United States v. Milam

• Decision Date: 01 June 2016
• Docket Number: No. 15-cr-20091,15-cr-20091
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. TERRENCE MILAM, Defendant.
• Court: U.S. District Court — Western District of Tennessee

UNITED STATES OF AMERICA, Plaintiff, v. TERRENCE MILAM, Defendant.

No. 15-cr-20091

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

June 1, 2016

ORDER

On January 26, 2016, Defendant Terrence Milam filed a Motion to Suppress. (Motion to Suppress, ECF No. 36.) The government responded in opposition to the Motion to Suppress on February 5, 2016. (Response, ECF No. 37.) On February 29, 2016, the Magistrate Judge held a suppression hearing (the "Suppression Hearing"). (R&R, ECF No. 49 at 1.) The government filed a post-hearing brief on March 4, 2016. (Gov. Post-Hearing Brief, ECF No. 47.) Milam filed a post-hearing brief on March 7, 2016. (Milam Post-Hearing Brief, ECF No. 48.)

Before the Court is the Magistrate Judge's March 18, 2016 Report and Recommendation recommending denial of the Motion to Suppress (the "R&R"). (R&R, ECF No. 49.) On March 25, 2016, Milam filed objections to the R&R and requested a de novo suppression hearing (the "Objections"). (Obj., ECF No. 50.) The government responded on April 15, 2016. (Response to Obj., ECF No. 55.)

For the following reasons, the request for a de novo suppression hearing is DENIED, the Objections are OVERRULED, the R&R is ADOPTED, and the Motion to Suppress is DENIED.

I. Background

The R&R sets forth the factual and procedural background of this case in detail. (R&R, ECF No. 49.) Unless otherwise stated, the Court adopts the R&R's defined terms. The following facts are pertinent to the Objections and were not set forth in the R&R.

At the Suppression Hearing, Officer Zachary Apel testified that on January 21, 2015, he first developed reasonable suspicion that Milam was engaged in illegal activity when he saw Milam and the victim "wiggling" to pull their pants up in Milam's car. (Hearing Tr., ECF No. 46 at 20-21,31.) He testified that he first saw them wiggling while he was driving toward Milam's car and before blocking Milam in Milam's parking space. (Id. at 20-21,31,37.) Defense counsel requested that an audio recording of Officer Apel's testimony from the June 5, 2015 preliminary hearing in state court (the "Preliminary Hearing") be played in open court to impeach Officer Apel about when he first developed reasonable suspicion that Milam was engaged in illegal activity. (Id. at 22-23.) Defense counselsaid he was not moving to admit the audio recording into evidence. (Id. at 26.) The government objected to defense counsel's playing the recording for purposes of impeachment. (Id. at 22-23,25.) The Magistrate Judge denied the request to play the audio recording. (Id. at 26-27.) She allowed Officer Apel to listen to the recording alone to see if it would refresh his recollection. (Id.)

The audio recording refreshed Officer Apel's recollection. (Id. at 28.) Officer Apel's testimony at the Preliminary Hearing was that he saw Milam and the victim wiggling in Milam's car as Officer Apel exited his police car, which occurred after Milam's car had been blocked. Officer Apel explained that he did not testify at the Preliminary Hearing about first seeing Milam and the victim wiggling in Milam's car before blocking the car because he was asked to give a "vague statement" instead of a "more detailed description". (Id. at 29.) He said "I believe if I had been asked a little differently, I may have said it that way." (Id. at 31.)

Based on Officer Apel's belief that he was asked about the incident in a different way at the Preliminary Hearing than at the Suppression Hearing, defense counsel again asked the Magistrate Judge to play the audio recording. (Id. at 32.) Defense counsel sought to show that the question Officer Apel had been asked at the Preliminary Hearing was not sufficientlydifferent to justify inconsistencies in Officer Apel's testimony about when he first saw Milam and the victim wiggling in Milam's car. The government objected to admitting the recording into evidence. (Id.) The following exchange occurred between defense counsel, the government, and the Magistrate Judge:

Mr. Germany [defense counsel]: . . . I know how to impeach a witness and I just did.

The Court: Hang on a second. And you are right, you did [impeach him]. In other words, you got him to admit the testimony was different.

Mr. Germany: And I also got him to now say that, well, he's asked a little bit different way . . . .

The Court: Hang on a second. The evidence is the testimony, not the question. What he said is: When asked last summer, what happened, he saw wiggling as he was getting out of the car. He's asked today to step by step by step go through it. And so, I mean, you went through it both ways with him. He doesn't disagree that he said then he saw the wiggling as he was getting out of the car.

