MARK H. COHEN, District Judge.
This action comes before the Court on the Final Report and Recommendation ("R&R") of Magistrate Judge Justin S. Anand [Doc. 57] recommending that Defendant's Motion to Suppress Evidence [Doc. 20] be denied. The Order for Service of the R&R [Doc. 58] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. Defendant has filed his objections to the R&R [Doc. 62] ("Def.'s Objs.").
In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court."
Defendant objects to three factual findings made by Judge Anand. First, he objects to the characterization of the Texaco gas station where Defendant's automobile was present as "defunct," because an officer's body camera footage showed other operating businesses nearby. Def.'s Objs at 1-2. However, the direct testimony of City of Atlanta Police Officer Larenzo Carter supports Judge Anand's finding:
Tr. of Mar. 26, 2019, Suppression Hr'g [Doc. 38] ("Tr. II") at 5-6. Moreover, regardless of the characterization of the gas station as "defunct,"
Second, Defendant objects to Judge Anand's finding that officers "saw the Defendant repeatedly reach into a pocket and discard items," later retrieved and found by officers to be marijuana, a cell phone, and a pill bottle with residue. Def.'s Objs. at 2 (citing R&R at 2). Defendant contends that this was not recorded by the officer's body camera, which would have been the best evidence of the conduct. Def.'s Obj. at 2.
The factual finding is supported by the testimony of City of Atlanta Police Officer James Dougherty, who testified that, after observing a number of people in the parking lot of the gas station, an African American male (later identified as Defendant) on a red scooter wearing no helmet was leaving the location. Tr. I at 7. Based on the absence of a helmet, a patrol car pursued him and observed Defendant "to reach at his left side and pull stuff out of his pockets."
Third, Defendant objects to the factual finding that City of Atlanta Police Officer Robert Godwin's K-9 dog alerted them to a brown Cadillac parked near the gas station, which established probable cause to search the car; Defendant contends the dog is unreliable because the dog gave false positive results on one occasion. Def.'s Objs. at 3, 8. However, Officer Godwin testified that this was the only time in seven years that the K-9 dog registered a false positive result, and at that one time, Officer Godwin himself smelled the residual odor of drugs when he entered the car. Tr. I at 19-21, 26-28. To the extent Defendant questions the veracity of Officer Godwin's testimony, "[i]n evaluating the factual version of events between the law enforcement officer[] and [the defendant], we should defer to the magistrate judge's determination unless his understanding of the facts appears to be `unbelievable.'"
Finally, Defendant argues that the automobile exception to the requirement of a search warrant applies to traffic stops and should not apply to a parked car whose driver has already been arrested. Def.'s Objs. at 2. Defendant acknowledges binding precedent in this Circuit that holds otherwise but wishes to preserve his objection for further review.
Accordingly, after a de novo review of those portions of the R&R to which Defendant objects, the Court
It is hereby
It is further