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United States v. Rembert

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

December 6, 2018

UNITED STATES OF AMERICA,
v.
RYAN JUWARN REMBERT, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on the defendant Ryan Juwarn Rembert's motions to suppress evidence and statements [Doc. Nos. 17, 18, 26, 27]. The defendant is charged in a three-count indictment with (1) possession of a firearm by a felon; (2) possession with intent to distribute marijuana; and (3) possession of a firearm in furtherance of a drug trafficking crime. The charges are based on a traffic stop and ensuing arrest of the defendant on March 20, 2017. The government also intends to present statements and evidence from a previous traffic stop involving the defendant on November 28, 2016, under Federal Rule of Evidence 404(b)[1] (evidence of crimes, wrongs, or other acts), and from the defendant's arrest on October 12, 2017, which was made pursuant to the arrest warrant issued on the instant federal charges against the defendant. The defendant has moved to suppress statements and evidence from all three instances based on violations of the Fourth and Fifth Amendments to the United States Constitution. [Docs. 17, 18, 26, 27].

         Having reviewed the evidence and the parties' briefing, and having held evidentiary hearings on the instant motions, the undersigned makes the following recommendation.

         I. Procedural Background

         On September 6, 2017, the defendant was named in a federal indictment, charging him with three counts: (1) possession of a firearm by a felon, 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and (3) possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). The defendant has moved to suppress evidence and statements from three incidents: a traffic stop and arrest on November 2016; a traffic stop and arrest on March 20, 2017 (the basis of the instant indictment); and his arrest and interview on October 12, 2017. [Docs. 17, 18, 26, 27]. The court held evidentiary hearings on the defendant's motions on May 11 and June 13, 2018, which included the testimony of several witnesses, and the parties have since fully briefed the facts and issues to be considered for the defendant's motions.

         II. Factual Background

         A. The November 28, 2016 Traffic Stop and Arrest

         On November 28, 2016, around 11:00 p.m., College Park Police Department Officer Anthony Paniagua was on duty and stopped at a traffic light behind a 2002 Honda Civic being driven by the defendant. [Doc. 56 at 105-07]. He ran a random check on that tag, which revealed that it was expired (a violation of Georgia law). [Doc. 56 at 106, 109-10]. Officer Paniagua then initiated a traffic stop. [Doc. 56 at 110-12]. He radioed the stop to dispatch and activated his police lights, which also activated the camera recording equipment in the patrol car. [Doc. 56 at 110, 112-13]. Officer Paniagua was not wearing a microphone during the traffic stop, so while the stop was recorded on video, the only audio source of the recording was inside the patrol car. [Doc. 56 at 113-14; Govt. Ex. 8].

         Because Officer Paniagua saw multiple passengers in the Honda, he called for a back-up officer to assist him. [Doc. 56 at 110-12]. He then approached the Honda, notified the defendant of the reason for the stop, and asked for the defendant's driver's license, which he provided. [Doc. 56 at 111, 115; Govt. Ex. 8 at 22:50:30-22:50:50]. While standing next to the driver's rolled-down window, Officer Paniagua smelled a “very strong smell” of unburned marijuana coming from the car. [Doc. 56 at 116-17]. Officer Paniagua returned to his patrol car to run the defendant's driver's license and learned that the defendant's license was suspended. [Doc. 56 at 117; Govt. Ex. 8 at 22:51:13]. The officer advised the defendant that his license was suspended, placed him under arrest, and conducted a pat-down search. [Doc. No. 56 at 118; Govt. Ex. 8 at 22:52:47-22:54:48]. The search did not reveal any contraband on the defendant's person. [Doc. 56 at 118, 127]. Officer Paniagua did not at that time, or any other, advise the defendant of his Miranda rights, and the defendant was placed in the back of Officer Paniagua's patrol car. [Doc. 56 at 118-19]. The defendant asked Officer Paniagua if one of the passengers, Damien, could take the Honda. [Doc. 56 at 119; Govt. Ex. 8 at 22:54:53-22:55:05].