Mr. Germany: In order for you to have a full understanding of the gravity of his testimony, it is incumbent upon you that you listen to the preliminary hearing. If you don't want to listen to it or if you are not -

The Court: No, again, it's not if I don't want to listen to it. It's -

Mr. Germany: You are not -

The Court: It's how - it's how we do impeach, right, and how you get it in front of me. And, I'm not going to - I've said it before, I'll say it again, I'll never catch up to ya'll in criminal procedure, but I know rules of evidence, too. I mean civil or criminal rules of evidence remain the same. And -Mr. Germany: But the rules of evidence don't apply in a suppression hearing, Your Honor. And even if it did, Your Honor, I've been in situations in trial where courts have allowed the jury to hear preliminary hearing transcripts, much less -

The Court: I'm not saying there is anything wrong - you know what, I said it before, I'll say it again, play it, and it will be under the category of for what it's worth. I'll take it into - again, it's just in front of me. Your objection is on the record. It's duly noted.

Ms. Ireland [the government]: An additional objection, Your Honor, it does not become part of the transcript. The court reporter will not transcribe that hearing. It will not be part of the record. But if Your Honor is going to consider it, it needs to be. And, furthermore, there are other voices on that transcript that haven't been - or other voices on that recording that have not been identified or acknowledged, and there is ancillary material that is not pertinent to the suppression.

Mr. Germany: What ancillary material? What voices? The prosecutor? What ancillary material? He's testifying about the case.

The Court: There is a disk, right? Is there a disk of the hearing?

Mr. Germany: Pardon me?

The Court: Is there a disk of the recording?

Mr. Germany: There is.

The Court: Just make it available to me.

. . . .

Mr. Germany: There really isn't anything else, but what I would ask - what I would ask to be allowed to do is submit that into evidence, and if Your Honor wants to consider it and you do a report and recommendation, tell us in your report and recommendation that you considered what's on the diskor not . . . . want it noted for the record that I tried to get in the prior testimony of the officer, and based on everything that he has stated, based upon his lack of ability to rectify the two testimonies saying that both the questions were asked a different way trying to explain it away, well, I mean it would be helpful, I believe, for Your Honor to listen to it. If Your Honor does not want to listen to it or will not let me play the tape, I understand Your Honor's ruling. Just note my objection for the record.

. . . .

The Court: I want you to get me a disk and then tell me what time on the disk is the beginning and end of what you want me to listen to . . . . I'll make a note in my report and recommendation how I treat it and what rules I treat it under or don't treat it under.

(Id. at 32-35,44-45.)

The audio recording was not admitted into evidence. It was admitted for identification purposes only. (Exh. & Witness List, ECF No. 45.) The Magistrate Judge requested post-hearing briefs on the admissibility of the audio recording. (Hearing Tr., ECF No. 46 at 47.) In Milam's post-hearing brief, he informed the Magistrate Judge that the part he wanted her to listen to was from 1:50 to 3:00 on the disk. (Milam Post-Hearing Brief, ECF No. 48 at 2.) He argued that the entire audio recording should be admitted into evidence because the Federal Rules of Evidence do not apply at suppression hearings. (Id.) The government argued that the audio recording should not be admitted into evidence because it is not inconsistent with Officer Apel's Suppression Hearing testimony. (Gov. Post-Hearing Brief, ECF No. 47 at 2.) The government "acknowledge[d]" that the entire recording might be helpful to the Magistrate Judge in deciding whether Officer Apel's statements were inconsistent. (Id. at 3.) Each party cited to the audio recording in support of its position on whether a Fourth Amendment violation had occurred.

The R&R recommends that the Motion to Suppress be denied because Officer Apel developed the reasonable suspicion required by the Fourth Amendment to detain Milam before blocking Milam's car in its parking space. (R&R, ECF No. 49 at 6.) Even if Officer Apel violated Milam's Fourth Amendment right, the R&R recommends that the violation does not "rise[] to a level to warrant suppression of evidence." (Id. at 7.) The R&R's factual findings and conclusions of law are based in part on the audio recording of Officer Apel's Preliminary Hearing testimony. (R&R, ECF No. 49.) The R&R does not address the admissibility of the audio recording.

II. Standard of Review

Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to Magistrate Judges. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869-70 (1989)); see also Baker v. Peterson, 67 F. App'x 308, 310 (6th Cir. 2003). If theMagistrate Judge holds a suppression hearing, the district court may reopen the...