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United States v. Mizell

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

July 29, 2019

UNITED STATES OF AMERICA,
v.
DAMANI MIZELL

          REPORT AND RECOMMENDATION

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE.

         Defendant was arrested after leaving a defunct gas station known for drug activity. After his arrest, the police searched his car, which he had left parked at the gas station. Defendant's Motion to Suppress Evidence [20] relates to the warrantless search of the car, which the Government justifies on several grounds, including abandonment, the automobile exception, and inevitability. The Court is not convinced as to the applicability of all of the doctrines invoked by the Government, but agrees that the facts adduced at the evidentiary hearing support at least the application of the automobile exception to the warrant rule. Thus, the Court RECOMMENDS that the Defendant's Motion [20] be DENIED.

         I. FACTS

         On the night of August 10, 2017, officers with the Atlanta Police Department's Proactive Enforcement Interdiction Unit (“APEX”) were on a “direct patrol” of a defunct Texaco gas station on Donald Lee Hollowell Parkway. Tr. [34] at 6-7, 18. The officers purposefully targeted this location for a patrol because the location is known as a locus of drug trafficking activity. Id. at 6-7; [38] at 5-6.

         Officers arrived that evening at approximately 9:00 pm, and observed numerous individuals loitering, with cars parked at the defunct pumps. [34] at 7, 22; [38] at 6. As Officer Dougherty explained:

As we were pulling up we specifically keyed in on a red scooter that was leaving the parking lot that had a large black male on it. He drove across the street and ended up on the sidewalk like leaving the location. He did not have a helmet on and once he crossed the street the went on to the sidewalk and began driving down the sidewalk westbound on Donald Lee Hallowell.

[34] at 7. Noting the helmet and sidewalk violations, Officer Dougherty and his partner, Seargent Heald, pursued the rider, who was later identified as the Defendant. [34] at 7-8. In doing so, the officers saw the Defendant repeatedly reached into a pocket and discard items. Id. Eventually, the Defendant stopped and was briefly detained. Id. at 9. Officer Dougherty then walked back up the Defendant's route to retrieve the discarded items. Id. at 8-9. Officer Dougherty found marijuana, a cell phone, and a pill bottle with residue. Id. The officers arrested the Defendant and brought him to the gas station. Id. at 10-11.

         Meanwhile, other officers were at the gas station. Most of the loiterers and the parked cars had left, but there was one Cadillac that did not leave and which none of the “patrons” claimed ownership of. [38] at 7-10. Registration checks indicated that the car was owned by the Defendant. Id.

         APD K-9 Officer Godwin had been called to the scene to conduct an “open air” sniffing search of the area with his dog, Arass. Arass alerted to the unclaimed, parked brown Cadillac registered to the Defendant. Id.; [34] at 24. Officer Godwin testified that he had worked with Arass for approximately seven years and they were up-to-date on all required training and certifications [34] at 19-21; Ex. 4. According to Officer Godwin, while Arass has registered at least one false negative-i.e., she failed on at least one occasion to alert on the presence of something she should have detected-she has never had a false positive result- which Officer Godwin defined as alerting on the presence of an odor that was not present. Id. at 26-28. Officer Godwin clarified that at least one occasion during the seven years Arass positively alerted to a car that was not found to contain drugs. Id. However, Officer Godwin verified the alert because he personally smelled the residual odor of drugs when he entered the car. Id.

         After the K-9 alert, other officers left the scene with the intention of obtaining a search warrant for the car. [38] at 10-11. In the meantime, prior to the search, Officers Dougherty and Heald brought the Defendant in custody back to the gas station. [34] at 26. Because the officers had identified and arrested the owner of the vehicle, and because of the K-9 alert, the officers determined that they could search the car without a warrant. [38] at 10-11. The car was thus searched, and the officers found a gun, plastic baggies, and what appeared to be Ecstasy pills. Id. at 11-12. The car was subsequently impounded by APD. Id. at 12-14. APD policy at the time would have required a complete search of any impounded vehicle. Id.

         II. DISCUSSION

         The Fourth Amendment to the United States Constitution protects the right of persons to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. “It is a ‘basic principle of Fourth Amendment law' that searches and seizures inside a home [or other private property] without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980); United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000). Upon a motion to suppress evidence garnered through a warrantless search and seizure, the burden of proof as to the reasonableness of the search rests with the prosecution. United States v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983) (citing United States v. Impson, 482 F.2d 197 (5th Cir. 1973)). Thus, the government must demonstrate that the challenged action falls within one of the recognized exceptions to the warrant requirement, thereby rendering it reasonable within the meaning of the Fourth Amendment. Vale v. Louisiana, 399 U.S. 30, 34 (1969); United States v. Jeffers, 342 U.S. 48, 51 (1951); Friere, supra.

         The Government here asserts that the warrantless search was permissible on three theories, all of which the Government has the burden to establish: (1) the automobile search exception, (2) abandonment of the car, and (3) inevitability (due to the need for an inventory search). As explained below, the Court does not agree that the facts are established as to the second two theories (abandonment and inevitability) but agrees that the automobile exception permitted this search.

         A. Automo ...


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