentiary
hearing, they had gotten on the elevator; an attorney from
the Federal Defender's office had been on the same
elevator. Id. The officers were discussing their
frustration with the fact that Braunreiter had been required
to describe the undercover vehicle the officers had been in
on the day of the defendant's arrest. Rom told
Braunreiter that Braunreiter should have been more vague in
answering the question, or should have said he didn't
recall. Rather than have a mini-trial on the conversation,
the government moved to strike Rom's testimony.
Id. at 6-7. The defendant opposed the motion on the
ground that the conversation on the elevator showed that the
officers believed “they can say whatever they want to
say, even if it's not true, to obstruct justice.”
Id. at 8.
Joseph ordered the description of the vehicle redacted from
the transcript. Id. at 9. She took the
government's request to strike the testimony under
advisement. Id. at 10.
Judge Joseph's Recommendation
Joseph declined to strike Rom's testimony because the
government “cannot just withdraw the evidence because
it is not favorable to their case.” Dkt. No. 48 at 25.
She indicated that she would consider Rom's elevator
statement when assessing his credibility. Id. She
stated, however, that she would not consider it as bearing on
the credibility of the other officers because there was no
indication that Braunreiter or others “made similar
statements, agreed with or adopted Rom's view.”
Id. at 26. That said, she included a comment on the
gravity of Rom's statement. Id. She opined that
willingness to testify falsely harms individual defendants
and the public's confidence in law enforcement and the
courts. Judge Joseph ordered the government to share the
report and recommendation with Rom and his superiors.
Id. The government assured the court that Rom would
not testify in future hearings. Id.
to the merits of the motion, Judge Joseph first addressed the
standard governing the stop, noting that the government
asserted the officers had reasonable suspicion to stop the
defendant, while the defendant argued that the officers did
not have probable cause. Id. at 26-27. Judge Joseph
explained that in Navarette v. California, 572 U.S.
393, 396-97 (2014), the Supreme Court held that the Fourth
Amendment permits brief investigative stops-like a traffic
stop-when the officer has a “particularlized and
objective basis for suspecting the particular person stopped
of a criminal activity.” Id. at 27. She quoted
the court as stating that the reasonable suspicion standard
“takes into account the totality of the
circumstances-the whole picture.” Id. She
emphasized the Navarette Court's reminder that
reasonable suspicion is a “‘commonsense,'
fact-bound inquiry based on ‘the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.'”
Id. at 28 (citing Navarette, 572 U.S. at
402). She also observed that the Navarette Court
rejected the defendant's argument that there could have
been an innocent, non-criminal explanation for the
defendant's conduct, emphasizing that “reasonable
suspicion ‘need not rule out the possibility of
innocent conduct.'” Id. (quoting
Navarette, 572 U.S. at 403).
Joseph also discussed the fact that in Whren v. United
States, 517 U.S. 806, 210 (1996), the Court had found
that a traffic stop justified by probable cause did not
violate the Fourth Amendment, and she noted that some lower
courts had cited Whren for the proposition that
traffic stops are reasonable when supported by probable
cause. Id. at 28-29. She concluded that either
reasonable suspicion or probable cause could justify a
traffic stop. Id. at 29.
made that determination, Judge Joseph concluded that the
police had reasonable suspicion that the defendant had
engaged in a mobile-to-mobile drug transaction. Id.
at 30. She cited Braunreiter's testimony about his
observations of the Camry and Magnum and the interaction
between the two drivers. Id. Specifically, she found
[I]t was reasonable for Braunreiter to suspect that drug
activity was afoot given his experience with mobile-to-mobile
drug transactions, the conduct of the occupant of the Camry
in waiting and looking around for several minutes, the fact
that at least one of the cars did not list to the block, the
motion of the Magnum's occupants turning toward each
other, and the brevity of the interaction between the two.
Id. She noted that the defendant's own testimony
corroborated Braunreiter's observations. Judge Joseph
dismissed the defendant's arguments that certain computer
assisted dispatch, or “CAD, ” reports produced by
the defense did not reflect mobile-to-mobile drug dealing on
the block. Id. at 31. She pointed out that the CAD
reports reflected only 911 calls, not all complaints
received, and that officers investigating one call need not
ignore all other criminal activity in the area. Id.
respect to the government's argument that the stop was
also justified by the traffic violations, Judge Joseph found
Braunreiter's testimony that the defendant's car sped
away to be credible. Id. at 33. She concluded that
his testimony was corroborated by the two take-down officers.
