United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
T. FOWLKES, JR. United States District Judge.
the Court is Jason Henderson's (“Defendant”)
Motion to Suppress filed on July 22, 2016. (ECF No. 22). On
July 27, 2016, this Court referred this motion to Chief
Magistrate Judge Diane K. Vescovo for report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
(ECF No. 23). The Magistrate Judge issued a Report and
Recommendation on Defendant's Motion to Suppress on
December 8, 2016. (ECF No. 43). Defendant filed objections to
the Magistrate Judge's Report and Recommendation on
December 22, 2016. (ECF No. 44). After a de novo
review, the Court finds that the Report and Recommendation
should be adopted.
Court may refer a motion to a suppress in a criminal matter
to a magistrate judge for the purpose of conducting an
evidentiary hearing and to submit proposed findings of fact
and recommendations for the disposition of the motion. 28
U.S.C. § 636(b)(1)(B). The Court must “make a
de novo determination of those portions of the
report or specific proposed findings or recommendations to
which objection is made.” 28 U.S.C. §
636(b)(1)(C). However, the Court is not required to conduct a
de novo evidentiary hearing as part of its de
novo review. United States v. Raddatz, 447 U.S.
667, 674 (1980). After reviewing the evidence, the Court is
free to accept, reject, or modify the proposed findings or
recommendations of the magistrate judge. 28 U.S.C. §
HISTORY AND REVIEW
October 16, 2015, Officers Aaron Putman (“Officer
Putman”) and Michael Bartlett (“Officer
Bartlett”) were patrolling the Airways Boulevard
Precinct. The officers were traveling in separate, marked
police vehicles. Around 9:00 p.m., Officer Putman observed a
red vehicle with two passengers, both in the front seats,
turning right off Hemlock Street onto South Parkway, heading
east. Officer Putman indicated that the street, from which
the vehicle came, Hemlock, was a high drug and high crime
area: “there is just a lot of crime on that street, a
lot of heroin, cocaine…. and marijuana as well.”
The drug crimes included both use and sale of drugs. Officer
Putman testified that he observed that the red vehicle had a
cracked front windshield, obstructing the driver's view
and creating a prism effect from oncoming traffic.
Subsequently, Officer Putman pulled over the red car at the
corner of South Parkway and Willett Street, in front of a
small convenience store.
the car came to a stop, Officer Putman testified that he
approached the driver's side on foot, while Officer
Bartlett approached the passenger's side on foot. Officer
Putman stated that once the Driver, later identified as
Miller, rolled down her window, he smelled a “faint
odor of marijuana” coming from inside the vehicle.
Later, Officer Bartlett, too, testified that he smelled that
faint order of marijuana from his vantage point on the
passenger side of the vehicle. Officer Putman did not see
anything in plain view, but he testified he was concerned
about his safety because drugs and weapons go together. Based
on his experience in dealing with drugs on the streets,
Officer Putman knew that occupants often have guns in the
car. Officer Putman asked Miller to provide her driver's
license. After Miller complied with his request, Officer
Putman asked her to exit her vehicle. They both walked over
to Officer Putman's patrol car and engaged in
conversation. Eventually, Officer Putman obtained consent
from Miller to search her vehicle.
recording of a portion of the stop was introduced into
evidence during the suppression hearing. When started, the
video shows that the driver of the vehicle is already out of
the vehicle and is conversing with Officer Putman. Officer
Bartlett is already on the passenger side of the vehicle,
ostensibly watching the passenger. Obviously, that which
transpired prior to the start of the video is not shown.
Although no hand or body signal is visible on the portion of
the video recording showing the stop, Officer Bartlett, in
some way communicated to Officer Putman his concern about the
passenger, that “something was wrong.” Officer
Bartlett testified that Defendant repeatedly “kept
moving around and would look over to the center console and
he would come back to himself. Then he would like just
readjust himself in the seat and then look back, and he just
kept looking back at us, seeing what we were doing, where we
were….I was just like - he seem nervous.”
Officer Bartlett indicated that Henderson's actions gave
him cause for concern, because Henderson “could grab a
weapon-he was free to do anything at that point.”
Bartlett asked Defendant to exit the vehicle and passed him
to Officer Putman to be patted down. When Defendant exited
the vehicle, he had his hands in the air. Officer Putman then
instructed Defendant to walk behind Miller's vehicle.
