United States of America v. Keycie A. Street

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

2 No. 18‐1209

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 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.

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.

No. 18‐1209 3

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.

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.

4 No. 18‐1209

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 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.1

The 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.

1 The man in the red jacket turned out to have been a Walmart employee,

but the officers did not know that at the time.

No. 18‐1209 5

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.

6 No. 18‐1209

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 18 U.S.C.

§ 1951. He moved to suppress the identifying information he

had given to Deputy Knipfer and the additional evidence the

police had obtained by using that information, including the

DNA evidence and the identifications by Oliver and Eddmonds.

The district judge referred the motion to suppress to

Magistrate Judge Jones, who held an evidentiary hearing to

prepare a report and recommendation. Street argued that

Deputy Knipfer had stopped him based on only a hunch,

without the reasonable suspicion required by the Fourth

Amendment. Street pointed out that his clothing did not

match the suspects’ and that he was not acting suspiciously as

he left the store. He also argued that because the police already

had two suspects in custody, they had no reason to believe

there was a third suspect involved in the robbery and

thus had no reason to continue the investigation when they

stopped him. Street contended that the officers stopped him

only because his race and sex matched the description of the

suspects, which he argued was not enough to justify an investigatory

stop.

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 AfricanNo.

18‐1209 7

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.2

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.

2 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.

8 No. 18‐1209

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, 392 U.S. 1 (1968). While this stop was peaceful and cooperative,

it was not consensual. An investigative stop under

Terry imposes a substantial intrusion on a person’s liberty and

dignity. Terry stops cannot be made lightly. “[W]henever a police

officer accosts an individual and restrains his freedom to

walk away, he has ‘seized’ that person. * * * It is a serious intrusion

upon the sanctity of the person, which may inflict

great indignity and arouse strong resentment, and it is not to

be undertaken lightly.” Id. at 16−17; see also United States v.

Lopez, 907 F.3d 472, 478 (7th Cir. 2018) (“With the authority to

stop comes the authority to require the subject to submit to

the stop, and to use reasonable force to make him submit.”).

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, 614 F.3d 750, 754 (7th Cir. 2010). Reasonable

suspicion requires “more than a hunch but less than

probable cause.” United States v. Williams, 731 F.3d 678, 683

(7th Cir. 2013), quoting Jewett v. Anders, 521 F.3d 818, 823 (7th

Cir. 2008). The suspicion “must be based on specific, articulable

facts which, judged in light of the officers’ experience,

would justify the intrusion.” United States v. Marrocco, 578

F.3d 627, 633 (7th Cir. 2009); see also Terry, 392 U.S. at 21 (“in

justifying the particular intrusion the police officer must be

able to point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably

warrant that intrusion”).

No. 18‐1209 9

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, 83 F.3d

917, 921 (7th Cir. 1996). If the stop was unreasonable under

this standard, “unless one of various exceptions applies, exclusion

will run not only to the unconstitutionally obtained

evidence, but also to the fruits of that evidence—the so‐called

fruit of the poisonous tree.” United States v. Conrad, 673 F.3d

728, 732 (7th Cir. 2012).

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, 547 U.S. 586, 593 (2006) (violation

of knock‐and‐announce rule in executing search warrant

did not require suppression of evidence seized); United States

v. Carter, 573 F.3d 418, 422 (7th Cir. 2009) (“the exclusionary

rule should not apply when the causal connection between illegal

police conduct and the procurement of evidence is

‘so attenuated as to dissipate the taint’ of the illegal action”),

quoting United States v. Fazio, 914 F.2d 950, 957 (7th Cir. 1990).

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

10 No. 18‐1209

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, 785 F.3d 1134, 1140–

41 (7th Cir. 2015); Ornelas v. United States, 517 U.S. 690, 699

(1996).

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 involved, he would also have been an

African‐American man. Street’s general point about race and

sex is well taken, but we conclude it does not apply to his case.

The record does not support his attempt to have us view this

stop in such isolation.

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, 534 U.S. 266, 273 (2002).

This approach recognizes that officers may “draw on their

own experience and specialized training to make inferences

from and deductions about the cumulative information available

to them that ‘might well elude an untrained person.’” Id.,

quoting United States v. Cortez, 449 U.S. 411, 418 (1981).

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, 699 A.2d 1125, 1128–29 (D.C. 1997). This is especially

true where the description is based primarily on race and sex,

as important and helpful as those factors can be in describing

a suspect. See, e.g., United States v. Foster, 891 F.3d 93, 105 (3d

No. 18‐1209 11

Cir. 2018) (vague descriptions, including race and sex, “without

more, are not enough to support reasonable suspicion”);

Brown v. City of Oneonta, 221 F.3d 329, 333–34 (2d Cir. 2000)

(“a description of race and gender alone will rarely provide

reasonable suspicion justifying a police search or seizure”);

United States v. Montero‐Camargo, 208 F.3d 1122, 1134 n.21 (9th

Cir. 2000) (en banc) (acknowledging importance of “the use of

racial or ethnic appearance as one factor relevant to reasonable

suspicion or probable cause when a particular suspect has

been identified as having a specific racial or ethnic appearance”).

