United States v. Johnson , 107 F. App'x 322 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4478
TRAVIS WINFIELD JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
David A. Faber, Chief District Judge.
(CR-02-42)
Argued: June 4, 2004
Decided: August 16, 2004
Before GREGORY and DUNCAN, Circuit Judges,
and Robert R. BEEZER, Senior Circuit Judge of
the United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Senior Judge Beezer joined. Judge Duncan wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Leah Perry Macia, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
2 UNITED STATES v. JOHNSON
Appellee. ON BRIEF: Brian A. Glasser, BAILEY & GLASSER,
L.L.P., Charleston, West Virginia, for Appellant. Thomas E. John-
ston, United States Attorney, Martinsburg, West Virginia, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GREGORY, Circuit Judge:
Defendant-appellant Travis Winfield Johnson appeals an order of
the United States District Court for the Northern District of West Vir-
ginia denying his pretrial motion to suppress, among other things, a
firearm found in the passenger compartment of his automobile. The
district court denied Johnson’s suppression motion on two grounds.
First, the court found that the government, through the testimony of
two of the officers that searched Johnson’s automobile, established by
a preponderance of the evidence that Johnson consented to the search
of his automobile. Second, the court found that probable cause existed
to search the passenger compartment of Johnson’s automobile.
On appeal, Johnson argues that the district court’s finding that he
consented to the search of his automobile is erroneous because the
magistrate judge, who conducted the suppression hearing and was
thus able to observe the demeanor of the officers, concluded that he
was "not satisfied that . . . [Johnson] gave consent to search [his]
vehicle." J.A. 107. Consequently, Johnson asserts that the district
court should have deferred to the magistrate judge’s conclusion that
there was insufficient evidence to establish consent. In addition, John-
son argues that the district court erred by finding that probable cause
existed to search the passenger compartment of his automobile.
Because we conclude that the firearm in the passenger compart-
ment of Johnson’s automobile was properly seized under the plain
UNITED STATES v. JOHNSON 3
view doctrine, we affirm the district court’s denial of Johnson’s sup-
pression motion.
I.
On March 11, 2002, Johnson drove to the home of Fulton Walker,
an informant for the Eastern Panhandle Drug and Violent Crimes
Task Force (the "EPDV Crimes Task Force"), to deliver approxi-
mately 5,404 grams of marijuana as agreed during a number of con-
trolled telephone conversations. Once outside of Walker’s home,
Deputy Snyder and Detective Witt observed Johnson, via video sur-
veillance, remove a number of marijuana packages from a duffle bag
located in the trunk of his automobile and place them into a second
duffle bag. Deputy Snyder and Detective Witt then observed Johnson
place the original duffle bag, which appeared to continue to contain
marijuana, back into the trunk of his automobile and carry the second
duffle bag into Walker’s home. After Johnson entered Walker’s
home, State Trooper Bean and two other officers observed him, via
video surveillance, remove the marijuana packages from the duffle
bag that he carried into Walker’s home and place them onto a coffee
table. Upon doing so, Johnson was apprehended and escorted out of
Walker’s home. Johnson’s automobile was thereafter searched by the
EPDV Crimes Task Force. During this search, the EPDV Crimes
Task Force retrieved the duffle bag left by Johnson in the trunk of his
automobile and confirmed that it contained marijuana. In addition, the
EPDV Crimes Task Force retrieved a loaded .40 caliber glock hand-
gun from the passenger compartment of Johnson’s automobile. Based
on these discoveries, the EPDV Crimes Task Force confiscated John-
son’s automobile and the contraband found therein.1 The EPDV
Crimes Task Force did not, however, place Johnson under arrest.
Instead, the EPDV Crimes Task Force sought to get Johnson to coop-
erate with its investigation by identifying his supplier and arranging
a controlled purchase.
On October 1, 2002, Johnson, after having declined to cooperate
with the EPDV Crimes Task Force, was charged and indicted in the
United States District Court for the Northern District of West Virginia
1
Johnson’s automobile was later returned when its value was deter-
mined to be insufficient to justify forfeiture.
