Opinion
No. 7:16-CR-48-FL
07-25-2017
UNITED STATES OF AMERICA, v. LEROY MOORE, JR., Defendant.
ORDER
This matter is before the court on defendant's motion to suppress (DE 33) and motion for relief from improper joinder. (DE 34). Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Judge Robert T. Numbers, II, issued memorandum and recommendation ("M&R"), wherein it is recommended that the court deny defendant's motions. (DE 46). Defendant timely filed objections to the M&R, and the government did not respond. In this posture, the issues raised are ripe for ruling. For the reasons that follow defendant's motions are denied.
STATEMENT OF THE CASE
On April 27, 2016, the grand jury returned a two count indictment. In count one, defendant is charged with possession with intent to distribute 28 grams or more of cocaine base ("crack") on or about July 1, 2014. In count two, defendant is charged with possession with intent to distribute a quantity of methylenedioxymethamphetamine ("ecstasy") on or about November 5, 2015. On November 14, 2016, defendant filed the instant motion to suppress evidence seized in the course of arrest July 1, 2014, which incident began when defendant was stopped at a traffic a checkpoint set up by the Sheriff's Office of Cumberland County, North Carolina ("CCSO"). Defendant moves also to sever joinder of the two counts, which arise from events occurring 16 months apart, so that each count may be tried separately.
Evidentiary hearing was held before magistrate judge February 7, 2017, at which hearing the court received testimony from Deputy Christopher Canady ("Canady") and Sergeant Adam Gore ("Gore") each of whom was employed at times relevant to the instant motions by CCSO and stationed at the checkpoint July 1, 2014. Gore was supervisor in charge of the checkpoint, and Canady was the deputy who stopped, searched, and arrested defendant.
In objections to the M&R, defendant argues, first, that the July 1, 2014, traffic stop arrest was unconstitutional where officers operating the checkpoint possessed "unbridled discretion" to determine which drivers to stop, in violation of the Fourth Amendment as interpreted in Delaware v. Prouse. 440 U.S. 648, 663 (1979). Second, defendant argues that pending charges should be tried separately. Specifically, defendant objects that the magistrate judge relied on facts not properly admitted into evidence at hearing to establish defendant's method of operation at both arrests leading to the instant charges. Defendant argues that, without evidence of defendant's method of operation, there exists insufficient connection between the charges to justify joinder under Rules 8 and 14 of the Federal Rules of Criminal Procedure.
STATEMENT OF THE FACTS
The court incorporates herein statement of facts in section I.A. of the M&R, where such statement accurately reflects the evidence of record:
The events that led to the first charge against Moore arose out of a license checkpoint conducted by the [CCSO]. CCSO policy required officers to follow certain procedures when they used a license checkpoint. First, the supervisor had to approve and supervise the checkpoint. [(Tr. DE 40 at 12:14-17)]. Once approved, at least two officers had to have their blue emergency lights flashing on the side of the road, and they had to stop every car that passed through. [(Id. at 16:23-17:4; 28:23-29:4)]. Officers were then
allowed to check the driver's license and registration.[(Id. at 7:2-3)]. While they did so, they were trained to "look[] for motor vehicle violations," such as "driving while license revoked, [] DWI, [] open container, [and] no seatbelt [or] child restraint." [(Id. at 40:17-19; 41:1-3)]. They were also trained that if they found "something else while [they were] looking for a motor vehicle violation, [they had] a right to detain for further investigation." [(Id. at 40:19-21)]. Although an officer may look for an impaired driver during a license checkpoint, [CCSO] had a different procedure for checkpoints dedicated to locating impaired driving. [(Id. at 13:14-18)].(DE 46 at 2-4).
The night before July 1, 2014, [Gore] was the shift supervisor. [(Id. at 14:1-10)]. It was "a slow night," so after some officers finished eating together, they asked [Gore] if they could "get together and check licenses[.]" [(Id. at 27:3-7)]. He "agreed to do so." [(Id.)] Five officers participated at this checkpoint: [Gore], Deputy Rising, Deputy McPherson, Deputy Fowler, and [Canady]. [(Id. at 37:2-16)]. They parked their cruisers on the side of the road and had their lights flashing. [(Id. at 20:5-10)]. It is unclear from the testimony exactly how many cars were stopped that night. [(Id. at 16:7-8; 18:14-21; 34:18-25)]. But the officers did receive instructions to stop every vehicle that approached. [(Id. at 28:23-29:4; 6:15-20)].
