United States District Court, N.D. Georgia, Rome Division
case is before the Court on Defendant's Motion to
Suppress , on the Non-Final Report and Recommendation of
United States Magistrate Judge Walter E. Johnson , and on
Defendant's Objections to the Non-Final Report and
Standard of Review for a Report and Recommendation
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.
Statement of Facts
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.
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.
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,  and the Court finds that the matter is
ripe for resolution.
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
[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.
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 ...