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United States v. Tripps

United States District Court, N.D. Georgia, Atlanta Division

March 7, 2017

UNITED STATES OF AMERICA,
v.
ALAN ALBERT TRIPPS, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation [45] (“R&R”). The R&R recommends that the Court deny Defendant Alan Albert Tripps' (“Tripps”) Motion to Suppress Evidence [20] (“Evidence Motion”) and grant Tripps' Motion to Suppress Statements [34] (“Statements Motion”) (sometimes collectively referred to as the “Suppression Motions”). The Magistrate Judge recommends the Statements Motion be granted except that Tripps' post-arrest, pre-Miranda statements are admissible for impeachment if Tripps testifies at trial. Also before the Court is Tripps' Objection to Magistrate's Report and Recommendation [48] (“Objection”).

         I. BACKGROUND[1]

         On January 7, 2016, Officer Brian Washington of the Marietta Police Department, while on his routine patrol duty, observed a silver Jetta, driven by Tripps, make an illegal U-turn. (Transcript of August 31, 2016, Evidentiary Hearing [37] (“Tr.”) 11-12, 22). Barbara Hernandez was a passenger in the car. (Tr. 15-16). Officer Washington pulled the car over and, once stopped, walked to the driver's side door.[2] (Tr. 11-12). At the driver's window, Officer Washington smelled burned and unburned marijuana. (Tr. 12, 45). When asked for his driver's license, Tripps stated he did not have it with him. (Tr. 12, 24). Officer Washington's check of records determined that Tripps' license was suspended for nonpayment of child support and failure to appear in court. (Tr. 12-13, 26, 28). Officer Washington decided to arrest Tripps for driving on a suspended license. (Tr. 28).

         Marietta Police Officers Staso and McNeal arrived to provide Officer Washington backup support. (Tr. 14, 25). Officer Washington went back to the Jetta and told Tripps to get out of the car. (Tr. 14, 25). About this same time, Tripps informed Officer Washington that he put his handgun, which Tripps stated was legal, on the dashboard. (Tr. 14, 20, 26-27, 47-48). Officer Washington saw the gun on the dashboard. (Tr. 14, 20, 26-27, 47-48). Officer Washington handcuffed Tripps and told him he was under arrest for driving without a license. (Tr. 14, 16). When Tripps got out of the car, Officer Washington saw an extended handgun magazine on the floorboard. (Tr. 14). Officer McNeal went to the passenger side of the car to speak with Ms. Hernandez. (Tr. 15, 45-46).

         After Tripps was handcuffed, Officer Washington searched him incident to the arrest and removed $623.00 in cash from him. (Tr. 14, 37). When asked what he did for a living, Tripps told Officer Washington he was a warehouse forklift driver. (R&R at 3). He told Officer Washington that the cash was from his paycheck and he needed it to pay bills. (R&R at 3-4). Tripps was put in the back of the patrol car and was told everything he said was being recorded. (Tr. 14; R&R at 4).

         Officer McNeal told Officer Washington that she did not smell marijuana in the car. (Tr. 15, 32).[3] Ms. Hernandez told Officer Washington that Tripps worked at a restaurant and helped others at a record label. (Tr. 17, 40). The inconsistency regarding Tripps' employment, the smell of marijuana, and the currency Tripps had on him made Officer Washington suspicious. (R&R at 4-5).

         Tripps and Ms. Hernandez, who owned the car, declined to consent to a search of the vehicle. (Tr. 33-34).

         Officer Washington asked Tripps a number of questions after Tripps' arrest. Tripps was not threatened, weapons were not pointed at him, no promises were made to him, and he did not appear to be under the influence of any substance. (Tr. 17-18, 24). Tripps initially was not advised of his Miranda rights. (Tr. 17).[4]

         To confirm whether illegal substances were in the vehicle, Officer Washington called for a drug dog to be brought to the site of the stop. (Tr. 15). Ms. Hernandez was asked to get out of the car before the dog arrived. (Tr. 16). Officers retrieved her coat from the car. (R&R at 6). Officer Washington took possession of the firearm on the dashboard and gave it to Officer Staso. (R&R at 6). Ten to twelve minutes after Ms. Hernandez got out of the car, the drug dog arrived with his handler, Officer Figueroa. (Tr. 17, 35). The dog performed an open-air sniff around the car and alerted on the passenger door and trunk. (Tr. 18-19, 57-60). Officer Washington and Officer Figueroa searched the car after the dog alerted and found in the back seat a zipped shaving bag with .01 grams of marijuana, a pipe, cocaine, a marijuana grinder, drug paraphernalia, and several scales, including one that was digital. (Tr. 19, 48-49, 68-69).

         Officer Washington asked Tripps why he did not tell him about the drugs earlier. (Tr. 20). Officer Washington also told Tripps that Ms. Hernandez said the drugs belonged to Tripps. (R&R at 8). Tripps stated that there was no cocaine or heroin in the car and that he wanted to see the drugs. (R&R at 8). Officer Washington told Tripps that he would show the drugs to him depending on whether Tripps would speak with Officer Washington. (R&R at 8). Tripps repeatedly denied knowledge of the drugs. (R&R at 8).

         II. PROCEDURAL HISTORY

         Tripps moved to suppress evidence found in the car on the grounds (i) that he was unconstitutionally detained during the stop of the vehicle and (ii) that the drug dog sniff was unconstitutional. He also moved to suppress his post-arrest statements because he was not advised of his Miranda warnings.

         The Magistrate Judge conducted a lengthy evidentiary hearing on the Suppression Motions and, subsequently, issued his R&R recommending that the Court deny the Evidence Motion but grant the Statements Motion, with the finding that Tripps' statements were made voluntarily and thus could be used to impeach him if he testifies at trial. Tripps objects to the Magistrate Judge's conclusions that the seizure of the drugs and paraphernalia, and related evidence, from the vehicle is admissible. Tripps argues that the Magistrate Judge erred in his findings that (i) “the stop and arrest of Tripps based upon a traffic violation was lawful, ” (ii) the time to investigate and use the drug dog did not violate Tripp's constitutional rights, (iii) Officer ...


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