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 officеrs
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 рress 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 evacuаtion learned that a second man (later identified as the getaway driver for the robbery) had been arrested in a nearby
The officers then ordered all shoppers and employees to exit the Walmart store. Deputy Niles was outside the store and spotted Keyсie 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
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.
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 denied that motion. Street then entered a guilty plea on the condition that he could revoke the plea if he successfully appealed the denial of his motion to suppress.
II. Analysis
Street argues on appeal that the district court erred by applying the attenuation doctrine to deny his motion to suppress. He also argues that the government waived the argument that the stop was constitutional because it did not file its own objection to the magistrate judge's recommendation. We explain first why the stop of Street was based on reasonable suspicion and thus constitutional, without reaching the attenuation theory. We then explain briefly why the government did not need to file its own objection to the magistrate judge's recommendation in its favor.
A. The Terry Stop of Defendant Street
The Fourth Amendment prohibits unreasonable searches and seizures. If Deputy Knipfer had constitutional authority to stop and question Street, it was on the strength of Terry v. Ohio ,
To seize a person for a brief investigatory Terry stop, an officer must "have reasonable suspicion based on articulable facts that a crime is about to be or has been committed." United States v. Carlisle ,
To determine whether a Terry stop was reasonable, we "must consider the totality of circumstances known to the officer at the time of the stop." United States v. Quinn ,
The district court held that the officers lacked reasonable suspicion to stop Street and thus violated the Fourth Amendment. However, the district court denied the motion to suppress on the grounds that the attenuation doctrine applied. That doctrine allows a court to deny a motion to suppress when the causal connection between the constitutional violation and the evidence obtained is remote or suppression would not serve the interest protected by the constitutional guarantee. Hudson v. Michigan ,
On appeal, Street argues that the district court erred by applying the attenuation doctrine. The government contends the doctrine should apply but need not be relied upon because the officers had reasonable suspicion to make the stop in the first place. "When reviewing a district court's decision on a motion to suppress, we review findings of historical fact for clear error and conclusions of law (as well as mixed questions of law and fact, such as determinations of reasonable suspicion) de novo." United States v. Ruiz ,
Street contends the officers stopped him solely because his race and sex matched those of the two robbers. He argues that Deputy Knipfer stopped him on the mere hunch that, if a third person had been
When considering whether an officer had reasonable suspicion for a Terry stop, we "look at the totality of the circumstances of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu ,
Terry does not authorize broad dragnets, but it also does not require perfection or precision. Without more, a description that applies to large numbers of people will not justify the seizure of a particular individual. See, e.g., United States v. Turner ,
Here, the totality of the circumstances shows reasonable suspicion for stopping Street to investigate him. The police were searching for suspects who had committed an armed robbery only minutes before. They had more general descriptions than was ideal. That's not unusual when events unfold so quickly. But a lack of better, more detailed descriptions does not mean officers must disregard the limited information they do have. See, e.g., Foster ,
The analysis in Arthur is especially helpful. In Arthur , two armed African-American men described as wearing dark, heavy clothing robbed a telephone store and fled on foot.
The First Circuit affirmed, noting that the officer "had received a reliable, though generic, description of the number of suspects and their race, gender, clothing, and approximate location, as well as information about the direction in which they were heading."
Here, as in Arthur , the order to stop Street was based on reasonable suspicion that went well beyond race and sex. As in Arthur , the officers had only limited physical descriptions of the suspects, but timing, location, and reliable information about the suspects' movements made it reasonable to stop Street. The officers knew the men who robbed the store were armed and had been described as African-American. They knew that the GPS in one stolen telephone had led them hot on the robbers' heels to the Walmart parking lot, where they found the abandoned getaway сar with the stolen goods, cash, and a gun. The first officers on the scene saw three African-American men walking away from that vehicle, and one of the men ran in response to the police. See District of Columbia v. Wesby , --- U.S. ----,
The magistrate judge and district judge focused on the fact that when Street was stopped, two men had already been taken into custody. Street argues that the officers could only speculate about whether a third person had been involved in the robbery, let alone whether a third person would also have been an African-American man. We respectfully disagree with the premise of this logic. At the time Street was stopped, the officers could not be certain the two men they had arrested were actually the two robbers. Nor could they be sure that only two men were involved in the robbery. There was also good reason to look for the third African-American man who had walked away from the getaway car.
Street was the only African-American man in the crowd leaving the Walmart during the evacuation. His clothing did not fit the description from the robbery, but the officers could reasonably think the third man had had a chance to change clothes in the store. Under all of these circumstances-hot pursuit of fleeing armed robbers to the Walmart, the general descriptions of the robbers, the first officers' observation of the three men seeming to walk away from the getaway car, and the fact that Street seemed to be the only man leaving the Walmart who fit the general descriptions-the officers had specific, articulable reasons that made it reasonable to stop Street to investigate.
