United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS
S. THOMAS ANDERSON, District Judge.
Before the Court is Defendant Johnny Graham's Motion to Suppress (ECF No. 23) filed on July 23, 2014. This matter was referred to the United States Magistrate Judge for report and recommendation. Pursuant to the order of reference, the Magistrate Judge conducted a suppression hearing on September 18, 2014, and issued his report (ECF No. 46) on October 24, 2014, recommending that the Motion to Suppress be denied. Since that time the parties have filed a number of supplemental briefs, and the Court has received additional evidence on the objections raised by Defendant. For the reasons set forth below, the Court ADOPTS in part the Magistrate Judge's report and recommendation but GRANTS Defendant's Motion to Suppress.
I. Procedural History
On May 27, 2014, a federal grand jury sitting in the Western District of Tennessee returned an indictment, charging Defendant with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant pleaded not guilty to both counts, and the Court appointed the Federal Public Defender to represent Defendant. On July 23, 2014, the Federal Public Defender filed in the instant Motion to Suppress on Defendant's behalf and represented Defendant at the suppression hearing before the Magistrate Judge on September 18, 2014. The Magistrate Judge issued his report and recommendation on October 24, 2014, recommending that the Motion be denied. Defendant filed timely objections, and on November 14, 2014, submitted a motion to supplement the proof presented at the suppression hearing (ECF No. 54). The United States filed a response (ECF No. 64) to Defendant's objections on December 15, 2014.
On November 11, 2014, Defendant filed the first of two pro se motions for new counsel (ECF Nos. 49, 53). Following a hearing on the motions, the Court granted Defendant's request for a new attorney on December 2, 2014, and appointed replacement counsel. Thereafter, counsel for Defendant requested discovery from the United States and with leave of court filed additional objections (ECF No. 70) to the Magistrate Judge's report and recommendation on January 29, 2015. The government filed its own brief in response (ECF No. 71) to Defendant's supplement. Based on the parties' submissions, the Court found cause to receive additional evidence on the issues raised in Defendant's objections to the report. After a number of continuances, the Court convened a limited evidentiary hearing on May 26, 2015, where the Court heard testimony from Officer Benjamin Dawson of the Memphis Police Department, the arresting officer in this case, and Edward Shaw of the United States Probation Office, Defendant's federal probation officer. At the conclusion of the hearing, the parties requested an opportunity to file more briefs, which the Court granted. Both parties have now filed another round of memoranda (ECF Nos. 90, 91), and the issues presented in the Motion to Suppress are ripe for determination.
II. Factual Background
Based on the testimony and exhibits received at the suppression hearing, the Magistrate Judge reported the following findings of fact.
A. Vehicle Stop
On March 7, 2014, Memphis Police Department (hereinafter "MPD") Officers Benjamin Dawson and Mark Scarborough were working the 7:00 a.m. to 3:00 p.m. shift. At the beginning of the shift, Lieutenant Labonn Lawson conducted a roll call and briefed the officers as to recent crimes in the precinct. The officers were told that a large number of residential burglaries had occurred recently in the early morning hours in the area of the city north of St. Elmo Avenue and west of Range Line Road.
At around 8:45 a.m. that morning, Officers Dawson and Scarborough were in Officer Dawson's police vehicle patrolling the general area where the rash of burglaries had occurred. As Officer Dawson turned east onto Rammesses Drive, he pulled behind a silver Mercedes that was traveling in the same direction. Officer Dawson was twenty to thirty feet behind the Mercedes, which was traveling about thirty miles per hour. Officer Dawson observed that the driver of the Mercedes was not wearing a seatbelt. Specifically, Officer Dawson testified that he could see through the back window of the Mercedes that "the seatbelt strap was following the contour of the vehicle, not being pulled across the subject's body." Defendant maintained that he was, in fact, wearing his seatbelt at the time of the traffic stop. Although Defendant testified that he was, in fact, wearing his seatbelt at the time the officers pulled him over, the Magistrate Judge found Officer Dawson's testimony to be credible and Defendant's testimony to be not credible on this factual dispute.
Officer Dawson turned on his blue lights to initiate a vehicle stop. The Mercedes turned right onto Wagon Wheel Drive and came to a stop just before reaching the intersection with Redvers Avenue. At the time the Mercedes came to a stop, it was parked over twelves inches away from the curb of the street. Officer Dawson exited his patrol vehicle and approached the Mercedes on the driver's side, while Officer Scarborough approached on the passenger's side. Johnny Graham, the driver, was by himself in the vehicle. Officer Dawson confirmed upon approaching Graham that he was not wearing a seatbelt. Officer Dawson asked to see Graham's driver's license. Graham stated that his license had been suspended, and he instead gave Officer Dawson his Tennessee identification card. Officer Dawson observed that Graham was "very nervous, he was stuttering a lot, rambling, trying to make sure that [Officer Dawson] knew that it wasn't his [Graham's] car." (Hr'g Tr. Vol. I at 15.) Officers Dawson and Scarborough observed in the back seat of the vehicle a large flat screen television and a DVD player. In light of the information conveyed to them during roll call, the officers suspected that the items may have been stolen.
