United States District Court, N.D. West Virginia, Wheeling
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED-STATES DISTRICT JUDGE.
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].
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.
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.
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
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 ...