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United States v. Boley

United States District Court, N.D. West Virginia, Clarksburg

March 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CODY BOLEY, Defendant.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 491] IN PART, REJECTING IN PART, AND DENYING MOTION TO SUPPRESS [ECF NO. 322]

          THOMAS S. KLEEH, UNITED STATES DISTRICT JUDGE

         This case stems from an encounter in Weston, West Virginia, between a police officer and Cody Boley (“Defendant”) that led to Defendant's indictment in this action. Pending before the Court is a motion to suppress [ECF No. 322]. United States Magistrate Judge Michael J. Aloi (“Judge Aloi”) issued a Report and Recommendation (“R&R”) on the motion, recommending that it be denied. For the reasons set forth below, the Court hereby ADOPTS the R&R in part [ECF No. 491], REJECTS it in part, and DENIES the pending motion to suppress [ECF No. 322].

         I. BACKGROUND

         On September 18, 2018, the grand jury returned a 40-count indictment, charging Defendant with Conspiracy to Distribute Methamphetamine (Count 1); Possession with Intent to Distribute Methamphetamine (Count 25); Unlawful Possession of a Firearm (Count 26); and Use of a Firearm During and in Relation to a Drug Offense (Count 27) [ECF No. 1]. On November 26, 2018, Defendant moved to suppress evidence seized during the stop, along with all statements made during the stop and at the subsequent interview with federal agents [ECF No. 322]. Pursuant to 28 U.S.C. § 636, the motion was referred to Judge Aloi [ECF No. 323].

         On December 14, 2018, Judge Aloi held a hearing on the motion. After the hearing, Defendant filed a supplement to his previously-filed memorandum of law [ECF No. 384]. On February 15, 2019, Judge Aloi issued his R&R, recommending that the Court deny the motion to suppress [ECF No. 491]. On February 21, 2019, Defendant filed objections to the R&R [ECF No. 494]. The Court has read and reviewed the entire record in this matter, including the body camera footage, all exhibits, and the audio recording of the suppression hearing. The facts adduced at the evidentiary hearing are set forth and summarized fully throughout the R&R and are not reiterated here.

         II. ARGUMENTS

         A. Defendant's Motion to Suppress [ECF No. 322]

         In Defendant's motion, he argues that the Lewis County Sheriff's Department's search of his vehicle violated his Fourth Amendment rights. He argues that the statements obtained during a later interview with federal agents should be suppressed because they were derived from the unlawful search. Defendant argues that he was never advised of his Miranda rights during the stop and that he did not consent to a search of his vehicle. Furthermore, he argues, the length of the stop was not proper, and the police reports were intentionally vaguely-worded in a “bad faith attempt to conceal any time line.”

         B. Government's Response [ECF No. 371]

         In response, the government argues that Defendant's vehicle was legally stopped for a traffic violation and that the stop was extended as a result of the officer's articulable and reasonable suspicion of criminal activity. After the canine's positive alert, the police officers had probable cause to search the vehicle. Additionally, the government argues, Defendant's statements to law enforcement officers on May 22, 2018, were voluntary. The statements were made five days after his arrest, Defendant executed a waiver of rights form, and he agreed to have his statement recorded.

         C. Defendant's Supplement [ECF No. 384]

         In Defendant's supplement to his motion, he points out items that are “conspicuous in their absence.” He argues that no reasonable suspicion has been articulated in either the government's briefs or the police report. Deputy Lopez professed to having no memory of radio traffic indicating completion of the traffic stop, and the record lacks any Drug Recognition Expert protocols. He also takes issue with Deputy Lopez's stated belief that he is to search every vehicle and that failure to consent by its occupants amounts to disrespect.

         III. STANDARD OF REVIEW

         When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the [parties do] not object.” Dellarcirprete 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 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).

         Here, objections to the R&R were due on or before Friday, February 22, 2019 [ECF No. 491 at 22]. Defendant timely filed objections on February 21, 2019 [ECF No. 494]. He specifically objected to Section C at page 19, Section E at page 20, and Section F at page 21. Accordingly, the Court reviews these portions de novo and reviews for clear error the portions to which there were no objections.

         IV. LEGAL ANALYSIS

         For the reasons explained below, the Court adopts Section C of the R&R, rejects ...


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