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United States v. Henderson

United States District Court, W.D. Tennessee, Western Division

February 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON HENDERSON, Defendant.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          JOHN T. FOWLKES, JR. United States District Judge.

         Before 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.[1] (ECF No. 44). After a de novo review, the Court finds that the Report and Recommendation should be adopted.

         STANDARD OF REVIEW

         The 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. § 636(b)(1)(C).

         FACTUAL HISTORY AND REVIEW

         On 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.

         After 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.

         A video 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.”

         Officer 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.

         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.

         Second, 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.

         Next, 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.

         Finally, 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.

         Defendant 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.

         After a 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.

         LEGAL ANALYSIS

         Defendant 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 his ...


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