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COMES NOW the United States of America this 29th day of December, 2010, by and
through the undersigned Assistant United States Attorney for the Eastern District of Tennessee,
and hereby submits for consideration by this Honorable Court its Response to the Defendant’s
On July 26, 2010, the Defendant requested that this Court suppress pursuant to the Fourth
Amendment “any and all evidence seized, all statements allegedly made by the Defendant, and
any other testimonial evidence,” specifically, evidence “which results from a vehicle stop and
search and seizure of the defendant...on or about April 20, 2010.” Motion to Suppress Evidence
(“Motion to Suppress, Doc. 22). The government filed a response in opposition essentially
arguing that the evidence in question was derived from a lawful traffic stop that was initiated
based upon the officer’s reasonable probable cause belief that he had observed violations of
On December 6, 2010, the magistrate judge filed a Report and Recommendation that
enforcement officer that initiated the traffic stop had probable cause to do so based upon his
observations of traffic law violations such that the Defendant was properly seized under the
Fourth Amendment. [Doc. 62, the “R&R”]. On December 20, 2010, the Defendant filed his
Objections in which he argued that the magistrate judge made four errors in the factual findings
of the R&R based upon the Defendant’s claim that “there was in fact no violation” of any traffic
laws and that the defendant’s “vehicle was pulled over as part of a pretextual stop in the hope
The government submits that this Court should adopt the R&R as it properly finds, based
upon the evidence submitted, that the law enforcement officer had a reasonable basis to believe
that probable cause existed to stop the Defendant based upon the officer’s observation of what he
believed to be violations of traffic laws. The Defendant’s claim that he, in fact, did not violate
any traffic laws is not supported by the existing evidence. Moreover, he appears to be arguing
the question as to whether or not the officer actually proved beyond a reasonable doubt that the
Defendant actually violated certain traffic laws at the suppression hearing. The real question,
however, is whether or not the officer had a reasonable basis on April 20, 2010, to believe that
the Defendant may have been violating any traffic laws based upon his real time observations at
Once a magistrate judge has submitted a Report and Recommendation to the District
Court regarding the disposition of any pretrial motions referred for consideration pursuant to 28
U.S.C. § 636(b), a defendant may file “specific written objections to the proposed findings and
1984)(citing Nettles v. Wainwright, 677 F.2d 404, 410 & n.8 (5th Cir., 1982)). The Sixth Circuit
has held that “generalized objections” do not constitute a “specific objection” under Rule
59(b)(2) as to any findings of either fact or conclusions of law. Howard v. Sec. of Health and
The Defendant cites what he calls as four “erroneous findings of fact” in the R&R.
Objections, p.1. The Defendant argues that the evidence does not support a finding that (1) he
was following a car too closely in violation of Tenn. Code Ann. §55-8-124; (2) he failed to stop
before entering an intersection in violation of Tenn. Code Ann. §55-8-149(c); (3) a “stop line”
actually existed at the intersection and, finally, (4) that the officer “had a reasonable belief” that
the Defendant had committed any traffic offenses. Id., at p.1. As a threshold issue, however, it is
the Defendant’s fourth objection, that the magistrate judge was in error in finding that the officer
“had a reasonable belief” that the Defendant may have committed any traffic offenses, is the
central, if not primary, question for the Court to consider. Whether or not those specific traffic
violations were proved at the suppression hearing to have occurred on April 20 is not the
First, the Defendant argues that the R&R was in error in finding “that the evidence
supports a finding that [the Defendant] was following too closely to the car in front of him as
that offense is defined by Tennessee state law.” Objections, p.1. Second, he argues that he did,
in fact, fully stop at some point in time prior to proceeding into the intersection (“albeit a brief
one”) and that “both the trooper and the Report and Recommendation relied upon a faulty
understanding of the law,” with regard to the issue of whether the Defendant violated a “traffic
The Defendant’s central argument that “there was in fact no violation” (Objection, p.5)
overlooks that the controlling question in this context for the Court to consider is whether or not
it was demonstrated that the officer had “reasonable grounds for belief supported by less that
prima facie proof but more than mere suspicion” to believe traffic violations occurred, United
States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990), not whether any traffic violation was
actually proved at the suppression hearing beyond a reasonable doubt, or even by clear and
convincing evidence. While the government submits that the evidence in this case does support
a finding that the Defendant did, in fact, violate the two traffic laws at issue, the real issue is
whether the R&R made any erroneous findings as to whether the officer held a good faith belief
in that regard on April 20. The Bennett standard means that the Court should consider all the
circumstances at the time in question (weather, visibility and road conditions together with the
actual personal perspective of the observer) in determining if the officer had a probable cause
basis to stop the vehicle in question, not whether any violations were actually proved at the
suppression hearing.
