The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter is before the Court pursuant to defendant, Latawyne D. Osborne's Motion to Suppress The Arrest And Ultimate Fruits Of The Arrest [Doc. 34] regarding the seizure of two firearms and a quantity of controlled substances from the vehicle driven by the defendant. All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. An evidentiary hearing was held on May 2, 2007. Assistant United States Attorney Brownlow Marsh was present representing the government. Attorney Philip Lomonaco was present representing the defendant, Latawyne D. Osborne ("Osborne"). The defendant was also present.
The defendant has been indicted [Doc. 1] on one (1) count of possession with intent to distribute cocaine base, a Schedule II controlled substance, a violation of 21 U.S.C. § 841, one (1) count of possession with intent to distribute cocaine hydrochloride, a Schedule II controlled substance, a violation of 21 U.S.C. § 841, and one (1) count of possessing two firearms in furtherance of drug trafficking crimes, a violation of 18 U.S.C. § 924(c). These charges arise out of the seizure of certain items, namely controlled substances and two firearms, which were found in a car being driven by the defendant on July 27, 2006. Just prior to the seizure of these items, officers of the Knoxville Police Department ("KPD") had followed the car being driven by the defendant into the driveway of a residence, and then arrested the defendant on an outstanding arrest warrant for aggravated assault.
The defendant has moved to suppress all items of evidence seized from the automobile, alleging that KPD officers improperly and without probable cause searched the vehicle, seized the defendant's wallet from the closed, center armrest compartment of the front seat and used the identification card inside the wallet to identify the defendant before arresting him on an outstanding arrest warrant, and therefore, the items seized were obtained in violation of his Fourth Amendment rights; that the search of the car was not made incident to arrest, but was prior to arrest, and that defendant did not consent to the search. [Doc. 33]. In response, the government alleges that KPD officers had adequate grounds to follow the defendant's vehicle, stop the defendant, conduct a protective weapons sweep of the defendant's car, obtain from inside the car the defendant's identification card, arrest the defendant on the outstanding arrest warrant, and then seize the drugs and guns from the automobile the defendant was driving, pursuant to a standard search incident to arrest. [Doc. 36]. The government also has argued that since the vehicle was towed, an inventory search would have revealed the drugs and guns.
This Court made findings of fact in its Report and Recommendation [Doc. 29] on the defendant's First Motion To Suppress. Those findings of fact are incorporated herein by reference.
At the evidentiary hearing on this motion, the government called KPD Officer Lance Halseth ("Halseth") as its first witness. Halseth testified that he is a patrol officer with the KPD.
Halseth testified that he was present at the scene on the day in question. The officers were present in response to a "shots fired" call from police dispatch. He has reviewed parts of the videotapes from the KPD cruisers. He testified that he recognized his voice on a tape, and that he was calling records to get an NCIC check to see if the defendant had any outstanding warrants. On the tape, Halseth can be heard giving the defendant's name to records.
Halseth testified that he knew the name of the defendant to use in calling records, because one of the other officers at the scene handed him the defendant's I.D. Although not "one hundred percent (100%) positive," Halseth testified that he thinks the I.D. was "an I.D. card," not a driver's license. Also, Halseth thinks that the I.D. card was by itself, but he wasn't really sure about whether it was really by itself or whether it was in a wallet when he saw it.
Halseth testified that he did not search the defendant's vehicle until after records advised that there was an outstanding arrest warrant on the defendant. Halseth personally did not search the vehicle prior to running the records check.
On cross examination, Halseth testified that he was in the second KPD cruiser to arrive at the scene. Halseth testified that when he arrived, the defendant was outside his car, with his hands up. KPD Officer Elizabeth Vail was in front of the defendant, approaching the defendant with her gun drawn. Officer Vail arrived at the defendant first and ordered the defendant onto the ground. Halseth testified that he, Officer Vail, and Officer Chris Jones, then surrounded the defendant and handcuffed the defendant for officer safety. After being handcuffed, the defendant was allowed to sit on the ground.
At that point, according to Halseth, one of the officers on the scene, and perhaps Halseth, said something to the effect of "I'm going to look into the car for the gun." Halseth testified that either he or one of the other officers on the scene then did a "protective sweep" of the car for guns. Halseth testified that he really is not sure if he even was the one who did this protective sweep. Halseth testified that the purpose of the protective sweep was to see if there was a gun in plain view in the vehicle, because this was a call of shots fired involving the vehicle. According to Halseth, the main focus of the officers on the scene was to detain the defendant until they were able to ascertain what was going on.
Halseth again stated that he did not know who got the defendant's wallet, and further, he did not know where the ...