United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 38] AND
DENYING DEFENDANT'S MOTION TO SUPPRESS [DKT. NO.
M. KEELEY, UNITED STATES DISTRICT JUDGE
case arises out of a dog sniff conducted by West Virginia law
enforcement officers during their roadside investigation of
the defendant, Steven Scott Nestor (“Nestor”),
who is a convicted felon. When the dog sniff of Nestor's
unregistered truck resulted in a positive alert, the officers
searched his vehicle and uncovered a variety of contraband,
including a firearm. Pending is Nestor's motion to
suppress that evidence, which he claims was obtained in
violation of his Fourth Amendment rights. For the following
reasons, the Court DENIES the motion (Dkt.
August 29, 2017, the grand jury returned a one-count
indictment against Nestor, charging him with unlawful
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Dkt. No. 4). The Court
issued a warrant for Nestor's arrest, which was executed
on October 23, 2017 (Dkt. Nos. 6; 15). That day, Nestor made
his initial appearance before the Honorable Michael J. Aloi,
United States Magistrate Judge, pleaded not guilty, and was
remanded to the custody of the United States Marshals Service
(Dkt. Nos. 11; 12).
November 13, 2017, Nestor moved to suppress the
methamphetamine, heroin, scales, needles, money scanner, and
firearm discovered during the search of his vehicle (Dkt. No.
17). Nestor argued that the officers discovered this evidence
as the result of an investigatory stop unsupported by
reasonable suspicion, which also was unreasonably extended to
accomplish the dog sniff. Id. at 6-10. In its
response to the motion, the Government contended that the
encounter was consensual, any investigatory detention was
justified by reasonable suspicion, and the stop was not
prolonged for the purpose of effectuating the dog sniff (Dkt.
November 27, 2017, Magistrate Judge Aloi conducted a hearing
on Nestor's motion to suppress (Dkt. No. 24). The
Government presented testimony from the arresting officer,
West Virginia Division of Natural Resources
(“DNR”) Officer Benjamin Riley (“Officer
Riley”). Nestor's attorney vigorously
cross-examined Officer Riley, but Nestor did not present any
contrary testimony. Indeed, although Nestor referred to
Officer Riley's written report in briefing (Dkt. No. 41
at 1), the only evidence before the Court is Officer
Riley's testimony and associated exhibits.
Court has reviewed the audio recording of the suppression
hearing, the transcript of the proceeding (Dkt. No. 29), and
the following joint exhibits: 1) Harrison/Taylor County 911
dated for 5/10/2017; 2) CAD Operation Report dated for
5/10/2017; 3) C/D of radio communication on 5/10/2017; and 4)
Transcript of Radio Traffic from 5/10/2017 (Dkt. No. 25).
Magistrate Judge Aloi utilized Officer Riley's testimony
to establish the factual basis for his R&R, implicitly
indicating he found the testimony credible. Nestor does not
challenge the veracity of Officer Riley's testimony or
its use in the R&R, and the parties do not appear to
seriously dispute the facts of this case.
10, 2017, Officer Riley was on duty in Harrison County, West
Virginia. He was in uniform, carrying a badge, armed with a
gun, and driving a DNR pickup truck, clearly marked and
equipped with lights and sirens (Dkt. No. 29 at 8, 28-29).
During the course of his shift, he drove down Jack Run Road
to respond to an injured deer call. Id. at 5-7.
Before he reached the injured deer on Saltwell Road, however,
Officer Riley confronted the circumstances that precipitated
Nestor's pending charge. Id. at 7.
Riley noticed a truck parked off the left side of the road on
private, posted property, and observed Nestor as he removed
items from the bed of the truck and placed them on the
ground. Id. at 8, 11. He described these items
generally as “trash” and “junk, ”
including bottles, cans, tires, an old hay bale, “other
material, cabinet, [and] papers.” Id. at
36-37. Officer Riley stopped his truck, rolled
down his driver's side window, and asked Nestor what he
was doing. Nestor advised that he was making room to haul
away portions of a dilapidated trailer located nearby, which
was visible from Officer Riley's vehicle. Id. at
time, Officer Riley observed another individual hiding from
view on the opposite side of Nestor's truck. This made
Officer Riley suspicious, so he "called that individual
out and told him to show . . . his hands." Id.
