United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
September 26, 2018, the Magistrate Judge filed a
Recommendation (Doc. # 59) that the motions to suppress filed
by Defendants Darryl Urgelles Mestre and Eddy Ricardo
Bermudez (Docs. # 34, 38) be denied. Defendants timely
objected to the Recommendation. (Docs. # 63, 68.) Upon a
de novo review of the record and the Recommendation,
see 28 U.S.C. § 636(b), Defendants'
objections are due to be sustained, and the Magistrate
Judge's Recommendation is due to be rejected.
STANDARD OF REVIEW
party objects to a Magistrate Judge's Report and
Recommendation, the district court must review the disputed
portions de novo. 28 U.S.C. § 636(b)(1). The
district court “may accept, reject, or modify the
recommendation, receive further evidence, or resubmit the
matter to the magistrate judge with instructions.” Fed.
R. Crim. P. 59(b)(3). De novo review requires that
the district court independently consider factual issues
based on the record. Jeffrey S. ex rel. Ernest S. v.
State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).
If the Magistrate Judge made findings based on witness
testimony, the district court must review the transcript or
listen to a recording of the proceedings. Id. The
district court cannot reject a credibility determination
without rehearing live testimony. United States v.
Powell, 628 F.3d 1254, 1257 (11th Cir. 2010). But the
district court may, without a new hearing, modify findings in
a way consistent with the Magistrate Judge's credibility
determination. See Proffitt v. Wainwright, 685 F.2d
1227, 1240-41 (11th Cir. 1982).
case involves a police encounter in the parking lot of a
Dothan Walmart. The Recommendation adequately recites the
facts, and neither Mestre nor the government disputes them.
Bermudez challenges only two of the Recommendation's
findings of fact. Because these two findings are closely
entwined with the Recommendation's legal conclusions,
they are discussed in Part III.
Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend IV. Thus, there must be a “search”
or a “seizure” to trigger the Fourth
Amendment's protections. No. party objects to the
Recommendation's finding that a seizure occurred here.
But the Recommendation is unclear on precisely when
the seizure occurred, and that issue is critical to the case.
For a seizure to be valid, it must be “justified at its
inception.” May v. City of Nahunta, Ga., 846
F.3d 1320, 1328 (11th Cir. 2017) (quoting Terry v.
Ohio, 392 U.S. 1, 20 (1968)). Thus, the court considers
only those “facts available to the officer at the
moment of the seizure.” Terry, 392 U.S. at
21-22; United States v. Franklin, 323 F.3d 1298,
1301 (11th Cir. 2003) (“Because Franklin was seized
when he was tackled, the officers can consider everything
that happened up to that point to establish reasonable
suspicion.”). Determining when the seizure occurred,
therefore, determines what facts the court may consider in
determining reasonable suspicion.
Recommendation appears to find that the seizure occurred when
Officer Hughes retained Defendants' identification.
Bermudez contends that the seizure occurred the moment
Officer Hughes opened the door of the vehicle and began
speaking to Defendants. For these reasons, Bermudez is
correct, and his objection on that point is
The seizure occurred when Officer Hughes opened the door and
began questioning Defendants.
police-citizen encounters are seizures. The Eleventh Circuit
has explained the difference between “police-citizen
exchanges involving no coercion or detention, ” which
are not seizures, and “brief seizures or investigatory
detentions” (known as Terry stops), which do
implicate the Fourth Amendment. United States v.
Perez, 443 F.3d 772, 777 (11th Cir. 2006).
person is seized under the Fourth Amendment “only if,
in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.” United States v. Mendenhall, 446 U.S.
544, 554 (1980). In determining whether a reasonable person
would feel free to leave, courts consider
whether a citizen's path is blocked or impeded; whether
identification is retained; the suspect's age, education
and intelligence; the length of the suspect's detention
and questioning; the number of police officers present; the
display of weapons; any physical touching of the suspect, and
the language and tone of voice of the police.
Perez, 443 F.3d at 778 (quoting United States v.
De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991)).
“The ultimate inquiry remains whether a person's
freedom of movement was restrained by physical force or by
submission to a show of authority.” United States
v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011).
“[P]olice questioning, by itself, is unlikely to result