Id. The defendant's testimony about the drive
shaft of his car causing a “big clunking noise”
corroborated Braunreiter's testimony about the
defendant's engine working hard to increase speed.
Id. Judge Joseph did not give too much weight to the
officers' testimony about how high over the speed limit
the defendant was traveling because they could not credibly
testify about the precise rate of speed. Id. But she
found the officers' testimony that the defendant was
going over the speed limit to be credible. Id.
Judge Joseph determined that the officers had reasonable
suspicion to believe the car windows were excessively tinted.
Id. at 33-34. She concluded that the officers'
testimony was consistent as to excessive window tint, and
that her own review of a photograph of the car showed
unusually dark windows. Id. at 34. Judge Joseph
recommended that this court deny the motion to suppress.
The Defendant's Objections
defendant made two arguments in support of his objection to
Judge Joseph's recommendation. Dkt. No. 54. First, he
argued that Braunreiter and Rom's observations did not
give rise to a reasonable suspicion of criminal activity.
Id. at 1-6. Second, he argued that there was neither
probable cause nor reasonable suspicion to believe that the
defendant had committed a traffic violation. Id. at
Reasonable Suspicion of Criminal Activity
reasonable suspicion of criminal activity, the defendant
noted that Braunreiter and Rom had testified that they were
in the area where they saw the defendant because they'd
received complaints of drug dealing. Id. at 2. The
defendant argued that the CAD reports showed that those
complaints were specific-they complained of drug dealing at a
particular address (2646 N. 34th Street), by a specific
person (a black male with a blonde mohawk) and specific
conduct (“cars pulling up to 2646 N. 34th Street, then
the black male with the blond mohawk exiting and handing the
occupants of the vehicles items before returning to the
residence”). Id. at 3. The defendant argued
that the officers' descriptions of what they'd seen
him doing didn't match the complaints. Id.
defendant conceded that Braunreiter and Rom testified that
they had had complaints of drug activity in the area other
than those reflected in the CAD reports, but noted that while
he'd asked for all records of drug dealing complaints,
the government had given him only the CAD reports (which
contain only drug complaints that result in calls to 911).
Id. Emphasizing that neither Braunreiter nor Rom
could explain what those other complaints were or who they
came from, the defendant argued that their testimony on that
point was not credible. Id. The defendant asserted
that because the only evidence of drug dealing in the area
where the officers saw the defendant was evidence relating to
the man with the mohawk at 2646 N. 34th Street, Judge Joseph
should have confined her analysis to determining whether what
the officers observed the defendant doing created
reasonable suspicion of criminal activity, and he argued that
it did not. Id. at 3-4.
defendant also conceded that “some drug dealers in
Milwaukee sell drugs out of their cars, ” and that
officer may use that knowledge in determining whether
probable cause or reasonable suspicion exists. Id.
at 4. But, he argued, “that doesn't mean that any
time two people meet and talk in a car for a brief period of
time, even in a high crime or high drug area, it's
reasonable to conclude that they've engaged in a drug
transaction.” Id. at 4. He posited that there
were many reasons why two people might meet for a few minutes
in a car, such as friends and family members meeting to talk
or “exchange an item.” Id. Defense
counsel indicated that he himself often forgot items,
requiring him to have brief meetings with other people to
retrieve them. Id. He also posited that frequently
people meet to complete on-line purchase transactions from
sites such as Craigslist. Id. at 4-5. He pointed out
that Craiglist itself warns sellers against conducting such
transactions from their homes. Id. at 5, n.1.
these options, the defendant argued, “it is impossible
to examine the reasonableness of the officers'
conclusions without addressing bias and race.”
Id. at 5. He asserted that
[t]he truth is that if police observed two white people on
Milwaukee's East Side or Third Ward briefly interact in a
vehicle, the officers would not suspect that a drug
transaction had occurred. Black people in Milwaukee's
inner city are entitled to the same inferences and
conclusions. If one interaction isn't suspicious, the
other isn't either.
defendant took issue with the fact that Judge Joseph relied
on Braunreiter's testimony that the man who got into the
defendant's car had been waiting for a few minutes and
looking around, and that his car was not registered to a
house on that block. Id. The defendant asserted that
neither of these facts was suspicious.
the defendant cited two cases-United States v.
Keith, 559 F.3d 499 (6th Cir. 2009), and United
States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997)-in
which (according to the defendant) other courts found that
similar fact patterns did not give rise to reasonable
suspicion. Id. at 5-6.
Reasonable Suspicion of ...