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Plaintiff, )
v. ) No. 3:10-CR-73
Defendant. )



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

Objections to the Report and Recommendation [Doc. 65, “Objections”] as follows:

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

traffic laws. [Doc. 38].

On December 6, 2010, the magistrate judge filed a Report and Recommendation that

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recommended that the Defendant’s Motion to Suppress be denied on the basis that the law

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

that evidence of a crime might eventually be discovered.” Objections, p.5.

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

the scene under the conditions that existed at that time.

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

recommendations” under Fed.R.Crim.P. 59(b)(2). Such objections to a R&R “must specifically

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identify those findings to which he objects.” United States v. Slay, 714 F.2d 1093 (6th Cir.

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

Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

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

determining factor is evaluating the Defendant’s objections to the R&R.

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

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control device,” i.e. a stop sign, by failing to stop “before entering the intersection” as required

by Tenn. Code. Ann. §55-8-149(c). Id., at 3.

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

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violation of certain traffic laws.

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

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traffic video evidence corroborates that assertion. This stands in contrast to what appears to be

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

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demonstrating that he had “no objective reason to believe that the traffic offenses he cited

actually occurred.” Objections, p.5.

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

findings of the magistrate judge as contained in the R&R.

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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

to Suppress Evidence. [Doc. 65].

Respectfully submitted this 29th day of December, 2010.

United States Attorney

By: s/ A. Wm. Mackie

Assistant United States Attorney
800 Market Street, Suite 211
Knoxville, Tennessee 37902
(865) 545-4167


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

s/ A. Wm. Mackie
A. William Mackie
Assistant United States Attorney

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