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United States v. Kenyon

United States District Court, N.D. West Virginia

April 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
STEPHANIE LEE KENYON, Defendant.

         MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE, SUSTAINING THE OBJECTIONS IN PART AND OVERRULING THE OBJECTIONS IN PART TO THE REPORT AND RECOMMENDATION, GRANTING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS, DENYING DEFENDANT'S MOTION TO SUPPRESS SEARCH OF VEHICLE FOR UNREASONABLE EXTENSION OF THE TRAFFIC STOP AND DENYING DEFENDANT'S SUPPLEMENTAL MOTION TO SUPPRESS SEARCH OF VEHICLE FOR ILLEGAL TRAFFIC STOP

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Introduction

         The defendant, Stephanie Lee Kenyon, was named in a two-count indictment with a forfeiture allegation in the above-styled criminal action. The indictment charges the defendant with identity fraud and interstate transportation of stolen property in violation of 18 U.S.C. §§ 1028(a)(3) and 1028(b)(2)(B) and § 2314.

         For the following reasons, this Court affirms and adopts in part and declines to adopt in part the report and recommendation of the magistrate judge (ECF No. 37). Further, this Court sustains in part and overrules in part the government's objections to the report and recommendation (ECF No. 40).

         This Court grants the defendant's motion to suppress statements (ECF No. 16), denies the defendant's motion to suppress search of vehicle for unreasonable extension of the traffic stop (ECF No. 17), and denies the defendant's supplemental motion to suppress search of vehicle for illegal traffic stop and unreasonable extension of the traffic stop (ECF No. 25).

         II. Background

         On May 13, 2017, Corporal Sean Brantley of the Wheeling Police Department conducted a traffic stop of a white Ford Expedition which was traveling east on Interstate 70. After pursuing the vehicle for roughly ten miles, the stop was effectuated around mile marker 7 at 10:16 a.m. on that date.

         The occupants of the vehicle were a male driver, Mr. Gilmore; a female passenger, Ms. O'Brien; and the defendant, Stephanie Kenyon, who was initially unidentified and lying across the back seat with a blanket covering her. Officer Brantley, after speaking briefly to the front seat passengers, [1] asked for registration and proof of insurance for the vehicle, as well as identification for all three occupants. During this time, he also began asking questions about where they had been, why they had been there, and where they were going.

         Upon request, the front seat passengers produced identifications. The front seat passenger identified herself as Courtney O'Brien (“O'Brien”), and the driver as James Gilmore (“Gilmore”). For identification, O'Brien produced a New Hampshire license, and Gilmore produced a New York license. Officer Brantley was informed that the backseat passenger did not have identification. O'Brien stated that the passenger in the backseat was from Florida and that her name was “Leah Whitmil, ” and provided a date of birth. The passengers were not able to produce the rental agreement for the vehicle.

         Officer Brantley returned to his cruiser at 10:23 a.m. Officer Brantley exited his cruiser and approached the passenger side of the Expedition again at 10:24 a.m. After speaking with the passengers in the vehicle, Officer Brantley again returned to his cruiser at 10:28 a.m. Inside the cruiser, Officer Brantley states on the radio, “they can't locate the rental agreement” and calls in the vehicle's license plate number.

         At approximately 10:28 a.m., Officer Erick Burke arrived on the scene. Officer Brantley filled him in on his observations of what was taking place and what he had observed, and Officer Burke then spoke to the passengers as well. Officer Burke approached the vehicle at 10:30 a.m. and had O'Brien exit the vehicle at 10:31 a.m. while Officer Brantley continued to check on the validity of the driver and passengers' identification from his cruiser.

         By 10:33 a.m., the police dispatcher had advised Officer Brantley that Gilmore and O'Brien had produced valid identifications, but was unable to find any record under the name and date of birth that had been provided for the back seat passenger, the defendant. At approximately 10:36 a.m., Officer Brantley stated on the radio that he will attempt to get better information on the identification of the backseat passenger.

         After Officer Burke spoke with O'Brien, he spoke again with Officer Brantley. At this point, the officers discussed the information they had gathered and decided to ask the driver to exit the vehicle and to conduct a canine sniff of the vehicle. Officer Brantley again noted that he does not have an identification for the rear passenger.

