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United States v. Cline

United States District Court, E.D. Tennessee

January 18, 2017




         This criminal action is before the Court on the Report and Recommendation of Magistrate Judge C. Clifford Shirley, Jr., entered on December 14, 2016 [Doc. 67] (the “R&R”), which addresses the defendant's motions to suppress [Docs. 35, 59] and motion to dismiss the superseding indictment [Doc. 43]. After consideration of the defendant's motions, Judge Shirley recommends that the defendant's motions to suppress [Docs. 35, 59] be granted in part and denied in part, in that the firearm seized from the defendant's van should be suppressed. Judge Shirley also recommends that the defendant's motion to dismiss the indictment [Doc. 43] be denied. The defendant filed an objection to the R&R [Doc. 68]. The government also filed an objection [Doc. 70], to which the defendant responded [Doc. 71].

         I. Background

         The Court presumes familiarity with the R&R in this case, but for purposes of background, includes the following findings of fact as articulated in the R&R:[1]

In the month or weeks leading up to Thanksgiving 2013, [Tennessee Wildlife Resources Agency (“TWRA”)] wildlife officers received several complaints of illegal hunting from landowners on Mannis Road in Monroe County, Tennessee. Specifically, they received complaints of individuals hunting from the road. Wildlife Officers Kip Kite and Joe Pike decided to conduct a deer decoy operation on Thanksgiving Day, which is a popular day to hunt, in order to catch the individuals hunting from the road. In preparation for the deer decoy operation, Officers Kite and Pike scouted a location on Mannis Road that was located away from houses and contained a field and brush on the edge of woods, which is an environment where deer are likely to be found. Officer Kite contacted Ms. Sondra Strickland, who owned the property upon which he sought to locate the decoy deer. Ms. Strickland, who had inherited the property on Mannis Road and who lived in Murfreesboro, had complained of people hunting on her property and agreed to the request. Unbeknownst to Officer Kite, Ms. Strickland's property abutted the property of Mr. John Ruggiero, who owned the field between Mannis Road and the site where the decoy deer was placed. Mr. Ruggiero's field contained a driveway with a gate. The TWRA officers did not contact Mr. Ruggiero about the placement of a decoy deer.
On the morning of November 28, Thanksgiving Day, 2013, Officer Kip Kite placed the decoy deer in the brush at the edge of a field on Mannis Road. The decoy deer could be seen by persons driving north on Mannis Road but not by those driving south. Officer Kite and Officer Lee hid on an embankment eight to ten feet from the road to observe and record any violators. Officer Pike was stationed in a vehicle on one end of Mannis Road, and Sergeant Ben Davis and Officer Gray waited in their vehicle on the other end of Mannis Road. The officers in vehicles were responsible for stopping violators fleeing the scene of the decoy deer.
Between 9:45 a.m. and 10:00 a.m., an individual wearing camouflage and driving a silver minivan traveled past the location of the deer decoy and continued north on Mannis Road, without stopping or braking. Approximately thirty minutes later, William Frank, driving a purple Toyota pickup truck and traveling south on Mannis road, pulled into the driveway across from the decoy and stopped in front of the gate. Within thirty seconds, the Defendant, driving a silver minivan and also traveling south on Mannis Road, pulled onto the side of the road, blocking in the truck. Frank got out of the truck and shot in the direction of the decoy. The Court finds that the Defendant did not fire a shot at the decoy deer. Frank then jumped back in his truck. The Defendant drove the minivan forward a short distance to allow Frank to back the truck out of the driveway. Frank paused briefly beside the Defendant's minivan, before driving south on Mannis Road. The Defendant then drove south on Mannis Road, following the truck.
Officer Kite radioed that the driver of the truck had shot at the decoy and that the truck and minivan were fleeing in Officer Pike's his direction. Officer Kite directed the other officers to stop both vehicles because they were working together.
Officer Pike activated his siren and blue lights and stopped the truck at the top of a hill. The minivan, driven by Defendant Cline, then began backing rapidly down the hill. Sergeant Davis, also traveling south on Mannis Road, saw the minivan backing down the hill and activated his lights and siren. The Defendant, who appeared to be leaning toward the center of the van, backed into a driveway and stopped. Sergeant Davis got out, walked toward the Defendant, and twice ordered him to raise his hands. The Defendant complied, after the second command. Sergeant Davis removed the Defendant from the minivan and frisked him. While frisking the Defendant, Sergeant Davis looked through the side window and saw the muzzle of a rifle, which was partially covered by a camouflage jacket, protruding from between the driver's and passenger's seats. Sergeant Davis removed a .270 round from the Defendant's front pants pocket and placed it on the driver's seat. Sergeant Davis then leaned into the van, removed the rifle, unloaded three .270 rounds from the rifle, and placed the rifle in his vehicle. The Court finds that Sergeant Davis took the rifle out of the minivan because he believed it was associated with deer hunting, which was the crime he was investigating. However, the Court also finds that Officer Kite radioed Sergeant Davis and Officer Pike that the shooter was in the truck and that Sergeant Davis admitted that Officer Kite did not tell him that the driver of the minivan had shot at the decoy, had a weapon, or had done anything other than be present at the scene.
Sergeant Davis asked the Defendant to identify himself and what he was doing. The Defendant said the rifle did not belong to him, but instead belonged to Donna Frank. The Defendant told Sergeant Davis that he had been hunting with a muzzleloader earlier that day, but had taken the muzzleloader home. A records check of the van's license tag revealed that the van was registered to Donna Frank. Officer Pike wrote citations for both the Defendant and the driver of the truck for illegal hunting, and they were permitted to leave.
In the week following November 28, 2013, Special [Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)] Agent Lamar “Marty” English, who was investigating the Defendant for an unrelated matter, learned of the hunting citation and asked Sergeant Davis and Officers Kite and Pike to prepare statements detailing their involvement in the stop of the Defendant and seizure of the rifle. The three TWRA officers created these statements on computers, printed them without saving them, and then delivered them to Agent English either directly or through Sergeant Davis. None of the three TWRA officers retained a copy of his statement. After the statements were created and printed, the TWRA replaced the officers' computers without transferring any data from the old computers. In the spring of 2016, while preparing for trial, the TWRA officers told the prosecutor about the written statements. A search of computer and paper ATF files revealed only the statement of Officer Kite in the paper file in the Knoxville ATF office. ATF Agents English, John Freeman, and Jason Dobbs, the three ATF agents who were assigned to this case, all testified that they did not destroy or intentionally lose the statements of Officer Pike and Sergeant Davis.

