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 ...