UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA
OPINION AND ORDER
On July 22, 2013, United States Magistrate Judge Douglas N.
Frazier submitted a Report and Recommendation (Doc. #38)
recommending that defendant’s Motion for Pre-Trial Suppression
Hearing (Doc. #26) be denied. Defendant filed Objections (Doc.
#47) to the Report and Recommendation. For the reasons set forth
below, these objections are overruled.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation. 28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010). A district judge “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)(C). See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009). This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.
1609, 94th Cong., § 2 (1976)). The district judge reviews legal
conclusions de novo, even in the absence of an objection. See
Cooper-Houston v. Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
A district court may not reject the credibility determinations of
a magistrate judge without personally rehearing disputed testimony
from the witness. Powell, 628 F.3d at 1256-58.
As defendant notes, the underlying facts are largely
uncontested. The Court adopts the facts as set forth in the Report
and Recommendation. (Doc. #38, pp. 1-5.)
Defendant argues that the stop of the vehicle was
unconstitutional, a position rejected by the Report and
Recommendation. The Court agrees with and adopts the analysis of
the Report and Recommendation as to this issue. (Doc. #38, pp. 5-
6.) A law enforcement officer observed the vehicle commit a
traffic infraction in his presence; therefore, he had probable
cause to stop the vehicle. Contrary to defendant’s suggestion,
there was no evidence of an improper pretext and, in any event, the
subjective motivation of the officer is not relevant in light of
the actual traffic infraction observed by the officer. Whren v.
United States, 517 U.S. 806, 813 (1996); United States v. Jones,
377 F.3d 1313, 1314 n.1 (11th Cir. 2004). Defendant’s objection is
Defendant argues that the duration of the stop and the search
of the vehicle after the stop were unconstitutional. The Report
and Recommendation found that as a mere passenger, defendant had no
standing to challenge the constitutionality of the vehicle search.
(Doc. #38, pp. 6-8.) Alternatively, assuming standing, the Report
and Recommendation found the search was lawful under Terry v. Ohio,
392 U.S. 1 (1968). (Doc. #38, pp. 8-10.)
Recommendation for concluding there is a bright line rule depriving
a passenger of standing to challenge a vehicle search if there is
probable cause for the stop (Doc. #47, pp. 3-4), this is not what
the Report and Recommendation said. The Report and Recommendation
examined the facts of the case and concluded there was no standing
by defendant to challenge the search of this vehicle. (Doc. #38,
pp. 7-8.) The Court agrees with the Report and Recommendation’s
analysis of this issue, and therefore adopts that portion of the
Report and Recommendation and overrules defendant’s objection.
In the alternative, the Report and Recommendation assumed
standing and found the search of the vehicle was lawful under Terry
and its progeny. The Court agrees with this analysis, adopts this
portion of the Report and Recommendation, and overrules the
The Report and Recommendation does not address defendant’s
claim that the duration of the detention was unlawful. When
evaluating whether the duration of an investigative detention is
unreasonable and too intrusive, the Supreme Court has indicated
that “common sense and ordinary human experience must govern over
rigid criteria.” United States v. Sharpe, 470 U.S. 675, 685
(1985). A traffic stop can last long enough for the police to ask
questions about the reasons for the infraction and to conduct a
variety of checks about licenses, registration, and insurance.
United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir.
2005). Additionally, the officer may lengthen the detention for
further questioning beyond that connected to the initial stop if
(1) the officer “has an objectively reasonable and articulable
suspicion illegal activity has occurred or is occurring;” or (2)
“if the initial detention has become a consensual encounter.”
United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999).
“[T]he [Supreme] Court [has] held, in a case involving a traffic
stop, that ‘[a]n officer's inquiries into matters unrelated to the
justification for the . . . stop . . . do not convert the encounter
into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.’”
United States v. Griffin, 696 F.3d 1354, 1361 (11th Cir. 2012)
(quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)). The Court
finds that under the facts of this case, the duration of
defendant’s detention prior to his arrest was reasonable and not
The Report and Recommendation also correctly notes that since
there was no illegal stop or search, there was no viable issue that
the statement by Jamar James should be suppressed as derivative of
the unlawful conduct. This portion of the Report and
Recommendation is also adopted.
Accordingly, the Court will adopt the Report and
Recommendation and will deny the motion to suppress.
Accordingly, it is now
The Magistrate Judge’s Report and Recommendation (Doc.
#38) is accepted and adopted, and it is specifically incorporated
into this Opinion and Order.
2. Defendant’s Motion for Pre-Trial Suppression (Doc. #26) is
DONE AND ORDERED at Fort Myers, Florida, this 20th day of
Counsel of Record