What the R&R finds is that “[b]ased upon his personal observations, Trooper Wilson had
probable cause to believe that the driver of the pickup truck had committed two traffic
violations” that included following too closely to another vehicle and failure to stop at a stop
sign. R&R, p.11. The R&R cites both testimonial evidence and physical evidence (in the form
of a recorded traffic video) to support the finding that Trooper Wilson had a reasonable basis to
form a probable cause belief that he had observed, in the course of seconds while in motion, a
Both the testimony of Trooper Wilson and the video demonstrate that the Defendant was
driving closely behind a vehicle in front of him in a manner that was “more closely that [was]
reasonable and prudent.” R&R, p. 14 (citing Tenn. Code Ann. § 55-8-124(c)). As to the
Defendant’s argument that he, in fact, stopped at the intersection where the stop sign was
located, he concedes that any stop he might have made at that intersection was “a brief one.”
Objections, p. 3. Further, the Defendant does not (and cannot) contest the finding in the R&R,
based upon the traffic video, that he stopped at most for a mere single second before rolling
through into the intersection. R&R, p. 5. This is entirely consistent with Trooper Wilson’s
testimony that he observed at best “a very brief rolling stop” that did not allow for a full control
of the vehicle and the opportunity to view the oncoming traffic. Id., at 13. While the Defendant
objects that there never was a “stop line” in any form at the road intersection [Objections, p.1&
3], the R&R cites both the Defendant’s pictures introduced as exhibits and a specific part of the
traffic video as displaying what appears to be a white spot approximately where the was the road
intersection and the stop sign. More to the point, however, the R&R finds that the video evidence
does not “clearly contradict Trooper Wilson’s testimony” that he observed the Defendant roll
past the stop sign and a partly worn out stop line. R&R, p.14.
While the Defendant might try to argue shades of gray as to what constitutes a traffic law
violation, e.g. what’s an “adequate distance” between vehicles, as in less than a “car’s length,” or
whether a stop was “was long enough in duration,” [Objections, p.2-3], the fact remains that
Trooper Wilson testified that he believed he observed conduct that does, in fact, constitute a
“valid traffic infraction” (Objections, p.6) which would have justified a traffic stop, and the
the Defendant’s argument, or certainly his implied argument, that Trooper Wilson had a
“mistaken view of the law,” or an “erroneous belief” that what he observed actually constituted
an illegal act of following to closely to another vehicle or rolling past a stop sign when the law
“does not actually prohibit such conduct,” as was the circumstance discussed in United States v.
Lopez-Soto, 205 F.3d 1101, 1103 (9th Cir. 2000). Objections, p.4. The Defendant’s arguments
appear to rest somewhere between claiming that his conduct which did occur (following closer
than a car’s length while approaching an intersection or a one second duration stop) was not in
violation of any traffic statute, or that such things never actually occurred, i.e., he was “not
following too closely” and that his “vehicle did stop at the intersection.” Objections, 2 & 3.
Neither of these claims, however, demonstrates that the findings of the magistrate judge in the
R&R are erroneous or his legal analysis incorrect based upon the existing evidence.
It is abundantly clear that the essence of the Defendant’s four objections to the R&R is
centered in his argument is this traffic stop was “part of a pretextual stop in hope that the
evidence of a crime might eventually be discovered.” Objections, p.5. This argument, however,
overlooks the fact that it was uncontested that Trooper Wilson had no idea who was in that area
on April 20, or who was in the vehicle in question, and that he didn’t even know of the
Defendant’s identity or had ever heard of the term or group “Oath Keepers,” which words were
displayed on the Defendant’s vehicle. R&R, p. 2, 3 & 4. It was clear from Trooper Wilson’s
testimony that his attention was drawn to what he termed “suspicious indicators” on the vehicle
which caused him to carefully observe the vehicle. R&R, p. 2. Yet; that is a far cry from
The magistrate judge carefully outlined in the R&R the evidence submitted at the
suppression hearing which supported Trooper Wilson’s testimony that he had a good faith basis
to form a probable cause belief that he had observed conduct which constituted certain traffic
offenses (which are, in fact, valid statutory violations) under the legal principles enunciated in
Whren v. United States, 517 U.S. 806 (1996) and United States v. Ferguson, 8 F.3d 385 (6th Cir.
1993), cert. denied, 513 U.S. 828 (1994). This evidence was further examined and tested by the
magistrate judge in light of the legal arguments advanced by the Defendant. The Defendant’s
four specific objections to the R&R are not supported by the existing evidence and, at best,
constitute differing views of the legal significance same evidence combined with the assertion
based on the assumption (or mere supposition) that Trooper Wilson acted in bad faith in making
a pretextual stop without any basis for believing that traffic laws had been violated. None of
which constitutes a basis to find that the R&R was erroneous in any factual findings or legal
conclusions. As such, the government submits that the this Honorable Court should adopt the
WHEREFORE, for the reasons noted above and the legal authorities cited herein, the
United States respectfully requests that the Court adopt the Report and Recommendation [Doc.
62] and deny the Defendant’s Objections to the Report and Recommendation Regarding Motion
WILLIAM C. KILLIAN
United States Attorney
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of December, 2010, a copy of the foregoing Response
was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic
filing system to all parties indicated on the electronic filing receipt. All other parties will be
served by regular U.S. Mail. Parties may access this filing through the Court’s electronic filing
system.
s/ A. Wm. Mackie
A. William Mackie
Assistant United States Attorney