Order Adopting Magistrate Judge’s Report and Recommendation, Denying Defendant’s Motion to Suppress, and Denying Defendant’s Objections — United States v. Shaw (Dkt. 68, W.D. Tenn.)

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An order by United States District Judge John T. Fowlkes, Jr. in United States of America v. Alfredo Shaw, Case No. 2:19-cr-20349-JTF, in the U.S. District Court for the Western District of Tennessee, dated February 25, 2021. It recites that Shaw moved to suppress on June 17, 2020 (ECF No. 43), that Chief Magistrate Judge Tu M. Pham conducted a hearing on September 8, 2020 and recommended denial on October 26, 2020 (ECF No. 58), and that Shaw objected on November 9, 2020 and the government responded on December 14, 2020. After de novo review, the Court adopts the report and recommendation, denies the objections and the motion to suppress, and denies the request for an evidentiary hearing.

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Case 2:19-cr-20349-JTF Document 68 Filed 02/25/21 Page 1 of 9               PageID 363




                       IN THE UNITED STATES DISTRICT COURT
                      FOR THE WESTERN DISTRICT OF TENNESSEE
                                 WESTERN DIVISION


UNITED STATES OF AMERICA,                            )
                                                     )
         Plaintiff,                                  )
                                                     )
v.                                                   )      Case No. 2:19-cr-20349-JTF
                                                     )
ALFREDO SHAW,                                        )
                                                     )
         Defendant.                                  )


 ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
            DENYING DEFENDANT’S MOTION TO SUPPRESS,
              AND DENYING DEFENDANT’S OBJECTIONS


         Before the Court is Defendant Alfredo Shaw’s Motion to Suppress, filed on June 17, 2020.

(ECF No. 43.) The Motion was referred to Chief Magistrate Judge Tu M. Pham on June 19, 2020.

(ECF No. 44.) The Chief Magistrate Judge held a hearing on September 8, 2020 (ECF No. 54)

and issued a Report and Recommendation to Deny Defendant’s Motion to Suppress on October

26, 2020. (ECF No. 58.) Defendant filed his Objections to the Report and Recommendation on

November 9, 2020, and the United States filed its Response on December 14, 2020. (ECF Nos.

59 & 66.) For the reasons provided herein, the Courts ADOPTS the Magistrate Judge’s Report

and Recommendation, DENIES Defendant’s Objections, and DENIES Defendant’s Motion to

Suppress.

                                     LEGAL STANDARD

         Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts

by permitting the assignment of certain district court duties to magistrates.” United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear


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and determine any pretrial matter pending before the Court, except various dispositive motions.

28 U.S.C. § 636(b)(1)(A). Regarding those excepted dispositive motions, magistrate judges may

still hear and submit to the district court proposed findings of fact and recommendations for

disposition. 28 U.S.C. § 636(b)(1)(B). Upon hearing a pending matter, “[T]he magistrate judge

must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed.

R. Civ. P. 72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party

who disagrees with a magistrate’s proposed findings and recommendation may file written

objections to the report and recommendation. Fed. R. Civ. P. 72(b)(2).

       The standard of review that is applied by the district court depends on the nature of the

matter considered by the magistrate judge. See Baker, 67 F. App’x at 310 (citations omitted) (“A

district court normally applies a ‘clearly erroneous or contrary to law’ standard of review for

nondispositive preliminary measures. A district court must review dispositive motions under the

de novo standard.”). Motions to suppress evidence are among the motions in criminal cases that

are subject to de novo review. See 28 U.S.C. § 636 (b)(1)(A); U.S. Fid. & Guarantee Co. v.

Thomas Solvent Co., 955 F.2d 1085, 1088 (6th Cir. 1992). Upon review of the evidence, the

district court may accept, reject, or modify the proposed findings or recommendations of the

magistrate judge. Brown v. Bd. of Educ., 47 F. Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28

U.S.C. § 636(b)(1). The court “may also receive further evidence or recommit the matter to the

[m]agistrate [j]udge with instructions.” Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S.

Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). A district judge should adopt the findings

and rulings of the magistrate judge to which no specific objection is filed. Brown, 47 F. Supp. 3d

at 674. The district court is not required to review “a magistrate’s factual or legal conclusions,




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under a de novo or any other standard, when neither party objects to those findings.” Thomas v.

Arn, 474 U.S. 140, 150 (1985).

                                  FACTUAL OBJECTIONS

       In the Report and Recommendation, the Chief Magistrate Judge sets forth proposed

findings of fact. (ECF No. 58, 1–4.) As explained below, this Court denies Defendant’s objections

to the Chief Magistrate Judge’s credibility determinations and adopts and incorporates the Report

and Recommendation’s proposed findings of fact. The Court proceeds mindful that “a magistrate

judge is in the better position to assess the credibility of witnesses he sees and hears.” United

States v. Johnson, No. 10-20176, 2011 U.S. Dist. LEXIS 97577, at *6 (W.D. Tenn. Aug. 30, 2011)

(citation omitted).

       Defendant objects only to the Chief Magistrate Judge’s finding that the testimony of

Defendant’s wife, Mrs. Yolanda Shaw, was not credible. (ECF Nos. 58, 3–4 n. 2-3 & 59, 1–2.)

Defendant states that the Magistrate did not provide any reason for this finding. (ECF No. 59, 2.)

The Chief Magistrate Judge found that “Mrs. Shaw approached detectives to ask for an update on

the investigation,” and noted that Defendant “disputes that his wife approached law enforcement.”

(ECF No. 58, 3, n.2.) Defendant does not dispute that Mrs. Shaw gave consent to search the

residence. Thus, with respect to the Fourth Amendment issue presented here, it makes no

difference who approached whom first because, factually, it is irrelevant. However, the conflicting

testimony may give rise to an issue of credibility. (See id.) The Magistrate Court found

specifically: “To the extent that Mrs. Shaw’s testimony contradicts that of Detective Hampton on

this point, the undersigned finds that her testimony is not credible.” (Id.) The Court is satisfied

with this finding. Because the Magistrate Judge made a determination of credibility only as to the




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issue of who approached whom, which is ultimately immaterial, Defendant’s objection to this

finding is DENIED.

       The Chief Magistrate Judge also found that Mrs. Shaw signed the relevant consent form

and led detectives to the location of the gun, which was placed inside Mrs. Shaw’s daughter’s

bedroom closet. (Id. at 3–4.) The Chief Magistrate Judge noted that “Mrs. Shaw also testified that

detectives had to remove things from the closet to search for the gun before she directed them to

it,” which contradicted the testimony of Detectives Hampton, Beans, and Dotson. (Id. at 4 n.3.)

The detectives testified that the “gun box was in clear view when they opened the closet.” (Id. at

4.) As to this finding of fact, the Magistrate Court again found that “to the extent that Mrs. Shaw’s

testimony contradicts that of the detectives, the undersigned finds that her testimony is not

credible.” (Id. at 4 n.3.) Regarding both of these findings, however, the Chief Magistrate Judge

also found that these factual disputes were irrelevant to the legal analysis. (Id.) Defendant objects

to the Chief Magistrate Judge’s determination regarding Mrs. Shaw’s credibility on this point.

(ECF No. 59, 2.) As before, the Chief Magistrate Judge made a determination of credibility only

to the extent that it conflicted with the detectives’ testimony as to the gun box being in clear view.

Again, the Court is satisfied with this finding. Because the credibility of the witnesses on this

specific point is immaterial given that Mrs. Shaw had given consent to a search of the residence

and led detectives to the closet, Defendant’s objection is DENIED.

                                            ANALYSIS

        Defendant argues that the police officers unconstitutionally avoided asking Defendant for

consent to search the 670 Creekstone Circle residence. (ECF No. 59, 2–4.) Defendant also

requests a hearing in the event that the Court denies Defendant’s Objections and Motion to

Suppress. (Id. at 5.)