         Two other officers arrived as Officer Paniagua's back-up: Officer Garrett and Sergeant Stroud. [Doc. 56 at 117, 119, 126-27; Govt. Ex. 8 at 22:52:47, 22:53:49]. Based on the smell of marijuana, Officer Paniagua and Officer Garrett searched the car while Sergeant Stroud watched the two passengers who were off to the side. [Doc. 56 at 119-20; Govt. Ex. 8 at 22:55:50-22:58:55]. No. marijuana or drug-related paraphernalia was found in the Honda, but the officers did find a Glock firearm inside the unlocked glove box. [Doc. 56 at 119-21]. Officer Paniagua asked the passengers if the firearm was theirs, which they denied, and he then asked the defendant, “is this your Glock?” [Govt. Ex. 8 at 22:59:04]. The defendant responded “nah, nah, that's my cousin's car, ” and then asked if the officer would let “Damien drive my car.” [Govt. Ex. 8 at 22:59:06-22:59:12]. Officer Paniagua said “yeah, ” and then informed the defendant that the gun would be taken into police property. [Govt. Ex. 8 at 22:59:12-22:59:18]. The defendant then said that, whoever owns the gun, it was “clean.” [Govt. Ex. 8 at 22:59:18-22:59:30]. The officer understood this to mean that the gun was not stolen, which a check showed was true. [Doc. 56 at 130-31]. Officer Paniagua again asked if the gun was defendant's, which the defendant again denied. [Govt. Ex. 8 at 22:59:18-22:59:30].

         In the minutes that followed, the defendant called out to the officers and asked if they could just write him a ticket rather than arresting him on the suspended license charge; asked about Damien driving his car; asked questions and made statements about bonding out and his pending suspended license charge; and called out to Damien to get his money and paperwork. [Govt. Ex. 8 at 22:59:30-23:03:43, 23:03:43-23:05:56].

         The officers did not run defendant's or the passengers' criminal histories, and since none of the car occupants claimed ownership of the gun, it was taken into police property. [Doc. 56 at 121-22]. After the officers searched the Honda, Officer Paniagua released the Honda to Damien and the officer drove the defendant to the College Park Jail. [Doc. 56 at 132, 134]. The officer continued to smell a strong odor of marijuana coming from the defendant during the drive. [Doc. 56 at 135]. Once at the jail, he told the defendant that he could face additional charges if he brought marijuana inside. [Doc. 56 at 135]. The defendant then admitted that he had marijuana between his legs and provided it to the officer. [Doc. 56 at 136-37]. Normally, the defendant would have been searched by jail personnel, but here, Officer Paniagua searched him instead and found nothing else. [Doc. 56 at 137-38].

         B. The March 20, 2017 Traffic Stop and Arrest

         On March 20, 2017, at around 9:30 a.m., then Lovejoy Police Department Officer Marqutte Simmons was on patrol when he saw that the driver of a 2002 Honda Civic traveling towards him was not wearing a seatbelt (a violation of Georgia law). [Doc. 56 at 53-57]. Officer Simmons turned around and got behind the Honda as it pulled into a subdivision. [Doc. 56 at 57; Govt. Ex. 6]. He called in the license plate to his dispatch and activated the lights and sirens in his patrol car, which also activated the video and audio recording equipment in the car. [Doc. 56 at 35-36, 57, 78-79]. Unlike the previous stop with Officer Paniagua, Officer Simmons was wearing a microphone that recorded the interactions outside the patrol car. [Doc. 56 at 78-79; Govt. Ex. 1].

         The driver of the Honda-the defendant-was the only person in the car at that time. [Doc. 56 at 57, 61]. But just after pulling over, the defendant moved an object from the front passenger seat to the backseat of the car, and Tyshauna Reid[2] entered the Honda on the passenger side. [Doc. 56 at 57-59, 81; Govt. Ex. 1 at 0:42-0:45]. Reid lived on that street and the defendant was picking her up. [Doc. 56 at 57-59, 81; Govt. Ex. 1 at 0:42-0:45]. She was carrying some cords and small items, but nothing larger and no bag of any kind. [Doc. 56 at 60, 80; Govt. Ex. 1 at 0:42].

