United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR., UNITED STATES DISTRICT JUDGE
the Court is the Magistrate Judge's Report and
Recommendation (the “Report”), dated December 1,
2017. (ECF No. 40.) The Report recommends that Defendant
Demario Allen's Motion to Suppress (ECF No. 21) be
denied. (Id. at 165.) Allen filed timely objections
to the Report on December 20, 2017. (ECF No. 46.) The same
day, the Government stated that it had no objection to the
Report's findings of fact or conclusions of law. (ECF No.
reasons stated below, Allen's objections are OVERRULED
and the Report is ADOPTED. Allen's Motion to Suppress is
morning of March 28, 2016, Officer Marc Kloek of the Memphis
Police Department (“MPD”) responded to a call for
an auto theft at 4840 Bowen Avenue in Memphis, Tennessee
(“the Residence”). (Evid. Hr'g Tr., ECF No.
34 at 56:11-22, 62:25-17:2.) At the Residence, Officer Kloek
noticed a white truck in the yard and a white Mercury Sable
in the driveway. (Id. at 57:3-6, 63:3-9.)
Kloek was met at the Residence by Candice Burchett, who told
him that her silver vehicle had been stolen. (Id. at
56:24-1.) Allen was also present at the Residence.
(Id. at 65:11-23.) According to Officer Kloek,
Burchett was polite and cooperative. (Id. at
57:9-11.) When Officer Kloek completed the report about
Burchett's stolen vehicle, he returned to patrol service.
(Id. at 57:16.)
hours later, Officer Kloek heard a radio report of a robbery
involving a white truck and a white Mercury Sable.
(Id. at 57:21-12:2, 66:19-21.) Recognizing the
description of the vehicles he had seen at the Residence,
Officer Kloek returned to the Residence and saw a white truck
and a white Mercury Sable. (Id. at 58:5-19.)
Kloek knocked on the door and asked Burchett if she knew
anything about a robbery. (Id. at 58:11-13.) Officer
Kloek noticed that Allen was at the Residence. (Id.
at 58:21-13:9.) According to Officer Kloek, Burchett was not
cooperative, so he stopped questioning. (Id. at
58:11-15.) Officer Kloek left the Residence to confer with
Officer Manuel Saldana, who had responded to the robbery
report. (Id. at 70:6-25:4.)
Kloek and Saldana returned to the Residence with the robbery
victim to conduct a “single shot” -- a procedure
that allows the victim an opportunity to identify a
perpetrator after an incident. (Id. at 59:23-14:8,
71:1-13.) The victim identified Burchett from the robbery.
(Id. at 72:21-23.)
Burchett had been positively identified by the robbery
victim, she was handcuffed and detained in the back of
Officer Kloek's squad car for approximately fifteen
minutes until a lieutenant arrived. (Id. at
73:10-17.) Based on Burchett's statements, the officers
concluded that Allen was no longer at the Residence.
(Id. at 79:19-25, 86:6-8.) Officer Kloek also
noticed the white truck that had been on the property was
gone. (Id. at 79:17-20.)
after Burchett had been detained, several of Burchett's
family members arrived to retrieve Burchett's children.
(Id. at 91:3-5, 88:15-22.)
Greenleaf. then arrived at the Residence. He
contacted Allen by telephone and attempted to convince Allen
to return to the Residence. (Id. at 91:6-19.) Allen
then emerged from the Residence, speaking on the telephone
with Lieutenant Greenleaf. (Id. at 91:21-25.)
Officer Saldana and another officer took Allen into custody
as Allen walked out of the Residence. (Id. at
92:24-25, 93:2-3.) Allen was handcuffed and placed in the
back of a squad car. (See id. at 102:25; 120:16-18;
125:11-13.) Burchett's children also emerged from the
Residence. (Id. at 92:8-12.)
John Hampton and Officer Theresa Alcover arrived at the
Residence. (Id. at 102:19-25, 103:1-3.) By then,
three squad cars, three officers, and two lieutenants were at
the Residence. (Id. at 115:24-25, 116:1-5.)
Hampton determined through a utility database that Burchett
paid the utilities at the Residence. (Id. at
96:11-19.) Burchett also told the officers that she rented
the Residence. (Id. at 106:6-7.)
Joshua Stanley arrived at the Residence. (Id. at
124:5-23.) He spoke with Allen while Allen was detained.
(Id. at 125:11-13.). Officer Stanley does not recall
Allen objecting to the search of the Residence. (Id.
at 127:1-7; 130:2-12.)
Allen was detained, Detective Hampton and Officer Alcover
spoke with Burchett, asked for consent to search the
Residence, and provided Burchett a consent-to-search form.
(Id. at 96:20-24.) After describing the contents of
the form to Burchett, the officers removed Burchett's
handcuffs. (Id. at 112:23-25.) Without asking any
questions or becoming observably agitated, Burchett reviewed
and signed the consent forms to search the Residence and
vehicles. (Id. at 96:24, 100:23-25, 101:1-4.)
then accompanied the officers in searching the Residence.
(Id. at 61:7-24.) Officers found articles matching
the description of those stolen from the robbery victim and a
firearm and ammunition in the Residence and garage. (See
Id. at 97:4-8, 100:20-22, 101:14-19, 117:14-17.)