United States v. Black
| Decision Date | 22 August 2018 |
| Docket Number | Case No. 8:17-CR-513-T-27CPT |
| Parties | UNITED STATES OF AMERICA v. REGINALD LEE BLACK |
| Court | U.S. District Court — Middle District of Florida |
BEFORE THE COURT are the Report and Recommendation of the Magistrate Judge (Dkt. 54), Defendant's objections (Dkt. 55) and the United States' response to the objections (Dkt. 57).1 Upon consideration, Defendant's objections are overruled. After a review of the record and the suppression hearing transcripts, the Report and Recommendation is adopted and approved. Defendant's Motion to Suppress (Dkt. 29) is accordingly DENIED.
Defendant's objections are limited, with one exception, to the findings and conclusions of the Magistrate Judge with respect to the September 3, 2016 attempted traffic stop and his September 9, 2016 arrest and vehicle search. He does object to the characterization of one item of evidence seized during the August 8, 2016 traffic stop.
A district court may accept, reject, or modify a report and recommendation. 28 U.S.C. § 636(b)(1). Those portions to which objections are made are reviewed de novo. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). And when a party files a timely and specific objection to a finding of fact and findings based on testimony, the transcript of the hearing is reviewed. LoConte v. Dugger, 847 F.2d745, 750 (11th Cir. 1988), citing Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982) (en banc).2
Objections must "pinpoint the specific findings that the party disagrees with." United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see Leatherwood v. Anna's Linens Co., 384 Fed. App'x. 853, 857 (11th Cir. 2010). In the absence of specific objections, there is no requirement that findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Nevertheless, the report and recommendation is reviewed for "clear error" even in the absence of objections. Macort v. Prem, Inc., 208 Fed. App'x. 781, 784 (11th Cir. 2006). Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil, 397 Fed. App'x. 554, 556 (11th Cir. 2010) (citing United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982); Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
Defendant moved to suppress evidence seized on (1) July 17, 2016, after he was arrested on an outstanding violation of probation warrant, (2) August 8, 2016, after the vehicle in which he was a passenger was stopped for a traffic violation, (3) September 9, 2016, after he was arrested on a "felony pick-up affidavit" based on offenses committed on September 3, 3016 and (4) September 14, 2016, after he was arrested. (Dkt. 30). The Magistrate Judge, based on the Government's representation that nothing seized after September 9, 2016 would be introduced at trial, focused on the July 17,2016 arrest, August 8, 2016 traffic stop, and September 9, 2016 arrest. (Dkt. 54, p. 10).
With respect to the July 17, 2016 arrest, Defendant concedes there was probable cause for his arrest because of the outstanding VOP warrant. Although he initially challenged whether hisarrest was pretextual and whether his consent to search his cell phone was voluntary, he does not object to the Magistrate Judge's findings and conclusions that the VOP warrant was valid and active and that his pretext argument has been rejected by the Supreme Court. see United States v. Alston, 598 Fed. Appx. 730, 733-34 (11th Cir. 2015) (), citing Whren v. United States, 517 U.S. 806, 811-13, 116 S.Ct. 1769, 1773-74, 135 L.Ed.2d 89 (1996) and quoting United States v. Lanzon, 639 F.3d 1293, 1300 (11th Cir.2011) ()
With respect to the July 17, 2016 arrest, the Report and Recommendation has been reviewed for clear error and the legal conclusions have been reviewed de novo. There is no clear error. The Magistrate Judge's legal conclusions are consistent with binding precedent in this Circuit and the Supreme Court. Defendant's motion with respect to his July 17, 2016 arrest is accordingly DENIED.
On August 8, 2016, Officers Miller and Gustafson stopped a white Jaguar in which Defendant was a passenger for speeding. During the initial stages of the stop, before Miller completed his computer inquiry of the driver, Gustafson saw a hand held embosser in plain view at Defendant's feet (Dkt. 42, p. 28). According to Miller, this was relevant "because we know based on our experience that those are used to make fraudulent credit cards." (Dkt. 42, p. 28). Miller and Gustafson knew that just three weeks earlier, officers found incriminating evidence on Defendant's iPhone which linked him to fraudulent credit card activity.
