United States v. Young

1

UNITED STATES OF AMERICA, Plaintiff, v. JETON E. YOUNG, Defendant.

No. 23-cr-0042-bhl

United States District Court, E.D. Wisconsin

April 24, 2024

ORDER ADOPTING JUDGE DRIES'S REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO SUPPRESS

BRETT H. LUDWIG UNITED STATES DISTRICT JUDGE

Defendant Jeton E. Young, a convicted felon, has moved to suppress evidence of a firearm seized from his jacket pocket at the time of his arrest, claiming the police officers did not have reasonable suspicion to detain him or probable cause to arrest him. In a Report and Recommendation, Magistrate Judge Stephen Dries analyzed the parties' arguments and concluded that Young's motion to suppress should be denied. (ECF No. 38.) Young has objected to the Report. (ECF No. 43.) Because the record confirms that Judge Dries correctly concluded police had both reasonable suspicion to detain and probable cause to arrest Young, the Court will adopt his Report and deny Young's suppression motion.

BACKGROUND

On February 8, 2022, at approximately 10:00 p.m., four Milwaukee police officers, Nicolas Romeo, Tyler Zelinski, Robert Parks and Adam Maritato, responded to a shooting, later confirmed to be a homicide, at 2800 W. Melvina Street in Milwaukee Wisconsin. (Ex. C, Romeo Supplemental Rep.) At the time witnesses informed the officers that two individuals wearing dark clothing had run towards North 27th Street. (Id. at 1.) As Romeo and Maritato canvassed the area, both officers activated their body-worn cameras. (Ex A, Maritato BWC.mp4; Ex. B, Romeo BWC.mp4; Ex. 6, Romeo's complete body-camera footage.) The officers proceeded towards North 27th Street and observed a gray Dodge Journey parked and with its engine running in front of a house at 3853 N. 27th Street, approximately one block east of the homicide scene. (Ex. C at 1.)

Because the windows were tinted, Romeo could not determine if anyone was inside the Dodge. (Id.)

When they arrived at the corner of Melvina and 27th Street, Romeo and Maritato used their flashlights to illuminate the yard on the southwest corner. (Ex. 6 at 22:08:50-22:09:06.) They observed an individual-later identified as Young-on the porch of the house at 3853 N. 27th St. (Id. at 22:09:09-11.) Young was wearing a multi-colored jacket and light-gray pants. Maritato asked Young if he had seen or heard the shooting. (Id. at 22:09:23-27.) Young responded that his stepmother had heard “something.” (Id. at 22:09:27-31.) Young then voluntarily stepped off the porch, walked down the steps and placed his hands in his jacket pockets. (Id.) Maritato asked Young if he was present at the time of the shooting. (Id. at 22:09:30-31.) Young responded, “Ah, no.” (Id. at 22:09:31-34.) Maritato passed Young and walked up to the porch steps, apparently intending to speak with Young's stepmother. (Id. at 22:09:38-45.) Young remained facing Romeo, approximately 10 feet away, and Romeo saw the outline of an upside-down handgun in Young's left jacket pocket. (Ex. C. at 1.) At one point, Young voluntarily placed his hands on top of his head making the gun's outline apparent. (Id.) The body worn camera confirms the outline of an object in Young's left front pocket. (Ex. 6 at 22:09:30.)

Romeo then stepped into the walkway in front of Young and asked Young if he had a concealed carry weapon permit:

Romeo: You got a CCW?

Young: Huh?

Romeo: Do you have a CCW?

Young: A CCW?

Romeo: Yeah, for the gun in your pocket.

(Id. at 22:09:47-53.) Romeo reports that as Young walked closer to him (approximately two feet away), he could also smell a strong order of fresh marijuana emanating from Young's person. (Ex. C at 1.) As Romeo was asking Young whether he had a CCW, Maritato descended the porch stairs, placing Young between the two officers. (Ex. 6 at 22:09:53.) Romeo then appears to place his hand on Young's arm, as Young denies having a gun in his pocket stating, “I don't have no gun in my pocket.” (Id. at 22:09:53-56.) The officers removed Young's hands from his pockets and Romeo recovered a 9mm Beretta from Young's front left jacket pocket. (Id. at 22:09:5622:10:27.) Romeo placed Young in handcuffs and continued to ask Young if he had a CCW but Young did not answer. (Id. at 22:10:13-44.) The officers ultimately arrested Young and also recovered 15.2 grams of marijuana from his jacket pocket. (Ex. C at 2.) They also discovered the handgun had a bullet in the chamber. (Id.)

