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United States v. Khan

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

May 15, 2018




         This 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.

         As 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 seizures. Id.

         The Magistrate held an evidentiary hearing on June 8, 2017 and oral argument on September 19, 2017. Doc. No. [60');">60');">60');">60], pp. 1-2.[1]

         In the 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.

         The Government has filed an objection to the R&R (Doc. No. [71]) and Defendant filed a response. Doc. No. [72');">72].

         “The 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).

         In its 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. [71].

         After 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 traffic stop.

         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.

         It has 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).

         In the context of a motion to reopen a suppression hearing, [2] the Second Circuit has held that “on a motion to reopen a suppression hearing:

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).[3] 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 record.”).

         In 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 197.[4] 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.

         Defendant's “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).

         Next, the Court considers the merits of the Defendant's pending motions. The Court will set forth the evidentiary facts, applicable law, and its analysis.


         At the 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].[6] 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.[7] [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].

         Special 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 ...

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