ORDER CONSTRUING LETTERS FROM COUNSEL (DKT. NOS. 95, 96) AS MOTIONS TO SET SCOPE OF EVIDENTIARY HEARING, AND GRANTING THOSE MOTIONS
PAMELA PEPPER, District Judge.
On January 6, 2016, defendant Street filed a motion to suppress. Dkt. No. 34. He asked to suppress "information and/or items allegedly obtained by law enforcement during the police initiated encounter with Mr. Street in the parking lot of Walmart at 15205 West Greenfield Avenue, Brookfield, WI on October 24, 2015."
Magistrate Judge David E. Jones held an evidentiary hearing on the motion on February 4, 2016. Dkt. No. 38. After the hearing, he ordered supplemental briefing. Text-only order dated February 25, 2016. At the conclusion of the briefing, Judge Jones issued a report, recommending that this court grant the motion to the extent that Street sought "suppression of his cell phone number and the information that he provided to Deputy Knipfer about why he was at the Walmart store." Dkt. No. 51 at 25. He recommended that the court deny the motion as to the other information Street sought to suppress—his name, address, DNA "and the out-of-court identifications."
Street objected to Judge Jones' report and recommendation. Dkt. No. 53. After the objection had been fully briefed, this court adopted Judge Jones' recommendation. Dkt. No. 56. The court agreed with Judge Jones that "Deputy Knipfer's stop of the defendant violated the Fourth Amendment."
After they released Street, the deputies "learned from Walmart employees that the surveillance video of the parking lot did . . . show three people getting out of the white SUV; one of these individuals was the defendant."
This court found that even if Deputy Knipfer never had stopped Street, the deputies would've obtained the parking lot surveillance photo. They would have learned that there was a third defendant; they would have pulled a still photo of that third person from the surveillance photo; they would have shown that to various people; and they would have obtained an ID of the defendant.
A little over three months later, Attorney Donovan made his appearance as defendant Street's new counsel (after prior counsel moved to withdraw). Dkt. No. 72. After familiarizing himself with the case, Attorney Donovan filed two motions. First, he filed a motion asking the court to reconsider its ruling denying the motion to suppress. Dkt. No. 81. In the motion, Attorney Donovan specifically stated, "Mr. Street does not ask the Court to reconsider any portion of its order that found that he was illegally stopped because Judge Jones' recommendation and this Court's adoption of that finding are correct."
Counsel also filed a motion asking the court to allow him to file a second suppression motion—this one alleging that rather than showing co-defendant Oliver a photo array, officers showed him only Street's Illinois driver's license photo. Dkt. No. 88 at 1-2. He argued that this constituted a presumptively suggestive show-up.
On January 24, 2017, the court held a hearing, and informed the parties that it was going to "grant both motions, and schedule an evidentiary hearing." Dkt. No. 94. The court made clear that it wasn't granting the motions themselves; it was allowing counsel to file both motions, and "scheduling an evidentiary hearing to take evidence on both motions."
On February 10, 2017, ahead of the February 16 evidentiary hearing, counsel for the government filed a letter with the court. Dkt. No. 95. Counsel stated that he understood that by granting the motion to reconsider and the motion to schedule an evidentiary hearing, he understood "the Court to be reopening litigation on the original motion to suppress."
The government also referenced, by implication, defense counsel's argument that the reason the court ought to let him file a second suppression motion was because he'd discovered new information (such as information regarding how defendant Oliver pronounced Street's first name) that previous defense counsel had not. The government argues that if the defense gets to use "possibly new" information to reopen the original motion to suppress, "it seems only fair" that the government be allowed to use "possibly new information" to ask the court to reconsider whether the stop was illegal.
Attorney Donovan responded with a letter on February 11, 2017. Dkt. No. 96. He first objected to the government's assumptions as to the scope of the evidentiary hearing, noting that the motion to reconsider did not ask the court to reconsider its ruling that the stop was illegal.
Counsel also indicated that he had not anticipated that the government would call up to six witness, or re-litigate the legality of the stop, and thus that he could not be prepared to cross-examine that many witnesses on that broad an issue at the February 16, 2017 hearing.
The court first refers the parties to its procedures, posted on the Eastern District web site on Judge Pepper's page. If a party wants the court to do something—adjourn a hearing, clarify an issue—the appropriate vehicle for asking for that "something" is via a motion. The CM/ECF system that lets judges know when a party wants them to take action on something does not flag letters; it flags motions. The court would be grateful if, in the future, the parties used motions, and objections to motions, to make requests of the court.
As to the scope of the evidentiary hearing currently scheduled for February 16, 2017: The court did not schedule the hearing to allow the parties to re-litigate the question of whether Deputy Knipfer's stop of Street in the Walmart parking lot violated the Fourth Amendment. Judge Jones reached a conclusion on that issue. This court reached a conclusion on that issue. The government never has filed a motion asking the court to reconsider its conclusion on that issue. Defendant Street has not asked the court to reconsider its conclusion on that issue.
Attorney Donovan's motion to reconsider was very specific: He argued that Judges Jones and Pepper had misapplied the reasoning in
The court may have contributed to this confusion by writing, in the minutes of the January 24, 2017 hearing, that it was scheduling an evidentiary hearing on "both motions." The court tried to explain at that hearing that it understood that the second suppression motion argued, in part, that the identification of Street based on his Illinois driver's license photo should be suppressed in part because it flowed from information the deputies obtained from Street during the illegal stop. Street's request that the court reconsider its decision on whether to suppress evidence obtained during the illegal stop was related to the question of whether Oliver's ID should be suppressed. The court would better have said, in the minutes, that it meant to consider, or hear, both motions at February 16, 2017 hearing. It did not mean to suggest that the parties ought to present all of the evidence relating to the original motion at the February 16, 2017 hearing.
The government makes the equivalent of a "what's sauce for the goose is sauce for the gander" argument, stating that if the defense gets to file a motion to suppress based on new evidence that Attorney Donovan uncovered that prior counsel didn't, then the government ought to be allowed to present new evidence on the legality of the stop. The argument is not persuasive. The government has had all of the evidence since before the first evidentiary hearing. The government had the opportunity to present any and all evidence it had on the legality of the stop at that first evidentiary hearing. In contrast, after he was appointed as Street's third lawyer, Attorney Donovan asked government counsel for information that the other lawyers had not. That information related, in the main, to Oliver's identification of Street. The fact that Attorney Donovan's request yielded new information relating to Oliver's identification of Street does not somehow open the door for the government to go back and try to supplement, at the February 16, 2017 evidentiary hearing, any evidence it presented at the first evidentiary hearing in 2016. If the government had more information relating to the legality of the stop in the Walmart parking lot, it should have present that evidence at the 2016 hearing.
In sum, the court agrees with defendant Street as to the scope of the February 16, 2017 evidentiary hearing. The court will not hear evidence relating to the legality of Deputy Kniper's stop of Street in the Walmart parking lot. The court will hear evidence regarding Oliver's identification of Street. The court also will hear argument regarding whether the court erred in concluding that the attenuation doctrine and the inevitable discovery doctrine precluded suppression of certain information obtained from Street during that illegal stop.
As to the other issues Attorney Donovan raises—his schedule, the possibility that he is missing discovery, the possibility of plea negotiations—it is not the court's place to decide whether either counsel need more time to address those issues. If one party or the other wants the court to adjourn the February 16, 2017 hearing for reasons other than scope, either party (or both) are welcome to file a brief motion to adjourn, and the court will consider that motion as promptly as possible, given its hearing schedule.