4 UNITED STATES v. JOHNSON
for (1) conspiring to possess with intent to distribute marijuana, in
violation of 21 U.S.C. §§ 841(b)(1)(D) and 846, (2) possessing with
intent to distribute 5,404 grams of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and (3) using and carrying a
firearm during and in relation to a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1). On November 7, 2002, Johnson filed a pre-
trial motion to suppress, among other things, the firearm found in the
passenger compartment of his automobile. The district court, pursuant
to the Federal Magistrate Act, 28 U.S.C. § 636(b)(1)(B), referred
Johnson’s suppression motion to a magistrate judge for an evidentiary
hearing, which was held on November 22nd.
At the hearing, the government called Deputy Snyder as a witness.
Deputy Snyder testified that he saw Johnson remove marijuana pack-
ages from a duffle bag located in the trunk of his automobile, place
said packages into a second duffle bag and leave the original duffle
bag, which from his observations appeared to still contain marijuana,
back into the trunk of his automobile. Deputy Snyder also testified
that, subsequent to Johnson’s apprehension, he looked into the pas-
senger compartment of Johnson’s automobile, through the windows,
and did not see a firearm in plain view. Specifically, Deputy Snyder
testified that he saw "some C.D.s, some paraphernalia, that type—
papers, that type of thing, but nothing . . . of value" when he looked
into Johnson’s automobile. J.A. 58. With regard to Johnson’s consent,
Deputy Snyder testified that Johnson answered "yes" when State
Trooper Bean asked: "[Johnson], may I search your automobile?" Id.
at 60. Deputy Snyder further testified, however, that Johnson’s con-
sent was not recorded on the audiotapes and videotapes because they
often turn off their equipment "[o]nce a transaction is completed, and
[they] have gathered the evidence that [they] are gathering related to
[the] specific count." Id. at 61. Moreover, Deputy Snyder testified that
Johnson’s consent was not recorded in writing even though consent
forms were available and they remembered to provide Johnson with
a property receipt.
In addition to Deputy Snyder, the government called State Trooper
Bean as a witness. State Trooper Bean testified that they had been
informed by Walker that Johnson customarily transported the mari-
juana in the trunk of his automobile. He also testified that Deputy
Snyder and Detective Witt observed Johnson remove marijuana pack-
UNITED STATES v. JOHNSON 5
ages from a duffle bag located in the trunk of his automobile and
place that same duffle bag, which they believed still contained mari-
juana, back into the trunk of his automobile. In addition, State
Trooper Bean testified that Detective Witt informed him, upon escort-
ing Johnson out of Walker’s home, that he saw in plain view a firearm
inside the passenger compartment of Johnson’s automobile. Id. at 83.
Moreover, State Trooper Bean testified that Detective Witt, after see-
ing the firearm in plain view, pointed the weapon out to him. Id. As
to Johnson’s consent, State Trooper Bean testified that Johnson
responded that it was "fine" when he asked him "if it was all [sic]
right if [they] looked through his vehicle." Id. at 74-75. He further tes-
tified, however, that Johnson’s consent was not recorded on an audi-
otape or videotape because they had turned off the audio and video
equipment "before [he] asked . . . Johnson if [he] could search his
car." Id. at 79. State Trooper Bean also testified that Johnson’s con-
sent was not recorded in writing.
After Deputy Snyder and State Trooper Bean testified, Johnson tes-
tified for the limited purpose of stating that he did not consent to the
search of his automobile. Specifically, Johnson testified that he
answered "no" when asked by "the police officers [if] they could
search [his] car." Id. at 89. When asked if he told the officers that
"they couldn’t search [his] car," Johnson testified that the officers
"did ask for consent" and that he "told them that they couldn’t search
[his automobile]." Id. At the conclusion of Johnson’s suppression
hearing, the magistrate judge stated:
It does bother me . . . that we have video going and audio
going and we have briefcases full of blank consent forms,
that in these cases why if [d]efendants are consenting, why
don’t we get something done? Why don’t we get something
in writing or something on tape? . . . [I]t just makes these
cases so much simpler. If the defendants are supposedly
cooperating, I’m sure they would sign a form.
Id. at 97.