The totality of circumstances, however, may provide

additional and reasonable limits, particularly with respect to

place and time, so as to allow a stop based on a fairly general

description.

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, 891 F.3d at 104–06 (affirming

denial of motion to suppress; armed robbery suspect was described

only as black man fleeing on foot, and police had reasonable

suspicion to stop the only black man on foot in vicinity);

United States v. Arthur, 764 F.3d 92, 97–98 (1st Cir. 2014)

(affirming denial of motion to suppress; armed robbery of cell

phone store by two black men who fled on foot led to seizure

of two black men walking away from robbed store); Turner,

699 A.2d at 1128–30 (reversing grant of motion to suppress;

description of suspect as black male wearing black jacket and

blue jeans was sufficient to stop nearby suspect even though

12 No. 18‐1209

description also resulted in stop of second suspect who fit description:

“we have routinely held that an imperfect description,

coupled with close spatial and temporal proximity between

the reported crime and seizure, justifies a Terry stop”);

4 Wayne R. LaFave, Search & Seizure § 9.5(h) at 760 (5th ed.

2018) (“But it cannot be said that there must always be several

points of comparison … the most important consideration is

whether the description is sufficiently unique to permit a reasonable

degree of selectivity from the group of all potential

suspects.”).

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. 764

F.3d at 96. An officer patrolling the area was informed only of

this general description of the robbers. He drove down the

street where the men were last seen and turned onto an adjacent

street. He saw two African‐American men walking in a

direction that led away from the robbery. The two men were

only an eighth of a mile from the store. They were the only

pedestrians the officer had seen, and he spotted them approximately

five minutes after the police were dispatched to the

scene. The officer approached the men with his hand on his

gun holster, told them he was investigating an armed robbery,

and ordered them to show him their hands. Id. at 97. That

amounted to a seizure under the Fourth Amendment. After

being charged with the robbery, one of the men moved to suppress

the evidence against him, claiming the officer lacked

reasonable suspicion to make the stop. The district court denied

the motion.

The First Circuit affirmed, noting that the officer “had received

a reliable, though generic, description of the number

No. 18‐1209 13

of suspects and their race, gender, clothing, and approximate

location, as well as information about the direction in which

they were heading.” 764 F.3d at 97. The First Circuit emphasized:

“Ubiquitous or vague physical descriptions or general

locations, without more, are not enough to support reasonable

suspicion.” Id. at 99. Considering the totality of the circumstances,

however, the court found not only that the stop was

proper but that “a failure to stop the men and question them

briefly would have verged on a dereliction of duty.” Id. at 98.

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 car 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, 138 S. Ct. 577, 587 (2018) (unprovoked flight upon noticing

the police is certainly suggestive of wrongdoing and

can be treated as suspicious behavior), quoting Illinois v.

Wardlow, 528 U.S. 119, 124–25 (2000).

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

14 No. 18‐1209

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.

To be clear, officers are not permitted to stop a person

based solely on his race and sex. See Whren v. United States,

517 U.S. 806, 813 (1996) (“the Constitution prohibits selective

enforcement of the law based on considerations such as

race”); Brown, 221 F.3d at 334 (“a description of race and gender

alone will rarely provide reasonable suspicion justifying

a police search or seizure”); United States v. Swindle, 407 F.3d

562, 569–70 (2d Cir. 2005) (“race, when considered by itself

and sometimes even in tandem with other factors, does not

generate reasonable suspicion for a stop”); Montero‐Camargo,

208 F.3d at 1134 n.21 (9th Cir. 2000) (“a stop based solely on

the fact that the racial or ethnic appearance of an individual

matches the racial or ethnic description of a specific suspect

would not be justified”). But race and sex are basic and common

elements of descriptions of people. We do not expect officers

to ignore such defining features. See United States v.

Morrison, 254 F.3d 679, 682 (7th Cir. 2001) (“When police are

searching for a bank robber described as a black male, it is

reasonable for them to be looking for a black man.”).

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

No. 18‐1209 15

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 African‐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 collective 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

16 No. 18‐1209

level of suspicion to permit the given action.” United States v.

Williams, 627 F.3d 247, 252–53 (7th Cir. 2010) (Constitution

permits officers to stop a person based on “wanted” bulletins

issued by other law enforcement agencies even if officer

making stop lacks personal knowledge of basis), citing

Hensley, 469 U.S. at 232.

