U.S. v. Baker
| Decision Date | 02 November 2010 |
| Docket Number | No. 09–20068.,09–20068. |
| Citation | 750 F.Supp.2d 921 |
| Parties | UNITED STATES of America, Plaintiff,v.James BAKER, Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
OPINION TEXT STARTS HERE
John D. Fabian, United States Attorney's Office, Memphis, TN, for Plaintiff.FPD, Federal Public Defender, Tyrone Jemal Paylor, Federal Public Defender's Office, Memphis, TN, for Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AS MODIFIED
Before the Court is Defendant James Baker's Motion to Suppress filed November 17, 2009 (Def.'s Mot., ECF No. 35) and Baker's Objections to the Report and Recommendation of Magistrate Judge Charmiane G. Claxton (Def.'s Objections, ECF No. 79). Magistrate Judge Claxton recommended that the Court deny Baker's Motion to Suppress. (Report and Recommendation on Def.'s Mot. to Suppress, ECF No. 77.) (“Report”) Baker's objections are OVERRULED, except his objection to the Magistrate Judge's finding about the location of the drugs, which is well-taken. The Report of the Magistrate Judge is modified accordingly and ADOPTED as modified. The Motion to Suppress is DENIED.
On February 24, 2009, the grand jury returned an indictment charging Baker with one count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); one count of possession with the intent to distribute at least five grams of a cocaine-based controlled substance, in violation of 21 U.S.C. § 841(a)(1); and one count of using and carrying a firearm while possessing with the intent to distribute at least five grams of a cocaine-based controlled substance, in violation of 18 U.S.C. § 924(c).
Baker filed a Motion to Suppress the firearm and drugs found on his person when he was arrested on June 14, 2008. ( See Def.'s Mot. 1.) The United States responded on October 4, 2010. (Gov't's Resp., ECF No. 81). Baker replied on November 27, 2009. ( See Def.'s Reply, ECF No. 40.)
The Motion was referred to Magistrate Judge Claxton on November 17, 2009. ( See Order of Reference, ECF No. 36.) Magistrate Judge Claxton held a hearing on March 5, 2010, at which Baker and Officer Mark Reese (“Officer Reese” or “Reese”) of the Memphis Police Department testified. ( See Report 1, 4.) After the hearing, both parties submitted closing briefs. ( See Def.'s Position on Mot. to Suppress, ECF No. 61; Government's Proposed Findings of Fact and Mem. of Law, ECF No. 62.) Magistrate Judge Claxton filed her Report on September 13, 2010, recommending that the Court deny Baker's Motion to Suppress. ( See Report.) Baker timely objected to the Report on September 27, 2010 ( See Def.'s Objections.)
The pending charges stem from a series of events on June 14, 2008, as Officer Reese patrolled the Northside Manor Apartments (“Northside Manor”).1 (Report 1.) Although Officer Reese was not investigating anyone in particular, his lieutenant had recently informed him of complaints by Northside Manor employees, who said drug-related activity had made it like “the wild, wild west.” ( Id. 1–2.) Officer Reese also knew of significant gang and drug activity in the area because of his daily patrols and his having grown up nearby and attended high school with friends who lived in the area. ( Id. 2.)
Dressed in plain clothes, Officer Reese and his partner were patrolling Northside Manor in an unmarked car when Reese observed Baker. ( See Report 2.) As he watched from the car, Officer Reese saw Baker stand next to a vehicle, converse with others, enter and exit an apartment repeatedly, and then engage in a hand-to-hand transaction with a vehicle's occupants. ( Id.) During the transaction, Officer Reese saw Baker receive money from the vehicle's occupants in exchange for a plastic bag. ( Id.)
Following this transaction, Officer Reese and his partner watched as Baker walked toward an apartment while the vehicle that Baker had approached drove off. ( Id.) Officer Reese alerted the marked police unit located “around the corner” to stop the exiting vehicle. ( Id.) Officer Reese believed that the occupants of the vehicle had purchased drugs from Baker and that there would be drugs inside the vehicle. ( Id.) Based on his experience investigating drug transactions, Officer Reese thought Baker would only have money on his person, so he elected not to approach Baker when he directed the marked unit to confront the vehicle. ( Id. 2–3.)
