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United States v. Leclear

United States District Court, N.D. West Virginia

June 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EUGENE ROBERT LECLEAR, Defendant.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 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 all testified.

         II. BACKGROUND

         On 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.

         The 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 The indictment was superseded on February 21, 2018, and again on May 1, 2018.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.

         III. DISCUSSION

         The 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.

         The 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.

         A. The Defendant Did Not Have a Reasonable Expectation of Privacy

         The 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).

         The 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.

         To be 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.

         B. The Seizure was Authorized Under the ...


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