         II. Standard of Review

         A court must conduct a de novo review of those portions of a magistrate judge's report and recommendation to which a party objects unless the objections are frivolous, conclusive, or general. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “Objections disputing the correctness of the magistrate's recommendation, but failing to specify the findings believed to be in error are too general and therefore insufficient.” Stamtec, Inc. v. Anson, 296 F. App'x 516, 519 (6th Cir. 2008) (citing Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006)). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by the magistrate judge. 28 U.S.C. § 636(b)(1).

         III. Analysis

         Both the defendant and the government have filed objections to parts of Judge Shirley's R&R. The Court will first address the defendant's objections, and then the government's objection.

         A. The Defendant's Objections

         The defendant objects to Judge Shirley's determinations that: (1) Sergeant Davis had reasonable suspicion to stop the defendant in connection with illegal hunting; (2) Sergeant Davis had probable cause to stop the defendant for committing a traffic infraction; and (3) the superseding indictment should not be dismissed. The Court will address each objection in turn. As an initial point, the Court notes that in the R&R Judge Shirley recommended that the Court not suppress certain statements made by the defendant at the scene of his stop. Although the defendant filed an objection to parts of the R&R, he did not raise an objection to Judge Shirley's recommendation regarding the suppression of these statements. As such, the Court will accept this portion of the R&R without further analysis.

         1. Reasonable Suspicion of Illegal Hunting

         The defendant first objects to Judge Shirley's conclusion in the R&R that Sergeant Davis had reasonable suspicion to stop the defendant to investigate his participation in illegal hunting [Doc. 67 p. 36].

         A brief, investigative stop, or Terry stop, is legally conducted by an officer “who is able to point to specific and articulable facts justifying his or her reasonable suspicion that the suspect has been or is about to be involved in criminal activity.” See United States v. Martin, 289 F.3d 392, 396 (6th Cir. 2002), see also Terry v. Ohio, 392 U.S. 1 (1968). When determining whether an officer had reasonable suspicion to conduct a Terry stop, a court considers the totality of the circumstances. See United States v. Arvizu, 534 U.S. 266, 273 (2002). “Although an officer's reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274 (internal quotation marks omitted). “The scope of law enforcement activities in a [Terry] stop depends on the circumstances that originally justified the stop.” Martin, 289 F.3d at 396. In some situations, the officer is permitted “to ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions.” See id.

         In the R&R, Judge Shirley found under the totality of the circumstances that Sergeant Davis had reasonable suspicion to stop the defendant and investigate his participation in illegal hunting [Doc. 67 p. 36]. In support of his position that Judge Shirley's finding is incorrect, the defendant raises the following arguments: (1) several facts were not clear as to the record, underscored, and/or not included in the R&R's analysis and conclusion; (2) Judge Shirley improperly based his conclusion in part on a communication between Frank and the defendant shortly after ...

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