United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
April 23, 2019, the defendant, Harrel D. Martin
(“Martin”), was indicted on charges of possessing
firearms as a convicted felon, possessing marijuana with the
intent to distribute, and possessing firearms in furtherance
of the marijuana-trafficking offense. (Docket #1). On June 7,
2019, Martin filed a motion to suppress physical evidence and
his post-arrest statements. (Docket #9).
August 16, 2019, Magistrate Judge David E. Jones held an
evidentiary hearing on the suppression motion, at which two
witnesses testified. (Docket #28, #34). On September 10,
2019, the motion was transferred to Magistrate Judge Nancy
Joseph due to the unavailability of Magistrate Judge Jones.
On October 7, 2019, Magistrate Judge Joseph issued a report
and recommendation (the “Report”), recommending
that this Court deny Martin's suppression motion. (Docket
#36). Martin objected to the Report, (Docket #37), and the
government responded to the objection, (Docket #38). For the
reasons explained below, the Court will overrule Martin's
objection, adopt the Report, and deny Martin's
STANDARD OF REVIEW
reviewing a magistrate judge'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.
Report, Magistrate Judge Joseph carefully described all of
the facts material to Martin's motion. (Docket #36 at
2-7). Martin does not object to the Report's factual
recitation, see generally (Docket #37), and the
Court has no independent reason to disagree with the facts as
Magistrate Judge Joseph found them. The Court will,
therefore, adopt the facts as stated in the Report. In the
interest of thoroughness, the Court will reproduce Magistrate
Judge Joseph's factual recitation here. (Docket #36 at
Police Officer Andrew Langer and Winetta Gill testified at
the August 16, 2019 hearing.
Langer has been an officer with the Milwaukee Police
Department (“MPD”) for about four-and-a- half
years. (Docket #34 at 5-6). At the time of the evidentiary
hearing, he was assigned to MPD District 7, working the early
shift from 4:00 p.m. to 12:00 a. m. Id. at 5-7.
Langer was performing general patrol on the night of January
11, 2019, when he and his partner, Officer Robert
Guetchidjian, received a call requesting assistance with an
investigation. Id. at 7-8. Fellow MPD Police
Officers Gaglione and Kotnik indicated that an individual
named Harrel Martin had fled from them in an Infiniti and
that they had observed a gun and drugs inside the vehicle.
Id. at 8-9. They asked Langer and Guetchidjian to
help locate Martin and the Infiniti. Id.
checking one address, Langer and Guetchidjian met Gaglione
and Kotnik and Sergeant Michael Hansen at a duplex located on
North 91st Street. Id. at 9-10. Langer described the
residence as an upper and lower duplex, with its front
entrance-including a bay window-facing 91st Street and a side
entrance on the residence's northwest corner.
Id. at 10, 14- 15, 19; see Hearing Exhibit
C. The front of the duplex had a balcony for the upper flat.
(Docket #34 at 10). There was also a wooden fence that ran
from the northwest corner of the residence, which separated
the front yard from the side entrance and back yard.
Id. at 15, 40-41. After locating the Infiniti parked
at the rear of the residence, the police set up containment
around the duplex. Id. at 11, 61; see
Hearing Exhibit C.
containment was established, Langer knocked on the front door
of the lower flat with his baton. (Docket #34 at 12-13, 43).
The tenant of the upper flat, Jasmine McNeil, came out onto
her balcony, stated that she was putting her child to sleep,
and asked-calmly but with slight agitation-why the police
were there. Id. at 12-13, 43, 58-59; see
Hearing Exhibit C. Langer explained that they were looking
for someone and asked McNeil whether she had ever seen the
Infiniti parked out back. (Docket #34 at 12). McNeil
indicated that she had seen the Infiniti there a few times.
Id. She then went back inside her residence.
McNeil back inside, Langer resumed knocking on the lower
flat's front door. Id. at 13-14. Langer
testified on cross-examination that a squad car drove onto
the property and shined its lights at the bay window.
Id. at 41-42, 69-70; see Hearing Exhibit C.
On re-direct, he said he did not recall a squad being on the
lawn. (Docket #34 at 73). Regardless, Langer acknowledged
that Hansen stood about five to eight feet from the
residence, looked through a two-inch gap in the window's
blinds, and observed a male walking around in ...