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Consent to Search under the Fourth Amendment

        The issue presented by Defendant’s Motion is whether the police officers in this case

violated Defendant’s Fourth Amendment right against unreasonable searches and seizures when

they searched Defendant’s residence upon consent of Defendant’s co-occupying wife, while

Defendant sat in the back of a police vehicle in close proximity to the officers. Defendant objects

only to the Chief Magistrate Judge’s conclusion that Defendant’s constitutional rights were not

violated because police did not remove Defendant from the premises to avoid his potential refusal

to consent to search. (ECF No. 59, 2.) Defendant’s Objections cite Georgia v. Randolph, 547

U.S. 103 (2006) and United States v. Ayoub, 498 F.3d 532 (6th Cir. 2007) in support of his position.

(Id. at 2–3.)

        In Randolph, the Supreme Court held that the defendant’s constitutional rights were

violated when police searched his residence pursuant to his wife’s consent despite the defendant’s

physical presence and express refusal of consent to a search. 547 U.S. at 106–08. Valid consent

is a well-settled exception to the Fourth Amendment’s warrant requirement. See Randolph, 547

U.S. at 109 (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)). However, as Randolph held,

a search of shared premises conducted pursuant to one co-occupant’s consent is unreasonable as

to another co-occupant who is physically present and has voiced his “express refusal of consent.”

Id. at 120. Notwithstanding, a potentially refusing co-occupant, “nearby but not invited to take

part in the threshold colloquy, loses out.” Id. at 121. Thus, a co-occupant’s consent is valid when

the potentially refusing co-occupant is absent, “[s]o long as there is no evidence that the police

have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible

objection.” Id. The question in this case is whether the police conduct ran afoul of Randolph.




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          The Chief Magistrate Judge recommended the denial of Defendant’s Motion to Suppress

“[b]ecause there is no evidence in this case that law enforcement removed Shaw to avoid a possible

objection, [and] Shaw falls within the category of potential objectors ‘nearby but not invited to

take part in the threshold colloquy,’ and he ‘loses out’ as a result.” (ECF No. 58, 11.) Defendant

objects, arguing that the body camera video footage “shows that these detectives violated Mr.

Shaw’s constitutional rights by detaining him in their custody, intentionally avoiding asking for

his consent to search the residence at 670 Creekstone Circle, and then intentionally subverting the

warrant requirement by seeking consent from his wife.” (ECF No. 59, 4.) Again, the Court

reviewed Officer Holst’s body camera footage, and that footage does not support Shaw’s position.

In discussing the circumstances, the officers briefly mentioned possibly getting a search warrant

or consent from Mrs. Shaw. Clearly, however, nothing in the footage supports Shaw’s argument

that the officers intentionally avoided asking for Shaw’s consent.

         Defendant fails to identify any specific evidence from which this Court could infer that

Defendant was detained by law enforcement for the purpose of avoiding his refusal of consent to

search. The Chief Magistrate Judge found, and Officer Holst’s body camera confirms, that law

enforcement did not remove Defendant for this purpose because they did not discuss searching the

residence “until after the detectives arrived, at which point [Defendant] had already been detained

in Deputy Holst’s squad car for almost an hour.” 1 (ECF No. 58, 10.) Defendant takes issue with

the fact that the detectives did not ask Defendant for his consent to the search while he was detained



1
  In the “Objections to Proposed Conclusions of Law” section of his Objections, Defendant states that “[Defendant]
was taken into custody and detained when the other detectives arrived on the scene.” (ECF No. 59, 2.) To the extent
that Defendant makes this statement as an assertion of factual error committed by the Chief Magistrate Judge, this
assertion is not supported by the record. Regardless, when Defendant was detained by law enforcement is immaterial
in this case given the lack of evidence that Defendant was detained in order to avoid his potential objection to a search
of the residence. See Randolph, 547 U.S. at 121; Ayoub, 498 F.3d at 541. Further, Detective Holst’s hearing testimony
indicated that Defendant was already detained in the back of Detective Holst’s car when the detectives began
discussing the possible need for a warrant and Mrs. Shaw’s potential consent. (See ECF No. 57, 35–42.)

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in the police vehicle, arguing the “detectives specifically declined to ask him in order to attempt

an end-run around the Randolph Court’s requirements.” (ECF No. 59, 4.) However, after

reviewing the hearing transcript and viewing body camera footage, it is clear that Shaw’s argument

is without merit.

