United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM OPINION & ORDER
THOMAS A. VARLAN, Chief District Judge.
This criminal matter is before the Court for consideration of the Report and Recommendation entered by United States Magistrate Judge H. Bruce Guyton ("R&R") [Doc. 91]. The R&R addresses the defendant's Motion to Suppress Evidence, in which the defendant seeks an order suppressing cash that was discovered on his person and seized from him on September 14, 2013 [Doc. 79]. Magistrate Judge Guyton held a hearing on the motion on August 28, 2014 [Doc. 84]. The defendant submitted a post-hearing memorandum, as permitted by the Court [Doc. 90]. Magistrate Judge Guyton then issued the R&R, recommending that the Court deny the defendant's motion [Doc. 91 p. 18]. The defendant has filed objections to the R&R [Doc. 94]. For the reasons that follow, the Court will overrule the defendant's objections, accept the R&R, and deny the defendant's motion to suppress.
I. Standard of Review
The Court reviews de novo those portions of the R&R to which the defendant has objected. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). Accordingly, the Court considers the motion to suppress, underlying and supporting briefs, government's response, evidence, R&R, and objections, all in light of the applicable law.
Magistrate Judge Guyton's findings of fact [Doc. 91 p. 6-7] are supported by the evidence, and the defendant does not expressly object to them. To the extent that any of the defendant's objections implicate a fact found in the R&R, the Court has considered the dispute in the context of its analysis of the defendant's objections.
II. Facts and Procedural History
The defendant is charged with conspiring to distribute one kilogram or more of heroin, and with possessing with intent to distribute heroin [Doc. 7]. On the morning of September 14, 2013, Officer Robert Cook of the Knoxville Police Department observed that the defendant was not wearing a seatbelt as a passenger in a car being driven by a female driver [Doc. 91 p. 6]. Upon deciding to stop the vehicle for a seatbelt violation, Officer Cook ran the vehicle's license plate number [Doc. 88 p. 4]. He learned that the car was registered to a woman named Katie Miller, who had an outstanding felony warrant for her arrest [Doc. 88 p. 17; Doc. 91 p. 6]. Officer Cook stopped the vehicle on I-40 and approached the driver of the vehicle, obtaining her ID and identifying her as Katie Miller [Doc. 91 p. 6]. After confirming the existence of an arrest warrant for Ms. Miller, Officer Cook called for another officer to report to the scene [ id. ]. Officer Cook asked Ms. Miller to exit the car and come to the front of his police cruiser [ id. ]. He told her that he was arresting her on an outstanding warrant, handcuffed her, and asked whether she had anything illegal on her person [ id. ]. She said that the defendant had stuffed something down her pants, and when Officer Cook asked what it was, she said it was heroin [Doc. 88 p. 7; Doc. 91 p. 6-7]. At that time, Officer Cook decided that he would detain the defendant after he had secured Ms. Miller [Doc. 88 p. 8]. Officer Cook placed Ms. Miller in the back of his police cruiser and requested that a female officer report to the scene in order to search her [Doc. 88 p. 7-8; Doc. 91 p. 7].
Officer Cook then approached the defendant on the passenger side of Ms. Miller's car [Doc. 91 p. 7]. Up to that point in time, the defendant had been acting in a way that was "no more unusual than anybody else that is a little bit nervous" [Doc. 88 p. 20]. Officer Cook asked the defendant for identification [Doc. 91 p. 7]. The defendant appeared to be very nervous, and he stated that he did not have any identification with him [ id. ]. The defendant gave his name as J. Davis [Doc. 88 p. 20; Doc. 91 p. 7]. Nevertheless, the defendant continued to rummage around the front of Ms. Miller's car, as if still looking for his identification [Doc. 91 p. 7]. He twice stumbled in giving his Social Security Number [ id. ]. Based on the way the defendant was acting, Officer Cook suspected that the defendant had given him a false name [ id. ].
Officer Cook spoke with the defendant for a couple of minutes while waiting for another officer to arrive on scene [Doc. 88 p. 21]. Officer Gerlach arrived on scene and reported to the rear bumper of Officer Cook's cruiser, and Officer Cook asked the defendant to step out of the car in order to determine whether he was armed [Doc. 88 p. 9; Doc. 91 p. 7]. Based on his experience, Officer Cook believed that drugs and firearms usually go hand in hand [Doc. 88 p. 9]. When Officer Cook asked the defendant to step out of the vehicle, he had already decided to arrest the defendant "for the drugs" and for giving false identification [Doc. 88 p. 13-14, 21].
Officer Cook frisked the defendant and felt what he believed to be a large wad of cash in the pocket of the defendant's shorts [Doc. 91 p. 7]. Officer Cook did not remove the cash; instead, he handcuffed the defendant and placed him in the back of Officer Gerlach's police cruiser [ id. ]. Officer Cook did not tell the defendant that he was under arrest at that time [Doc. 88 p. 14]. A few minutes later, a female officer arrived on scene, searched Ms. Miller, and found heroin on her person [ id. ]. A K-9 unit subsequently arrived on scene, a police dog alerted on the car, and the car was searched [ id. ].
Based on the recording of the dashboard video camera on Officer Cook's police cruiser, approximately 25 minutes elapsed between the time that Officer Cook handcuffed the defendant and the police dog sniffed the car [Doc. 85, Hearing Ex. Plf. No. 1]. Approximately 34 minutes in total elapsed between the time that Officer Cook initiated the stop and the police dog arrived to sniff the car [ id. ]. After the search of the car, Officer Cook searched the defendant incident to his arrest and removed about $3, 063 in cash, mostly in the form of $20 bills, from the defendant's pocket [ id. ].
Officer Cook later completed a warrant charging the defendant with "resale of heroin." [Doc. 88 p. 22]. As probable cause for the warrant, Officer Cook listed the defendant's nervousness, the statement of Ms. Miller that the defendant had put heroin in her pants, and the cash found on the defendant [Doc. 88 p. 22-23]. Officer Cook did not charge the defendant with providing false identification [Doc. 88 p. 23].
In his original motion papers, the defendant argued that Officer Cook's frisk violated the Fourth Amendment because Officer Cook did not have reasonable suspicion, based on specific and articulatable facts, that the defendant was armed and dangerous [Doc. 79 p. 2-4; Doc. 90 p. 4-7]. The defendant also argued that regardless of whether the frisk was lawful, Officer Cook's seizure of the cash violated the Fourth Amendment because Officer Cook could not have immediately recognized from plain touch that the object he felt was cash in an amount to suggest it may have been contraband [Doc. 79 p. 5-6; Doc. 90 p. 8-9]. Finally, the defendant argued that Officer Cook's testimony about his probable cause to arrest the defendant was contradictory, thereby highlighting the "precariousness of his probable cause determination, " and that the facts and circumstances of the traffic stop do not lead solely to the conclusion that the cash inevitably would have been discovered through a lawful search incident to arrest [Doc. 90 p. 9-10]. Thus, the defendant submitted, the cash should be suppressed.
In the R&R, Magistrate Judge Guyton found: (1) Officer Cook had reasonable suspicion, based on specific and articulatable facts, that the defendant was armed and dangerous, permitting him to lawfully frisk the defendant [Doc. 91 p. 9-14]; (2) during the frisk, Officer Cook felt what he recognized from the feel of the object to be a large amount of cash, and he could have seized it at the time of the frisk [Doc. 91 p. 14-17]; and (3) the cash was properly seized as a search incident ...