United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge.
matter is before the Court on Defendant's Objection (DN
28) to the Magistrate Judge Whalin's Findings of Fact,
Conclusions of Law, and Recommendations regarding
Defendant's Motion to Suppress (DN 27). For the following
reasons, the Magistrate Judge's Report and Recommendation
is ADOPTED and Defendant's Objection is OVERRULED.
approximately 10 p.m. on July 2, 2015, a group of four
Louisville Metro Police officers were traveling in an
unmarked Ford Explorer. (Suppress Hr'g Tr. 4:3-14; 17:18,
36:13-23, Aug. 10, 2016, DN 22 [hereinafter Hr'g Tr.]).
The officers were travelling southward on 19th Street when
Detectives Jason Haywood (“Haywood”) and Tony
Benzing (“Benzing”) observed a 2002 Chevy Impala
waiting behind another vehicle in the drive through line at
West Main Street Liquors, located at the corner of 19th
Street and West Main Street. (Hr'g Tr. 44:21-45:11).
Haywood recalled that although it was growing dark at the
time, the area was adequately lit with street lights so the
scene was easily observable. (Hr'g Tr. 30:15-19).
Additionally, Haywood testified that he was aware of multiple
arrests and shootings in the immediate area of the liquor
stores, which he characterized as being a “high
crime” area. (Hr'g Tr. 31:8-14). Haywood and
Benzing observed what appeared to be a hand-to-hand
transaction occurring through the passenger window of the
vehicle, which they suspected to be a drug transaction.
(Hr'g Tr. 28:4-11, 37:2-5, 39:4-6). Haywood testified
that he observed an individual, later identified as Mr. Scott
(“Scott”), having a conversation at the passenger
window of the car and observed Scott reach into his pocket
and then lean into the vehicle. (Hr'g Tr. 28:4-11).
Benzing also watched this occur. (Hr'g Tr. 37:2-5). Both
detectives testified that they could not see what-if
anything-was in Scott's hand when he pulled it from his
pocket. (Hr'g Tr. 28:4-11, 45:17-20).
officers then activated the unmarked vehicle's police
lights, performed a U-turn, and parked “[r]ight on the
side of the car, kind of behind it . . . .” (Hr'g
Tr. 7:14-19, 34:1-7). Haywood and Benzing quickly jumped out
and approached the vehicle's passenger side window while
another officer began to pat down Scott. (Hr'g Tr.
7:21-24). Defendant was seated in the passenger seat and had
his right hand inside of his right pants pocket. (Hr'g
Tr. 37:13-15). Benzing greeted Defendant and then asked him
to remove his hand from his pocket. (Hr'g Tr. 22:8-14,
37:23-25). Defendant neither responded to the request nor
removed his hand from his pants pocket. (Hr'g Tr.
39:21-22). Haywood stated that Defendant's only reaction
was to look over to the female driver with a discouraged look
on his face. (Hr'g Tr. 23:4-9). Benzing asked Defendant
twice more to remove his hand. (Hr'g Tr. 39:13-20).
Finally, Benzing reached into the vehicle and placed his hand
on top of Defendant's right wrist. (Hr'g Tr.
37:23-38:2). Benzing felt the shape of a handgun in
Defendant's pockets and alerted the other officers that
Defendant was armed. (Hr'g Tr. 24:12-14, 26:22-23,
38:1-2). At that point, Defendant removed his hand from his
pocket while Benzing took control of it. (Hr'g Tr.
and Haywood removed Defendant from the vehicle. (Hr'g Tr.
38:7-12). Benzing reached into Defendant's right pocket
and pulled out a loaded .22 caliber Beretta handgun.
(Hr'g Tr. 22:23-24, 38:7-12). Defendant's hands were
then placed behind his back while Detective Haywood performed
a pat down search. (Hr'g Tr. 31:15-19). The pat down
search revealed three bindles of narcotics from the interior
change pocket of Defendant's pants located within the
same pocket where the gun was found. (Hr'g Tr.
22:25-23:3). Defendant was charged with the knowing and
intentional possession of both cocaine and heroin with the
intent to distribute the same in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). (Indictment 2-3, DN
1). Additionally, Defendant was charged with the knowing
possession of a firearm by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e).
April 4, 2016, Defendant moved to suppress evidence obtained
as a result of the illegal stop and subsequent warrantless
search of his person. (Def.'s Mot. Suppress, DN 15).
Following an evidentiary hearing, the Magistrate Judge found
that facts supporting reasonable suspicion of wrongdoing did
exist in order to support the legality of the seizure of
Defendant. (Findings of Fact, Conclusions of Law &
Recommendation, DN 25 [hereinafter “R&R”]).
Defendant objects to the R&R's conclusion that
reasonable suspicion existed for the warrantless seizure.
(Def.'s Objs. to R. & R., DN 28 [hereinafter
Def.'s Obj.]). This matter is ripe for adjudication.
STANDARD OF REVIEW
United States v. Curtis, 237 F.3d 598 (6th Cir.
2001), the Sixth Circuit articulated the proper standard of
review for objections to a ruling or recommendation by a
magistrate judge, stating:
[Section] 636(b) creates two different standards of review
for district courts when a magistrate court's finding is
challenged in district court. A district court shall apply a
“clearly erroneous or contrary to law” standard
of review for the “nondispositive” preliminary
measures of § 636(b)(1)(A). Conversely,
“dispositive motions” excepted from §
636(b)(1)(A), such as motions for summary judgment or for
the suppression of evidence, are governed by the de
Id. at 603 (emphasis added) (citations omitted).
Thus, the de novo standard applies to the present
R&R, the Magistrate Judge recommends that the motion to
suppress be denied because reasonable suspicion existed to
support the constitutionality of the warrantless seizure of
the Defendant. The Magistrate Judge bases his finding of
reasonable suspicion on the following facts: an observed
hand-to-hand transaction between Defendant and Scott, the
time of day, the presence of the suspicious activity in a
high crime area, and the fact that Defendant would not comply
with the officer's commands to remove his hand from his
pocket. Defendant objects to the Magistrate's finding of
reasonable suspicion. More specifically, Defendant notes that
the Magistrate Judge incorrectly characterized the
hand-to-hand transaction that the officers observed as a
drug transaction and contests the characterization
of the area as a high crime area. (Def.'s Obj. 1-3).
accordance with Terry v. Ohio, 392 U.S. 1 (1968), a
warrantless stop for questioning is reasonable if
“specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant
that intrusion . . . .” United States v.
Vite-Espinoza, 342 F.3d 462, 466 (6th Cir. 2003)
(quoting Terry, 392 U.S. at 21-22). Thus, for the
Terry stop of Defendant to be lawful, the law
enforcement officers must have a reasonable suspicion of
criminal activity at the time when the police car parked
behind the vehicle in which Defendant was riding. See
United States v. Jones, 673 F.3d 497, 501 (6th Cir.
2012) (noting that reasonable suspicion is to be determined
at the time of the seizure). The fundamental inquiry when
analyzing the constitutionality of a Terry stop is whether
officers “have a particularized and objective basis for
suspecting the particular person stopped of criminal
activity.” United States v. Cortez, 449 U.S.
411, 417-18 (1981). Assessing whether an officer possesses
particularized, objective suspicion requires a two-fold
analysis. Id. at 418. First, a court “must
look at the ‘totality of the circumstances' of
[the] case . . . .” United States v. Arvizu,
534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S.
at 417-18). Under this “totality of the
circumstances” rubric, officers may “draw on
their own experiences and specialized training to make
inferences from and deductions about the cumulative
information available to them that ‘might well elude an
untrained person.'” Unit ...