         Officer Simmons approached the Honda on the driver's side. [Doc. 56 at 60; Govt. Ex. 1 at 0:27-50]. The defendant opened his door as the officer approached, and Officer Simmons explained that he had pulled the defendant over for not wearing a seatbelt, which the defendant acknowledged. [Doc. 56 at 61-62; Govt. Ex. 1 at 0:47-1:05]. The defendant explained that he “was just picking her [Reid] up.” [Doc. 56 at 62; Govt. Ex. 1 at 0:52-0:56].

         While standing at the driver's side door and speaking with the defendant, Officer Simmons smelled raw, unburned marijuana and Indian spray (an air freshener) coming from inside the car. [Doc. 56 at 62-64]. He then asked for the defendant's identification, called the driver's license in to police dispatch, and requested a back-up officer. [Doc. 56 at 65, 83-85; Govt. Ex. 1 at 0:57-2:00].

         While he waited for a second officer to arrive, Officer Simmons stood by the defendant's door and observed the car. [Doc. 56 at 68, 69; Govt. Ex. 1]. From there, he saw a mason jar with marijuana residue on the floorboard behind the driver's seat and a backpack on the backseat. [Doc. 56 at 65-67].[3] Also at this time, the defendant called his father to come to the traffic stop, and the defendant again acknowledged that he had not been wearing his seatbelt. [Doc. 56 at 86, 88; Govt. Ex. 1 at 2:15-5:00]. Officer Simmons told the defendant that he smelled a strong odor of marijuana coming from the car. [Govt. Ex. 1 at 3:03]. He asked the defendant if he had marijuana in the vehicle or had smoked marijuana, which he denied. [Doc. 56 at 67, 89]. The defendant suggested that the officer was smelling “this [Indian spray], ” and showed the can to the officer. [Doc. 56 at 67, 89].

         Then-Interim Chief (now Chief) Wayne Woods of the Lovejoy Police Department arrived as back-up about six minutes into the stop. [Doc. 56 at 33-34, 36-37, 67-68; Govt. Ex. 1 at 5:50]. Officer Simmons signaled Chief Woods to approach him because he intended to conduct a probable cause search of the car for marijuana. [Doc. 56 at 68; Govt. Ex. 1 at 5:46]. Officer Simmons then asked the defendant again if there was any marijuana in the car, which he denied and again suggested that the only thing he was smelling was “this [the Indian spray].” [Gov. Ex. 1 at 5:52-6:16]. Officer Simmons instructed the defendant and Reid to get out of the car and began searching the car while Chief Woods stood with the defendant by the patrol car. [Doc. 56 at 40, 69-70; Govt. Ex. 1 at 6:11-7:20]. Officer Simmons found a mason jar containing marijuana residue on the floorboard behind the driver's seat and put it on the trunk of the Honda. [Doc. 56 at 41, 70-71; Govt. Ex. 1 at 7:13]. He then searched the backpack on the backseat, which he saw contained another mason jar with two bags of marijuana inside after unzipping the bag. [Doc. 56 at 41, 42, 71]. The officers then placed the defendant in handcuffs and told him that he was under arrest for possessing marijuana. [Doc. 56 at 71, 75, 91; Govt. Ex. 1 at 7:20-8:00].

         Officer Simmons got his cellphone from his patrol car, continued searching the Honda, and took several pictures of inside the car, which included (1) the unzipped backpack on the backseat, (2) the mason jar with marijuana and a smaller black zipped bag or pouch inside the backpack, and (3) sandwich bags and the can of Indian spray inside the glove box. [Doc. 56 at 72-78; Govt. Ex. 1 at 8:30-15:00; Govt. Exs. 2-5]. No. pictures were taken of marijuana residue on the center console. [Doc. 57 at 21-22]. The officers also found the Glock firearm that the defendant is charged with possessing in this case, which is the same gun found in the car during the November 2016 traffic stop. [Doc. 56 at 41, 75-76, 120-21; Govt. Ex. 1 at 9:10-12:00].[4] The officers also found a digital scale typically used to weigh marijuana, which Officer Simmons believed was found in the backpack, but he could not recall for sure. [Doc. 56 at 77]. While searching the backpack, and before searching the front seats of the Honda, Officer Simmons told Chief Woods that he had seen sandwich bags in the glove compartment. [Govt. Ex. 1 at 6:11-9:40].[5]

