The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
The defendant, Charles E. Elder ("Defendant"), is charged with one count of possessing with intent to distribute five (5) grams or more of a mixture and substance containing cocaine base, also known as "crack," on and within 1,000 feet for the real property of a public elementary school, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 860. [See Doc. 24.] Defendant filed a motion to suppress [Doc. 22] all evidence obtained as a result of a search on or about September 28, 2007, on the grounds that the evidence he seeks to suppress was seized after an illegal arrest.
Following an evidentiary hearing on the motion to suppress on June 2, 2008, and the filing of supplemental briefs, Magistrate Judge C. Clifford Shirley filed a report and recommendation ("R&R") [Doc. 40], in which he recommended that the motion to suppress be denied. This matter is before the Court on Defendant's objections [Doc. 41] to the R&R.
As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R&R to which Defendant has objected. In doing so, the Court has carefully considered Magistrate Judge Shirley's R&R [Doc. 40], the underlying briefs [Docs. 23, 29, 34, 36], the parties' briefs regarding the pending objections [Docs. 41, 44], the transcript of proceedings before Magistrate Judge Shirley [Doc. 37], and exhibits presented. [See Doc. 32.] For the reasons set forth herein, the Court will overrule Defendant's objections, and the motion to suppress will be denied.
A. Objection 1: Credibility Finding as to Officer J.D. Sisk
In his objection, Defendant objects to Magistrate Judge Shirley's credibility finding as to Officer J.D. Sisk ("Officer Sisk") who testified that he patted the Defendant down and felt cocaine-type substances before searching him. Defendant contends that the police cruiser video shows that Officer Sisk failed to do a pat-down and, rather, went immediately into Defendant's pocket and seized the items sought to be suppressed. Defendant further contends that Officer Sisk did so even after Defendant refused consent to be searched, so this was not a Terry frisk. The Government responds that it agrees with Magistrate Judge Shirley's findings, analysis, and conclusions. The Government further encourages the Court to wholly adopt Magistrate Judge Shirley's R&R.
In the R&R, Magistrate Judge Shirley found: Once outside of Weigel's, Officer Sisk conducted a pat down search of Defendant, which was not recorded on Sergeant Taylor's video camera, but this Court finds Officer Sisk's testimony on this issue unimpeached and credible. [Doc. 11 at 11.] After reviewing the record, the Court finds no error with Magistrate Judge Shirley's factual findings regarding the pat-down search. The Court finds that Officer Sisk's account of events is consistent with the police cruiser video. At the suppression hearing, Officer Sisk testified that he "[f]elt a large bundle in [Defendant's] pocket with some kind of rock like substance on top of the bundle" after patting down Defendant's left pocket and then asked for consent to search the Defendant. [Doc. 37 at 26.] At approximately 19:14:33 in the video, Defendant first appears on the police cruiser video in handcuffs and accompanied by Officer Sisk. [Docs. 32, Exhibit 3; 37 at 26.] Consistent with Officer Sisk's testimony that he asked Defendant for consent to search his person, Defendant and Officer Sisk are seen engaging in a dialogue from approximately 19:14:37 to approximately 19:15:01.*fn1 [Docs. 32, Exhibit 3; 37 at 26.] Starting at approximately 19:15:03 and again consistent with the hearing testimony, Officer Sisk searched Defendant's left pocket. [Docs. 32, Exhibit 3; 37 at 26.] The consistencies between Officer Sisk's account of events and the police cruiser video lend credibility to Officer Sisk's testimony regarding off-camera activity.
Though Defendant contends that the police cruiser video shows that Officer Sisk unlawfully "went immediately into the defendant's pocket and seized the items which we now seek to suppress," Officer Sisk's actions do not necessarily indicate that he failed to perform a pat down search out of camera range. [Doc. 41 at 1-2.] Out of Defendant's multiple pockets, Officer Sisk first searched Defendant's left pocket, consistent with Officer Sisk's testimony that he already had knowledge of a "bundle" in Defendant's left pocket from the off-camera pat down search. Thus, the mere fact that the police cruiser video shows Officer Sisk immediately searching Defendant's left pocket does not alter the Court's view of Officer Sisk's credibility. For these reasons, the Court finds Officer Sisk credible and accepts Magistrate Judge Shirley's finding that a pat-down search occurred off-camera. Accordingly, Defendant's objection is OVERRULED.
B. Objection 2: Reckless Driving Finding
Defendant objects to Magistrate Judge Shirley's finding that he committed reckless driving. He contends that the offense, if any, would have been a civil violation for which he could not have been arrested. Thus, Defendant contends that the search was not incident to a lawful arrest. The Government responds that it agrees with Magistrate Judge Shirley's findings, analysis, and conclusions. The Government further encourages the Court to wholly adopt Magistrate Judge Shirley's R&R.
Under Tennessee law, an officer "may, without warrant, arrest a person: (1) For a public offense committed or a breach of the peace threatened in the officer's presence." Tenn. Code Ann. § 40-7-103. Tennessee's reckless driving statute provides that "[a]ny person who drives any vehicle in willful or wanton disregard for the safety of persons ...