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United States v. Barnette

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

June 30, 2017

UNITED STATES OF AMERICA,
v.
DONALD WILSON BARNETTE, JR.

          ORDER

         This case is before the Court on Defendant's Motion to Suppress [10], on the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [34], and on Defendant's Objections to the Non-Final Report and Recommendation [36].

         I. Standard of Review for a Report and Recommendation

         28 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem. Inc.. 208 F.App'x 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ. 896 F.2d 507, 513 (11th Cir. 1990); United States v. Gaddy. 894 F.2d 1307, 1315 (11th Cir. 1990); LoConte v. Dugger. 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort. 208 F.App'x at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel. 164 F.App'x 958, 961 (11th Cir. 2006); United States v. Warren. 687 F.2d347, 347 (11th Cir. 1982).

         II. Background

         A. Statement of Facts

         The Court's review of the record in this case reveals that Judge Johnson correctly set forth the facts in this action. The Court therefore adopts the Statement of Facts portion of the Non-Final Report and Recommendation, and incorporates that portion of the Non-Final Report and Recommendation into this Order as if set forth fully herein. (Non-Final Report & Recommendation (Docket Entry No. 34)at2-9.)[1]

         B. Procedural Background

         On October 11, 2016, a federal grand jury sitting in the Northern District of Georgia returned an indictment against Defendant. (Indictment (Docket Entry No. 1).) The Indictment alleges that, on or about January 2, 2016, in the Northern District of Georgia, Defendant, having been convicted of a felony offense, did knowingly possess in and affecting interstate and foreign commerce, an EIG/Tangfolio .22 caliber handgun, in violation of 18 U.S.C. § 922(g)(1). (Id. at 1-2.) The indictment also contains a forfeiture provision. (Id. at 2-3.) On December 6, 2016, Defendant filed his Motion to Suppress. (Mot. Suppress (Docket Entry No. 10).) Judge Johnson held an evidentiary hearing on Defendant's Motion to Suppress on January 26, 2017. (Minute Entry (Docket Entry No. 16).) On June 1, 2017, Judge Johnson issued his Non-Final Report and Recommendation. (Non-Final Report & Recommendation (Docket Entry No. 34).) Judge Johnson recommended that the Court deny Defendant's Motion to Suppress.

         Defendant filed Objections to the Non-Final Report and Recommendation. (Objs. (Docket Entry No. 36).) The time period in which the Government could file a response to the Objections has expired, [2] and the Court finds that the matter is ripe for resolution.

         III. Discussion

         Judge Johnson correctly set forth the relevant law relating to the Fourth Amendment and probable cause in his Non-Final Report and Recommendation. (Non-Final Report & Recommendation at 13-15.) The Court agrees with Judge Johnson that the officers acted reasonably under the circumstances and had probable cause to stop Defendant. (Id. at 15.) As Judge Johnson noted:

[T]he officers first noticed the Tahoe [driven by Defendant] because its window tint looked too dark. As the officers followed the Tahoe, they simultaneously called dispatch and entered the license plate information into the patrol car's laptop and discovered that the license plate did not match the vehicle. This was sufficient to create a reasonable belief that at least one traffic violation (i.e., of O.C.G.A. § 40-2-28) had occurred, which established probable cause to pull [Defendant] over.

(Id. at 15-16.) The Court cannot find unreasonable Judge Johnson's decision to credit Detective Sorrell's testimony that the officers decided to pull over the vehicle based on those potential traffic violations. (Id. at 16.) Further, as Judge Johnson pointed out, "[t]hat the officers abandoned the potential window tint violation once they discovered the more serious issues (like the lack of insurance) does not render this belief unreasonable." (Id.) The Court overrules Defendant's Objections to those conclusions.

         Judge Johnson also properly rejected Defendant's contention "that the officers could not have learned that the license plate did not match the Tahoe during the short period of time between when [Defendant] drove past [the officers] and when [the officers] activated the blue lights." (Non-Final Report & Recommendation at 16-17.) Further, the Court agrees with Judge Johnson that "it was reasonable under the circumstances that Det. Sorrells may not have immediately recognized the plate as a dealer plate." (IdL at 17.) Moreover, the officers' decision to detain Defendant after they realized the plate was a dealer plate was not unreasonable, given that "[D]efendant did not have papers showing that he owned the car and could not produce insurance information, " and given that, although "the officers did receive confirmation that the license plate was registered to Carl Black, when ...


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