United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
February 26, 2019, Defendant was indicted on charges of arson
and being a felon in possession of a firearm. (Docket #1). A
superseding indictment was obtained months later, on May 14,
2019, adding two more charges: robbery, and brandishing a
firearm during that robbery. (Docket #13). Defendant has
entered into a plea agreement as to the first two charges.
(Docket #62). He filed two motions to suppress evidence
related to the second two charges. (Docket #33 and #35).
Judge Nancy Joseph has filed a report and recommendation (the
“Report”), recommending that this Court deny both
motions. (Docket #52). Defendant has objected to the Report,
(Docket #53), and the government has responded to the
objection, (Docket #61). For the reasons explained below, the
Court will overrule Defendant's objection, adopt the
Report, and deny both of Defendant's motions.
Judge Joseph held an evidentiary hearing on Defendant's
motions to bring out all of the facts relevant thereto.
(Docket #45). She also took extensive briefing from the
parties. In her Report, the magistrate judge carefully
described all of the material facts. (Docket #52 at 2-14).
For the most part, Defendant does not object to the
Report's factual recitation. See generally
(Docket #53). His only significant objection-the
determination as to his own credibility-will be discussed
separately. The Court will, therefore, adopt the facts as
stated in the Report. Because they were concisely described
in the Report, and in the interest of brevity, the Court will
not repeat those facts here.
STANDARD OF REVIEW
reviewing a magistrate's recommendation, the Court is
obliged to analyze the recommendation de novo. 28
U.S.C. § 636(b)(1)(C). Thus, the Court can
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.”
Id. In other words, the Court's de novo
review of Magistrate Judge Joseph's findings and
recommendations is not limited to her legal analysis alone;
rather, the Court may also review her factual findings, and
accept, reject, or modify those findings as it sees fit based
upon the evidence. Id.
Court agrees with Magistrate Judge Joseph's analysis in
the Report, including her discussion of the relevant legal
principles and precedent. (Docket #52 at 14-20). The
disagreement between the parties, and between Defendant and
the magistrate judge, lies in the application of those
principles to this case's facts. Thus, in keeping with
the theme of brevity, this Court will assume familiarity with
the Report's analysis and conclusions. It will move
directly to analyzing the three specific objections raised by
Defendant to the Report.
Fourth Amendment generally requires that law enforcement
obtain a warrant prior to searching a place or arresting a
person. The warrant must be issued by a neutral magistrate
upon probable cause, which is in turn usually founded on an
affidavit from a police officer. Defendant's first two
objections stem from the warrant affidavit used in his case.
Specifically, he challenges whether the search warrant
affidavit established a sufficient nexus between the armed
robbery and 1) his sister's residence, and 2) the van
parked outside it. The Court begins with the residence. The
Court of Appeals recently summarized the relevant legal
In determining the sufficiency of a warrant affidavit, we
focus on the totality of the information presented to the
[magistrate]. We afford “great deference” to the
probable cause finding made by the judge who evaluated the
warrant application in the first instance and will uphold
that determination so long as there is a “substantial
basis” for concluding “that a search would
uncover evidence of wrongdoing.” Illinois v.
Gates, 462 U.S. 213, 236 . . . (1983). So, too, have we
consistently held that “probable cause ‘does not
require direct evidence linking a crime to a particular
place.'” United States v. Zamudio, 909
F.3d 172, 175 (7th Cir. 2018) (quoting United States v.
Anderson, 450 F.3d 294, 303 (7th Cir. 2006)). Rather, a
warrant affidavit “need only contain facts that, given
the nature of the evidence sought and the crime alleged,
allow for a reasonable inference that there is a fair
probability that evidence will be found in a particular
place.” Id. at 176 (quoting United States
v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010)).
United States v. Yarber, 915 F.3d 1103, 1105 (7th
Cir. 2019) (citation omitted).
Court must keep in mind the lenient standard of review that
colors its application of these legal precepts. While the
Report itself is reviewed de novo, the Milwaukee
County court commissioner's probable cause determination
is not. As noted in Yarber, the Court must uphold
that determination so long as there is a substantial basis
for it. What is “substantial” is not subject to
precise definition, but by operation of logic it must be
something less than one-hundred percent certainty. ...