                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0536n.06

                                        Case No. 18-5472

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                              Oct 18, 2019
UNITED STATES OF AMERICA,                           )
                                                                         DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
APRIL WEST,                                         )       TENNESSEE
                                                    )
       Defendant-Appellant.                         )
                                                    )


       BEFORE: CLAY, STRANCH, and MURPHY, Circuit Judges.

       MURPHY, Circuit Judge. During a traffic stop, April West told a police officer that she

was concealing drugs on her person. The officer asked her to turn over the drugs and she complied.

West now claims that she did not do so voluntarily because the police had, by that point, created

an “inherently coercive environment” in violation of the Fourth Amendment. But the district

court’s fact-findings rejected her coercion allegations, and our standard of review on appeal

requires us to uphold the judge’s finding that she voluntarily surrendered the drugs based on these

facts. We affirm.

       A magistrate judge—whose fact-findings we review for clear error, United States v.

Wandahsega, 924 F.3d 868, 878–79 (6th Cir. 2019)—found the following: On August 12, 2016,

police officers in Morristown, Tennessee, received a tip that West was heading to Knoxville to
Case No. 18-5472, United States v. West


buy drugs and would be returning back home to Morristown later that day. On the lookout for

West that evening, officers spotted her as she neared her neighborhood. They attempted to pull

her over for speeding, but West initially ignored the flashing lights. After a “low-speed” pursuit,

police cruisers boxed in West’s car about a block and a half from her home.

       The officers who approached the vehicle had a brief exchange with West about why she

had not stopped. She handed over her driver’s license and asked to smoke a cigarette. An officer

told her that she could and directed her to step out of the car. Detective Pete Shockley asked West

for consent to search the car, which she “promptly gave.” A few minutes later, a police dog alerted

to the presence of narcotics near the driver’s side door. When searching the vehicle, officers found

two cell phones, a GPS unit, and West’s purse, but no drugs. West also gave the officers

permission to search her purse. It contained $1,064 in cash, but again no drugs. “Throughout the

time that the officers searched her vehicle,” a dash camera on a police cruiser “depicts West

walking around, engaging in discussion with officers, and also laughing with officers.”

       After about 30 minutes, Shockley spoke with West at the back of her car. He told her that

the police knew that she had gone to Knoxville to buy drugs. West responded that she would like

to talk with Shockley apart from the others. They moved out of range of the dash camera.

(Shockley was unaware they were out of the camera’s line of sight, and he and West remained in

view of the other officers.) West told Shockley that she did not want to go back to prison (she had

just served six years on a drug-trafficking conviction) and that she had drugs “inside her body.”

Shockley asked her to remove the drugs and place them on the ground. West agreed. Shockley

turned his back, and West placed a bag with drugs on the ground. All told, the bag held 19.2 grams

of crack cocaine, 1.2 grams of methamphetamine, and 67 pills consisting of morphine, oxycodone,

valium, and other narcotics.



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       West was indicted for possession with intent to distribute the crack cocaine. She moved to

suppress the drugs. At a suppression hearing before the magistrate judge, West’s counsel clarified

that she sought to challenge only “the illegal search of the person of Ms. West.”

       At this hearing, Shockley and West gave different accounts of their conversation.

According to Shockley, after he advised West at the back of her car that the police knew she had

procured drugs, she asked to speak to him privately and volunteered that she had the drugs on her

person. According to West, she asked to speak to Shockley privately only after he had yelled at

her for several minutes at the back of her car. West claims that Shockley threatened, among other

things, that he would call her probation officer, that the police would get a warrant and take her to

the hospital to take the drugs out, and that she would get no deal if they were forced to do so.

       The magistrate judge recommended denying West’s motion. The judge rejected her claim

that officers had coerced her into “admit[ting] to possessing and producing the narcotics,” finding

that the “video directly contradicts her testimony that officers were threatening her during the

search.” Instead, West was “smoking, talking with [officers], joking with them, smiling, walking

around freely, folding up some articles of clothing she had removed from the trunk, and looking

in the car for a bottle of water.” The magistrate judge also highlighted that West initiated the

private conversation with Shockley and that West conceded at the suppression hearing that she

had done so “to discuss the drugs with him.”

       The magistrate judge noted that objections were due within 14 days or else “further appeal

will be waived.” West filed a timely two-page objection, but asked only for a de novo review of

her suppression motion. The district court found that West “failed to raise any specific objections”

as required by rule. The court instructed her to file specific objections and told her it would

“summarily overrule[]” her general objection if she did not. West did not supplement her



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Case No. 18-5472, United States v. West


objection, so the court adopted the magistrate judge’s recommendation. The court added that it

had, in any event, reviewed the motion and the record de novo and agreed with the magistrate

judge’s conclusions on the merits.

       West pleaded guilty a few months later. She received a below-guidelines nine-year

sentence. She now appeals the district court’s rejection of her Fourth Amendment claim.

