United States v. Street

917 F.3d 586

UNITED STATES of America, Plaintiff-Appellee,

v.Keycie A. STREET, Defendant-Appellant.

No. 18-1209

United States Court of Appeals, Seventh Circuit.

Argued October 25, 2018

Decided March 1, 2019

Keith S. Alexander, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Plaintiff-Appellee.

Christopher D. Donovan, Attorney, PRUHS & DONOVAN, S.C., Milwaukee, WI, for Defendant-Appellant.

Before Rovner, Hamilton, and Barrett, Circuit Judges.

Hamilton, Circuit Judge.

On October 24, 2015, law enforcement officers in Pewaukee, Wisconsin were searching for two African-American men who moments before had committed an armed robbery. The robbers had been tracked to the parking lot of a nearby Walmart store. An officer stopped and questioned appellant Keycie Street, the only African-American man in the crowded Walmart. Street was not arrested then, but during the stop, he provided identifying information that helped lead to his later arrest for the robbery.

Street contends that the stop violated his Fourth Amendment rights because he was stopped based on just a hunch and his race and sex. We disagree. The officers stopped Street based on much more information than his race and sex. They did not carry out a dragnet that used racial profiling. Rather, the police had the combination of Street being where he was, when he was there, and one of a handful of African-American men on the scene, thus fitting the description of the men who had committed an armed robbery just minutes before. That information gave the officers a reasonable suspicion that Street may have just been involved with an armed robbery, thus authorizing the stop. See generally Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; United States v. Arthur , 764 F.3d 92, 97–98 (1st Cir. 2014) (affirming denial of motion to suppress results of Terry stop in similar robbery case). We conclude by addressing a procedural issue that arose from the district court’s reference of Street’s motion to suppress to a magistrate judge for a report and recommendation under 28 U.S.C. § 636(b). The magistrate judge recommended denying the motion. The government did not need to file its own objection to the recommendation to argue that the motion to suppress should also be denied on another theory that the magistrate judge had rejected. We affirm Street’s conviction.

I. Facts and Procedural History

A. The Robbery

On October 24, 2015, a cellular telephone store in Pewaukee, Wisconsin was robbed at gunpoint by two African-American men wearing black hooded sweatshirts. During the robbery, the lone store employee managed to press a silent alarm. Before police arrived, the robbers stole more than thirty cellular telephones and fled in a white sport utility vehicle. One of the telephones they stole was equipped with an active GPS tracking device. Officers began tracking the GPS signal. Approximately five minutes after law enforcement learned of the robbery, the signal indicated the stolen telephone had stopped at a nearby Walmart.

Officers from several jurisdictions began arriving at the Walmart. The first officers to arrive spotted a white SUV parked awkwardly to the side of the store. The officers saw, between the SUV and the store entrance, three African-American men walking together toward the entrance. One was wearing a red parka or raincoat. When the officers approached, one of the men who was not wearing red took off running. Both officers chased him on foot. The fleeing man, later identified as Demonte Oliver, was apprehended quickly. But by the time the officers returned with Oliver, the other two men had disappeared. The officers then focused on finding those two men as quickly as possible.

After arresting Oliver, officers approached the abandoned SUV. In plain view, they saw the stolen cellular telephones, the cash drawer from the store, and a handgun. In other words, the officers knew they were in the right place. One officer speculated over the radio that one of the men he had seen might have entered the Walmart store to try to evade police. That officer also told Deputies Niles and Knipfer of the Waukesha County Sheriff’s Department of this possibility after they arrived on the scene.

