United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.
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) (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].
reviewed the evidence and the parties' briefing, and
having held evidentiary hearings on the instant motions, the
undersigned makes the following recommendation.
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.
The November 28, 2016 Traffic Stop and Arrest
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].
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].
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
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,
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].
The March 20, 2017 Traffic Stop and Arrest
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].
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
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].
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].
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].
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]. 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].
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].
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]. 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
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].
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].
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].
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].
The October 12, 2017 Arrest and Interview
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 ...