       We start with a detour: The government argues that West forfeited this claim by failing to

properly object to the magistrate judge’s report and recommendation. A defendant who fails to

object usually has no right to challenge the magistrate judge’s conclusions on appeal. Thomas v.

Arn, 474 U.S. 140, 155 (1985); Fed. R. Crim. P. 59(b)(2). And a “general objection to the entirety

of the magistrate’s report has the same effect[] as . . . a failure to object.” Howard v. Sec’y of

Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Under these rules, we would normally

refuse to consider West’s arguments. But there is a wrinkle: West’s plea deal reserved her “right

to appeal the Court’s Order . . . approving the Report and Recommendation of the United States

Magistrate Judge . . . denying the defendant’s motion to suppress.”          She claims that this

provision—when combined with the district court’s de novo review of her motion and assurance

at her plea hearing that she reserved her right to appeal—excuses her failure to object.

       We think it easier to evaluate West’s claim on the merits, which avoids the need to decide

this forfeiture argument. The rule that a party must assert specific objections to a magistrate

judge’s report is not jurisdictional, Thomas, 474 U.S. at 155, so we face no duty to resolve the

issue. And courts have adopted varied approaches when a party fails to properly object to a

magistrate judge’s recommendation to deny a suppression motion, but then enters a plea agreement

that reserves the right to appeal that denial. We have at times exercised our discretion to excuse

the forfeiture. United States v. Lucas, 640 F.3d 168, 173 (6th Cir. 2011); cf. United States v.



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Case No. 18-5472, United States v. West


Robinson, 30 F.3d 774, 777 (7th Cir. 1994). At other times we have held that a defendant forfeits

(or even “waives,” Fed. R. Crim. P. 59(b)(2)) the right to appeal, despite the later plea agreement

purporting to reserve the right. United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008); cf.

United States v. Gabel, 470 F. App’x 853, 854 (11th Cir. 2012) (per curiam); United States v.

Cagle, 314 F. App’x 617, 618 (4th Cir. 2009) (per curiam); United States v. Buckbee, 3 F. App’x

563, 564 (7th Cir. 2001) (order). And other courts have held that the government’s actions in

entering the plea deal amount to its own “waiver of the waiver” because it agreed that the defendant

could appeal the issue. E.g., United States v. Delgado-Perez, 867 F.3d 244, 250 (1st Cir. 2017);

cf. United States v. Loughren, 239 F. App’x 289, 290 (7th Cir. 2007) (order).

       Skipping this waiver issue, we proceed to the merits. The Fourth Amendment bars

“unreasonable searches and seizures.” U.S. Const. amend. IV. We begin by clarifying what West

does and does not challenge as unreasonable. She does not challenge the initial seizure—a traffic

stop for speeding. Cf. Whren v. United States, 517 U.S. 806, 809–10, 819 (1996); United States

v. Simpson, 520 F.3d 531, 539–41 (6th Cir. 2008). She also does not challenge her consent to

search her car as involuntary or coerced. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 248–49

(1973). And she does not challenge the length of the stop and search. Cf. Rodriguez v. United

States, 135 S. Ct. 1609, 1614–15 (2015). As the magistrate judge explained, “at no point has West

challenged the validity of her consent [to search the car] or that the search exceeded the scope of

her consent or was conducted in an unreasonable period of time.” Instead, West challenges only

her conversation with Detective Shockley, asserting that she did not validly consent to turning over

the drugs after speaking with him.

       We assume, for purposes of this decision, that Shockley’s request for West to turn over the

drugs qualifies as a “search” under the Fourth Amendment, which avoids any need to opine on



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Case No. 18-5472, United States v. West


that preliminary issue. Cf. United States v. Street, 614 F.3d 228, 233 (6th Cir. 2010). The search

was nevertheless reasonable under the Fourth Amendment. A search is reasonable when it is

supported by a warrant or an exception to the warrant requirement. Kentucky v. King, 563 U.S.

452, 459 (2011). The usual exceptions apply in this verbal-search context, see, e.g., United States

v. Pope, 686 F.3d 1078, 1083–84 (9th Cir. 2012), and those exceptions include voluntary consent,

see Schneckloth, 412 U.S. at 219. And here, the magistrate judge found as a fact that West

voluntarily produced the drugs without police coercion.

       West disagrees. She argues that Shockley illegally “searched” her person because she

“never felt free to leave” and “felt compelled to turn over the drugs.” But her argument relies

entirely on her own testimony, which the magistrate judge discredited. In particular, the judge

gave no weight to West’s claims that the police had coerced her into turning over the drugs based

on dash-cam footage that showed she was “cooperative and nonchalant in her actions.” Under the

controlling standard of review, we typically will not second-guess that type of credibility

determination. See United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010). West gives us no

basis to do so here. Indeed, as the magistrate judge noted, the dash-cam video supports the finding

that the police did not engage in coercive or threatening behavior.

       We affirm.




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