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United States v. Anderson

April 10, 2008

UNITED STATES OF AMERICA
v.
MARLO DEAN ANDERSON



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM AND ORDER

This criminal case is before the court on the defendant's objections to the magistrate judge's Report and Recommendation [doc.25]. The government has responded [doc.26], and a transcript of the suppression hearing has been prepared [doc. 24]. For the reasons set out below, the defendant's objections will be overruled.

The defendant filed a motion to suppress evidence (crack cocaine and a firearm) seized following a traffic stop. The defendant argues that the reason for the traffic stop, the lack of a visible license plate, was a pretext because he had a visible, valid license in the back window of his vehicle. The magistrate judge found, "that while Anderson's license plate was rear-facing, it was not on the rear of the car, as required by Tenn. Code Ann. § 55-4-110(a)," so the officer had probable cause to stop the defendant's vehicle. Doc. 23 at 10 (emphasis in original). The defendant objects to this conclusion, arguing that there is no law in Tennessee holding that displaying a license plate in the back window is not in compliance with the statute.

Under 28 U.S.C. § 636(b), a de novo review by the district court of a magistrate judge's report and recommendation is both statutorily and constitutionally required. See United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). However, it is necessary only to review "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b); see also United States v. Campbell, 261 F.3d 628, 631-32 (6th Cir. 2001).

The facts of this case, as relevant to the issue before this court, are undisputed. At about 11:00 p.m. in Oak Ridge, Tennessee, Lieutenant Michael Uher was following a car with no license plate attached to the rear of the car in the space especially designed to display a license plate. Lt. Uher testified that the "license plate" light was on, but he could not see any license plate. He activated his lights and stopped the car.

There were other officers in the area because of a "saturation patrol" program in place that evening.*fn1 A second police car pulled in front of the defendant's car, and Sergeant Brad Jenkins walked to the rear of the defendant's car and noticed a license plate propped up in the back window of the car. A check of the license plate number verified that it was valid and the car was registered to the defendant. Lt. Uher testified that he did not see the license plate when he effected the stop, nor did he see it when he walked up to the passenger side of the vehicle. He said that he kept his focus on the driver as he approached the car.

A camera in Lt. Uher's police car taped the stop, and a DVD of the stop was made an exhibit to the suppression hearing. This court viewed the tape numerous times, and finds that Lt. Uher was correct in his assertion that there was no visible license plate attached to the rear of the car in the place designed to hold it. Although a white object can be seen in the back window, it is not clear that it is a license plate, nor are the numbers on the license plate visible.

After the defendant's car was stopped, a drug dog was used to detect drugs in the car. The dog alerted on the car, and the defendant was asked to step out of the car. During a pat-down of the defendant, a "pretty good quantity of crack cocaine" was found in the defendant's pocket. The firearm was found on the floorboard of the car.

The issue before the magistrate judge and this court is whether Lt. Uher had sufficient probable cause to stop the defendant's car. After reviewing the pleadings, the case law, and the transcript and exhibits from the suppression hearing, the court finds that Lt. Uher had sufficient probable cause to stop the defendant's car, albeit for a reason other than the one relied upon by the magistrate judge.

The Tennessee statute that is at the center of the controversy in this case states in relevant part as follows:

(a) The registration plate issued for passenger motor vehicles shall be attached on the rear of the vehicle. . . .

(b) Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12") from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible. No tinted materials may be placed over a license plate even if the information upon such license plate is not concealed.

Tenn. Code Ann. § 55-4-110.

In United States v. Ferguson, the Sixth Circuit Court of Appeals, en banc, established a new rule for determining whether a traffic stop is valid. The court stated: "We hold that so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment." United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993).*fn2 It does not matter whether the officer has other motives to stop the vehicle in addition to the traffic violation, nor does it matter that the stop was an ordinary or routine practice ...


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