United States District Court, N.D. Alabama, Western Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
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.
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.
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).
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,
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).
United States now asks the Court to reconsider its decision.
(Doc. 37). Mr. Curry opposes the motion to reconsider. (Doc.
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
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). 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).
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.
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. 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. 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,
• 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,
• 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,
• 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)
• 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).
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);
• 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.
Court accepted - and still accepts - those findings.
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
• 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
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: 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);
• [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).
United States does not acknowledge this testimony in its
motion to reconsider.
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
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?
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