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United States v. Lewis

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

December 19, 2019

UNITED STATES OF AMERICA,
v.
ALFONZO LEWIS.

          ORDER

          WILLIAM M. RAY, II UNITED STATES DISTRICT COURT JUDGE.

         This 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.

         I. LEGAL STANDARD

         Under 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.

         II. FACTUAL BACKGROUND

         The 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.

         Thereafter, 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.

         After 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 male occupants.

         Lt. 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 present.

         After 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.[1] 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 siren.

         The 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.

         While 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.

         While 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.

         During 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 ...


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