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United States v. Lemasters

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

July 16, 2019




         Pending 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. 28].

         Per 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.

         After 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].

         This 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).

         In 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.

         Defendant 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.

         The 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.

         The 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.

          W.Va. Code § 61-6-1b.

         The 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 statute's protection.

         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[1] 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.

         The 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 ...

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