United States District Court, N.D. Georgia, Atlanta Division
HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE.
matter appears before the Court for consideration of the
magistrate judge's December 11, 2017, Final Report and
Recommendation (“R&R”) (Doc. No. [60');">60');">60');">60]), in
which the Honorable Catherine M. Salinas, United States
Magistrate Judge, recommended that Defendant's Motion to
Suppress the November 9, 2015 traffic stop and warrantless
search of the 2011 Nissan Altima, Tag Number QAC7013 (Doc.
Nos. [20, 21]) be granted.
stated in the R&R, Defendant's motions focus on the
November 9, 2015 traffic stop and subsequent search of
Defendant's car that led to the discovery of three boxes
of synthetic marijuana. Doc. No. [60');">60');">60');">60], p. 1. Defendant
challenges the admission of all evidence arising from the
stop and search of Defendant's car, arguing that the stop
and search violate the United States Constitution's
Fourth Amendment prohibition on unreasonable searches and
Magistrate held an evidentiary hearing on June 8, 2017 and
oral argument on September 19, 2017. Doc. No. [60');">60');">60');">60], pp.
R&R, the Magistrate set forth facts presented at the
evidentiary hearing and the proceedings of the case. Doc. No.
[60');">60');">60');">60], pp. 2-7. The Magistrate concluded that the Government
failed to carry its burden of showing that the automobile
exception to the warrant requirement applies in this case,
essentially because of a failure to present evidence as to
the knowledge of the Georgia State Patrol trooper (M.S.
Allen) who conducted the traffic stop and search of the
Defendant's car. Doc. No. [60');">60');">60');">60], p. 11.
Government has filed an objection to the R&R (Doc. No.
) and Defendant filed a response. Doc. No. [72');">72].
district judge must consider de novo any objection to the
magistrate judge's recommendation. The district judge may
accept, reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” Fed. R. Crim. P. 59; see also
28 U.S.C. § 636 and Stephens v. Tolbert, 471
F.3d 1173, 1177 (11th Cir. 2006) (“a district court
‘may . . . receive further evidence' when it
reviews the report and recommendation of a magistrate
judge.”) (citations omitted).
objections, the Government argued, inter alia, that
if the Court remains unsatisfied with the scope of evidence
presented, the Government requested that the Court re-open
the evidentiary hearing before suppressing the
Government's evidence on the issue. Doc. No. .
reviewing the record for this case, the Court, in the
exercise of its discretion determined that receiving
additional evidence (on the issue of why the car the
Defendant was driving was stopped) was proper and scheduled a
hearing for April 25, 2018. At the beginning of said hearing,
Defense Counsel objected to the hearing on the grounds of
fundamental fairness and best evidence, citing to the
magistrate's R&R in which the magistrate wrote that
“[t]he Government had not fewer than three
opportunities to either present such testimony or move to
reopen the evidence, and it has not done so . . . . [T]he
Government should be made to stand by its decisions.”
Doc. No. [60');">60');">60');">60], p. 12 n.4. Defendant also objected on the
ground that the best evidence is the video of the traffic
stop, not the testimony of the trooper who conducted the
Court has not disregarded Defendant's objections and
arguments on fundamental fairness and best evidence. After
giving consideration to the objections, the Court cannot
agree with the arguments because they are contrary to the
law. The Court also finds that it would be an abdication of
its responsibility to make an informed decision.
been held that “the district court has discretion to
receive new evidence without any special
justification while conducting de novo
review of a magistrate judge's report and recommendation
. . . .” United States v. Hayden, 759 F.3d
842, 846 (8th Cir. 2014) (emphasis added). The Supreme Court
has also emphasized that “[t]he authority and the
responsibility to make an informed, final
determination . . . remains with the judge, ” even
after the magistrate has issued an R&R. Mathews v.
Weber, 423 U.S. 261, 271(1976) (emphasis added).
context of a motion to reopen a suppression hearing,
Second Circuit has held that “on a motion to reopen a
we now hold that, on a motion to reopen a suppression
hearing, there is no bright-line rule that
necessarily and invariably requires the government to provide
a reasonable justification for its failure
to offer relevant evidence at an earlier suppression
proceeding. Whether or not the government can
justify its delay is simply one factor, among others, that a
district court may consider when deciding whether to reopen a
suppression hearing. We agree with the other circuits that
have reached this conclusion. A “defendant is
entitled to have evidence suppressed only if it was obtained
unconstitutionally. If matters appearing later
indicate that no constitutional violation occurred,
society's interest in admitting all relevant
evidence militates strongly in favor of permitting
reconsideration.” United States v.
Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981). As the
Ninth Circuit has recognized, “[a] criminal
defendant acquires no personal right of redress in suppressed
evidence” because the rationale for suppressing
unlawfully obtained evidence is to deter official misconduct,
not to compensate criminal defendants for the
violation. United States v. Rabb, 752 F.2d
1320, 1323 (9th Cir.1984). If the government possesses
evidence showing that, in fact, no official
misconduct occurred, the interests of justice militate
strongly in favor of considering this evidence even if it is
belatedly brought to the district court's
attention. In the last analysis, a district court
should be permitted, in the exercise of its discretion and in
light of the totality of the circumstances, to determine
whether its suppression ruling should stand. While it
may often be useful for the government to explain its reasons
for not introducing evidence earlier, a district court may
consider the evidence without first finding good cause for
the government's omission or delay.
United States v. Odeh, 552 F.3d 177, 196-97 (2d Cir.
2008) (emphasis added); see also United States v.
Craft, 30 F.3d 1044, 1045 (8th Cir. 1994) (citing 28
U.S.C. § 636(b)(1) and concluding that the district
court did not abuse its discretion in receiving further
evidence that was relevant to the suppression motion) and
United States v. Jenkins, 72');">728 F.2d 396');">72');">728 F.2d 396, 398 (6th
Cir. 1984) (reversing a denial of the government's motion
to reopen the suppression hearing, stating that “[i]t
will be time to consider an ultimate decision on the
suppression motion when all the facts are on the
light of the above-stated authority, the Court is unable to
uphold Defendant's “fundamental fairness”
arguments, as a defendant acquires no personal right of
redress in suppressed evidence and the rationale for
suppressing the evidence (i.e., to deter official misconduct)
is not present, if in fact, the Government has evidence that
no official misconduct occurred. Odeh, 552 F.3d at
Here, the only way for the Court to make an informed, final
decision on the suppression issue is to have all the facts on
the record, as to the stop of the Defendant's vehicle.
“best evidence” argument also fails, as
“[t]he fact that a video recording may at times be in
fact the ‘best' evidence of what occurred does not
render first-hand testimony of the event incompetent.”
Jackim v. Sam's E., Inc., 378 Fed.Appx. 556,
565-66 (6th Cir. 2010).
the Court considers the merits of the Defendant's pending
motions. The Court will set forth the evidentiary facts,
applicable law, and its analysis.
FACTS PRESENTED AT THE EVIDENTIARY
evidentiary hearing, Drug Enforcement Administration
(“DEA”) Special Agent Sherezad Dunn testified
that in 2015, when she was working undercover for the City of
East Point Police Department and posing undercover as a drug
purchaser named “Jasmine, ” she had arranged to
purchase 3, 000 packets of synthetic marijuana from
Defendant. [Tr. 4, 7-10]. Special Agent Dunn set up a meeting for
November 9, 2015 between Defendant and a confidential source
(“the CS”) at the Sam's Club parking lot on
Clairmont Road, in Atlanta, Georgia. [Tr. 11-12]. The CS was
instructed to meet Defendant in the parking lot, determine if
Defendant had brought with him the packets of synthetic
marijuana, and if so, tell Defendant to drive north on
Interstate 85 to another location where Jasmine would be
waiting with the money. [Tr. 12].
Agent Dunn testified that before the meeting took place, she
had informed the Georgia State Patrol (“GSP”)
about the investigation. [Tr. 13-14]. She also had requested
that the GSP conduct a traffic stop of Defendant's car
after he left the meeting, if Defendant showed up as planned
with the drugs. [Tr. 14, 22-23]. She explained that the DEA
routinely asked for this type of assistance from the GSP in
order to protect its investigations and confidential sources.
[Tr. 14-15, 22-24]. With respect to the drug deal at issue in
this case, she testified that someone from the DEA (she could
not remember who) asked GSP “to conduct a traffic stop
of Mr. Khan's vehicle, to find their own probable cause
to stop the car and carry on with their investigation.”
[Tr. 14, 22]. When asked what the GSP would do if it were
unable to find its own independent basis for a traffic stop,
Special Agent Dunn ...