United States District Court, N.D. Georgia, Atlanta Division
HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE
matter appears before the Court on the Final Report and
Recommendation ("R&R," Doc. No. ) in which
the Honorable Linda T. Walker, United States Magistrate
Judge, recommended that Defendant's Motion to Suppress
Evidence (Doc. No. ), Motion to Suppress In-Court
Identification (Doc. No. ), and Perfected Motion to
Suppress Evidence (Doc. No. ) be denied.
facts and procedural history are found in the R&R and are
incorporated by reference. Doc. No. .
Defendant filed objections to the R&R on November 7,
2018. Doc. No. [53');">53');">53');">53].
objections are filed in the context of a dispositive motion,
the Court must "make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made." 28 U.S.C. § 636(b)(1). After
conducting this review, the Court "may accept, reject,
or modify in whole or in part, the findings or
recommendations made by the magistrate judge."
Id. Additionally, the Court may "receive
further evidence or recommit the matter to the magistrate
judge with instructions." Id.
Court held a hearing on January 4, 2019. The Court has also
carefully reviewed the transcript of the hearing before the
Magistrate Judge (Doc. No. ), exhibits, as well as the
Court will address each of Defendant's objections in
objects "the Magistrate Judge's ruling that [his]
clothing was properly seized under the plain view
doctrine." Doc. No. [53');">53');">53');">53], p. 1 (citing R&R, p. 11)).
Defendant asserts that the magistrate's analysis is
contradictory, "as the court acknowledged that Sergeant
Harris testified that he initially perceived Mr. Hood to be a
victim." Doc. No. [53');">53');">53');">53], p. 2. Defendant states:
"assuming as Officer Harris testified that he initially
thought Mr. Hood was a victim, there was no probable cause to
believe that his clothing was evidence of a crime," so
as to fall within the purview of the plain view doctrine.
plain view doctrine is as follows: police may seize evidence
that is in plain view despite not having a search warrant if
two elements are satisfied: (1) lawful access to the object
seized, and, (2) the incriminating nature of the object
seized is immediately apparent. See Horton v.
California, 496 U.S. 128, 136-37 (1990) and United
States v. Hromada, 49 F.3d 685, 690, n.11 (11th Cir.
phrase 'immediately apparent' does not imply
"that an unduly high degree of certainty as to the
incriminatory character of evidence is necessary for an
application of the 'plain view' doctrine.' The
police are required only to have probable cause to believe
that the object they are viewing is contraband or evidence of
a crime." United States v. Rodriguez-Alejandro,
664 F.Supp.2d 1320, 1346 (N.D.Ga. 2009) (citations omitted).
de novo review, the Court adopts the R&R as
correct in law and in fact. The magistrate's analysis is
not contradictory, as the magistrate correctly found that
under both scenarios (i.e., whether Defendant was a victim or
a suspect), there was probable cause to believe that the
clothing that the Defendant was wearing could be evidence of
a crime (as possibly containing trace evidence, blood, and a
bullet hole). Doc. No. , p. 16. In essence, the removed
clothing of both a shooting victim and a robbery suspect
(with a gunshot wound) are available factual scenarios that
"would warrant a man of reasonable caution in the belief
that" the clothing is evidence of a crime, useful to
solve the investigation of who shot the victim or useful to
the investigation of the robbery. United States v.
Folk, 754 F.3d 905, 912 (11th Cir. 2014); see also
Thompson v. Louisiana, 469 U.S. 17, 22 (1984)
("Petitioner's attempt to get medical assistance
does not evidence a diminished expectation of privacy on her
part. To be sure, this action would have justified the
authorities in seizing evidence under the plain-view doctrine
while they were in petitioner's house to offer her
assistance."); United States v. Pugh, No.
CR417-051, 2017 WL 6270151, at *2 (S.D. Ga. Oct. 19, 2017),
report and recommendation adopted, No. CR417-051,
2017 WL 6210510 (S.D. Ga. Dec. 8, 2017) ("Here, it is
undisputed that [the officer] was lawfully in the emergency
room responding to [defendant], a potential suspect or
victim, with a gunshot wound to the chest. And his bloody
clothing had clear evidentiary value to the investigation of
the reported gun battle mere minutes before [defendant]
careened into the emergency room parking lot.
[Defendant's] clothing was properly seized pursuant to
the plain view doctrine; his consent was not needed.");
and United States v. Williams, No. 14-CR-20419, 2015
WL 730098, at *8, n.5 (E.D. Mich. Feb. 19, 2015) ("To be
sure, a person does not entirely forfeit his expectation of
privacy in his dwelling by summoning emergency aid or calling
911, and the police may not justify a broad warrantless
search of a residence on the ground that the occupant sought
emergency aid. But by summoning emergency aid, a person
authorizes police to observe and seize items in plain
view/') (citations omitted).
Defendant also objects to the magistrate's ruling that
"he does not have standing to challenge the search of
the Acura vehicle recovered at Raymok Bar and Grill."
Doc. No. [53');">53');">53');">53], p. 4. Defendant states: "The fact that a
car may be registered to someone else is not dispositive of
the standing issue. There is nothing in the record to suggest
that Mr. Hood did not gain possession of the vehicle from
someone with ...