UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN _______________________________________________________________________ UNITED STATES OF AMERICA, Plaintiff, vs. Case No. 13CR234 (RTR/PJG) DAMIAN PATRICK, Defendant. _______________________________________________________________________ MOTION TO SUPPRESS: UNLAWFUL SEIZURE Damian Patrick, by counsel, moves under the Fourth Amendment to the United States Constitution and Fed. R. Crim. P. 12(b) for an order suppressing all evidence obtained as a result of his unlawful seizure. As grounds for this motion, the defense submits that the police seized Patrick without reasonable suspicion. Because the legality of Patrick’s stop turns on a narrow issue and the police reports set for the basic facts of stop and what preceded it the defense is not entitled to an evidentiary hearing under the local rules. In support of the defense’s position, the pertinent police reports are attached to this motion. FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 1 of 8 Document 12 1.0 Question Presented This motion involves only one issue: Around noon, officers received a tip from an unknown or anonymous source that Damian Patrick was wanted and could be found in a white chevy Malibu parked on Teutonia. Within a minute, officers seized the occupants of a white chevy Malibu parked on Teutonia, including Damian Patrick, and later learned that there was an arrest warrant for him. Does an unknown or anonymous tip that gives no predictive information about a suspect provide sufficient basis to perform a Terry stop? 2.0 Facts On October 28, 2013, at 12:10 in the afternoon, officers received information from an unknown source that a wanted person, Damien Patrick, was inside a white Chevy Malibu parked at 5909 N. Teutonia. Within a minute, officers arrived at that location, saw the white Malibu backed into a stall, and conducted a traffic stop by positioning their vehicle in front of the Malibu. The officers ordered the occupants to show their hands and then ordered them out of the vehicle. When the officers came to take the occupants out of the Malibu they observed a firearm at Patrick’s feet. After the occupants were out of the car, the officers checked and learned that there was an arrest warrant for Damian Patrick. To be fair and clear, the police reports do not set forth a cohesive narrative of this stop, and there are contradictions and statements that are difficult to reconcile within them. Officers Ferguson, Multhauf, and Kowalefski, wrote individual incident reports, none of the reports provides from whom, or how they 2 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 2 of 8 Document 12 obtained “knowledge that there [was] a wanted subject occupying [a] vehicle” with license plate DN3N70. Bates 006. Ferguson asserts that “[he] had prior knowledge,” Id. at 006; Multhauf indicates that “[they] obtained information.” Id. at 018. And Kowalefski states the information came from an “unknown source.” Id. at 016. The one element of consistency in the reports is that each states that they learned of a wanted person and that they learned of Damien Patrick’s arrest warrant after the stop. So the reports can be summarized on those pertinent points in this way: KOWALEFSKI FERGUSON MULTAF Information’s Source “unknown source,” Bates at 016 Silent Silent Discovery of Arrest Warrant After the stop, Bates at 017 After the stop, Bates at 006. After the stop, Bates at 019. Thus, at the time of the stop officers were operating on information from an unknown source that a wanted person, Damian Patrick, was inside the white Malibu parked on Teutonia. They received this information at 12:10 p.m., they conducted the stop at 12:10 p.m, and only later did they learn of the arrest warrant. 3.0 Analysis In order to suppress the evidence gained from Patrick’s seizure, there are two issues that this Court must decide: first, was their a seizure; and second was it supported by reasonable suspicion. In order to conduct an “investigatory stop” consistent with Terry v. Ohio, 392 U.S. 1 (1968), “an officer must be aware of specific 3 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 3 of 8 Document 12 and articulable facts giving rise to reasonable suspicion” that there is criminal activity afoot. Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010). There must be “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999) (quotation omitted). The suppression analysis is based on what the police knew at the inception of the investigatory stop, not facts learned later on in the process. See Jewett v. Anders, 521 F.3d 818, 824 (7th Cir. 2008). A person is seized for Fourth Amendment purposes when his liberty is restrained in some way by either physical force or a show of authority. In determining whether a person has been seized, courts look from the perspective of a reasonable person and ask ”whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Sevier, 597 F.3d at 844 (quotation omitted). Here, blocking the car, ordering Patrick to put up his hands, and ordering him to get out of the vehicle turned this into an immediate seizure. See id. at 847 (“The officer’s contact with Gentry was never consensual in nature, however, because the officer told Gentry to keep his hands