         At 10:40 a.m., Gilmore exited the vehicle and spoke with Officer Burke. Officer Burke then approached the passenger side of the Expedition and had the defendant exit the vehicle. The defendant exited the vehicle at 10:49 a.m. At this point, the individuals that were passengers in the Expedition were seated on the guardrail, smoking cigarettes, and using cell phones to attempt to provide the rental car agreement.

         Officer Brantley then walked his canine, Jericho, around the vehicle at 10:51 a.m. The canine “alerted”, by sitting down near the rear passenger side door of the vehicle. After the canine “alerted” at 10:53 a.m., Officer Brantley proceeded to perform a search of the Expedition.

         Officer Brantley found various types of large bags in the rear of the vehicle. The officer asked the passengers to identify which bags belonged to whom. The passengers all did so until it came time to claim ownership of two Nike duffel bags, which appeared to be new with tags still on them. Officer Brantley described these bags as being very heavy. When asked who the duffel bags belonged to, none of the passengers initially claimed ownership, eventually claiming the bags belonged to all of them. Officer Brantley asked them what was inside. Gilmore responded that it was electronics.

         Officer Brantley opened the bags. Officer Brantley discovered driver's licenses, credit cards, and various Apple computer products including laptops and watches in their original packaging. The seizure of the identification cards, credit cards and Apple computer equipment serve as the basis for the instant charges against the defendant.

         At some point while Officer Brantley was going through the electronics, O'Brien claimed ownership of the duffel bags containing the electronics, and claimed to have purchased them on eBay. At 11:37 a.m., three officers were standing between the police cruiser and the Expedition, facing the passengers seated on the guardrail. Officer Brantley placed several cell phones on the hood of his police cruiser. The defendant raised her arm and indicated toward the Expedition. Officer Brantley then pointed to the area in front of the Expedition and the defendant followed Officer Brantley in that direction. Officer Brantley and the defendant engaged in conversation at the front of the rental vehicle.

         Officer Brantley returned to his cruiser to check with the dispatcher regarding the true name and date of birth of the defendant at 11:45 a.m. At this time, O'Brien was in the back of Officer Brantley's cruiser. At 11:50 a.m., Officer Brantley learned from the dispatcher that the information checked out on a Stephanie Kenyon, who was wanted for receiving stolen property.

         Officer Brantley then returned to the front of the vehicle and again engaged in conversation with the defendant. This ultimately led the defendant to make several incriminating statements about her involvement with the possession and acquisition of the items discovered in the Nike bags.

         III. Procedural History

         Counsel for the defendant filed a motion to suppress statements (ECF No. 16), motion to suppress search of vehicle for unreasonable extension of the traffic stop (ECF No. 17), and a supplemental motion to suppress search of vehicle for illegal traffic stop and unreasonable extension of the traffic stop (ECF No. 25).

         The government then filed a response in opposition to defendant's motion to suppress statements (ECF No. 22), response in opposition to defendant's motion to suppress search of vehicle for unreasonable extension of the traffic stop (ECF No. 21), and response in opposition to defendant's supplemental motion to suppress search of vehicle for illegal traffic stop and unreasonable extension of the traffic stop (ECF No. 27).

         United States Magistrate Judge James E. Seibert held a hearing on the defendant's motions on February 2, 2018. Magistrate Judge Seibert then held a continued evidentiary hearing on the defendant's motions on February 21, 2018. After the evidentiary hearing and continued evidentiary hearing, the magistrate judge then entered a report and recommendation. ECF No. 37.