         After searching the Honda, Officer Simmons asked Reid if she wanted to write a statement to explain that she had just gotten in the car when the traffic stop began and make clear that none of the illegal items found in the car belonged to her, and she agreed to do so. [Govt. Ex. 1 at 16:12-22:00]. Officer Simmons also asked Reid if she smelled marijuana when she got in the car, to which Reid responded “I smelled the spray, I don't know about the marijuana part.” [Govt. Ex. 1 at 20:25-20:40]. Officer Simmons told her and Chief Woods that he smelled marijuana as soon as he walked up to the car. [Govt. Ex. 1 at 20:50-21:00]. Chief Woods testified at the evidentiary hearing that he did not recall smelling marijuana or air freshener, and that he did not get very close to the Honda. [Doc. 56 at 39, 90].

         The defendant asked Reid to take the Honda for him, and Officer Simmons drove the defendant to the station to complete paperwork and then to the Clayton County Jail. [Doc. 56 at 97-98; Govt. Ex. 1 at 14:57-15:15, 18:54-19:15]. Officer Simmons did not try to question the defendant in the car, but the defendant called out a few times, including saying that the firearm was not his. [Doc. 56 at 98-99].

         Both Officer Simmons and Chief Woods had extensive prior experience with marijuana and had encountered both raw and burnt marijuana many times. [Doc. 56 at 42-25, 62-64, 66-67]. They explained at the evidentiary hearing that raw and burnt marijuana have distinctive smells and even just marijuana residue also gives off an odor. [Doc. 56 at 43-43, 62-63]. They also explained that glass mason jars like those found in the Honda are commonly used to transport marijuana, but they do not completely mask the odor, particularly with some of the stronger forms of marijuana often seen on the street today. [Doc. 56 at 43-44, 63-65].

         Reid testified that she met the defendant for the first time earlier that day, and that they had exchanged phone numbers. [Doc. 57 at 94-95]. He then called her and asked her if she would help him get his car to the shop, and they arranged to meet at the location where he was ultimately pulled over. [Doc. 57 at 95-96]. She also testified that when she got into the Honda, the glove box was not open, that it was still closed when Officer Simmons asked her to step out of the car, and that the air freshener was in a cup holder in between the front driver and passenger seats. [Doc. 57 at 97-98]. Also according to her testimony, there was a “clean, ” “fresh” smell inside the Honda, as if the air freshener had been sprayed at some point that day but not “just sprayed[, ]” the car did not smell like raw or burnt marijuana, and she would have recognized that smell of raw or marijuana. [Doc. 57 at 99, 103, 106-07]. Though contradicted by the video recording, Reid also testified that Officer Simmons told her to write a statement but did not tell her why he was asking her to do so, and that Officer Simmons never asked her if she smelled marijuana that day. [Doc. 57 at 99, 105-08].

         C. The October 12, 2017 Arrest and Interview

         A federal arrest warrant for the defendant was issued after the Grand Jury returned the Indictment in this case for charges based on the March 20, 2017, traffic stop. [Doc. 56 at 166-67; Govt. Ex. 9]. On October 12, 2017, four ATF agents assembled at the Clayton County courthouse, along with at least two Clayton County court security officers, to execute the warrant because the defendant had a scheduled court appearance at 8:30 a.m. that day. [Doc. 56 at 166, 168-70]. Upon his arrival at about 9:00 a.m., the agents made contact with the defendant, showed him the federal arrest warrant, and escorted him downstairs to a private room in the sheriff's office. [Doc. 56 at 170, 173-174; Govt. Ex. 9]. The defendant had his two young children with him, and he was allowed to make several calls from his ...


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