At that point, Officer Dawson removed Graham from his vehicle, patted him down for officer safety, placed him under arrest for driving on a suspended license, and put him in handcuffs in the back of the patrol car. According to Officer Dawson, the arrest occurred within five minutes of stopping the vehicle. Officer Dawson ran a check on Graham's Tennessee identification number and was able to confirm that Graham's license was suspended and that Graham was on federal supervised release. Officer Dawson also contacted Graham's probation officer and verified that he was under federal supervision. Graham told Officer Dawson that the television and DVD player in the vehicle belonged to his brother and that he was taking the items to a pawn shop.
B. Decision to Tow and Inventory Search
Officer Dawson was able to verify that Graham was not the registered owner of the Mercedes. Through a records check, Officer Dawson determined that an individual named Isces Williams was the registered owner. Officer Dawson testified that at that point, he made the decision to tow the Mercedes because it was not legally parked. The officers testified that the vehicle was illegally parked because it was more than twelve inches from the curb in violation of Memphis City Ordinance 11-40-2(A)(2). Moreover, photographs taken of the Mercedes and its proximity to the curb show the vehicle parked more than twelve inches from the curb.
The MPD has a written "Tow-In" policy that governs when officers may tow an arrestee's vehicle. According to the policy:
When an officer arrests a defendant and the defendant's vehicle is not needed as evidence, the officer is required to allow the defendant to leave the vehicle at the scene of arrest if the defendant so desires and it is legally parked. The defendant cannot, however, park a vehicle on private property without the consent of the property owner/management. The defendant may authorize a third party at the scene who is not under arrest to legally park the vehicle. The defendant will not be allowed to move his vehicle once he has been arrested. Under no circumstances will an officer on the scene drive the vehicle with or without the owner's consent. These options must be explained to the defendant before the decision to tow is made.
If a vehicle cannot be legally parked, left on private property with permission, or released to a third party, then the vehicle should be towed to the City Impound Lot. A supervisor must be contacted prior to requesting a wrecker. If the vehicle is left at the scene or is released to a third party, a hold harmless agreement must be signed by the defendant. The signed hold harmless agreement should be filed at the precinct with the officer's other paperwork at the conclusion of the shift.
The officers testified that Officer Dawson called for a tow truck, and while waiting for the tow truck to arrive, the officers performed an inventory search of the Mercedes.
Along with the television and DVD player, Officer Dawson found a black backpack on the floorboard behind the driver's seat. The backpack contained barber supplies and two handguns. Once Officer Dawson found the handguns, he called Lieutenant Lawson to alert him of the situation and also called for one more units to help secure the scene. Officer Jeremy Montgomery soon arrived on the scene to assist with the traffic stop, and Lieutenant Lawson arrived sometime thereafter. Officers ran the serial number on the television and the vehicle identification number on the Mercedes and determined that neither had been reported stolen. At some point while Graham was in custody at the scene, he signed a Miranda rights waiver form and provided a written statement admitting to possession of the firearms. The vehicle was later towed to the city impound lot.
C. Arrival of Defendant's Relatives at the Scene
At some point during the stop, several individuals approached the officers, including Graham's brother, Jernard Graham, and his cousin, Michael Graham. The officers testified that these individuals did not appear at the scene until after the decision was made to tow the Mercedes and after the officers had found the firearms. Specifically, Officer Dawson testified that other individuals arrived on the scene "after we had discovered the two handguns in the back seat and we had Mr. Graham in custody and we were finishing up our paperwork and waiting on the wrecker to show up." Officer Dawson continued:
Q. Now, there was testimony about individuals coming to the scene, correct?
A. Yes, ma'am.
Q. Individuals that you had not had any contact prior to this incident, correct?
Q. And at the time these individuals were coming to the scene, had you already conducted a search?
A. Yes, ma'am
Q. And as displayed in Exhibit 2, had you already recovered the firearms?
A. Yes, ma'am.
Q. Were they placed on the hood of the car?
A. Not when the subjects were walking up, we had them inside the patrol vehicle.
Q. You had already removed those from the vehicle?
A. Yes, ma'am.
Q. But all the items that were the subject - or which is the subject of this motion to suppress, these two firearms had already been recovered by you?
A. Yes, ma'am.
Q. Officer Dawson, the individuals, how many did you say there were that were ...