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United States v. Mestre

United States District Court, M.D. Alabama, Southern Division

January 23, 2019




         On 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.


         When a 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).


         This 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.


         The 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.

         The 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 sustained.[1]

         A. The seizure occurred when Officer Hughes opened the door and began questioning Defendants.

         Not all 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).

         A 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 ...

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