United States v. Nestor

          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. 17]

          IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

         This 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. No. 17).

         I. BACKGROUND

         A. Procedural History

         On 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).

         On 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. No. 23).

         B. Suppression Hearing

         On 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.

         The 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.

         On May 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.

         Officer 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.^[1] 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 9.

         At that 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 27-28.

         Suspicious 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.

         When an 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.

         After 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).^[2] The pair were able to hear Officer Riley communicating with dispatch (Dkt. No. 29 at 31).

         Shortly 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).

         Before 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 unit.^[3]

         At that 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).

         Officer 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.^[4]

         Although 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).

         Deputy 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 24-25).

         Ultimately, 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.

         C. Report and Recommendation

         On 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.

         The 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.

         D. Nestor's Objections

         Nestor's 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.

         II. STANDARD OF REVIEW

         When 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 Cir. 2005).

         III. APPLICABLE LAW

         The 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. ...