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United States v. Maclin

United States District Court, E.D. Wisconsin

September 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JACOB L. MACLIN, Defendant.

          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)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         On 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.

         I. Standard of Review

         The 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).

         II. The Motion to Suppress

         The 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.

         The 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.

         III. The First Evidentiary Hearing

         At the 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.

         On the 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.

         Judge 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.

         IV. Judge Joseph's Recommendation

         Judge 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.

         Turning 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).

         Judge 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.

         Having 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 that

[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. at 31-2.

         With 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.

         Finally, 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.

         V. The Defendant's Objections

         The 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 6-13.

         A. Reasonable Suspicion of Criminal Activity

         As to 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.

         The 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.

         The 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.

         Given 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.

Id.

         The 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.

         Finally, 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.

         B. Reasonable Suspicion of ...


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