B. The Stop of Defendant Street

While only one suspect was in custody, officers worked with Walmart staff to conduct a controlled evacuation of the store to try to locate the other suspects. To control the evacuation, the officers blocked all but one exit. While the preparations were still underway, the officers organizing the evacuation learned that a second man (later identified as the getaway driver for the robbery) had been arrested in a nearby marsh. The officers continued to prepare a controlled evacuation and search of the store. At that time, they could not be sure whether the two arrested men were actually the two robbers, nor did they know whether the two robbers had worked with a getaway driver. Also, the officers had not yet located the third man whom officers had first seen in the trio walking away from the abandoned SUV.¹

The officers then ordered all shoppers and employees to exit the Walmart store. Deputy Niles was outside the store and spotted Keycie Street in the crowd leaving through the single unlocked exit. Street’s clothing did not match the description of the suspect(s) they were looking for, but he was the only African-American man among the crowd who was not a Walmart employee. Deputy Niles suggested to his lieutenant that they stop people leaving the store for brief questioning before they lost the opportunity. He specifically pointed out Street as someone who should be interviewed because he partially matched the description of the suspects and was the only person in the crowd who did. The lieutenant agreed and told Deputy Knipfer to stop and identify Street. Deputy Knipfer was aware that the man they were looking for was described as possibly wearing red or dark clothing, but he also knew there was "the possibility that [a suspect] could have obtained different clothing while inside the store."

Deputy Knipfer approached Street and told him the officers were investigating a robbery and wanted to rule him out as a suspect. Street was cooperative. He gave the deputy his full name, date of birth, and home address. The deputy used that information to check for outstanding warrants. Street also told the deputy that friends had dropped him off at the store to buy a video game, which he was carrying in a Walmart bag, and that his friends would be back to pick him up soon. After finding no outstanding warrants, Deputy Knipfer told Street he was free to leave. Deputy Knipfer then went inside the store to help with the ongoing search. Knipfer testified that his entire exchange with Street took approximately ten to fifteen minutes.

Not long after the stop of Street, officers reviewed recordings from Walmart security cameras. They confirmed that three African-American men had exited the white SUV when it arrived. One of the men appeared to be Keycie Street. Officers went back to the parking lot to search for Street but could not find him. Officers then used the identifying information Deputy Knipfer obtained from the stop to obtain photographs of Street from the Illinois Department of Transportation and from an internal law enforcement database.

The two men who had been arrested outside the Walmart, Demonte Oliver and Romero Eddmonds, admitted their involvement in the robbery. They also told detectives that a third man they knew as "Lil Key" and "Little One" was also a part of the robbery but that they did not know his real name. Oliver identified Keycie Street from his Department of Transportation photograph. Eddmonds separately identified Street in the photograph from the law enforcement database. An arrest warrant was issued for Street, who soon surrendered. Street’s DNA matched DNA on a bottle that officers recovered from the abandoned SUV.

C. District Court Proceedings

Street was indicted for Hobbs Act robbery under 18 U.S.C. § 1951. He moved to suppress the identifying information he had given to Deputy Knipfer and the additional evidence the police had obtained by using that information, including the DNA evidence and the identifications by Oliver and Eddmonds. The district judge referred the motion to suppress to Magistrate Judge Jones, who held an evidentiary hearing to prepare a report and recommendation. Street argued that Deputy Knipfer had stopped him based on only a hunch, without the reasonable suspicion required by the Fourth Amendment. Street pointed out that his clothing did not match the suspects’ and that he was not acting suspiciously as he left the store. He also argued that because the police already had two suspects in custody, they had no reason to believe there was a third suspect involved in the robbery and thus had no reason to continue the investigation when they stopped him. Street contended that the officers stopped him only because his race and sex matched the description of the suspects, which he argued was not enough to justify an investigatory stop.

The magistrate judge agreed that the officers did not have reasonable suspicion to stop Street because the stop was based on only a "hunch" that if a third person had been involved in the robbery, he would also have been an African-American man. The magistrate judge recommended the motion to suppress be denied, though, on the ground that the evidence used to prosecute Street was too attenuated from the constitutional violation to justify suppression and that the stop was made in good faith.²

Street then filed an objection to the magistrate judge’s recommendation. The government did not file its own objection, but its response to Street’s objection argued that the stop was legal. District Judge Pepper adopted the magistrate judge’s recommendation. The government then asked the district judge to reconsider whether the officers had reasonable suspicion to stop Street. The judge...