United States v. Curry

          MEMORANDUM OPINION

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

         On January 4, 2019, this Court issued an opinion in which it granted Mr. Curry‘s motion to suppress evidence that law enforcement officers obtained in a search of the vehicle that Mr. Curry was driving on the date of his arrest. (Doc. 31). The United States has asked the Court to revisit its decision because the United States believes that the decision is flawed. (Doc. 37). The United States asks the Court either to reconsider and deny Mr. Curry‘s motion to suppress or to "clarify its rulings and, if necessary, order a supplementary evidentiary hearing and supplemental briefing." (Doc. 37, p. 1). The Court grants the motion to reconsider. In this opinion, the Court will try to explain more thoroughly exactly what it did to prepare its first opinion, quote at length the evidence on which it relied, and summarize the authority on which the Court‘s analysis of the evidence rests.

         PROCEDURAL BACKGROUND

         Vincent Curry is charged in a one-count indictment as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1). The magistrate judge who conducted the suppression hearing in this case recommended that the Court deny Mr. Curry‘s motion to suppress with respect to the impoundment and search conducted by the Tuscaloosa Police Department. (Doc. 24). Mr. Curry objected to the recommendation concerning the impoundment and search. (Doc. 29).^[1]

         Mr. Curry organized his objections under three headings, arguing generally that (1) the TPD‘s impoundment policy "exceeds the scope of the municipal code provision that the Government relies on as the impoundment policy‘s legal basis," (2) the TPD‘s policy "vests police officers with unchecked discretion on when to impound," and (3) the three Tuscaloosa law enforcement officers involved in the arrest and inventory search "did not follow their own policy in impounding and inventorying the automobile." (Doc. 29, p. 1).

         Within those general arguments, Mr. Curry submitted that the magistrate judge improperly interpreted the relevant municipal ordinance (Doc. 29, pp. 3-4), that the police department‘s impoundment policy was inconsistent with the governing municipal ordinance (Doc. 29, pp. 4-6), that the impoundment policy "is cloaked in ambiguities" (Doc. 29. p. 9, n.24), and that the arresting officers did not follow the written policy because when the owner of the vehicle "arrived on the scene and asked if she could take possession of her car . . . Officers Pizana and Kabiru falsely told this woman that their policy did not allow them to release the vehicle to her, with Officer Kabiru-a Tuscaloosa police department training officer who professed familiarity with [TPD] policies-telling her repeatedly that their impoundment policy would not allow them to release her vehicle to her" (Doc. 29, p. 10). Mr. Curry cited body camera recordings in support of the last argument. (Doc. 29, p. 10, n.27). Mr. Curry pointed out that the officers, in bodycam footage, stated that they searched the vehicle because Mr. Curry had an outstanding warrant, and they had the vehicle towed because "that‘s policy." (Doc. 29, p. 11). Mr. Curry objected to the omission from the report and recommendation of the following facts: a bystander "told Officer Martin that Mr. Curry owned the vehicle" he was operating, Officer Martin "did not take steps" to determine who owned the vehicle, and Officers Kabiru and Pizana each inaccurately stated "that it would have been against department policy to release the car" to the woman who owned it. (Doc. 29, pp. 12-13).

         In its initial memorandum opinion, the Court sustained Mr. Curry‘s objections. The Court discussed the ambiguity in the relevant municipal ordinance, the ambiguities that riddle the police department‘s written impoundment policy, and the evidence omitted from the report and recommendation that informs the Court‘s determination that the TPD follows an unwritten impoundment policy when officers make an arrest incident to a traffic stop. After discussing the precedent concerning the constitutional standards for vehicle impoundments and inventories - discussion that the United States does not challenge in its motion for reconsideration - the Court applied those standards to the evidence and held that the United States did not satisfy "its burden of showing that the impoundment was reasonable or constitutionally permissible." (Doc. 31, p. 33). Accordingly, the Court suppressed the evidence "obtained as a result of the unreasonable and impermissible impoundment." (Doc. 31, p. 33).

         The United States now asks the Court to reconsider its decision. (Doc. 37). Mr. Curry opposes the motion to reconsider. (Doc. 39).

         STANDARD OF REVIEW

         In its initial opinion, the Court set forth the legal standard for a district court‘s review of a report and recommendation concerning a motion to suppress. (Doc. 31, p. 3). The Court stated:

A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "The district judge must consider de novo any objection to the magistrate judge‘s recommendation." Fed. R. Crim. P. 59(b)(3). A district judge reviews for "plain error or manifest injustice" factual findings to which no party has objected. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

(Doc. 31, p. 3).^[2] As with Rule 53(b)(3) of the Federal Rules of Criminal Procedure, 28 U.S.C. § 636(b)(1) states that a district judge must "make a de novo determination of those portions of the [magistrate judge‘s] report or specified proposed findings or recommendations to which objection is made." Although § 636(b)(1) "does not require the [district] judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 154 (1985). That is because for dispositive motions, like motions to suppress, "the ultimate adjudicatory determination is reserved to the district judge." United States v. Raddatz, 447 U.S. 667, 675 (1980).

