United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
defendant was named in a one-count indictment in the
above-styled criminal action. The indictment charges the
defendant with unlawful possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Counsel
for the defendant filed a motion to suppress statements (ECF
No. 16), a motion to suppress the search (ECF No. 29), and a
motion to suppress the search and statements (ECF No. 44).
The motions to suppress arise out of an incident in which the
defendant was severely injured after being hit in the head by
a glass bottle while in his home. Emergency personnel,
including state and federal law enforcement, reported to the
scene, and police officers performed a protective sweep of
the upstairs and basement. The police officers obtained a
search warrant because there was marijuana mixed with broken
glass in plain view in the kitchen, where the defendant was
defendant challenges the constitutionality of the protective
sweep. The defendant also argues that the police officers
planted the marijuana as a means to establish probable cause
for the search. As to the motion to suppress statements, the
defendant simply asserts that his statement to the police
officers should be suppressed without presenting evidence of
the circumstances of any statements, without identifying any
particular statements, and without arguing why they should be
States Magistrate Judge James E. Seibert held a hearing on
the motions to suppress on April 11, 2017. After the
evidentiary hearing, the parties submitted supplemental
briefing on the motions to suppress. The magistrate judge
then entered a report and recommendation recommending that
each of the three motions to suppress be denied. ECF No. 56.
The magistrate judge was unpersuaded by the defendant's
argument that the protective sweep was unconstitutional
because the law is clear that the police can perform a
protective sweep for officer safety. The magistrate judge
also found no evidence supporting the defendant's
argument that the police officers planted the marijuana on
the floor. Lastly, as to the motion to suppress statements,
the magistrate judge was unpersuaded by the defendant's
mere assertion that his statements should be suppressed. The
defendant did not file any objections.
time since the magistrate entered the report and
recommendation, the defendant entered a plea of guilty to the
one-count indictment. The defendant appeared before the Court
for a plea hearing on May 25, 2017, at which time the Court
accepted the defendant's plea of guilty and deferred
adjudging the defendant guilty until a later time, probably
the time of sentencing. At the conclusion of the plea
hearing, the Court stated that it would enter this memorandum
opinion and order affirming and adopting the report and
recommendation of the magistrate judge.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because no objections were filed, all findings and
recommendations will be upheld unless they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A). As the Supreme Court of the United States
stated in United States v. United States Gypsum Co.,
“a finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 333 U.S.
364, 395 (1948).
Fourth Amendment to the United States Constitution prohibits
warrantless searches unless one of the delineated exceptions
applies. A protective sweep is one of the delineated
exceptions. See Maryland v. Buie, 494 U.S. 325
(1990). A protective sweep requires that an officer possess
“a reasonable belief based on specific and articulable
facts which, taken together with the rational inferences from
those facts, reasonably warrant the officer in believing that
the area swept harbored an individual posing a danger to the
officer or others.” Id. at 327.
the magistrate judge found that the police officers arrived
at a chaotic scene in which the defendant was severely
injured, and the police officers were told the assailant was
not present. The Court agrees with the magistrate judge that
there was no Fourth Amendment violation because it was
reasonable for the police officers to believe that an
individual who may pose a threat may have been in the house.
Furthermore, the marijuana was found in plain view
immediately upon the police officers' arrival, not as a
result of the protective sweep. Thus, even if there was a
Fourth Amendment violation, the magistrate judge correctly
reasons that there would be no evidence to suppress as a
result of an unconstitutional search.
Court also agrees with the magistrate judge that there is no
evidence in the record to support the defendant's
assertion that the police officers planted marijuana on the
kitchen floor as a means to establish probable cause. The
magistrate judge's finding that the police officers were
credible is not clearly erroneous. The defendant does not
challenge probable cause beyond his argument that the police
planted the marijuana in the kitchen. Thus, the magistrate
judge was not clearly erroneous in finding that there was
probable cause. Lastly, this Court concurs with the
magistrate judge's finding that the defendant never
submitted any evidence or argument in support of his mere
assertion that his statements should be suppressed.
after reviewing the report and recommendation under the
clearly erroneous standard of review, this Court is not left
with a “definite and firm conviction that a mistake has
been committed.” United States Gypsum Co., 333
U.S. at 395. ...