United States District Court, N.D. Georgia, Atlanta Division
WILLIAM M. RAY, II UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on the Magistrate Judge's
Report and Recommendation (“R & R”) [Doc.
56], which recommends that Defendant's motions to
suppress evidence and statements [Docs. 19, 20, and 25] be
DENIED. Defendant filed objections in response to the R &
R [Doc. 58]. Following the Magistrate Judge's issuance of
the R & R, this Court held an evidentiary hearing on
November 7, 2019 [see Doc. 62]. Upon consideration
of the R & R, Defendant's objections, and oral
argument at the hearing on November 7, 2019, the Court enters
the following Order.
28 U.S.C. § 636(b)(1), the Court reviews the R & R
for clear error if no objections are filed by either party
within 14 days after service. 28 U.S.C. § 636(b)(1). If
a party does file objections, the Court must determine de
novo any part of the Magistrate Judge's disposition
that is the subject of a proper objection. Id;
Fed.R.Civ.P. 72(b)(3). Since Defendant filed timely
objections to the R & R in this case, the Court reviews
the challenged portions of the R & R de novo and
the remainder of the R & R for clear error.
factual background of this case is set forth in detail in the
R & R, and those facts are fully incorporated herein by
reference. [See Doc. 56]. To summarize, on December
14, 2015, Michael Hannan, a task force officer
(“TFO”) with the High Intensity Drug Trafficking
Area (“HIDTA”) group, was monitoring a
surveillance camera set up at a residential location believed
to be used by a drug trafficking organization. While
monitoring the camera from his office, TFO Hannan observed a
black Suburban arrive and park in the driveway. He then
observed two black males exit the vehicle. TFO Hannan watched
as Defendant retrieved a brown bag from the back passenger
seat of the vehicle and walk toward the residence. Based on
TFO Hannan's experience and observations, he felt this
was likely a customer picking up narcotics.
TFO Hannan contacted Lieutenant Corey Henry (“Lt.
Henry”), a sergeant and a member of the K-9 unit at the
time of the incident in question. TFO Hannan informed Lt.
Henry that he was observing a residence and there was a
chance that a vehicle would be leaving that residence with a
quantity of narcotics. TFO Hannan asked Lt. Henry to make a
traffic stop on the vehicle if he could obtain probable cause
through a traffic violation. After Lt. Henry said he was
available to assist, TFO Hannan instructed him to go and wait
at the Lakewood MARTA station, which was located near the
residence under surveillance. TFO Hannan and other
investigators also headed toward the residence and continued
monitoring the surveillance camera with a laptop.
observing the arrival and departure of two subjects of the
drug trafficking investigation, TFO Hannan observed Defendant
and a second black male walk toward the Suburban. The black
male entered the driver's seat, and Defendant placed the
brown bag in the back seat before entering the front
passenger seat. The Suburban then departed from the
residence. After these observations, TFO Hannan advised Lt.
Henry that the Suburban, providing a description and tag
number, was leaving the residence and contained two black
Henry testified that as he initially followed the Suburban,
at approximately 5:30 p.m., there was moderate traffic, which
thinned out as he traveled further south. Lt. Henry was in
his marked patrol car, which was not equipped with a camera
or audio equipment. He also did not have a body camera.
Kojak, Lt. Henry's full-service K-9 trained to detect
illegal narcotics, and FCSO Deputy Bryon Thomas were also
following the Suburban for approximately three miles and
using his calibrated speedometer, Lt. Henry determined that
the Suburban was traveling at a rate of 83 miles per hour.
The speed limit was 70 miles per hour. Lt. Henry did not
immediately conduct a traffic stop because he was waiting for
Georgia State Patrol Trooper Jordan Ennis to arrive to
assist. After Trooper Ennis began approaching, Lt.
Henry activated his lights and siren and caught back up with
the Suburban. Trooper Ennis also activated his lights and
Suburban initially stopped in the left travel lane with both
police vehicles behind it. At the direction of Lt. Henry, the
Suburban moved over to the right shoulder of the highway. Lt.
Henry and Deputy Thomas exited the patrol car and approached
the Suburban; Lt. Henry approached the driver's side
window, and Deputy Thomas approached the passenger's
side. The driver's side window of the Suburban was rolled
down, and Lt. Henry spoke with the driver.
speaking with the driver, Lt. Henry testified that he
detected the smell of burnt marijuana. Lt. Henry took the
driver's license back to his patrol car to conduct a
license check and start a traffic citation. Before completing
the citation, Lt. Henry went back to the Suburban and asked
the driver to get out of the vehicle and walk to its rear.
Defendant remained in the Suburban.
standing outside of the vehicle, Lt. Henry asked the driver
if there was marijuana in the vehicle, to which the driver
responded no. Lt. Henry testified that the driver stated he
had smoked marijuana earlier that day. Thereafter, Lt. Henry
informed the driver that a probable cause search of the
Suburban would be conducted. Defendant was removed from the
vehicle, and Deputy Thomas and Trooper Ennis stood with the
men while Lt. Henry conducted a search.
his search of the Suburban, Lt. Henry discovered a brown bag
on the floorboard of the back passenger seat. He opened the
bag and found five-kilogram packages of suspected cocaine.
Lt. Henry left the bag inside of the Suburban and returned to
his patrol car, where he advised Deputy Thomas and Trooper
Ennis to detain the driver and Defendant. Both men were
handcuffed outside of the vehicles. Neither man was advised
that he was under arrest. Lt. Henry then retrieved the brown