On November 25, 2002, the magistrate judge issued a report setting
forth his proposed findings and recommendations. In his report, the
magistrate judge recommended to the district court that Johnson’s
6 UNITED STATES v. JOHNSON
motion to suppress the firearm found in the passenger compartment
of his vehicle be denied on the basis that probable cause existed to
search the full interior of Johnson’s automobile. The magistrate judge
also recommended, however, that Johnson’s suppression motion not
be denied on the basis that he consented to the search of his automo-
bile. In doing so, the magistrate judge wrote that he was "not satisfied
that . . . [Johnson] gave consent to search [his] vehicle." Id. at 107.
On November 27th, the government objected to the magistrate
judge’s recommendation regarding Johnson’s consent to the search of
his automobile. On December 2nd, Johnson objected to the magistrate
judge’s recommendation that his suppression motion be denied on the
basis that the officers had probable cause to search the full interior of
his automobile. Four days later, however, on December 6th, Johnson
entered a plea agreement through which he agreed to plead guilty to
possessing with intent to distribute marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 841 (b)(1)(D), and using, carrying and pos-
sessing a firearm during, in relation to and in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1). In an adden-
dum to his plea agreement, also dated December 6th, Johnson
expressly reserved the right to appeal the denial of his suppression
motion.
On December 12th, the district court held a change of plea hearing
during which Johnson entered his guilty plea. At this hearing, the
government had State Trooper Bean testify about the events of March
11th. In doing so, State Trooper Bean testified that the firearm found
inside Johnson’s automobile was "in the passenger compartment . . .
between the seat and the console." Id. at 146. When cross-examined
by Johnson’s counsel as to the actual location of the firearm, State
Trooper Bean testified that, although he was uncertain whether the
firearm was inside the compartment "between the driver’s side and
the passenger side," he was sure it was in the area "between a seat and
a console . . . where the gear shift is located, on the right side of the
driver’s seat." Id. at 148. On December 19th, the district court, with-
out holding its own suppression hearing, issued an order accepting in
part the magistrate judge’s proposed findings and recommendations.
Specifically, the district court accepted the magistrate judge’s recom-
mendation that Johnson’s motion to suppress the firearm be denied on
the basis that probable cause existed to search Johnson’s entire vehi-
UNITED STATES v. JOHNSON 7
cle. The district court, however, rejected the magistrate judge’s rec-
ommendation finding that the government failed to establish by a
preponderance of the evidence that Johnson consented to the search
of his automobile. Accordingly, the district court denied Johnson’s
motion to suppress the firearm on the grounds that he consented to the
search and that probable cause existed to search the passenger com-
partment of his automobile.
On May 14, 2003, Johnson was sentenced to a total term of impris-
onment of seventy-five months. Specifically, Johnson was sentenced
to fifteen months of imprisonment for possessing with intent to dis-
tribute marijuana and sixty months of imprisonment for using, carry-
ing and possessing a firearm during, in relation to and in furtherance
of a drug trafficking crime. This appeal followed.
II.
"When considering on appeal a motion to suppress evidence, we
review a district court’s factual findings for clear error and its legal
determinations de novo." United States v. Perkins, 363 F.3d 317, 320
(4th Cir. 2004). Given that the district court denied Johnson’s sup-
pression motion, we construe the evidence in the light most favorable
to the government. Id.A.
The Fourth Amendment protects "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures." U.S. Const. amend. IV. Warrantless
searches, the Supreme Court has held, are per se unreasonable unless
they fall under a specific exception to the Fourth Amendment’s war-
rant requirement. Katz v. United States, 389 U.S. 347, 357 (1967).
One such exception is the "plain view doctrine." Horton v. California,
496 U.S. 128, 137 (1990)("The ‘plain view’ doctrine is often consid-
ered an exception to the general rule that warrantless searches are pre-
sumptively unreasonable."). Under this doctrine, officers may seize an
object without a warrant if (1) the object is actually in plain view; (2)
the officers are lawfully located in a place from which the object can
be plainly seen; (3) the object’s incriminating character is immedi-
8 UNITED STATES v. JOHNSON
ately apparent; and (4) the officers have a lawful right of access to the
object. Id. at 136-37. We discuss each of these prongs in turn.
1.
