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United States v. Terry

United States District Court, D. Arizona

May 31, 2017

United States of America, Plaintiff,
v.
Derek Lamont Terry, Defendant.

          ORDER

          Cindy K. Jorgenson United States District Judge

         On April 20, 2017, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (“R & R”) (Doc. 225) in which he recommended that the Motion to Suppress Statements and the Results of the Government's Search of his Cellular Telephone (Doc. 103) filed by Derek Lamont Terry (“Terry”) be denied. Terry has filed an objection (Doc. 230) and the government has filed a response (Doc. 238). Additionally, the magistrate judge discussed and made recommendations regarding the issues raised in the Motion to Suppress Evidence Seized Following Illegal Traffic Stop (Doc. 125) filed by co-defendant Dana Renaye Glenn (“Glenn”). As Terry joined in this motion (Doc. 153), the magistrate judge discussed the issues therein, and the parties address these issues in the filings, the Court accepts the R & R as also making recommendations as to those issues; the Court also accepts Terry's objections as to those issues.

         The Court has reviewed the Motion to Suppress Defendant's Statements and the Results of the Government's Search of his Cellular Telephone (Doc. 103), the response (Doc. 129), the Motion to Suppress Evidence Seized Following Illegal Traffic Stop (Doc. 125), the response (Doc. 151) the Joinder (Doc. 153), the Government's Summation Re: Motion to Suppress Hearing April 4, 2017 (Doc. 224), the R & R (Doc. 225), the exhibits, the transcript of the hearing held before the magistrate judge (Doc. 220), the objection (Doc. 230), and the response (Doc. 238).

         The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).

         Report and Recommendation - Factual Background

         Terry points out the R & R fails to include any reference to the dash camera video and argues the dash camera video is the best objective evidence to review the stop of Terry. However, the magistrate judge included multiple references to the dash camera in his factual summary. Indeed, the magistrate judge summarized what the video and audio recordings showed. See R & R, pp. 4-5.

         Terry further argues that “[a] review of the dash cam shows Ms. Glenn traveling in the median lane with two large semi-trucks several hundred yards in front of her and virtually out of range from the dash cam video.” Objection, pp. 1-2. The Court disagrees with Terry's summary. The beginning of the dash camera video shows a black Toyota Camry passing two semi-trailer trucks, then pulling over to the side of the road. Furthermore, the testimony of Trooper [Keith Duckett (“Trooper Duckett”)] indicates he observed a black Toyota Camry following a “tractor-trailer, 18 wheeler . . . at a distance of approximately one second behind the commercial vehicle[, ]” while the NHTSA standard requires four to five seconds.” TR p. 17.[1] Trooper Duckett made this observation while his vehicle was parked perpendicular to the road and traffic. The dash camera video was only activated after the trooper waited for traffic to clear, pulled out onto the interstate from the side of the road, and initiated the lights of the patrol vehicle; Trooper Duckett testified that when he initiated his lights, the dash camera beeped at him, so he knew it was turned on. TR, p. 20. In other words, Terry's argument that, if Trooper Duckett was credible, the dash camera footage would show Glenn following as closely as the trooper's testimony indicated, is not well-taken. In light of when the dash camera video began, the testimony as to how closely Glenn was following the semitrailer truck while Trooper Duckett was parked perpendicular to the traffic cannot be confirmed or contradicted by the dash camera video.

         Terry objects to the R & R's description of the clothing worn by the females in the vehicle: Terry asserts “the body/dash cam [video] does not reveal clothing one would think indicative of prostitution or uncomfortable in anyway.” Objection, p. 3. The Court's review of the dash camera video, however, belies this assertion. The clothing worn by at least two of the women (and arguably the third) could fairly be said to be indicative of prostitution, especially in light of the time of day during which the articles of clothing were being worn. Further, the Court agrees with the magistrate judge that the females were not dressed in comfortable clothing for the lengthy road trip.

         Terry also disputes the magistrate judge's statement recognizing that Jade appeared nervous to Trooper Duckett and that Sergeant Joshua Wilhem (“Sergeant Wilhelm”) told Trooper Duckett that Jade was on the verge of tears when speaking with Sergeant Wilhelm. Terry asserts the body camera video shows otherwise. The Court's review of the body camera footage leads to a conclusion that, although it could simply have been because of the law enforcement contact, it was reasonable for the trooper to conclude Jade appeared nervous. Indeed, during the encounter with Trooper Duckett, Jade did not dispute the trooper's statements that she was shaking and that she appeared nervous. The Court does not have any basis to conclude the officers were not truthfully summarizing their opinions of what they observed. The Court adopts this portion of the R & R.

         Terry objects to legal conclusions based on factual findings reached by the magistrate judge, but makes no further specific objections to the factual summary included in the RR. The Court adopts the factual summary included in the R & R.

         Initial Stop - Reasonable Suspicion

         Terry argues the dash camera video does not support the magistrate judge's conclusion that the initial traffic stop was lawful. Rather, Terry asserts, that “[c]ommon sense and knowledge of the ways of the world demonstrate that if [] Glenn was following as closely as Trooper Duckett indicated, his dash cam would have captured images of [] Glenn following too closely.” Objection, p. 2. However, the Court has concluded that the dash camera neither confirms nor contradicts the assertion by Trooper Duckett that the Toyota Camry was following the semi-trailer truck too closely when it passed his location when he was parked perpendicular to the traffic.

         The magistrate judge recognized that the testimony of Trooper Duckett was contradicted by Glenn. Glenn testified she was not speeding, was traveling two car lengths behind the semi-trailer truck, and she was driving carefully through the construction zone. However, Glenn conceded she has never had a driver's license, has never applied for a driver's license and she has never taken a road test or a driving course. Glenn also admitted that she had lied to Trooper Duckett. Additionally, she acknowledged she engaged in “three way” phone calls, which are prohibited by the detention facility, with Terry and discussed the facts of this case many times with him.

         This Court agrees with the conclusions of the magistrate judge. Trooper Duckett's testimony is credible. He was in a position to focus on the traffic and was in a position to observe traffic infractions. While a driver may not be knowledgeable about all traffic laws or could be distracted, the trooper was in a position to best assess if a traffic violation occurred.

         Additionally, when Trooper Duckett informed Glenn why she was being stopped, she did not dispute the trooper's assertion that she had been following too closely. In fact, it is more likely that, when Glenn noticed Trooper Duckett in the construction zone, her focus was on the speed of the vehicle. Additionally, the Court agrees with the summary of the magistrate judge assessing the credibility of Glenn:

Finally, Ms. Glenn's credibility is also undercut by the following facts: (1) she has never had a driver's license; (2) she has never taken a road test or driving course where she would learn what is a safe distance between vehicles; (3) she gave Trooper Duckett a false name so he would not find out she did not have a driver's license; (4) she testified that she could not recall what direction she was traveling on June 8, 2016; and (5) she admitted that she has ...

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