When the other individual stepped out, Officer Riley
immediately recognized David Wayne Martin
("Martin"), a distant cousin of Officer Riley's
whom he actually had arrested in the past. Id. at
of both Nestor's explanation and Martin's attempt to
hide from him, Officer Riley decided to investigate further.
He pulled into the lane of travel closest to Nestor's
truck, approximately a “[c]ar width and a half”
away, turned on his flashers, and exited his DNR vehicle.
Id. at 10-11, 28-29. He continued to question the
pair concerning why Martin had been hiding and why they were
removing items from the truck. Id. at 13. The two
continued to explain that they had permission from the
landowner to tear down the nearby trailer. Although Officer
Riley was familiar with the area due to prior poaching
complaints, he did not recognize the landowner name that they
provided. Id. at 13-14.
individual who lived nearby happened to approach, Officer
Riley attempted to confirm the landowner's name provided
by Nestor and Martin. The individual advised Officer Riley
that it was not the true landowner's name, and that
Nestor's vehicle should not be on the property.
Id. at 14. In fact, it later came to light that
Nestor and Martin had been removing the items so that they
could “finish a tree job” in nearby Bridgeport,
an explanation Officer Riley believed because he knew that
Martin “cuts trees a lot.” Id. at 36.
this, Officer Riley decided “to run their names,
” and directed Nestor and Martin to stand in particular
locations with their hands out of their pockets while he
returned to use the radio in his truck. Id. at
14-15. At 12:31 P.M., Officer Riley radioed dispatch to
advise that he was on Jack Run Road investigating an
“illegal dump, ” and asked dispatch to check
whether either Nestor or Martin was the subject of any
outstanding warrants (Dkt. No. 25-4 at 1). The pair were
able to hear Officer Riley communicating with dispatch (Dkt.
No. 29 at 31).
after receiving the inquiry, Officer Riley headquarters
called to advise that there was a possible warrant on Martin
for illegally possessing a firearm, as well as a possible
warrant on Nestor for writing a bad check. Upon learning that
the pair were possibly subject to outstanding warrants,
Officer Riley placed them in handcuffs for his own safety,
and requested backup for the purpose of transporting them
(Dkt. Nos. 29 at 15-16; 25-4 at 1-3). Headquarters dispatched
Harrison County Sheriff's Department Deputy Brian Deem
(“Deputy Deem”) at 12:37 P.M. Thereafter, it
advised Officer Riley that the warrant initially thought to
be outstanding on Martin was actually for his son (Dkt. No.
25-4 at 3).
he received further confirmation regarding Nestor's
possible warrant, Officer Riley questioned Nestor and Martin
about several new items in the back of their truck, including
gloves, sunglasses, and a cooler (Dkt. No. 29 at 21, 60).
Nestor replied that they had just purchased the items at
Wal-Mart, and that he had a receipt in the vehicle. Officer
Riley asked whether there were any drugs or guns in the
vehicle, and requested permission to search it. When Nestor
refused to provide consent, Officer Riley requested a canine
time, headquarters advised that Deputy Deem was still on his
way and wanted to speak with Nestor and Martin. It also
provided the following with regard to Nestor's warrant:
“I'm not able to confirm if it's the same
individual or not. It's a worthless check warrant from
2009" (Dkt. Nos. 29 at 21; 25-4 at 5). At 12:41 P.M.,
headquarters dispatched Harrison County Sheriff's Deputy
John Laulis (“Deputy Laulis”), the canine unit
officer (Dkt. No. 25-4 at 5).
Riley proceeded to obtain the license plate number on
Nestor's truck, at which time Nestor candidly admitted
that the license plate actually was associated with another
car he owned. Nestor further advised that the truck itself
was not registered or insured, and Officer Riley quickly
discovered that neither man had a valid driver's license
(Dkt. No. 29 at 17). After confirming this information with
dispatch (Dkt. No. 25-4 at 6), Officer Riley decided to
arrest Nestor and Martin for the misdemeanor offense of
creating an open dump.
