The opinion of the court was delivered by: John S. Kaull United States Magistrate Judge
REPORT AND RECOMMENDATION/OPINION
On the 29th day of September, 2009, came the defendant, Daniel Alfred Corica, in person and by Richard W. Shryock, Jr., his attorney, and also came the United States by its Assistant United States Attorney, Stephen Warner, for a hearing on Defendant's Motion to Suppress, which motion was filed on September 14, 2009 (Docket Entry 12). The United States filed its Objection to the Motion on September 25, 2009 (Docket Entry 14).*fn1 The matter was referred to the undersigned United States Magistrate Judge on August 14, 2009, by United States District Judge Robert E. Maxwell (Docket Entry 4).
On November 28, 2006, Defendant was arrested after a traffic stop and charged in a criminal complaint filed in the Magistrate Court of Randolph County, West Virginia, with one count of Possession of Marijuana with Intent to Distribute. On or about the 30th day of November, 2006, the Randolph County Magistrate Court scheduled a preliminary hearing for the 18th day of December 2006. On or about the 11th day of December, 2006, the State, by its Assistant Prosecuting Attorney, Michael W. Parker, filed a Motion to Dismiss without prejudice with the Randolph County Magistrate Court on the ground that the State planned to pursue indictment. On or about the 18th day of December, 2006, Richard Shryock, counsel for Defendant in both the prior State case and current Federal case, filed Defendant's Motion in Opposition to the State's Motion to Dismiss with the Randolph County Magistrate Court. On or about the 18th of December, 2006, Magistrate Rick George entered an Order dismissing this matter from the Randolph County Magistrate Court stating that this matter was dismissed by the Assistant Prosecutor. Magistrate George found that Defendant was denied a right to a preliminary hearing, as required by West Virginia Rules of Criminal Procedure for Magistrate Courts as stated by Defendant in the Defendant's Motion in Opposition to State's Motion to Dismiss filed in the Randolph County Magistrate Court on the 18th of December, 2006.*fn2 The Prosecutor admitted in his Motion that the police report as well as WVSP Form 17A received by the State in this matter omitted relevant facts regarding the motives of the State Police in conducting an apparent pretextual stop. Omission of material facts regarding the stop and subsequent search of Defendant, facts known to counsel, and facts known to the West Virginia State Police, rendered the case unprosecutable. (See Defendant's Exhibit C attached to his brief).
According to Defendant's counsel, he was then contacted by AUSA Warner, and informed that the Federal Government was going to be prosecuting Defendant. This never occurred, however. Instead, on October 27, 2008, nearly two years after Defendant was arrested on the State charges, the State of West Virginia indicted Defendant on the charge of possession with intent to deliver marijuana. He was arraigned by the Circuit Court of Randolph County, West Virginia, on November 13, 2008. According to counsel, the State provided incomplete discovery on or about January 10, 2009. Defendant moved to dismiss the States charge based upon incomplete discovery. The motion was denied but the State was ordered to provide complete discovery within seven days. On or about January 22, 2009, the State provided Defendant additional discovery including a police report prepared by Trooper J.E. Kopec. The report still did not mention a CI being utilized in the case. Said report, dated February 9, 2007, 2 1/2 months after the arrest, simply repeated the original story of a routine traffic stop. On January 29, 2009, Defendant filed a second motion to dismiss based upon the State's failure to provide Defendant with complete discovery and failure to provide impeachment and exculpatory material.
On January 28, 2009, the State filed a motion to dismiss the charge against Defendant without prejudice. The State Prosecutor stated in his Motion to Dismiss:
In a hearing held on the 15th day of January, 2009 on this matter, Trooper J.E. Kopec, with the West Virginia State Police, agreed with the proffer of defense counsel, Richard w. Shryock, J., on all counts, including the allegation that the traffic stop was pre-textual based upon information from a confidential informant. Further, the confidential informant, who is currently in federal custody, has admitted to planting drugs on other suspects and defendants to the West Virginia State Police. The Prosecutor therefore moved the State to dismiss the matter without prejudice "in order to allow the West Virginia State Police to prepare an accurate report including all relevant facts incident to Defendant's traffic stop and subsequent arrest. Upon the receipt of the same, the State will review and consider such information in determining whether this matter is ripe for presentation to a future Grand Jury. (See Defendant's Exhibit C, attached to Motion).
On the 9th day of February 2009, Honorable Jaymie Godwin Wilfong, Circuit Court Judge for the 20th Judicial Circuit Court in Randolph County, West Virginia, heard the State's Motion to Dismiss as well as Defendant's Motion to Dismiss. Judge Wilfong held as follows:
The State presented it's [sic] Motion to Dismiss based on it's [sic] ethical obligation not to prosecute a case that lacks probable cause and violates the Defendant's Fourth Amendment Rights. The Defendant raised no objection to the State's Motion and joined the State's Motion, as well as filing his own Motion to Dismiss on the same grounds. The Court then inquired as to the sentiment of West Virginia State Trooper, J.E. Kopec, who informed the Court that he objected to the dismissal of this matter.
The Court acknowledged Trooper Kopec's objection but FINDS the dismissal without prejudice is proper in this case based upon the State's request. The Court hereby GRANTS the State's Motion and ORDERS that this matter be and is hereby DISMISSED WITHOUT PREJUDICE.