At Johnson’s suppression hearing, Deputy Snyder testified that he
did not see a firearm in plain view when he looked into Johnson’s
automobile. State Trooper Bean, on the other hand, testified that
Detective Witt looked inside of Johnson’s automobile and saw in the
passenger compartment a firearm in plain view. In addition, State
Trooper Bean testified that Detective Witt pointed the weapon out to
him, which was located "between a seat and a console . . . where the
gear shift is located, on the right side of the driver’s seat." J.A. 148.
Because we construe the evidence in the light most favorable to the
government when a district court denies a motion to suppress evi-
dence, Perkins, 363 F.3d at 320, we conclude, as explained below,
that State Trooper Bean’s testimony is sufficient to establish that the
firearm found in the passenger compartment of Johnson’s automobile
was in plain view.
After reviewing the record, we find nothing to suggest that the
magistrate judge or district court questioned the credibility of State
Trooper Bean.2 In addition, Johnson himself did not assert that the
firearm was not in plain view when he testified at the suppression
hearing or challenged State Trooper Bean’s testimony as to the actual
location of the firearm. Moreover, Deputy Snyder never called into
question State Trooper Bean’s testimony. Rather, he simply testified
as to what he saw when he looked into Johnson’s automobile. Lastly,
the testimony of Deputy Snyder and State Trooper Bean, while not
corroborating each other, are not in conflict. Deputy Snyder testified
2
The fact that State Trooper Bean’s testimony did not convince the
magistrate judge that Johnson consented to the search of his automobile
does not mean that the magistrate judge doubted his credibility. Rather,
it simply means that the magistrate judge concluded that State Trooper
Bean’s testimony, when considered in light of the fact that Johnson
denied consenting to the search and Johnson’s alleged consent could
have been recorded in writing and on an audiotape or videotape, was
insufficient to establish by a preponderance of the evidence that Johnson
consented to the search.
UNITED STATES v. JOHNSON 9
that upon looking into Johnson’s automobile he only saw "some
C.D.s, some paraphernalia, that type—papers, that type of thing." J.A.
58. Thus, it is entirely possible that these things had the effect of pre-
venting Deputy Snyder from seeing the firearm in plain view whereas
they did not have the same effect on State Trooper Bean and Detec-
tive Witt.
2.
There is no question that State Trooper Bean and Detective Witt
were in a lawful position when they saw the firearm in the passenger
compartment of Johnson’s automobile. First, State Trooper Bean and
Detective Witt saw the firearm while standing outside of Johnson’s
automobile and peering in through the windows. Second, State
Trooper Bean and Detective Witt were lawfully present on Walker’s
property.
3.
In order for the incriminating character of an object to be immedi-
ately apparent, police must have probable cause to believe that the
object in question is contraband or evidence of a crime. Arizona v.
Hicks, 480 U.S. 321, 326 (1987)("We now hold that probable cause
is required [to invoke the plain view doctrine]."). To have probable
cause, police need not "know" or have an "unduly high degree of cer-
tainty" that the object in question is contraband or evidence of a
crime. Texas v. Brown, 460 U.S. 730, 741 (1983)(plurality opinion).
Rather, they need only believe, under the circumstances and based on
their experience, that there is a probability that the object is contra-
band or evidence of a crime. Id. at 742. Here, State Trooper Bean and
Detective Witt had probable cause to believe that the firearm in the
passenger compartment of Johnson’s automobile was contraband or
evidence of a crime. First, State Trooper Bean and Detective Witt
were aware that Johnson, during several controlled telephone conver-
sations, had agreed to deliver approximately 5,404 grams of mari-
juana to Walker’s home. Second, they observed Johnson drive, by
himself, to Walker’s home on the agreed upon date, remove several
marijuana packages from a duffle bag located in the trunk of his auto-
mobile and place that same duffle bag, which appeared to continue to
contain marijuana, back into the trunk of his automobile. Third, they
10 UNITED STATES v. JOHNSON
apprehended Johnson in possession of a second duffle bag, which he
carried into Walker’s home, containing marijuana.
4.
