United States District Court, M.D. Florida, Jacksonville Division
E. SCHLESINGER UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court for consideration of the
"Report and Recommendation" of Magistrate Judge
Monte C. Richardson (Dkt. 49), on Defendant's
"Motion to Suppress Physical Evidence" (Dkt. 31).
After review of the Report and Recommendation and the
Objections (Dkt. 50) and Response (Dkt. 51) thereto, the
Court enters the following order.
Motion was referred to Judge Richardson, who held an
evidentiary hearing on the motion on September 15, 2017. On
October 12, 2017, Judge Richardson submitted a Report and
Recommendation (R&R), which concluded that
Defendant's Motion should be denied. (Dkt. 49). Defendant
submitted his objections to the R&R on October 24, 2017.
(Dkt. 50). On October 31, 2015, the United States filed its
Response to Defendant's Objections. (Dkt. 51).
Accordingly, this matter is ripe for resolution.
district court may accept, reject, or modify a Magistrate
Judge's Report and Recommendation. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3); United States v.
Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). "The
district court must make a de novo determination of
any disputed portions of the magistrate judge's report or
recommendation." Powell, 628 F.3d at 1256;
see also 28 U.S.C. § 636(b)(1) (requiring
de novo review when specific objections are made).
does not object to Judge Richardson's factual summary or
his articulation of the relevant law governing this case.
(See Dkt. 50 pp. 1, 3). The Court therefore adopts
the facts and law as set forth in the R&R, and
incorporates them into this Order as if set fully forth
first objection to the R&R concerns the credibility of
Agent Stephens. (Id. p. 1). Defendant points to
purported inconsistencies and failures of memory in Agent
Stephen's hearing testimony and concludes that, absent a
finding that Agent Stephens is credible, "this Court
cannot find the United States satisfied the burden of
establishing an exception to the warrant requirement of the
Fourth Amendment." (Id. p. 3). Defendant puts
the cart before the horse. The Fourth Amendment does not
apply to consensual encounters. See Florida v.
Bostick, 501 U.S. 429, 434 (1991) ("[A consensual]
encounter will not trigger Fourth Amendment scrutiny unless
it loses its consensual nature."). It follows, a
fortiori, that there is no burden to establish an
exception to the Fourth Amendment's warrant requirement
where the record evidence demonstrates that the encounter in
question was consensual.
the Court arrives at Defendant's second objection: that
Defendant's interaction at the bus station was a
detention rather than a consensual encounter. Nonetheless,
testimony offered by Defendant's son establishes that the
encounter was indeed consensual. Defendant's son
testified that the Agents, upon approaching the pair, asked
to see Defendant's identification. The son testified that
the Agents spoke calmly and unthreateningly. (Dkt. 47 p. 75).
He also testified that he could have exited the bus terminal.
(Id.). There was no testimony suggesting that the
Agents attempted to intimidate or coerce Defendant.
Judge Richardson's R&R correctly points out:
"The mere fact that a law enforcement officer approaches
an individual and so identifies himself, without more, does
not result in a seizure." United States v.
Baker, 290 F.3d 1276, 1278 (11th Cir. 2002);
Bostick, 501 U.S. at 434 ("Our cases make it
clear that a seizure does not occur simply because a police
officer approaches an individual and asks a few
questions."); INS v. Delgado, 466 U.S. 210, 216
(1984) ("[P]olice questioning, by itself, is unlikely to
result in a Fourth Amendment violation... [u]nless the
circumstances of the encounter are so intimidating that a
reasonable person would have believed he was not free to
leave if he had not responded.").
is no evidence in the record from which the Court can
conclude that the encounter between Defendant and the Agents
was anything less than consensual.
it is ORDERED:
Magistrate Judge's "Report and Recommendation"