On or about August 12, 2009, close to three years after Defendant's initial arrest, Defendant was indicted by a Grand Jury sitting in the United States District Court for the Northern District of West Virginia, on the charge of Possession of Marijuana with Intent to Distribute. Defendant was arraigned on August 27, 2009. According to counsel, he received discovery from the Government on September 3, 2009, which included a new police report prepared by Trooper Kopec dated April 27, 2009, 2 1/2 years after Defendant's arrest. The second report bears no indication that it is a supplemental report and makes no mention of the original report prepared on February 9, 2007. The new report contains additional information, which will be discussed below.
Defendant timely filed his Motion to Suppress on September 14, 2009. The United States filed its Objection to the Motion one day late, on September 25, 2009. On September 25, 2009, the undersigned United States Magistrate Judge ordered the parties to provide additional records, including records from the original traffic stop. The undersigned further ordered that all five State Troopers involved in the traffic stop be present for the hearing.
II. Contentions of the Parties
Defendant contends the warrantless search of his automobile on November 28, 2006, violated his constitutional rights because:
1. The police stop on November 28, 2006, was pretextual;
2. The police lacked a reasonable suspicion to stop Defendant because his stop was based on incomplete and unreliable information from a confidential informant;
3. No traffic violation occurred that would justify the stop;
4. The police officers' versions of the events of November 28, 2006, are not credible;
5. There was no consent to the search; and
6. The detention of Defendant had his vehicle for 49 minutes as well as the subsequent search violated Defendant's Fourth Amendment rights.
1. The constitutional reasonableness of a traffic stop does not depend on the actual motivation of the officer making the stop;
2. Temporary detention for a simple traffic violation is consistent with the Fourth Amendment's prohibition against unreasonable searches and seizures regardless of whether a reasonable officer would have been motivated to stop the vehicle for the violation of the traffic law;
3. Defendant voluntarily consented to the search;
4. Defendant made voluntary, spontaneous, inculpatory statements;
5. Defendant did violate a State traffic law providing the officer with probable cause for the stop; and
6. The delay in waiting for the arrival of the drug-sniffing dog was de minimus, and thus was not unreasonable in violation of Defendant's Fourth Amendment rights.
The Court received the testimony of five witnesses under oath, to wit: West Virginia State Troopers Charles Trader, Christopher Snodgrass, J.R. Fletcher, Jacob Kopec, and Thomas Yanero. The Court also admitted into evidence four exhibits, including the communications log sheet from the date of the arrest, transcripts of the State and Federal Grand Jury proceedings, Tpr. Kopec's original 193 report, and Tpr. Kopec's original 17A report and "supplemental" (although not designated as such) 17A report.
From the evidence presented, the Court makes the following findings of fact: On November 28, 2006, Cpl. Christopher Snodgrass was doing a drug investigation in the Dry Fork, Randolph County, West Virginia area. He and Sgt. Bennett were with a confidential informant ("CI"), arranging a controlled buy of marijuana from a target in Davis. They were searching the CI's vehicle prior to making the controlled buy. They saw Defendant, Daniel Corsica, drive past, headed toward Elkins, West Virginia. They attempted to evade him, because Defendant knew the CI, but Cpl. Snodgrass believed Defendant looked right at them. Cpl. Snodgrass contacted Sgt. Stalnaker, who advised him to see if he could get an officer to follow Defendant, in order to catch him in a traffic violation so he could be stopped. They assumed because of the direction from which Defendant was driving, that he would have drugs. Cpl. Snodgrass testified that the CI was not a reliable person, but that nothing the CI said influenced any of his decisions that day.
At about the same time, Sgt. Charles Trader received information regarding Defendant, Daniela Corica, possibly transporting drugs through Elkins, Randolph County, West Virginia. He proceeded to town along with Tpr. Kopec. Tpr. Kopec was driving. They proceeded toward Harman, looking specifically for Defendant. They passed him going in the opposite direction. They had no probable cause to stop him at that time, so they turned around and followed him, hoping to witness a traffic violation in order to establish probable cause to initiate a traffic stop. Sgt. Trader was "very familiar" with Defendant, and his reputation as a drug trafficker.
At about the same time, Tpr. J.R. Fletcher was out on Rt. 33, when he was advised by Sgt. Stalnaker that Defendant may be carrying drugs in his car. He was directed to observe the vehicle to see if Defendant committed any traffic violations for which he could stop him. He saw Defendant's vehicle coming into town. He turned around to get behind him to watch for violations. Tpr. Fletcher testified he followed Defendant's vehicle driving "bumper-to-bumper," HEdefined bumper-to-bumper as being 15 to 20 feet away. Defendant did not violate any laws. The two then stopped at a red light at an intersection. Tpr. Fletcher was immediately behind Defendant at the light. There was other traffic at the intersection. When the light turned green Defendant proceeded straight through, onto 11th Street. He turned on his left turn signal to go into a car wash. The traffic in the lane going the opposite direction (which he had to cross to get to the car wash) was backed up and blocking his way into the car wash. He stopped for 10 - 15 seconds to see if someone would let him in, but no one did. He then went ahead and immediately turned right without signaling. At that point Tpr. Fletcher turned on his lights. Tpr. Fletcher testified that there were no other cars-- that everything was backed up in the other lane. No one was ahead of Defendant, and no one was between him and Defendant. The Court specifically asked Tpr. Fletcher:
Q: As you were following Mr. Corica on, I believe it was, 11th Street, and as he made the turn to the right, without making a signal either by his hand or with his signal lights, what, if any, traffic did you see that may be affected by him making that signal-less turn?
A: I do not recall any traffic that would have been affected by that.
The AUSA then asked Tpr. Fletcher the following series of questions:
Q: How far behind Mr. Corica were you when he turned right onto Delaware?
A: Ten to fifteen feet.....
Q: So how far from the stop light where traffic was backed up was the turn ...