       Randolph contemplated situations in which one co-occupant is asked for consent while

another co-occupant is not. See Randolph, 547 U.S. at 122 (“[I]t would needlessly limit the

capacity of the police . . . if we were to hold that reasonableness required the police to take

affirmative steps to find a potentially objecting co-tenant before acting on the permission they had

already received.”); see also Fernandez v. California, 571 U.S. 292, 302 (2014) (“The Randolph

dictum is best understood not to require an inquiry into the subjective intent of officers who detain

or arrest a potential objector but instead refer to situations in which the removal of the potential

objector is not objectively reasonable.”) Thus, there is no basis upon which this Court can

conclude that, as a matter of constitutional propriety, the law enforcement officers were required

to ask Defendant for his consent, given that Mrs. Shaw consented to the search.

       The Sixth Circuit’s holding in Ayoub bolsters this Court’s conclusions.             Applying

Randolph, the Ayoub Court found no violation where police surveilled the defendant’s residence,

pulled the defendant over as he left his residence, and let him go, at which point they asked the

defendant’s sister for consent to search the home. See Ayoub, 498 F.3d at 536, 540. Though the

Court indicated “we find it curious that the officers never asked Ayoub for consent,” it found no

violation because there was no evidence that the defendant was removed to avoid a possible

objection. Id. at 541. Like the defendant in Ayoub, in this case, Defendant was simply “not invited

to take part in the threshold colloquy,” and accordingly, cannot show a constitutional violation.

See id. at 540 (quoting Randolph, 547 U.S. at 121.) To hold that Defendant was removed from



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the purview of the residence for the purpose of avoiding his possible objection and obtaining Mrs.

Shaw’s consent would be based on speculation rather than the evidence in the record. Further, the

Chief Magistrate Judge found that Defendant was detained for a legitimate purpose—a finding

that Defendant has not specifically objected to. (ECF No. 58, 11.) Thus, Defendant’s detention

was objectively reasonable, providing further support for the conclusion that law enforcement did

not violate Defendant’s constitutional rights in this case. See Fernandez, 571 U.S. at 302.

Accordingly, Defendant’s Objections are DENIED and Defendant’s Motion to Suppress is

DENIED.

Defendant’s Request for Hearing

        Defendant requests—should his Motion to Suppress be denied—that the Court “hold an

evidentiary hearing and make findings pursuant to United States v. Moore, 936 F.2d 287, 289 (6th

Cir. 1991).” (ECF No. 59, 5.) However, Moore stands for the simple proposition that “[e]ssential

findings on the record are necessary to facilitate appellate review.” 2 936 F.2d at 289 (citing United

States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990)). The dispositive question in this case, as

explained above, is whether police removed Defendant for the purpose of avoiding a potential

objection to the search—or, whether Defendant’s removal was objectively unreasonable.

Fernandez, 571 U.S. at 302. Because Defendant does not point to evidence from which the Court

could find that Defendant was removed for the purpose of avoiding his potential refusal to consent,

further hearing on Defendant’s Motion is unnecessary. See United States v. Winters, 782 F.3d

289, 295 n.1 (6th Cir. 2015); see also United States v. Mitchell, No. 10-20299, 2012 U.S. Dist.

LEXIS 50891, at *10–11 (W.D. Tenn. Apr. 10, 2012) (“When a magistrate’s findings and



2
 In Moore, the district court denied the defendant’s motion to suppress through a “margin entry.” 936 F.2d at 288.
The district court never provided a statement of its factual and legal findings. Id. Through this Order, this Court
provides its findings of fact and conclusions of law.

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recommendations rest upon the evaluation of the credibility of a witness, the district court is not

required to rehear the testimony in order to conduct a de novo determination of the issues.”).

Accordingly, Defendant’s request for an evidentiary hearing is DENIED.

                                        CONCLUSION

       Upon de novo review, the Court hereby ADOPTS the Magistrate Judge’s Report and

Recommendation, DENIES Defendant’s Objections, and DENIES Defendant’s Motion to

Suppress.

       IT IS SO ORDERED this 25th day of February, 2021.



                                                            s/John T. Fowlkes, Jr.
                                                            John T. Fowlkes, Jr.
                                                            United States District Judge




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