up.”); see also United States v. Shoals, 478 F.3d 850, 852 (7th Cir. 2007). The second issue that the court must decide is whether the facts known to the officers at the time of the seizure rose to the level of reasonable suspicion. The test is an objective one. United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007). Courts 4 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 4 of 8 Document 12 limit the inquiry to the facts that the officer knew at the time he made the seizure, including the nature of the criminal conduct that they are investigating and the information they have available to them that supports their belief that criminal activity is afoot. United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995). In support of the officer’s seizing Patrick, there is an a tip from an anonymous source—or to use the language from the report “unknown source”—that Damian Patrick a wanted individual was sitting in a white Chevy Malibu parked on Teutonia. In order to establish reasonable suspicion for a stop, an informant’s tip must be supported by indicia of reliability as to (1) the informant’s veracity and (2) the basis of the informant’s knowledge. Illinois v. Gates, 462 U.S. 213, 238 (1983). This is a totality of the circumstances test. Id. Standing alone, an unknown or anonymous tip, like the one at issue here, seldom demonstrates a sufficient basis of knowledge or veracity that one is involved in criminal activity. See Alabama v. White, 496 U.S. 325, 329 (1990). Rather, to support a stop, the information must be corroborated. See United States v. Walker, 237 F.3d 845, 850 (7th Cir. 2001) (the purpose of corroborating information is to establish source’s reliability, not to confirm all the information the source provided). On this point, the Seventh Circuit has been clear: “Articulable suspicion can be established by an anonymous tip if the police corroborate enough of the tipster’s information to imply that the tipster must possess inside knowledge about 5 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 5 of 8 Document 12 the details that the police could not otherwise observe.” United States v. Wooden, 551 F.3d 647, 649 (7th Cir. 2008). In Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court held that when an anonymous tip offers no predictive information to corroborate the tip, it lacks sufficient indicia of reliability, and therefore, cannot be used to justify a stop and frisk. See also United States v. Roberson, 90 F.3d 75, 80 (3d Cir.1996) (determining that a tip from an anonymous source containing information readily observable by any member of the public does not constitute reasonable suspicion). Without any predictive information, police are “left without a means to test the informant’s knowledge or credibility.” J.L., 529 U.S. at 271. The anonymous tip in this case was equally as unreliable as that in Florida v. J.L. Nothing in the unknown or anonymous tip was predictive of future behavior or gave an insight that the tip was reliable. The details provided in the unknown tip at 12:10 were exactly what the officers observed at that same moment. There was nothing within the tip that was predictive and that would make the tip reliable. See White, 496 U.S. at 332 (“Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent's future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs.”). Without something to establish the tip’s reliability, there is nothing that can turn this unknown or anonymous tip into something that could provide a 6 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 6 of 8 Document 12 legitimate basis to support seizing Patrick. Indeed, the tipster’s credibility wasn’t previously known or tested, and without that, the tipster couldn’t be held responsible if his or her allegations turned out to be fabricated. See J.L, 529 U.S. at 270. And there was no additional information that corroborated the assertion that a wanted person was sitting in the white Malibu at the exact time the informant provided the tip. Furthermore, it wasn’t until after Patrick was seized that his name was run through the system and the officers learned that there was a warrant for his arrest. Thus, at the time of the seizure officers lacked reasonable suspicion to make the initial seizure. 4.0 Conclusion. When the officers seized Patrick they were not armed with a reasonable and articulable suspicion, which would allow them to perform a Terry stop. Instead, they had an unknown tip that offered no predictive information. Not only was the tip from an unknown source, there was nothing within the tip that would have established the source’s reliability. Without that crucial information, this stop falls within the same category of seizures that the Supreme Court in Florida v. J.L. found impermissible. 7 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 7 of 8 Document 12 Dated at Milwaukee, Wisconsin this 11th day of January, 2014. Respectfully submitted, /s/ Joseph A. Bugni Joseph A. Bugni FEDERAL DEFENDER SERVICES OF WISCONSIN , INC . 517 E. Wisconsin Ave - Room 182 Milwaukee, Wisconsin 53202 Tel. (414) 221-9900 Fax (414) 221-9901 joseph_bugni@fd.org 8 FEDERAL DEFENDER SERVICES OF WISCONSIN, INC. Case 2:13-cr-00234-RTR Filed 01/11/14 Page 8 of 8 Document 12