United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Alan J.
Baverman's Final Report and Recommendation 
(“R&R”). The R&R recommends that the
Court deny Defendant Alan Albert Tripps'
(“Tripps”) Motion to Suppress Evidence 
(“Evidence Motion”) and grant Tripps' Motion
to Suppress Statements  (“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  (“Objection”).
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 
(“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. (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).
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).
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
McNeal told Officer Washington that she did not smell
marijuana in the car. (Tr. 15, 32). 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).
and Ms. Hernandez, who owned the car, declined to consent to
a search of the vehicle. (Tr. 33-34).
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).
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).
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).
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
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)