Officer Riley typically does not arrest individuals for
illegal dumping, preferring to give them “an
opportunity to correct their actions, ” the totality of
the circumstances caused him to adopt a different course with
Nestor and Martin. He felt that the circumstances had been
aggravated by untruthfulness, the legal status of the truck,
and the fact that neither was a licensed driver. Id.
at 18-19, 39. According to Officer Riley, his decision to
arrest the pair for illegal dumping is reflected by his
request, made prior to Deputy Deem's arrival, that
headquarters “start a CAD for [him]” (Dkt. Nos.
25-4 at 7; 29 at 19, 52-53).
Deem arrived on the scene at 12:50 P.M., at which time the
officers permitted Nestor and Martin to smoke a cigarette.
From that point on, everyone awaited the arrival of the
canine unit so that Officer Riley could continue his
investigation into the vehicle's contents, which he
believed included drugs (Dkt. Nos. 25-4 at 7; 29 at 64).
Deputy Laulis arrived at 12:58 P.M. and, after being filled
in on the situation, conducted a dog sniff around the truck
(Dkt. Nos. 25-1 at 2; 25-4 at 7; 29 at 23-24, 59). After the
dog made a positive alert, a search of the vehicle resulted
in the seizure of methamphetamine, heroin, scales, needles, a
money scanner, and the firearm at issue in this case, a
Diamondback pistol, model DB9, 9mm caliber (Dkt. No. 29 at
Officer Riley asked dispatch to send a tow truck to transport
Nestor's unregistered vehicle, which could not be driven
from the scene. Id. at 21, 25. Although there were
circumstances under which Officer Riley could have allowed
Nestor to arrange for his own transportation of the truck,
id. at 40, he testified that, with the exception of
minor vehicle accidents, he does not permit people to do so.
Moreover, he has never “left an illegal vehicle off the
side of the road that's unregistered, uninsured and just
allowed somebody to call for a tow whenever it is that they
want to.” Id. at 56-57.
Report and Recommendation
December 6, 2017, Magistrate Judge Aloi entered an R&R,
recommending that the Court deny Nestor's motion to
suppress (Dkt. No. 38). He concluded that, although the
initial encounter between Officer Riley and Nestor was not
consensual, Officer Riley's investigatory stop was
justified by a reasonable suspicion that Nestor was creating
an open dump. Id. at 6-8.
R&R further reasoned that Nestor's arrest was not
supported by probable cause, but that the dog sniff
nonetheless took place during the permissible scope of the
investigatory stop while Officer Riley was waiting to receive
verification regarding Nestor's possible outstanding
warrant. Id. at 10-11. Thus, because the
investigatory stop was not unreasonably extended to permit
the dog sniff, Magistrate Judge Aloi concluded that
Nestor's truck was not searched in violation of his
Fourth Amendment rights; he therefore recommended that
Nestor's motion be denied. Id. at 11-12.
timely objections, filed on December 8, 2017, raised three
specific objections to the R&R (Dkt. No. 41). More
particularly, Nestor renews his arguments that there was no
reasonable, articulable suspicion for Officer Riley to
conduct an investigatory stop, the duration of the stop was
unreasonable, and the dog sniff was therefore impermissible.
Id. at 4-9.
STANDARD OF REVIEW
considering a magistrate judge's R&R made pursuant to
28 U.S.C. § 636(b)(1)(C), the Court must review de
novo those portions to which objection is timely made.
Otherwise, “the Court may adopt, without explanation,
any of the magistrate judge's recommendations to which
the prisoner does not object.” Dellacirprete v.
Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D.W.Va. 2007)
(citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983)). Courts will uphold those portions of a recommendation
to which no objection has been made unless they are
“clearly erroneous.” See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . and effects . . . against
unreasonable . . . searches and seizures.” U.S. Const.
amend. IV. “The overriding function of the Fourth
Amendment is to protect personal privacy and dignity against
unwarranted intrusion by the State.” Sims v.