United States District Court, N.D. West Virginia, Wheeling
ORDER DENYING MOTION TO SUPPRESS
PRESTON BAILEY UNITED STATES DISTRICT JUDGE
before this Court is Defendant's Motion to Suppress
Evidence [Doc. 24], filed April 16, 2019. The Government
filed its response to the Motion on May 6, 2019 [Doc. 26]. On
May 16, 2019, the defendant filed Mr. Lemasters' Reply to
Government's Response and Supplement to his Motion to
Suppress Evidence [Doc. 27], which broadened the grounds for
the suppression motion. A hearing was held on the Motion on
May 17, 2019, before the Hon. James P. Mazzone, M.J. [Doc.
Court direction, the Government filed a response to the
supplemental motion on May 22, 2019 [Doc. 32], with the
defendant filing a reply the next day [Doc. 33]. On June 4, a
second hearing was held to address the new allegations in the
supplement to the motion to suppress [Doc. 38]. On June 11,
2019, Judge Mazzone issued his Report and Recommendation
(“R&R”), recommending that the motion to
suppress be denied.
an extension of time to file objections to the R&R, the
defendant filed his objections on July 8, 2019 [Doc. 60]. The
Government responded on July 10 [Doc. 61].
Court's review of the magistrate judge's findings and
recommendations regarding a suppression motion is de
novo, whether or not issues or evidence presented in the
district court were presented below. 28 U.S.C. §
636(b)(1); United States v. George, 971 F.2d 1113,
1118 (4th Cir. 1992); United States v. Miller, 925
F.2d 695, 698 (4th Cir. 1991); Wimmer v. Cook, 774
F.2d 68, 75 (4th Cir. 1985).
October 2018, defendant was working at the Go-Mart in Paden
City, West Virginia. On October 18, 2018, defendant was
allegedly captured on store surveillance printing himself a
$100.00 lottery ticket and placing it in his backpack. As a
result, he was to be fired when he reported to work on
October 19, 2018. The Manager and District Manager, both
women, feared that defendant would not react well to the
firing and requested assistance from the Paden City Police
Department. The Paden City Police Department sent Officer
Raphe Bailes to the Go-Mart for defendant's termination.
appeared for work on October 19, carrying the same backpack
into which he placed the $100.00 lottery ticket. After his
termination, he was arrested for Disorderly Conduct,
Resisting Arrest, and Assault on a Police Officer. He was
secured in the back of Officer Bailes' patrol car.
Officer Bailes then searched defendant's backpack where
he found the firearm which forms the basis for the instant
indictment, as well as the subject lottery ticket.
defendant argues that there was no probable cause to arrest
the defendant. Inasmuch as a lack of probable cause would be
a deciding factor, this Court will address it first.
West Virginia Disorderly Conduct statute provides in relevant
part as follows:
Any person who, in a public place, any office or office
building of the State of West Virginia, or in the State
Capitol complex, or on any other property owned, leased,
occupied or controlled by the State of West Virginia, a
mobile home park, a public parking area, a common area of an
apartment building or dormitory, or a common area of a
privately owned commercial shopping center, mall or other
group of commercial retail establishments, disturbs the peace
of others by violent, profane, indecent or boisterous conduct
or language or by the making of unreasonably loud noise that
is intended to cause annoyance or alarm to another person,
and who persists in such conduct after being requested to
desist by a law enforcement officer acting in his or her
lawful capacity, is guilty of disorderly conduct, a
misdemeanor and, upon conviction thereof, may be confined in
jail for twenty-four hours or fined not more than $100:
Provided, That nothing in this subsection should be construed
as a deterrence to the lawful and orderly public right to
demonstrate in support or protest of public policy issues.
Code § 61-6-1b.
defendant contends that the term “others” does
not include a law enforcement officer, providing no case law
to support his position. A person does not cease to be a
person by becoming a police officer. This Court finds no
basis to exclude a law enforcement officer from the
defendant also contends that some of the actions which may be
deemed to be disturbing happened in the office area of the
store, an area not generally open to the public. The
defendant agreed that the store was a public place, but now
appears to want to parse out the office area. This Court
cannot buy the distinction. If the events inside the office
were audible or perceptible to persons in the public area,
the events may be considered disturbing. This is much the
same as a person in an apartment building who is playing his
stereo very loudly. The fact that the music is
coming from a private place into a public place does not
prevent the music from being disturbing to the public peace.
defendant also contends that his actions did not disturb the
peace of others. He points out that Officer Bailes did not
take time to view or interview others ...