When Moore's vehicle approached the checkpoint, Canady noticed that there were bullet holes in the side of Moore's car. [(Id. at 7:21-25)]. He also smelled marijuana and saw smoke coming from the car. [(Id. at 7:16-20.)] When [Canady] asked Moore about the smell, Moore responded that he had just put out his blunt, which Canady took to mean that Moore had marijuana in his car. [(Id. at 8:5-11)].
Canady asked Moore if he could search the vehicle, and Moore agreed. ([Id. at 8:13-14)]. [Canady] then asked Moore to get out of the car, which he did. [(Id. at 8:12-15)]. While patting Moore down for weapons, Canady found a bag containing an off-white, rock-like substance that he believed was crack cocaine. [(Id. at 8:22-9:15; 28:17-19)]. Then while searching the car, he found more of the off-white, rock-like substance; a half-burned cigar wrapper containing a green, leafy substance that looked like marijuana; firearms; and ammunition. [(Id. at 9:21-10:6)]. It was later discovered that this car was a rental vehicle. [(Gov't Resp. DE 35 at 4)]. As a result of these events, a federal grand jury indicted Moore for possessing with the intent to distribute more than 28 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). [(DE 1)].
COURT'S DISCUSSION
A. Standard of Review
The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error," and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). B. Analysis
1. Motor Vehicle Compliance Checkpoint
The Fourth Amendment to the Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Temporary detention of individuals by police during an automobile stop for any amount of time constitutes a "seizure" within the meaning of the Fourth Amendment. United States v. Brugal, 209 F.3d 353, 356 (4th Cir. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). "Thus, stopping a vehicle at a checkpoint constitutes a seizure of a person within the meaning of the Fourth Amendment." Id.
"Constitutional challenges to checkpoint seizures turn on whether the initial stop at the checkpoint was reasonable." Id. To determine whether the initial stop at a checkpoint is reasonable, courts must balance "the gravity of public interest" advanced by implementation of the checkpoint "against the extent of resulting intrusion upon the liberty interests of those stopped." Id. Applying this balancing test, the Supreme Court has held that although "a state has a substantial interest in enforcing licensing and registration laws, [] that interest is not sufficient to justify roving patrol stops as an enforcement mechanism." Id. at 357 (citing Prouse, 440 U.S. at 658-59). In dicta, the Supreme Court has described a safe harbor, opining that "[q]uestioning of all oncoming traffic at roadblock-type stops is one possible alternative [to roving patrol.]" Prouse, 440 U.S. at 663. Regardless of procedure used to detect violations, "persons in automobiles may not . . . have their travel and privacy interfered with at the unbridled discretion of police officers." Id.
Nonetheless, if reasonable suspicion or probable cause to search a vehicle or occupant appears during the course of an otherwise lawful stop, officers are permitted to expand the scope of search to the extent justified thereby. Brugal, 209 F.3d at 358 (holding that, during a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check, and issue a citation, but that "[a]ny further detention for questioning is . . . illegal unless the officer has a reasonable suspicion of a serious crime") (quoting United States v. Rusher, 966 F2d. 868, 876-77 (4th Cir. 1992)); see also United States v. White, 836 F.3d 437, 441 (4th Cir. 2016) (permitting expanded search grounded in probable cause appearing at a traffic stop).
Canady testified at hearing that standard procedure for traffic checkpoints, which procedure was followed the night of defendant's arrest, may be summarized as follows.
We would usually set up on both sides of the road, we were blue lights going or emergency flashers, however you want to call them, and we will check every vehicle coming through the station. Just check for Chapter 20, Motor Vehicle Law compliance is all we're really looking for.(Tr. DE 40 at 6:17-21 (emphasis added)). Similarly, Gore's hearing testimony on direct examination by the government led to the following exchange.
Q. With regard to the license checkpoint, were officers or deputies instructed to stop each car as they came up to the checkpoint?(Id. at 28:23-29:4 (emphasis added)). Deputies were further instructed that if, during the course of investigation to determine compliance with motor vehicle laws, it became apparent that "something else[,]" which in this context means criminal activity, may be taking place, officers were authorized "to detain for further investigation." (Id. at 40:19-21).