As he was about to leave Northside Manor, Officer Reese testified, he saw Baker approach a second vehicle. ( See id. 3.) According to Officer Reese, he was approximately eight feet from Baker at this time, and he observed a firearm in Baker's back pocket.2 ( Id.) Officer Reese initially thought Baker was “pulling” the gun, but Baker removed a plastic bag of what Reese believed to be crack cocaine from Baker's back pocket.3 ( Id. 3.) Officer Reese identified the drugs as crack cocaine based on his familiarity with the appearance and packaging of crack cocaine from his previous arrests of suspects involved with the drug. ( Id.) According to Officer Reese, Baker was not trying to hide the drugs and was using no security.4 ( Id. 3–4.)
When he realized Baker was armed, Officer Reese contacted the marked police unit that he had previously advised to detain the vehicle engaged in the earlier transaction with Baker. ( Id. 4) Despite his suspicion that the vehicle contained evidence of a drug transaction, Officer Reese directed the unit to abandon the stop and assist him, telling the unit that Baker had a gun. ( Id.) The marked unit let the vehicle go and did not collect any evidence. ( Id.) Officer Reese acted because Baker's approaching the second vehicle with a gun and crack cocaine had created a “safety issue.” ( Id.)
Officer Reese then exited his vehicle and approached Baker from behind to prevent Baker from fleeing, destroying evidence, or shooting him. ( Id. 6.) Officer Reese's partner approached the vehicle transacting with Reese and made contact with its driver. ( Id.) As Officer Reese approached, Baker had one hand on top of the vehicle holding a bag of crack cocaine and was speaking with the vehicle's occupants. ( Id.) Approaching him from behind, Officer Reese grabbed Baker's right hand and used his left hand to hold the gun in Baker's back pocket. ( Id.) Baker did not resist. He simply said “police, police” and “I have a gun in my back pocket.” 5 ( Id.) Because Officer Reese had his hand on the gun, he replied “I already know.” ( Id.) Officer Reese placed Baker in handcuffs, secured the gun and drugs, and took Baker into custody. ( Id.)
“A district judge must determine de novo any part of a magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). After reviewing the evidence, a court is free to accept, reject, or modify the proposed findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court need not review—under a de novo or any other standard—those aspects of the report and recommendation to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The district court should adopt the findings and rulings of the magistrate judge to which no specific objection is filed. Id. at 151, 106 S.Ct. 466.
Baker objects to five findings of fact by the Magistrate Judge: (1) that Officer Reese thought Baker was “pulling” a firearm, (2) that, at the time Officer Reese thought Baker was “pulling” a firearm, Baker instead removed drugs from his back pocket, (3) that there was no testimony supporting Baker's position as to the length of the Northside Manor driveway, (4) that Baker's initial statement when Officer Reese approached him was “police, police,” and (5) that Officer Reese's testimony was more credible than Baker's testimony on the issues of where Reese was when he saw the suspected firearm and crack cocaine and whether Reese saw the objects on Baker's person before approaching him. ( See Def.'s Objections 2–4.)
Baker objects to the Magistrate Judge's finding that Officer Reese believed Baker was “pulling” a firearm. (Def.'s Objections. 2; see Report 3.) Baker argues that nothing in the record implies or suggests that Baker was about to pull a firearm. ( Id.) However, Officer Reese testified as follows: “Well, when I got to the side of him, that's when I said, ‘Hey, this dude's got a gun; and he's pulling.’ ” (Hr'g Tr. 37, Mar. 5, 2010.) This testimony supports the Magistrate Judge's finding, and the Court finds that, based on his observations, Officer Reese initially thought that Baker was “pulling” a firearm when Baker approached the second vehicle.
Baker objects to the Magistrate Judge's finding that Officer Reese saw Baker remove drugs from his back pocket. (Def.'s Objections 3; see Report 3.) The United States concedes that the record shows that Officer Reese actually testified that he saw Baker remove “what appeared to be crack rock from his right front pocket.” (Gov't's Resp. 5; see Hr'g Tr. 55.) Baker's objection is well-taken, and the Court finds that Officer Reese saw Baker remove the suspected drugs from his right front pocket rather than his back pocket. The Magistrate Judge's Report and Recommendation is modified accordingly.
Baker objects to the Magistrate Judge's finding no support for Baker's assertion that the driveway into Northside Manor was over one hundred yards long. (Def.'s Objections 3.) Baker argues that, because a quarter mile is about four hundred yards, part of Officer Reese's testimony that the driveway was “really long” and “maybe a quarter mile” supports his position. (Report 4; Def.'s Objections 3.) However, Officer Reese also testified that he was “not exactly good with distances.” ( See Hr'g Tr. 19.) Like the Magistrate Judge, the Court...
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