The requirement that officers have a lawful right of access to an
object is the "corollary of the familiar principle . . . that no amount
of probable cause can justify a warrantless search or seizure absent
‘exigent circumstances.’" Horton, 496 U.S. at 137 n.7. Given that the
firearm was inside of Johnson’s automobile, which was operational,
exigent circumstances existed because automobiles by their very
nature are mobile and thus create a risk that the object in question will
be moved, hidden or discarded before police can obtain a search war-
rant. This risk continues to exist even when, as is the case here, the
defendant has been apprehended because someone else could possibly
move the car and in the process hide or discard the object in question.
United States v. Brookins, 345 F.3d 231, 237 n.7 (4th Cir.
2003)("[W]e view ready mobility as defining the nature of the use of
the vehicle, rather than its ability to be moved by a defendant upon
stop or seizure.")
B.
Accordingly, we find that all four prongs of the plain view doctrine
have been satisfied and thus conclude that the firearm in the passen-
ger compartment of Johnson’s automobile was properly seized. We
therefore affirm the district court’s denial of Johnson’s suppression
motion.
AFFIRMED
DUNCAN, Circuit Judge, dissenting:
I thank Judge Gregory for his fine opinion, but cannot agree that
the district court’s order may be affirmed. I believe it would be more
appropriate to remand than to resolve ambiguities and infer factual
underpinnings from a record that is, at best, equivocal. Therefore, I
respectfully dissent.
UNITED STATES v. JOHNSON 11
This appeal arises following the denial of Johnson’s motion to sup-
press a firearm seized from his car after a warrantless search of his
vehicle at the conclusion of a sting operation. It is undisputed that at
the suppression hearing, two officers testified that Johnson consented
to a search of his car (although they failed to memorialize the fact),
and that Johnson denied giving consent. Additionally, although both
officers claimed to have inspected the car’s interior by looking
through its windows, only one (Trooper Bean), indicated seeing a
firearm in plain view. The magistrate judge recommended denying
Johnson’s motion, stating that while "the Court is not satisfied that the
defendant gave consent to search the vehicle," J.A. 107, the search
was justifiable under the "automobile exception"; the magistrate judge
made no mention of Trooper Bean’s contention that the firearm was
in plain view. The district court adopted the magistrate judge’s rec-
ommendation for different reasons, stating that "[a] review of the
hearing indicates that the government proved the defendant’s consent
by a preponderance of the evidence," and that "there was probable
cause to search the vehicle based upon what law enforcement saw
while making the exterior and interior videos of the drug transaction
given the exigent circumstances presented." J.A. 160.
As part of its conclusion that the denial of Johnson’s motion to sup-
press may be affirmed under the district court’s seemingly indepen-
dent "plain view" theory, the majority reconciles the differing
assessments of the suppression hearing by stating that "we find noth-
ing to suggest that the magistrate judge or district court questioned the
credibility of State Trooper Bean." Ante at 8. Without addressing the
extent to which an adverse credibility determination regarding
Trooper Bean would undermine its "plain view" analysis, the majority
asserts that
[t]he fact that State Trooper Bean’s testimony did not con-
vince the magistrate judge that Johnson consented to the
search of his automobile does not mean that the magistrate
judge doubted his credibility. Rather, it simply means that
the magistrate judge concluded that [his] testimony, when
considered in light of the fact that Johnson denied consent-
ing to the search . . . was insufficient to establish by a pre-
ponderance of the evidence that Johnson consented to the
search.
12 UNITED STATES v. JOHNSON
Ante at 8 n.2 (emphasis added). This assertion is questionable, for two
reasons.
The first is that the magistrate judge said nothing of the kind. In
fact, the government believed that the magistrate judge made a credi-
bility determination, and objected to it. R. 33 at 2. To avoid this issue,
the majority must resolve a latent ambiguity in the opinions that, as
explored below, is itself an arguable basis for remand.