A. Yes, ma'am.
Q. And is that consistent with the policy of your prior checkpoints?
A. Yes, ma'am.
In this manner, officers stationed at the checkpoint on July 1, 2014, were required to stop every vehicle passing through the checkpoint to determine compliance with motor vehicle laws. See generally. N.C. Gen. Stat. § 20-1, et seq. If, during the course of that investigation, officers obtained reasonable suspicion or probable cause to investigate other crime, officers were directed to detain suspects and expand investigation as justified under the circumstances. This procedure tracks closely the safe harbor described in Prouse in which officers "[q]uestion[] all oncoming traffic at [a] roadblock-type stop[,]" 440 U.S. at 663, and expand investigation to the extent justified under the circumstances based upon reasonable suspicion or probable cause later appearing See Brugal, 209 F.3d at 358; White, 836 F.3d at 441. Accordingly, where it strikes a reasonable balance between advancing North Carolina's interest in enforcing its motor vehicle laws and liberty interests of drivers, procedure followed at the checkpoint leading to defendant's July 1, 2014, detention, subsequent search, and arrest did not violate the Fourth Amendment. See Brugal, 209 F.3d at 356. Therefore, suppression of evidence obtained thereby is unwarranted. See id.
Defendant argues nonetheless that procedure at the checkpoint did violate the Fourth Amendment on the ground that the government failed to produce at hearing a written document setting forth requirement that officers stop every oncoming vehicle at any licensing checkpoint. On this basis, defendant contends that officers indeed possessed "unbridled discretion" in determining whom to stop, arguing, in essence, that where Gore possessed authority to set rules governing the checkpoint, Gore's discretion was unbridled and, in addition, must be imputed to officers acting under his direction.
This argument fails for two reasons. First, no case law suggests that rules governing a licensing checkpoint must be written or issued by a particular institution of government to comport with the Fourth Amendment. Instead, Prouse holds simply that officers must not be allowed "unbridled discretion" to determine whom to stop at a checkpoint. 440 U.S. at 663. Therefore, whether officers' discretion is constrained by a supervising officer with authority or by a higher institution of government in written documentation is immaterial under law. See id. Second, it is undisputed that Gore required officers stationed at the checkpoint stop every vehicle passing through the station. (See Tr. DE 40 at 28:23-29:4). Therefore, where Gore's commands were authoritative vis a vis every deputy stationed at the checkpoint, (Id. at 28:3-5 (Canady stating that Gore was the supervisor on shift); 28:2-3 (Gore stating "[b]ecause I was the on-duty supervisor, I was in charge of the checking station"), the evidence demonstrates that Gore instituted proper rules to ensure that deputies stationed at the checkpoint stopped every driver that passed through. (See id. at 28:23-29:1 (Gore's testimony that he instructed officers or deputies present to stop every vehicle entering checkpoint)). This procedure is reasonable; therefore, defendant's objection on this basis is overruled.
Defendant's objections direct the court's attention to no other "specific error in the magistrate's proposed findings and recommendations" pertaining to defendant's motion to suppress and, upon review of the entire record, the court finds no clear error in the M&R. See Diamond, 416 at 315. Therefore, defendant's motion to suppress is denied.
2. Joinder
Pursuant to Federal Rule of Criminal Procedure 8(a), "indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). Joinder pursuant to Rule 8(a) is "the rule rather than the exception, because the prospect of duplicating witness testimony, impaneling additional jurors, and wasting limited judicial resources suggests that related offenses should be tried in a single proceeding." United States v. Mir, 525 F.3d 351, 356-57 (4th Cir. 2008) (citations omitted). "[I]t is an unremarkable example of offenses of the 'same or similar character' when the defendant is charged only with multiple violations of the same statute." United States v. Hawkins, 776 F.3d 200, 208 (4th Cir. 2009). In determining propriety of joinder, courts in the Fourth Circuit may consider evidence proffered at pre-trial hearing or rest decision on indictment alone. Id. at 208 n. 4.