In his motion, Defendant challenged only the basis for the stop and subsequent search of the Jaguar, contending the stop was pretextual and without probable cause. (Dkt. 50 at 14-15). While theMagistrate Judge found that Defendant had standing, as a passenger, to challenge the constitutionality of the stop, relying on Brendin v. California, 551 U.S. 249, 251 (2007), he correctly found that the challenge to the stop was without merit, as there was probable cause to stop the Jaguar because of a traffic violation. And he correctly found that Defendant did not have standing to challenge the search of the Jaguar, since he had no expectation of privacy in it.
Defendant admitted that he did not own the Jaguar. (Dkt. 42 at 193). And there was no evidence that he had a possessory interest in it or exercised dominion and control over it to the exclusion of others. Defendant maintained that the Jaguar belonged to Ms. Dawes and she loaned it to people. Walden testified similarly. (Dkt.42, p. 225; 234). Based on this evidence, the Magistrate Judge found that Defendant had not met his burden of establishing that he had a legitimate expectation of privacy in the Jaguar (Dkt. 54, p. 17), and therefore did not have standing to challenge its search. This finding is supported by the evidence and therefore not clearly erroneous. Alternatively, the Magistrate Judge found that the officers had reasonable suspicion of illegal activity other than for the traffic stop and therefore had probable cause to search the Jaguar and its compartments. That alternative finding is likewise supported by the evidence and legal precedent.
Defendant does not object to the Magistrate Judge's conclusion that he lacked standing to challenge the search, and with good reason. The law of this Circuit demonstrating the correctness of the Magistrate Judge's conclusion has been succinctly summarized:
A party seeking to challenge a search on Fourth Amendment grounds must establish that he has a legitimate expectation of privacy in the searched area. Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 430-31, 58 L.Ed.2d 387 (1978). "A person has a legitimate expectation of privacy if (1) he has a subjective expectation of privacy, and (2) society is prepared to recognize that expectation as objectively reasonable." United States v. Harris, 526 F.3d 1334, 1338 (11th Cir.), cert. denied, 555 U.S. 1014, 129 S.Ct. 569, 172 L.Ed.2d 433 (2008). "[A] passenger[] in a private car, ... who has no possessory interest in the automobile, does not have a legitimate expectation of privacy in the interior of the automobile because he does not have the right to exclude others from the car." United States v. Lee, 586 F.3d 859, 864 (11th Cir.2009), cert.denied, 559 U.S. 1100, 130 S.Ct. 2392, 176 L.Ed.2d 782 (2010) (quotation omitted).
United States v. Ubaldo-Viezca, 398 F. App'x 573, 579 (11th Cir. 2010).3
Defendant objects to the Magistrate Judge's alternative finding that even if he had a reasonable expectation of privacy in the Jaguar, there was probable cause for its search. Essentially, he argues that the existence of the embosser "is not illegal in itself and cannot provide a basis for the search." I disagree and find that the Magistrate Judge's alternative finding of probable cause was not erroneous. The presence of the embosser, considered in the context of the credit card fraud investigation, was a specific and articulable fact which raised a rationale inference of criminal activity.
When Officers Miller and Gustafson saw the Jaguar, it was traveling at a high rate of speed, weaving in and out of traffic. On Riverhills Drive, it was traveling 48 mph in a 35 mph zone, prompting the traffic stop (Dkt. 42, p. 25-26; 86). As the Magistrate correctly found, the stop was justified under binding Supreme Court and Circuit precedent. Whren, 517 U.S. at 810; Terrell v. Smith, 668 F.3d 1244, 1251-52 (11th Cir. 2012). Specifically, the traffic violation justified the stop. United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (). And the Magistrate Judge was correct that the officer's subjective intentions are irrelevant, so long as reasonable suspicion objectively existed to justify the stop. Id. Defendant's pretext argument was therefore correctly rejected.
While Officer Miller was running the driver's name in his computer, Officer Gustafson engaged Defendant and the driver in conversation which, according to Miller, resulted in theirconsent to a search of the vehicle. (Id. at 27-28). However, the Magistrate Judge found that the evidence did not support the Government's contention that they consented to the search. And the Magistrate Judge rejected the Government's contention that the odor of...
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