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United States v. Fulton

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

August 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS FULTON, SR., Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO SUPPRESS

          SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE

         Before the Court is Chief Magistrate Judge Diane K. Vescovo's Report and Recommendation (“R&R”), filed on July 30, 2019, recommending that the Court deny Defendant's Motion to Suppress. (ECF No. 59.) Defendant seeks to suppress drugs, a firearm and ammunition discovered during a warrantless police search on July 29, 2016, arguing that they are the product of an illegal search and seizure. (Id. at 2-3.) Judge Vescovo, upon consideration of the evidence, determined that no violation of the Fourth Amendment occurred as the officers were justified in their search of Defendant's vehicle pursuant to both the Automobile and Plain View Exceptions.[1]

         On August 14, 2019, Defendant filed objections to the Chief Magistrate Judge's R&R. (ECF No. 61.) He agrees that “[t]he vast majority of the Magistrate Court's proposed findings of fact are without dispute.” Id. However, he objects to the Chief Magistrate Judge's conclusion that Automobile and Plain View Exceptions apply, arguing that the officers lacked probable cause to conduct their search. Id.

         Following the entry of the R&R, the Court held a report date and discussed the procedural posture of this Motion. In response to the Court's question as to whether another evidentiary hearing was necessary, both parties requested that the Court view the body camera videos of Sergeant Travis Beraud and Officer Samuel Parker, which were originally submitted as exhibits to the Defendant's Motion to Suppress to the Chief Magistrate Judge. (See Gov. Exs. 1-1 “Beraud Footage” & 1-2 “Parker Footage”.) The Court has viewed the body camera videos and also reviewed the transcript of the May 14-15, 2019, evidentiary hearing on the motion before the Chief Magistrate Judge.

         For the reasons more fully outlined below, Judge Vescovo's Report and Recommendation is ADOPTED, Defendant's objections are OVERRULED and his Motion to Suppress is DENIED.

         FACTS

         The following facts are taken from uncontested portions of Judge Vescovo's R&R, the hearing testimony and the body camera videos of Sergeant Beraud and Officer Parker.

         On July 29, 2016, officers were dispatched to the Lauderdale County Hospital in Ripley, Tennessee, in response to the hospital admitting two patients with gunshot wounds. Officer Parker arrived at the hospital and noticed a vehicle in the parking lot with its hazard lights on, two gunshot holes in the windshield and a shattered window. He checked the license plate information with the dispatcher and was informed the vehicle belonged to one of the gunshot victims, now Defendant. He posted security on the vehicle as other officers and detectives arrived, including Sergeant Beraud and Sergeant Louis Ruff. Officer Parker can be seen on Sergeant Beraud's body camera footage looking through the passenger side window pointing out what he states is “dope” in a plastic bag in plain view on the front passenger seat and stating that he can “smell weed” in the vehicle. (Beraud Footage at 18:12:19-24.) Sergeant Beraud agreed. Id. Sergeant Ruff also viewed and smelled marijuana upon his initial inspection of the vehicle. (Hearing Transcript, May 14, 2019, pps. 68-69.) At that point, no officer had conducted any search of the vehicle. (Beraud Footage at 18:12:05.)

         Minutes later, from the other side of the vehicle, Officer Parker emphatically exclaimed that he could plainly see cocaine on the passenger seat, to which Sergeant Beraud states “yep, that's crack.” (Id. at 18:19:05-11). This can all be seen on Sergeant Beraud's body camera video. The search begins some time after the suspected marijuana and cocaine are seen. After the search and seizure of the drugs, ammunition and a grinder, Officer Parker has a conversation with another officer regarding whether they should search for a gun. (Parker Footage 18:55:06- 18:56:46). The seizure of the gun, however, is not caught on camera.

         At no point did any officer seek a search warrant.

         ANALYSIS

         A magistrate judge may submit to a judge of the court proposed findings of fact and recommendations for dismissal of a complaint. 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.Civ.P. 72(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. Id.; see also Fed.R.Civ.P. 72(b)(3).

         Defendant objects to the Chief Magistrate Judge's Recommendation that the Automobile Exception and Plain View Doctrine justify the search in this case. Defendant argues that, based on the totality of the circumstances test, the officers did not have probable cause. He specifically points to the fact that Officer Parker stated on cross-examination that he could not tell the difference between burnt and raw marijuana, the officers were not “certain” the suspected drugs they observed were in fact drugs and Sergeant Ruff could not recall whether the drugs had been seized prior to his search and seizure of the firearm from the vehicle.

         A. Automo ...


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