In the instant matter, defendant is charged with two violations of 21 U.S.C. § 841(a)(1), occurring 16 months apart. (See DE 1). No Fourth Circuit or Supreme Court precedent suggests that passage of 16 months between two otherwise similar incidents leading to criminal charges renders such charges unsuitable for joinder under the rules. See United States v. Walker, 403 Fed. App'x. 803, 807 (4th Cir. 2010) (unpublished) (permitting joinder based upon facts occurring 12 months apart). Indeed, other circuits have permitted joinder in spite of longer gaps between dates of offense conduct. See United States v. Melendez, 301 F.3d 27, 35-36 (1st Cir. 2002) (two years between two cocaine charges); United States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984) (20 months between two cocaine charges). Accordingly, where the indictment charges defendant with two counts of possession with intent to distribute Schedule I controlled substances in violation of 21 U.S.C. § 841(a)(1) within a proximate period of time, the alleged offenses are "of the same or similar character[.]" Fed. R. Civ. P. 8(a). Therefore, joinder is proper. Id.
The magistrate judge rested his conclusion that joinder is proper, in part, upon a finding that defendant engaged in a similar method of operation during the two arrests leading to the instant charges. In particular, the magistrate judge recommended that where, during both arrests, "[defendant] was in the same county, possessed ammunition, and was driving a rented car that smelled of marijuana[,] . . . these facts suggest a strikingly similar method of operation . . . [,]" (DE 46 at 6); see United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) ("where the offenses are identical or strikingly similar in the method of operation and occur over a short period of time, it is not an abuse of discretion to deny severance."). Defendant objects to this finding on the ground that evidence of defendant's method of operation was presented at hearing only as part of government counsel's closing argument, (Tr. DE 46:7-15), and was not elicited by methods authorized in the Federal Rules of Evidence. However, this argument fails where, as held above, the fact that defendant is charged with two counts of distributing Schedule I controlled substances in violation of the same statute within a proximate period of time constitutes sufficient ground to permit joinder on these facts, even without consideration of defendant's method of operation, if any. See Hawkins, 776 F.3d at 208. Therefore, where the objection pertains to factual matters not material to this court's holding, the objection is overruled.
Even if joinder is proper under Rule 8(a), the district court, in its discretion, may order separate trial of counts if defendant meets his burden to "demonstrat[e] a strong showing of prejudice." United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984); see United States v. Mackins, 315 F.3d 399, 412 (4th Cir. 2003). Prejudice arises when there is "a serious risk that a joint trial . . . would prevent the jury from making a reliable judgment about guilt or innocense." United States v. Min, 704 F.3d 314, 319 (4th Cir. 2013). The Fourth Circuit has identified three sources of prejudice when two or more counts are joined based upon substantial similarity which may justify the granting of a severance under Rule 14:
(1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep the evidence properly segregated;United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976). "Although limiting instructions often will suffice to cure any risk of prejudice as a result of the joint trial, in some situations the risk of prejudice is so high as to require a separate trial." Min, 704 F.3d at 319.
(2) the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not the other; or
(3) the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition.
In the instant matter, the magistrate judge recommends finding that defendant has failed to meet his burden to demonstrate that joint trial of counts one and two would result in risk of prejudice incurable by limiting instruction. (See M&R, DE 46 at 8-9). Defendant lodges no specific objection on this point, therefore, the court reviews the M&R for clear error. See Diamond, 416 at 315.
Defendant argued at hearing that the jury might use evidence pertaining to count one as propensity evidence in support of conviction on count two. (Tr. DE 40 at 42:9-17). However, defendant's speculation on this point is insufficient to demonstrate that joinder of the two counts "would prevent the jury from making a reliable judgment about guilt or innocense" or that a limiting instruction would fail to cure any risk of prejudice resulting from the joint trial. Min, 704 F.3d at 319. Accordingly, upon review of the entire record, the court finds no clear error in the M&R's findings and recommendations pertaining to defendant's motion to sever trial pursuant to Federal Rule of Criminal Procedure 14; therefore, the motion is denied.
CONCLUSION
Based upon the foregoing, defendant's motion to suppress (DE 33) and motion for relief from improper joinder (DE 34) are DENIED.
SO ORDERED, this the 25th day of July, 2017.
/s/_________
LOUISE W. FLANAGAN
United States District Judge