To rely on collective knowledge to support a stop, we have

interpreted Hensley to require that “(1) the officer taking the

action must act in objective reliance on the information received,

(2) the officer providing the information—or the

agency for which he works—must have facts supporting the

level of suspicion required, and (3) the stop must be no more

intrusive than would have been permissible for the officer requesting

it.” Id.; see also United States v. Wheeler, 800 F.2d 100,

103 (7th Cir. 1986) (establishing three‐part collective

knowledge test based on Hensley, 469 U.S. 221), overruled on

other grounds by United States v. Sblendorio, 830 F.2d 1382 (7th

Cir. 1987).

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, 409 F.3d 958, 965 (8th Cir.

2005) (noting “settled principle that law enforcement officers

may rely on information provided by others in the law enforcement

community, so long as the reliance is reasonable”),

citing Hensley, 469 U.S. at 232. Next, as discussed above, the

officers Knipfer was working with had articulable reasons to

stop Street. Finally, the stop was no more intrusive than one

the requesting officers could have conducted. Deputy Knipfer

asked Street only for his name, address, date of birth, and his

reason for being at Walmart before running a warrant check

and letting him go.

No. 18‐1209 17

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 to 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. 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59

(b)(1). The parties may file objections to the magistrate judge’s

proposed findings of fact and recommendation with the district

court. Fed. R. Crim. P. 59(b)(2). Failing to object to the

recommendation “in accordance with this rule waives a

party’s right to review.” Id.; see also Video Views, Inc. v. Studio

18 No. 18‐1209

21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986) (failing to object to

recommendation “waives the right to appeal all issues, both

factual and legal”). In both civil and criminal cases, requiring

a written objection prevents parties from “’sandbagging’ the

district judge by failing to object and then appealing.” Otto v.

Variable Annuity Life Ins. Co., 134 F.3d 841, 854 (7th Cir. 1998),

quoting United States v. Brown, 79 F.3d 1499, 1504 (7th Cir.

1996). This waiver rule is not jurisdictional, though, and we

have recognized exceptions when enforcing it would “defeat

the ends of justice.” Video Views 797 F.2d at 540; see also Brown,

79 F.3d at 1505 (excusing waiver of challenge to recommendation

to deny substitution of counsel when attorney who defendant

claimed was inadequate had not filed objection).

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. See Thomas v. Arn, 474 U.S. 140,

154 (1985) (“The district judge has jurisdiction over the case at

all times. * * * [W]hile the statute [§ 636(b)] does not require

the judge to review an issue de novo if no objections are filed,

it does not preclude further review by the district judge, sua

sponte or at the request of a party, under a de novo or any other

standard.”); United States v. Raddatz, 447 U.S. 667, 680 (1980)

(“While the district court judge alone acts as the ultimate decisionmaker,

[§ 636(b)(1)(B)] grants the judge the broad discretion

to accept, reject, or modify the magistrate’s proposed

findings.”); Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752,

760 (7th Cir. 2009) (“although the district judge must make an

independent determination of a magistrate judge’s order

upon objection, he is not precluded from reviewing a magistrate

judge’s order to which a party did not object”). The district

judge was free to consider any issues she wished to.

No. 18‐1209 19

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 judgeʹs 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, 645 F.3d 365,

371 (6th Cir. 2011), quoting Souter v. Jones, 395 F.3d 577, 586

(6th Cir. 2005); see also M. v. Falmouth School Depʹt, 847 F.3d

19, 26 (1st Cir. 2017) (prevailing party before magistrate judge

did not waive secondary argument on appeal by failing to object

to magistrate judge’s findings when district court was

aware of argument); Cooper v. Taylor, 103 F.3d 366, 373 (4th Cir.

1996) (en banc) (“Although we and the Supreme Court have

long held that the losing party before the district court and

before a magistrate must preserve every claim it intends to

20 No. 18‐1209

raise on appeal lest it waive those claims … we have consistently

held that the prevailing party in either forum need not

advance on appeal every error it believes was committed by

the magistrate or court in the course of ruling in that party’s

favor.”) (Luttig, J., concurring).

In the absence of more specific language in § 636(b) and

Rule 59(b)(2), we seek guidance from the parallel (and more

frequently litigated) problem of distinguishing between an

appellee’s arguments that require a cross‐appeal and alternative

arguments for affirming the judgment in the appellee’s

favor.

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, 854 F.3d 951, 954 (7th

Cir. 2017) (holding appellant was not required to cross‐appeal

or to obtain certificate of appealability to reargue grounds the

district court rejected because the theory was part of the record

and did not propose to expand his rights under the judgment),

citing Jennings v. Stephens, 135 S. Ct. 793 (2015); see also

Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333

(1980) (“A party who receives all that he has sought generally

is not aggrieved by the judgment affording the relief and cannot

appeal from it.”).

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

No. 18‐1209 21

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 government 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.