United States District Court, N.D. West Virginia
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.
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.
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).
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).
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.
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,  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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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, Rodriguez,  and
Williams,  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
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.
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.
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.
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.”
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 ...