United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
H. LIPMAN UNITED STATES DISTRICT JUDGE
the Court is Joseph Reid's (“Defendant”)
Motion to Suppress Evidence and Supporting Memorandum of Law,
filed January 5, 2018. (ECF No. 18.) The Court referred the
Motion to Magistrate Judge Pham for Report and Recommendation
on January 9, 2018. (ECF No. 19.) The Government filed its
Response in Opposition on January 16, 2018 (ECF No. 20), and
a supplemental response on January 29, 2018 (ECF No. 22).
Magistrate Judge Pham held an evidentiary hearing on January
March 6, 2018, Magistrate Judge Pham issued a Report and
Recommendation (the “Report”), recommending that
the Motion be denied. (ECF No. 30.) Defendant filed
objections to the Report on March 20, 2018, arguing that
Magistrate Judge Pham made errors in both his findings of
fact and his conclusions of law. (ECF No. 31.) Thereafter,
pursuant to Local Rule 72.1(g) and the Court's Order
Directing Government to Respond (ECF No. 32), the Government
filed a Response to Plaintiff's Objections on April 9,
2018 (ECF No. 33). As is more fully articulated herein, the
Court ADOPTS the Magistrate Judge's
Report and Recommendation and DENIES
Defendant's Motion to Suppress Evidence.
29, 2017, the Grand Jury returned an indictment charging
Defendant with one count of being a felon in possession of a
firearm. (ECF No. 2.) At the evidentiary hearing on this
Motion, the Government called as witnesses two officers with
the Memphis Police Department, Lieutenant Andre Pruitt and
Detective Cody Mills. Defendant called one witness, Detective
Victoria Edwards, also of the Memphis Police Department. The
events surrounding the arrest are recounted below, based on
the testimony at that hearing. (See Mot. to Suppress
Hr'g Tr., ECF No. 27.)
around 5:00 p.m. on November 30, 2016, Memphis police
officers were performing an enhanced patrol in the Douglas
neighborhood of Memphis, Tennessee, a neighborhood described
by both Lieutenant Pruitt and Detective Mulls as “high
crime.” (Id. at 12, 19, 25, 61.) As part of
the enhanced patrol, Lieutenant Pruitt stated that he
surveilled certain areas in an unmarked police car while
several other officers in marked cars remained in the
vicinity. (See id. at 15, 19, 23.) During his
patrol, Lieutenant Pruitt noticed four men loitering in a
vacant lot near a corner store on Chelsea Avenue.
(Id. at 12-14.) Pruitt testified that the men were
going back and forth between buildings adjoining the lot.
(Id. at 14.) He also testified that there is a drug
house behind the store and that he had made previous drugs
arrests in that area. (Id.)
observing the four loiterers for approximately twenty
minutes, Lieutenant Pruitt called the officers in marked
police cars to come and conduct a consensual encounter.
(Id. at 15, 20.) According to both Lieutenant Pruitt
and Detective Mills, when the officers arrived on the scene
in the marked cars, the loiterers “scattered, ”
and Defendant “walked quickly” or jogged into the
corner store. (Id. at 16, 44, 77.) Lieutenant Pruitt
followed Defendant into the store and smelled marijuana as he
approached Defendant. (Id. at 17.) He then grabbed
Defendant, walked him out of the store and passed him off to
Detective Mills. (Id. at 17-18.) Pruitt stated that
he removed Defendant from the store so that Defendant did not
think that the store owner coordinated with the police and so
that business inside the store could resume. (Id. at
48.) Pruitt also testified that, in his experience, people
involved in drug trafficking sometimes carry firearms.
(Id. at 19.)
Mills testified that, “as soon as [Defendant] walked
outside, [Mills] smelled a very strong odor of marijuana
coming from [Defendant].” (Id. at 53.) Upon
receiving Defendant from Lieutenant Pruitt, Mills tried to
talk with him, but Defendant did not respond to the
questions. (Id. at 57.) Mills testified that
Defendant was “nervous and shaky” and began
looking “left and right, as if he was looking for an .
. . escape route . . .” when Mills asked him to turn
around to be patted down. (Id.) Because of
Defendant's conduct and the smell of marijuana, Mills
handcuffed Defendant for officer safety before patting him
down. (Id. at 57- 58.) Mills also stated that, in
his experience, people who deal drugs sometimes carry
firearms. (Id. at 60-61.) During the pat down, Mills
found a handgun, a large bag of marijuana, two pills and one
hundred ninety-six dollars in cash. (Id. at 58.)
Defendant was then arrested and now seeks to suppress the gun
found during the search.
magistrate judge may submit to a judge of the court proposed
findings of fact and recommendations for certain pre-trial
matters. 28 U.S.C. § 636(b)(1)(B). “Within 14 days
after being served with a copy of the recommended
disposition, . . . a party may serve and file specific
written objections to the proposed findings and
recommendations.” Fed. R. Crim. P. 59(b)(2); see
also 28 U.S.C. § 636(b)(1). A district court
reviews de novo only those proposed findings of fact
or conclusions of law to which a party specifically objects.
28 U.S.C. § 636(b)(1); see also Fed. R. Crim.
P. 59(b)(3). “A general objection that does not
identify specific issues from the magistrate's report is
not permitted because it renders the recommendations of the
magistrate useless, duplicates the efforts of the magistrate,
and wastes judicial economy.” Johnson v.
Brown, 2016 WL 4261761, at *1 (E.D. Kent. August 12,
2016) (citing Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991)). After
reviewing the evidence, 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)(C).
appears to object to the Report on two grounds. First,
Defendant objects to Magistrate Judge Pham's factual
findings based on Lieutenant Pruitt's testimony. (ECF No.
31 at 2.) Second, Defendant objects to Magistrate Judge
Pham's legal conclusion that Lieutenant Pruitt and
Detective Mills conducted a proper Terry stop.
(Id. at 4-7.) The Court addresses Defendant's
objections in turn.
Defendant states that he objects to Lieutenant Pruitt's
testimony being found “persuasive.” (Id.
at 2.) Defendant's diction leaves the Court unclear as to
whether he is challenging Judge Pham's finding that
Lieutenant Pruitt's testimony was credible or Judge
Pham's ultimate factual conclusions based on Pruitt's
testimony. Therefore, the Court addresses both.
first collection of objections concerns Judge Pham's
conclusion that Lieutenant Pruitt observed men loitering and
milling about between vacant buildings before he called the
officers in marked cars. (Id. at 2.) Specifically,
Defendant argues that Pruitt testified that he did not see
anyone walk toward the known drug house or see any drug
transactions take place. (Id.) Instead, according to
Defendant, Pruitt testified that he saw people and cars
coming and going but no suspicious activity. (Id ...