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United States v. Burgess

United States District Court, E.D. Wisconsin

September 12, 2019



          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         On 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).

         Magistrate 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.

         2. RELEVANT FACTS

         Magistrate 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.


         When 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.

         4. ANALYSIS

         The 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.

         The 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 principles:

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).

         The 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. ...

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