         In this case, the magistrate judge‘s report and recommendation contains a thoughtful discussion of her findings. Given the scope of Mr. Curry‘s objections and the presence in the record of the relevant municipal ordinance and TPD impoundment policy and the bodycam video from the arresting officers, the Court exercised its "broad discretion" to study all of the evidence in the suppression record. Raddatz, 447 U.S. at 680. As the United States Supreme Court explained in Raddatz, a district court‘s obligation to "'make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made, ‘" 447 U.S. at 673 (quoting 28 U.S.C. § 636(b)(1)) (emphasis in Raddatz), requires a district judge to "'give fresh consideration to those issues to which specific objection has been made by a party, ‘" 447 U.S. at 675 (quoting House Report No. 94-1609, p. 3 (1976)) (emphasis in Raddatz). The Court did just that.

         EVIDENTIARY RECORD

         The United States‘ motion to reconsider begins and ends with the proposition that the undersigned rejected the magistrate judge‘s credibility findings and substituted her own assessment of witness credibility without hearing from the witnesses.^[3] That is incorrect. Based on its review of the evidentiary record, as indicated in its memorandum opinion, the Court accepted the factual findings in the report and recommendation, findings which appear to be based on bodycam footage or on the testimony of the arresting officers.^[4] Accordingly, the Court accepted - and still accepts - the following findings of fact:

• On the night of August 26, 2017, Officer Bobby Martin of the Tuscaloosa Police Department initiated a traffic stop after observing the defendant driving a vehicle with a cracked tail light on Third Avenue East. (Doc. 24, p. 1, ¶ 1).

• The defendant did not immediately pull over when Officer Martin turned on his lights and sirens, but eventually stopped in the parking area in front of a townhouse-style home located at the end of a cul de sac on 38th Place East. (Doc. 24, p. 2, ¶ 2).

• The residence where the defendant parked is one of several townhouses or apartments surrounding the end of the cul de sac. The parking area is a concrete pad extending from the street to the walkway in front of the residence. (Doc. 24, p. 2, ¶ 3).

• Officer Martin described the neighborhood where the arrest occurred as "not so safe" and agreed with characterizing it as a "high crime area." (Doc. 24, p. 2, ¶ 4).

• Once the defendant stopped the vehicle, Officer Martin approached the driver's side window and inquired why the defendant did not stop sooner; the defendant stated he did not hear the siren. (Doc. 24, p. 2, ¶ 5).

• The defendant stated his driver's license was not in the vehicle because it was at home; when Officer Martin inquired where that was, the defendant pointed at the townhome. The defendant provided Officer Martin with his social security number, which Officer Martin relayed to dispatchers over the radio. (Doc. 24, p. 2, ¶ 6).

• Dispatchers advised Officer Martin that the defendant had an active warrant for menacing. Officers Jennifer Pizana and Timothy Kabiru arrived on the scene. Officer Martin handcuffed the defendant and arrested him without incident. (Doc. 24, p. 2, ¶ 7).

• When asked whether he had any weapons on his person or in the vehicle, the defendant responded that he did not. The defendant was placed in the rear seat of Officer Pizana‘s cruiser. (Doc. 24, p. 3, ¶ 8).

• Dispatchers also informed Officer Martin that the defendant was not the registered owner of the vehicle. The defendant asked the officers if he could give the vehicle‘s keys to a woman standing nearby. However, the woman to whom the defendant wanted to give the keys also was not the vehicle‘s registered owner. Officer Martin told the defendant the vehicle had to be towed. (Doc. 24, p. 3, ¶ 9).

• Officer Martin asked several people standing nearby if they knew the defendant or owned the vehicle. One of the individuals stated she knew the defendant as a friend. None of the bystanders claimed to own the vehicle. (Doc. 24, p. 3, ¶ 10).

• Officer Martin conducted an inventory search of the vehicle in preparation for towing and impoundment. During the inventory search, Officer Martin found a Cobra .380 pistol under the driver‘s seat. (Doc. 24, p. 3, ¶ 11) (footnote omitted).

• After the pistol was found, but before the tow truck arrived, the vehicle‘s registered owner arrived on the scene. Officers informed the owner the vehicle was being towed and that she could claim it at the impound lot. (Doc. 24, p. 3, ¶ 12).