Under Federal Rule of Criminal Procedure 12(d), a district court in
resolving a pre-trial motion "must state its essential findings on the
record" (emphasis added). Effectively, this mandate requires a district
court to "make enough findings to enable us to review the record in
a reasoned and meaningful manner." United States v. Fields, 371 F.3d
910, 916 (7th Cir. 2004) (internal quotations omitted). However, a
district court’s failure "to state the factual findings underlying its
decision on a motion to suppress does not necessitate a remand"
where "any reasonable view of the evidence supports [the district
court’s decision]." United States v. Bloomfield, 40 F.3d 910, 913 (8th
Cir. 1994) (en banc) (internal quotations omitted, alteration in origi-
nal) (collecting cases); accord United States v. Bethea, 598 F.2d 331,
333-34 (4th Cir. 1979) ("When . . . a district court denies a motion
to suppress evidence, without making or being requested to make
findings of fact, the result will be upheld on appeal if any reasonable
view of the evidence, looked at in the light most favorable to the gov-
ernment, will sustain the denial." (emphasis added)).
Although the majority’s approach appears to be in keeping with an
application of the "any reasonable view of the evidence" standard,
several circuits have limited the circumstances in which it is appropri-
ate for the reviewing court to reconstruct the lower court’s reasoning
(or lack thereof). For example, in remanding a denial of suppression
despite the "any reasonable view of the evidence" standard, the Sev-
enth Circuit noted that
this is not a case where the district court failed to make any
findings of fact. Cf. Bethea, 598 F.2d at 333- 34 (using "any
reasonable view of the evidence" standard where district
court did not make any findings of fact); [United States v.
Smith, 543 F.2d 1141, 1145 (5th Cir. 1976)] (same). Nor
UNITED STATES v. JOHNSON 13
does it present a situation where the record supports only
one conclusion, cf. United States v. Johnson, 212 F.3d 1313,
1316 (D.C. Cir. 2000) (finding "any reasonable view of the
evidence" supported suppression where testimony was
uncontroverted), or where the district court’s assessment of
credibility is clear, e.g., United States v. Griffin, 7 F.3d
1512, 1516 (10th Cir. 1993) (finding "any reasonable view
of the evidence" supported suppression where district court
stated government’s evidence was credible and defendant’s
was not).
Fields, 371 F.3d at 917 n.5 (emphasis added).1 Here, it is undisputed
that of the two officers that contradicted Johnson’s consent testimony,
only one reported seeing a firearm during his inspection. The majority
attempts to account for this discrepancy in the officers’ testimony by
suggesting that it is "entirely possible" that the second officer’s view
of the firearm was blocked by Johnson’s personal effects. Ante at 9.
However, this assumption finds at best equivocal support in the
record and is not addressed in either of the opinions below. Because
the majority’s opinion resolves against Johnson underlying factual
issues, such as whether the officers inspected the interior of his vehi-
cle from the same vantage points, I cannot endorse its "plain view"
analysis.
Second, the majority’s analysis implicates a separate consideration
that it is structured to avoid: whether the district court supplanted a
credibility determination by the magistrate judge without the benefit
of having heard all the relevant testimony firsthand. The majority’s
effort to reconstruct the district court’s unspoken or ambiguous rea-
soning under an apparent "any reasonable view of the evidence" stan-
dard of review would be appropriate had the district court stated that
"the Government’s evidence was credible and [the] defendant’s was
not." Griffin, 7 F.3d at 1516. However, the district court made no such
finding, offering only the mixed conclusion of fact and law that its
1
See also United States v. Dale, 991 F.2d 819, 840 (D.C. Cir. 1993)
(reviewing the district court’s findings after having remanded "because
we did not know which of three separate legal theories advanced by the
government the district court had adopted and what facts, if any, it relied
on to support its chosen theory" (emphasis added)).
14 UNITED STATES v. JOHNSON
"review of the hearing indicates that the government proved the
defendant’s consent by a preponderance of the evidence." J.A. 160.2
If the majority deems it improper to infer a credibility determination
in a similar statement by the magistrate judge, it appears incongruous
for it to do so when presented with a similarly conclusory statement
by the district court. As a result, an essential predicate for the majori-
ty’s apparent review of the district court’s suppression order under the
"any reasonable view of the evidence" standard is missing.
