October 25, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 2:15-CR-228-PP-3 - Pamela Pepper,
Rovner, Hamilton, and Barrett, Circuit Judges.
Hamilton, Circuit Judge.
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.
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 (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.
Facts and Procedural History
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.
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
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.
The Stop of Defendant Street
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.
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
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
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.
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.