Officer Putman then placed his right hand on Defendant's
back or shoulder to guide him to the correct spot on the
vehicle for a pat- down. He also asked Henderson to place his
hands on the back of Miller's vehicle. Before Officer
Putman was able to perform a pat-down, Defendant spun off the
car and ran. After Defendant had taken approximately two
steps, Officer Putman saw and heard the gun fall to the
street. Eventually, Officer Bartlett apprehended Defendant.
makes several objections to the Magistrate's findings of
fact. First, Defendant states that the Magistrate erroneously
found that Officer Putman identified the passenger as
Henderson. Defendant argues that there was no testimony that
he ever identified the passenger as Mr. Henderson during the
traffic stop. The Court does not understand this objection,
and can only speculate as to its meaning. The Magistrate
Judge did not find that the officer knew and identified
Henderson at the time of the traffic stop. The Magistrate
Judge only found that Officer Putman identified the passenger
as Henderson. This is verified in Putman's testimony at
page 15 where Henderson was identified during hearing.
Defendant states that the Magistrate erroneously found that
the video depicted the sequence of events described by
Officer Bartlett and Putman. Defendant states that both
officers testified that Officer Bartlett gave Officer Putman
a physical signal because Defendant kept moving around.
Defendant asserts that upon cross examination, Officer
Bartlett changed his testimony as to the physical signal.
However, nearly everything the officers testified to is
verified by the video recording. Defendant adds that the
testimony of the driver contradicts the Officer's
testimony because she never heard either Officer ask Mr.
Henderson any questions. Again, the Court does not understand
the import of Henderson's reference to the driver's
testimony. In this regard, the Court notes that Ms. Miller
was never asked if the Officers ever spoke or communicated
with each other during the stop.
Defendant states that the Magistrate erroneously found that
Officer Bartlett testified that he took Defendant's
identification and ran it on his PDA. Defendant asserts that
if Officer Bartlett had run Defendant's identification on
his PDA, he would have known that Defendant was a convicted
felon. Thus, Defendant asks this Court to speculate as to
what information, if any, the Officer should have obtained.
The Court declines the offer to engage in such speculation.
Defendant asserts that the video fails to corroborate any of
Officer Bartlett's testimony as to Defendant's
alleged nervous behavior. This observation is true and
accurate, since during most of the video recording, the
passenger door of the vehicle is closed.
concludes his factual objections by stating that the
“Magistrate's determination of credibility of the
officer to the exclusion of every other witness and exhibit
in this case is contradicted by the video evidence and
supported by a single post-hoc rationalization that, because
the officers found marijuana on Mr. Henderson, then all of
their testimony must be true.” Defendant requests that
this court reject the Magistrate's findings of fact and
hear the matter de novo.
review of the Magistrate Judge's factual findings, the
Suppression Hearing transcript, the exhibits from the hearing
and Defendant's factual objections, the Court finds that
Defendant factual objections must be overruled. It is clear
that the Magistrate Judge's factual findings are based
upon the evidence presented during the suppression hearing.
The Court accepts and adopts the Magistrate Judges'
factual findings as well as her conclusions about the
Officers' credibility. The Defendant urges this Court to
conclude that the Officers' testimony is unreliable.
Defendant points to several inconsistencies in the
Officers' testimony, and argues that they are so
egregious as to render their testimony incredible. The Court
is not surprised that there are a few inconsistencies between
the Officers' testimony, and would be surprised if there
were none. However, after reviewing the entire record,
including the entirety of all testimony and the video
recording, the Court finds that the inconsistencies
identified by Defendant are insignificant and are of little
or no consequence. Further, there is no need for this Court
to conduct a de novo evidentiary hearing.
contends that the Magistrate Judge made three legal
conclusions. These legal conclusions are: 1) there was a
legal traffic stop in this matter; 2) the scope of the
traffic stop did not violate the Fourth Amendment as the
request for Mr. Henderson to exit the vehicle was a de
minumus intrusion on his personal liberty and because
Ms. Miller had given Officer Putman consent to search the
vehicle; and 3) Mr. Henderson was not frisked, but even if he
had been, the frisk was justified under the Fourth Amendment.
(ECF No. 44 at 6). Defendant states “without conceding