If the officers had arbitrarily stopped Street on the basis of his race and sex, as Street contends, this would be a very different case. It would be a mistake to read this decision as saying such a vague description of the robbers would be enough to justify a Terry stop of any African-American man the police encountered. But Street was in the right place at the right time, as far as the police were concerned. They had reason to be looking-there and then-for another African-American man, and Street was the only Afriсan-American man in the crowd leaving the store.
Street also argues that the stop was unreasonable because Deputy Knipfer did not himself have reasonable suspicion to make the stop and nothing indicates that Deputy Knipfer knew he was looking for a third suspect. Because the record does not show Knipfer had reasonable suspicion to make the stop, Street reasons, the stop was based on nothing more than a hunch. The collective knowledge doctrine refutes this argument.
When more than one police officer is involved in the reasonable-suspicion analysis, courts consider their collective knowledge. "The сollective knowledge doctrine permits an officer to stop, search, or arrest a suspect at the direction of another officer ... even if the officer himself does not have firsthand knowledge of facts that amount to the necessary level of suspicion to permit the given action." United States v. Williams ,
To rely on collective knowledge to support a stop, we have interpreted Hensley to require that "(1) the officer taking the
Here, all three elements were satisfied. First, Deputy Knipfer relied on his fellow officers when he stopped Street to identify him. See Doran v. Eckold ,
In sum, the totality of the circumstances known to the officers at the time of the stop rose to the level of reasonable suspicion to conduct a brief investigatory stop of Street. Because the officers had reasonable suspicion to stop Street and identify him, they were entitled to use that information to pursue the investigation further, leading ultimately tо Street's arrest and conviction.
B. Objection by Prevailing Party?
Street has also argued on appeal that we should not even consider the government's arguments in favor of the Terry stop because the government waived that contention by failing to file its own objection to the magistrate judge's recommendation. That recommendation was that the district judge find the stop unconstitutional but deny the motion to suppress based on attenuation. We disagree with this waiver argument. Much as an appellee is free to argue alternative grounds to support a judgment without filing a cross-appeal, the government was free to argue different grounds supporting the same bottom-line recommendation: denial of the motion to suppress.
For certain pretrial matters, including motions to suppress, a district judge may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court" of such matters.
Rule 59(b)(2) 's operative language-"Failure to object in accordance with this rule waives a party's right to review"-does not prevent a district judge from reviewing a recommendation on her own initiative. Seе Thomas v. Arn ,
The rule's waiver language does not distinguish between the prevailing party and the losing party, and Street quotes the general language from Video Views to argue that the government waived its right to review the magistrate judge's recommended finding that the stop violated the Fourth Amendment. We disagree.
The waiver rules in Rule 59(b)(2) and its civil counterpart, Fed. R. Civ. P. 72(b)(2), seem to come up on appeal only when the party unhappy with the magistrate judge's bottom-line recommendation has failed to object at all or has objected on grounds different from those argued on appeal. We have written that this rule applies to "any party" who does not object to the magistrate judge's recommendations, but we have found no precedent from our circuit prohibiting prevailing parties from arguing on appeal a rationale that the magistrate judge rejected.
Other circuits that have addressed this issue agree that "a party, who substantially prevails in a magistrate judge's recommendation, does not waive the right to appeal secondary issues resolved against him by failing to object to the recommendation," for such a requirement would frustrate the purpose of a waiver rule. Vanwinkle v. United States ,
In the absence of more specific language in § 636(b) and Rule 59(b)(2), we seek
When a prevailing party raises an alternative argument on appeal that was unsuccessful before the district court without a cross-appeal, the appellate court must consider whether the argument will produce the same outcome as the district court's order. United States v. Terzakis ,
Rule 59(b)(2) differs from the rule for cross-appeals in that the objection requirement is not jurisdictional and the district judge can act sua sponte to review the findings of the magistrate judge. Those differences do not favor a more rigorous waiver rule, however. The similar rationales for and parallel applications of the two rules lead us to conclude that Rule 59(b)(2) does not require the prevailing party to object to the reasoning of the magistrate judge if the recommendation is a decision in the party's favor and the prevailing party seeks no more favorable relief.
The govеrnment thus did not waive the right to argue the stop was legal. Although the magistrate judge recommended the motion be denied on grounds the government did not believe were strongest, the government did not need to object merely because it would have preferred the alternative reasons it offered for the ruling in its favor.
The judgment of the district court is AFFIRMED.
Notes
The man in the red jacket turned out to have been a Walmart employee, but the officers did not know that at the time.
The magistrate judge also found in the alternative that the evidence should not be suppressed because the discovery of Street's identity was inevitable. The government has not pressed this rationale on appeal, so we do not consider it.