United States District Court, N.D. Georgia, Atlanta Division
H. COHEN United States District Judge
action comes before the Court on the Final Report and
Recommendation ("R&R") of Magistrate Judge
Justin S. Anand [Doc. 57] recommending that Defendant's
Motion to Suppress Evidence [Doc. 20] be denied. The Order
for Service of the R&R [Doc. 58] provided notice that, in
accordance with 28 U.S.C. § 636(b)(1), the parties were
authorized to file objections within fourteen (14) days of
the receipt of that Order. Defendant has filed his objections
to the R&R [Doc. 62] ("Def.'s Objs.").
reviewing a Magistrate Judge's R&R, the district
court "shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz. 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v.
Moore. 847 F.2d 1536, 1548 (11th Cir. 1988)). If there
are no specific objections to factual findings made by the
Magistrate Judge, there is no requirement that those findings
be reviewed de novo. Garvev v. Vaughn. 993 F.2d 776,
779 n.9 (11th Cir. 1993) (citations omitted). Absent
objection, the district court judge "may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge," 28 U.S.C.
§ 636(b)(1), and may accept the recommendation if it is
not clearly erroneous or contrary to the law. FED. R. CRIM.
P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) and
Rule 59 of the Federal Rules of Criminal Procedure, the Court
has conducted a de novo review of those portions of
the R&R to which Defendant objects and has reviewed the
remainder of the R&R for plain error. See United
States v. Slav. 714 F.2d 1093. 1095 (11th Cir. 1983).
DISCUSSION A. Factual Findings
Defendant objects to three factual findings made by Judge
Anand. First, he objects to the characterization of the
Texaco gas station where Defendant's automobile was
present as "defunct," because an officer's body
camera footage showed other operating businesses nearby.
Def.'s Objs at 1-2. However, the direct testimony of City
of Atlanta Police Officer Larenzo Carter supports Judge
Q. What is the history that you're aware of with this gas
station in the community?
A. Well, this particular gas station is in zone one, and the
commander of zone one has also retrieved several complaints
about this place where people loiter outside the business
using drugs, selling drugs. We've had a couple shootings
at that particular area. Mostly it's a lot of drug
selling at that gas station, which is not functioning as a
Q. What do you mean by that?
A. The gas pumps don't work.
Mar. 26, 2019, Suppression Hr'g [Doc. 38] ("Tr.
II") at 5-6. Moreover, regardless of the
characterization of the gas station as "defunct,
" there was undisputed testimony that the
gas station and parking lot area were known for drug
trafficking. Id. at 6; Tr. of Mar. 14, 2019,
Suppression Hr'g [Doc. 33] ("Tr. I") at 6.
See also R&R at 2 ("The officer
purposefully targeted this location for a patrol because the
location is known as a locus of drug trafficking
Defendant objects to Judge Anand's finding that officers
"saw the Defendant repeatedly reach into a pocket and
discard items," later retrieved and found by officers to
be marijuana, a cell phone, and a pill bottle with residue.
Def.'s Objs. at 2 (citing R&R at 2). Defendant
contends that this was not recorded by the officer's body
camera, which would have been the best evidence of the
conduct. Def.'s Obj. at 2.
factual finding is supported by the testimony of City of
Atlanta Police Officer James Dougherty, who testified that,
after observing a number of people in the parking lot of the
gas station, an African American male (later identified as
Defendant) on a red scooter wearing no helmet was leaving the
location. Tr. I at 7. Based on the absence of a helmet, a
patrol car pursued him and observed Defendant "to reach
at his left side and pull stuff out of his pockets."
Id. at 8. After "he finished pulling things out
of his pocket and yelling back at us as we're yelling at
him to stop," Defendant stopped and Officer Dougherty
went back to the area where items were discarded by Defendant
and found "a little bit of marijuana, a pill bottle that
had some residue of something in it, and his cell phone that
he had also dropped to the ground." Id. at 8-9.
Defendant objects to the factual finding that City of Atlanta
Police Officer Robert Godwin's K-9 dog alerted them to a
brown Cadillac parked near the gas station, which established
probable cause to search the car; Defendant contends the dog
is unreliable because the dog gave false positive results on
one occasion. Def.'s Objs. at 3, 8. However, Officer
Godwin testified that this was the only time in seven years
that the K-9 dog registered a false positive result, and at
that one time, Officer Godwin himself smelled the residual
odor of drugs when he entered the car. Tr. I at 19-21, 26-28.
To the extent Defendant questions the veracity of Officer
Godwin's testimony, "[i]n evaluating the factual
version of events between the law enforcement officer[ ] and
[the defendant], we should defer to the magistrate
judge's determination unless his understanding of the
facts appears to be 'unbelievable.'" United
States v. Ramirez-Chilel 289 F.3d 744, 749 (11th Cir.
2002) (citing United States v. Rivera. 775 F.2d
1559, 1561 (11th Cir. 1985)). The Court finds that Judge
Anand's finding is supported by credible testimony.
Warrantless Search of ...