         In discussing her conclusions of law, the magistrate judge reiterated a number of her factual findings, stating:

• During the hearing, Officer Martin characterized the neighborhood where the arrest occurred as a "high crime area." No. testimony was offered to contradict this characterization . . . (Doc. 24, p. 8)^[5];

• When Officer Martin initiated the traffic stop, the defendant did not immediately stop; instead, he continued to drive until parking in front of the townhouse. While the defendant indicated the townhouse was his residence, he did not have a driver‘s license with him. When officers asked whether any of the bystanders knew the defendant, one individual indicated that she knew him as a friend. For whatever it is worth, the arrest report listed a different address as the defendant's residence. Moreover, the registered owner was not on the scene, and it was unclear whether the registered owner knew the defendant had the vehicle or knew where the vehicle was located. (Doc. 24, pp. 8-9).

         The Court accepted - and still accepts - those findings.

         As indicated in its initial memorandum opinion, the Court‘s decision rests on the following bodycam evidence, evidence that is not cited in the report and recommendation:

• When Officer Martin approached the vehicle [that Mr. Curry was driving], he asked Mr. Curry: "You live here?" Mr. Curry replied: "Yes, sir" and pointed to the duplex in front of the parking spot. (GX4, 1:30) - (Doc. 31, p. 4);

• Officer Martin asked: "Where is your ID at?" Mr. Curry responded: "It‘s in the house," and Mr. Curry again pointed to the duplex. (GX4, 5:31) - (Doc. 31, p. 4);

• After he was handcuffed but before Officer Kabiru took Mr. Curry to the police car, Mr. Curry asked if he or the police officers could give the keys to the SUV to one of the female bystanders. (GX4, 10:55-10:57). Officer Martin replied that he had to tow the car. (GX4, 11:00) - (Doc. 31, p. 5);

• Officer Martin explained to one of the bystanders outside of Mr. Curry's house: "[The SUV]‘s getting towed. It has to. Because it‘s an arrest out of the vehicle. I have no choice. I‘m required to do that. If there was a way I could help him out by not towing then I would but I can‘t." (GX4, Part II, 7:32-10:10) - (Doc. 31, p. 26);

• [W]hen Officer Kabiru spoke to the SUV‘s owner at the scene of Mr. Curry‘s arrest, the following transpired:

Car Owner: I‘ve got it registered in my name.

Officer Kabiru: It‘s policy we‘re gonna have to tow it. It‘s just policy, yeah.

Owner: He going to jail?

Kabiru: Yeah.

Owner: Okay.

Kabiru: He‘s got some warrants with us. Yep. So I understand it‘s yours but that‘s just policy. (GX6, 17:53-18:05) - (Doc. 31, p. 27);^[6]

• [W]hen Officer Kabiru called his superior officer to ask him to come to the stop, Officer Kabiru stated: "The guy‘s got warrants for menacing so we want to search the vehicle." (GX6, 10:18-10:25) - (Doc. 31, p. 28).

         The United States does not acknowledge this testimony in its motion to reconsider.

         In addition, the Court‘s initial opinion rests on the following testimony from the suppression hearing, none of which appears in the report and recommendation or in the United States‘ motion to reconsider:

• Officer Martin on the significance of the area in which an individual is arrested vis-à-vis an officer‘s decision to impound:

Q You mentioned earlier when you were talking to government‘s counsel that this was a not-so-safe area

A That‘s correct Q You agreed with her that it was a high crime area?

A That‘s correct.

Q Okay. But under the way I understood your understanding of the policy, that was a wordy sentence, under the way you explained the policy, it doesn‘t really matter what kind of area it is, does it, as far as the decision to tow?

A That‘s correct.

Q High crime or not, you would have always towed?

A Yes, that‘s correct.

(Doc. 27, pp. 52-53).

• Officer Pizana on her routine practice in light of the permissive language in the TPD impoundment policy:

Q And at one point that evening while you were on the scene the registered owner of the vehicle came up to you and Officer Kabiru, correct?

A Kabiru, yes.

Q Kabiru. And she was asking you and Officer Kabiru if she could have the car; is that correct?

A I believe so. I don‘t recall.

Q You don‘t dispute that she asked if she could take the car?

A No, I didn‘t argue with her. I said she could pick it up at the lot if she was the registered owner, and our policy is that it states that we may give it to the registered owner, doesn‘t say we should or shall.

[…]

Q So she was interested in taking the car that evening?

A Correct.

Q You heard Officer Kabiru say he had no reason to dispute that she was the registered owner, correct?

A In the video, correct.

Q And you and Officer Kabiru told her it‘s policy, you can‘t ...