United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION
S. ANAND UNITED STATES MAGISTRATE JUDGE.
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  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
 be DENIED.
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.  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; 
arrived that evening at approximately 9:00 pm, and observed
numerous individuals loitering, with cars parked at the
defunct pumps.  at 7, 22;  at 6. As Officer Dougherty
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.
 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.  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
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.  at 7-10. Registration checks
indicated that the car was owned by the Defendant.
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.;  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  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.
the K-9 alert, other officers left the scene with the
intention of obtaining a search warrant for the car.  at
10-11. In the meantime, prior to the search, Officers
Dougherty and Heald brought the Defendant in custody back to
the gas station.  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.  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.
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.
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.