         The magistrate judge was unpersuaded by the defendant's initial argument as to the traffic stop, finding “the traffic stop, at its inception, to be routine.” Id. at 5. Next, the magistrate judge found that “that the extension of the traffic stop was lawful to a point, but became unlawful prior to the initiation of the dog sniff.” Id. at 9. The magistrate judge then addressed each factor that Officer Brantley raised in support of reasonable suspicion separately and found, considering the totality of these factors, “no basis for a reasonable suspicion that would lead Corporal Brantley to reasonably believe the Defendant or the vehicles' other passengers were involved in criminal activity.” Id. at 18. Lastly, the magistrate judge determined that “the average person in Defendant's position would believe themselves to be in custody” and that “under Miranda, officers were required to read the Defendant her rights prior to questioning.” Id. at 19. The magistrate judge disagreed with the government's assertion that the statements were voluntarily made by the defendant and notes that “Corporal Brantley's police report on the matter seems to indicate that he initiated the conversation.” Id. The magistrate judge then stated that “even if the Defendant did pull Officer Brantley aside and volunteer her name and date of birth, ” Officer Brantley “would still then owe [the defendant] the Miranda warnings before questioning her further” after he “went back to his cruiser to run the information, ” which was several minutes later. Id. at 20.

         For these reasons, the magistrate judge recommended that the defendant's motion to suppress statements (ECF No. 16) be granted, the defendant's motion to suppress search of vehicle for unreasonable extension of the traffic stop (ECF No. 17) be granted, the defendant's supplemental motion to suppress search of vehicle for illegal traffic stop (ECF No. 25) be denied because the initial traffic stop was lawful and the supplemental motion to suppress the search for unreasonable extension of the traffic stop be denied as moot. ECF No. 37 at 20.

         The government filed objections to the magistrate judge's report and recommendation. ECF No. 40. Initially, this Court notes that the government's rendition of the facts in its objections to the report and recommendation vary and differ from the factual findings of the magistrate judge in his report. The government, in its objections, notes a general objection to the magistrate judge's reliance on three cases, namely Bowman, [2]Rodriguez, [3] and Williams, [4] and points out that these cases are “factually distinguishable from the instant case” and are “of limited value to the analysis” in that “[i]n all three of those cases, the Officers developed reasonable suspicion after the traffic stop had concluded.” ECF No. 40 at 8 (emphasis in original).

         The government further disputes the magistrate judge's characterization of Bowman as “strikingly similar” to the instant case, and points out that here, the officer “was still diligently trying to verify the identification of a back seat passenger, a task complicated by O'Brien's obstruction, and trying to verify that Gilmore (the driver) was allowed to be in possession of the car” and “had not yet completed the mission of the stop.” Id. at 9.

         The government then asserts that the magistrate judge's report and recommendation “is in error in so far as it concludes that the Officers had impermissibly extended the traffic stop” because “[t]hey had not yet completed the ordinary incidents of a traffic stop when they developed reasonable suspicion of criminal activity.” ECF No. 40 at 10. In support of the argument that “the traffic stop did not exceed the time reasonably required to complete the tasks incident to the mission of the stop” (Id. at 15), the government asserts the following reasons: (1) the need to identify the occupants; (2) obstruction of justice by the passengers; and (3) the need to determine if Gilmore was authorized to be driving the car. The government contends that “[t]here was no impermissible extension of the stop” because “the Officers in this case acted with reasonable diligence” and “[t]he mission of the stop had still not been completed through no fault of their own.” Id. at 15.

         The government also asserts that “[t]he Magistrate Judge's decision is also in error because it fails to recognize that the Officers had developed reasonable suspicion prior to the dog sniff” and contends that “[i]n a totality of the circumstances analysis, it is not appropriate to address the factors piecemeal, in a vacuum, and out of context.” Id. at 15-16. The government then “endeavor[s] to re-visit [the factors] (using the same titles employed by the Magistrate Judge) in an effort to show how they are inadequately addressed in the R&R.” Id. at 16. The government then addresses “several factors which heavily influenced the Officers' assessment of reasonable suspicion, but which receive no mention in the R&R.” Id. at 21.

         Lastly, the government asserts in its objections that “[t]he Magistrate Judge's decision is also in error because it concludes that the defendant's statements to Cpl. Brantley should be suppressed because they were not Mirandized.” Id. at 25. Ultimately, the government “maintains that the occupants were not in custody” and “[s]ince the defendant was not in custody, no Miranda warnings were required.” Id. at 27. The government additionally asserts that “even if the defendant could be deemed to have been in custody, no warnings were required because the defendant's statements were completely voluntary.” Id.

         IV. Applicable Law

         Under 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 an objection is timely made. Because the government filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. As to those findings to which objections were not filed, the findings and ...


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