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United States v. Moran

United States District Court, N.D. West Virginia, Wheeling

May 5, 2017

JEFFREY W. MORAN, Defendant.



         On this day, the above-styled matter came before this Court upon consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert. By Local Rule, this action was referred to Magistrate Judge Seibert for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Seibert filed his R&R on April 19, 2017 [Doc. 37]. In that filing, the magistrate judge recommends that this Court deny the defendant's Motion to Suppress Evidence [Doc. 20].

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (14) days of filing of this same, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). Objections to the R&R were timely filed on May 2, 2017 [Doc. 39]. Accordingly, this Court will conduct a de novo review of those portions to which objections were made; the remaining portions will be reviewed for clear error.


         An informant's tip led the Government to conduct an investigation using three confidential informants. Based on the tip, it was suspected that defendant Moran illegally possessed a number of firearms. Thereafter, the Government presented an application and supporting affidavit for a search warrant to an Ohio County, West Virginia magistrate. The affidavit relies heavily on statements from the confidential informants who stated that they observed or knew the defendant possessed firearms. Relying on the affidavit, the magistrate determined there existed probable cause to issue a search warrant. The home was subsequently searched, and firearms were found therein. Defendant now challenges the search and moves to suppress the recovered evidence.

         On March 16 and 22, and April 10, 2017, United States Magistrate Judge James E. Seibert held evidentiary hearings on the Motion to Suppress Evidence. At the hearing, the officer who applied for the warrant testified that the only information presented to the magistrate was the affidavit; accordingly, this Court's review of probable cause is limited to the supporting affidavit, which discloses the following information:

1. West Virginia Senior Natural Resources Police Officer S.C. Haines has served in wildlife law enforcement for 14 ½ years and has training and experience as a Natural Resources Police Officer to know that firearms purchased, owned, or possessed by individuals are retained in the person's residence, and such persons possess those firearms for long periods of time.
2. In September of 2016, Officer Haines received information from a “trusted and reliable” C.I., who had “proven to be accurate on two following investigations.” 3. The anonymous C.I. stated that defendant Jeff Wayne Moran attempted to sell a Browning shotgun and the informant knew Moran was a convicted felon, who is prohibited from possessing firearms.
4. The anonymous C.I. did not want to be identified because he/she was afraid of Moran retaliating against him/her because he/she knows Moran to be violent.
5. On November 28, 2016, Officer Haines received another tip from the same “reliable proven informant” that a witness observed Moran carrying a long gun in the wooded area along Browns Run in Wheeling, West Virginia.
6. Officer Haines and ATF Agent Campbell “located” the witness, who confirmed he/she observed Moran “hunting with a long gun described as a stainless steel octagon style barrel with wooden stock” and “shooting from the front porch of the Moran residence located at 146 Browns Run Lot #1" to a target located across the public road.
7. This second witness also refused to be identified due to fear of retaliation.
8. Officer Haines and Agent Campbell “located” another witness who stated he observed Moran “holding a long gun with a synthetic stock and blue barrel” outside Moran's residence on November 26, 2016.
9. This witness was unwilling to provide an identity due to fear of retaliation because he/she ...

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