The reason for its absence is clear. If we are to infer that the con-
clusions of the magistrate judge and district court rest on credibility
determinations, it would be erroneous for the district court to supplant
the magistrate judge’s assessment with his own without holding a sec-
ond evidentiary hearing. I recognize that, as a general matter, a dis-
trict court need not hold an evidentiary hearing in order to conduct a
de novo review of any issue in a magistrate judge’s report to which
a party objects. See, e.g., Peretz v. United States, 501 U.S. 923, 938-
39 (1991). However, while holding that motions to suppress could be
referred to magistrate judges (provided that district courts conduct a
de novo review if requested by either party) in United States v. Rad-
datz, 447 U.S. 667 (1980), the Court noted that
we assume it is unlikely that a district judge would reject a
magistrate’s proposed findings on credibility when those
findings are dispositive and substitute the judge’s own
appraisal; to do so without seeing and hearing the witness
or witnesses whose credibility is in question could well give
rise to serious questions which we do not reach.
447 U.S. at 681 n.7. Courts have disagreed over whether a second
hearing is required when a district court reaches a conclusion that
contradicts a magistrate judge’s credibility determination. See United
States v. Marshall, 609 F.2d 152, 155 (5th Cir. 1980) (recognizing the
possibility of a "rare case" in which there is in the transcript of the
suppression hearing "an articulable basis for rejecting the magistrate’s
original resolution of credibility and that basis [is] articulated by the
2
See also United States v. Carter, 300 F.3d 415, 423 (4th Cir. 2002)
(noting that whether valid consent to a search has been established is a
mixed question of fact and law).
UNITED STATES v. JOHNSON 15
3
district judge" (emphasis added)). Nevertheless, the courts of appeals
directly confronted with a district court’s decision to supplant its own
credibility determination for the magistrate judge’s without first
rehearing the disputed testimony have uniformly indicated that such
a decision constitutes reversible error. See United States v. Ridgway,
300 F.3d 1153, 1157 (9th Cir. 2002); United States v. Cofield, 272
F.3d 1303, 1305-06 (11th Cir. 2001); Cullen v. United States, 194
F.3d 401, 407 (2d Cir. 1999); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir.
1995); Louis v. Blackburn, 630 F.2d 1105, 1109-10 (5th Cir. 1980).
Thus, the district court could not have properly made a credibility
determination that would allow this court to conduct an "any reason-
able view of the evidence" review without giving rise to an indepen-
dent error.
As indicated above, the majority opinion attempts to avoid this
issue by concluding that the magistrate judge did not make a credibil-
ity determination to supplant. However, the government disagrees,
and so do I. Although it is possible to interpret the magistrate judge’s
statement that he was "not satisfied that the defendant gave consent
to search the vehicle," J.A. 107, in the way the majority does, when
considered in context, it seems clear that the magistrate judge made
a credibility determination, as he found the defendant’s testimony out-
weighed the uncorroborated but consistent testimony of two officers.
The government understood the magistrate judge’s conclusion to sub-
sume an assessment of the officers’ credibility,4 and I agree.
Ultimately, while the majority’s carefully crafted opinion appears
3
See also Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc. 973 F.2d
1033, 1045 (2d Cir. 1992) (rejecting contention that "before a district
court may reject credibility findings of a magistrate judge it must recall
witnesses and hear and observe them itself" in part because "the rejection
of the magistrate judge’s conclusion by the district court was not based
on witness credibility").
4
See Appellee’s Br. at 11-13; R. 33 at 2 (limited objection to magis-
trate judge’s recommendation) ("The United States believes that the
credibity of the two officers is unquestioned. . . . Thus, the United States
submits that the testimony of [ ] Trooper Bean and Cpl. Snyder should
have been more than satisfactory to the Magistrate Judge and the United
States objects to any suggestion to the contrary.").
16 UNITED STATES v. JOHNSON
to successfully skirt the district court’s apparent error in supplanting
the magistrate judge’s credibility determination with its own, in so
doing the opinion crystalizes the difficulty flowing from the ambigu-
ous language used by the magistrate judge and the district court’s
blanket assertion of legal conclusions without making any underlying
factual findings. In such cases, a remand for further factfinding seems
appropriate, as the district court is in a "far better position to address
ambiguities . . . as well as questions of credibility and character
assessment" than a court of appeals. United States v. Talkington, 843
F.2d 1041, 1049 (7th Cir. 1988).