In March 2023, a grand jury indicted Young for illegally possessing the handgun as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF No. 1.) On July 11, 2023, Young filed a motion to suppress evidence and requested an evidentiary hearing. (ECF No. 20.) Magistrate Judge Stephen Dries granted the hearing request and held a hearing on August 23, 2023. (ECF Nos. 22 & 29.)

At the hearing, Romeo was the only testifying witness. He explained that when he observed Young on the porch, he could see a heavy bulge in Young's front left jacket pocket. (ECF No. 32 at 12:22-13:5, 28:9-16, 58:5-16.) Romeo further testified that as Young walked down the porch steps and placed his hands on top of his head, he could clearly see the imprint of an upside-down firearm in Young's jacket. (Id. at 12:22-13:5; 14:6-9; 23:15-24:4, 55:21-56:5, 58:11-24.) When Young was about two feet away from him, Romeo testified that he detected a strong odor of fresh marijuana coming from Young's person. (Id. at 14:24-15:2.) Romeo explained that, as result of his training and experience, he recognized the smell of fresh marijuana, as opposed to a burnt smell. (Id. at 15:3-16:25.) Romeo acknowledged on cross examination that he did not mention smelling marijuana at any point during his interaction with Young and did not mention the perception of that odor to Maritato. (Id. at 44:13-45:14.)

LEGAL STANDARD

A district court judge “makes the ultimate decision to adopt, reject, or modify” a magistrate judge's report and recommendation. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009). The district court reviews, de novo, “those portions of [a Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Crim. P. 59(b)(3). This “[d]e novo review requires the district [court] judge to decide the case based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). Unchallenged portions of the report are reviewed only for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citing Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)).

ANALYSIS

Magistrate Judge Dries concluded that the officers had reasonable suspicion to detain Young based on his proximity to the shooting, his purportedly evasive behavior, the bulge in his jacket, and his responses to the officers' questions. Judge Dries further concluded that even if reasonable suspicion was lacking, the officers had probable cause to arrest Young based on the odor of marijuana. Young objects to both findings. Because the facts presented are sufficient to establish both reasonable suspicion and probable cause, the Court will overrule Young's objections, adopt Judge Dries's Report, and deny the motion to suppress.

I. The Police Officers Had Reasonable Suspicion to Detain Young.

The parties do not dispute that the officers' questioning of Young, preceding the seizure of the firearm, constituted a consensual encounter rather than a seizure of his person. See United States v. Pace, 48 F.4th 741, 748 (7th Cir. 2022) (“[T]here is no constitutionally cognizable seizure ‘simply because a police officer approaches an individual and asks a few questions.'”) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). The encounter was consensual even though the initial questioning happened while Young was on his porch. See United States v. Breland, 356 F.3d 787, 791 (7th Cir. 2005) (finding that an officer who asked to talk with an individual on or near his front porch “was attempting to engage in a consensual encounter”) (emphasis in original).

The parties take issue over when Young was seized and whether the officers had reasonable suspicion to detain him. “The Fourth Amendment allows officers to briefly detain and stop a person for investigative purposes even where probable cause is lacking where the officer has a reasonable suspicion based on articulable facts that criminal activity may be occurring.” United States v. Segoviano, 30 F.4th 613, 619 (7th Cir. 2022) (citing United States v. Wilbourn, 799 F.3d 900, 908-09 (7th Cir. 2015); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 21 (1968)). “‘Reasonable suspicion' embodies less than probable cause or even a preponderance of the evidence, but more than a hunch.” Id. (citing Wilbourn, 799 F.3d at 909). “Significantly, ‘[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity . . . [or] is wanted for past criminal conduct.'” Id. (quoting United States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis omitted) (alterations in original)). “Based on that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (quoting Cortez, 449 U.S. at 417-18). “The government bears the burden of establishing reasonable suspicion by a preponderance of the evidence.” United States v. Uribe, 709 F.3d 646, 650 (7th Cir. 2013) (citing United States v. Longmire, 761 F.2d 411, 418 (7th Cir. 1985)).

Judge Dries concluded that Young was seized at 22:09:55 p.m. when...