United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE
case is now before the Court on the Defendant's [ECF No.
40] Motion to Suppress. The Court held a hearing on this
Motion on May 2, 2018. The Defendant appeared in person, and
by his counsel, Christopher J. Gagin, Esq. The Government
appeared through its counsel, Randolph J. Bernard, Esq. FBI
Special Agent James Rogers, Tamalee Miller, and the Defendant
December 20, 2017, a search warrant was issued by this Court
pursuant to an ongoing investigation of the Defendant for his
involvement in an alleged extortion scheme. The search
warrant authorized the investigating agent to search, in
pertinent part, a 2011 Chevrolet car, registered to Tamalee
Miller, but which the Defendant had been driving for the
duration of the investigation. The warrant was executed, and
the Defendant was arrested pursuant to a criminal complaint
and arrest warrant also issued by this Court.
Defendant was subsequently indicted by a grand jury on
January 9, 2018. The indictment charged the Defendant in
Count One with Conspiracy to Commit Extortion, and in Counts
2-4 with Interstate Communications with the Intent to Extort.
ECF No. 19. The indictment was superseded on February 21,
2018, and again on May 1, 2018. The second superseding
indictment charges Defendant in Count One with Conspiracy to
Commit Extortion, in Counts 2-4 with Interstate
Communications with the Intent to Extort, in Counts 5-8 with
Wire Fraud, and in Counts 9-12 with Money Laundering. ECF No.
44. There is also a forfeiture allegation. The instant Motion
was filed on April 16, 2018.
Defendant argues that the search of the vehicle's trunk,
and the seizure of certain documents (“the
documents”) from the trunk, went beyond the scope of
the search warrant and therefore constituted an unreasonable
and unlawful search and seizure under the Fourth Amendment of
the United States Constitution. The Defendant concedes that
the warrant was “facially valid”, still, because
he maintains officers serving the warrant engaged in a
“fishing expedition”, he argues suppression of
all evidence obtained from the warrant is appropriate.
Government argues that the Defendant's argument fails for
three reasons. First, because the car did not legally belong
to the Defendant, and although he had previously had
permission from the rightful owner to use it, that permission
had been rescinded and the Defendant therefore did not have a
reasonable expectation of privacy with respect to the car.
Second, the seizure of the document or documents at issue was
authorized under the plain view doctrine. Third, that the
documents at issue would have been inevitably discovered
during the course of the investigation. Therefore, the
Government argues that no evidence seized from the car during
the execution of the search warrant should be suppressed.
The Defendant Did Not Have a Reasonable Expectation of
Defendant argues that the seizure of the documents at issue,
namely a letter purporting to be from the FDIC, went beyond
the scope of the search warrant and violated his
constitutional protections against unreasonable search and
seizure. The Fourth Amendment to the Constitution protects
against unreasonable searches and seizures. U.S. Const.
amend. IV. A seizure is unreasonable when it infringes on
“an expectation of privacy that society is prepared to
consider reasonable.” United States v.
Jaccobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d
85 (1984). In order to take advantage of the protections
afforded by the Fourth Amendment, the person claiming the
protection must have a legitimate expectation of privacy
“in the invaded place.” Rakas v.
Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d
387 (1978). To demonstrate a valid expectation of privacy, a
Defendant must have a subjective expectation of privacy;
however, the Defendant's subjective expectation must also
be objectively reasonable. United States v. Bullard,
645 F.3d 237, 242 (4th Cir. 2011).
Government argues that the Defendant could not have had an
expectation of privacy because the car did not belong to him
and he no longer had permission to possess it, even though he
did for a period of time. Indeed, the car's owner
testified at the hearing that she told the Defendant on
multiple occasions that he no longer had her permission to
use to car and that he needed to return it to her. She even
suggested that he could leave it somewhere and she would pick
it up if he did not wish to see her. She went as far as
telling the Defendant that she would contact the police to
report the car stolen if it was not returned. Although the
Defendant ignored her requests, she never followed through on
her threat. The Defendant had possession of the car for
several months and seemingly had no intention of returning
it. Therefore, the Defendant clearly had a subjective
expectation of privacy. Accordingly, the Court turns to
whether the Defendant's subjective expectation was
objectively reasonable, the Defendant expectation must be one
“that society is willing to recognize as
reasonable.” United States v. Bullard, 645
F.3d 237 at 242. In determining whether a subjective
expectation is objectively reasonable, the Court should look
to the evidence in the record. United States v.
Castellanos, 716 F.3d 828, 835 (4th Cir. 2013). The
evidence in the record is clear that: first, the car did not
legally belong to the Defendant, and second, the Defendant
knew he did not have a possessory interest because a
possessory interest requires you to have a right to have the
vehicle. The Defendant had been told multiple times by the
owner of the vehicle that he no longer had her permission to
possess the vehicle. Showing a legitimate expectation of
privacy in the area searched is the burden of the Defendant.
Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct.
2256, 65 L.Ed.2d 633 (1980). No matter how confident the
Defendant was that he would have the car at his disposal for
the foreseeable future, the Court cannot overlook the fact
that he knew he no longer had permission to possess the car.
The Court believes this forecloses the possibility of the
Defendant having a expectation of privacy that society would
be willing to recognize as reasonable. Accordingly, the
Defendant lacked a reasonable expectation of privacy, and
therefore lacks standing to assert the protections afforded
by the Fourth Amendment.
The Seizure was Authorized Under the ...