U.S. v. White

Full title: UNITED STATES OF AMERICA Plaintiff, v. Steven M. White Defendant

Court: United States District Court, S.D. Ohio, Western Division

Date published: Mar 17, 2006

Case Number: 1:05cr125 (S.D. Ohio Mar. 17, 2006)

Opinion

Case Number: 1:05cr125.

March 17, 2006

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO SUPPRESS

SUSAN DLOTT, District Judge

This matter comes before the Court on Magistrate Judge Timothy S. Hogan's Report and Recommendation (RR) (doc. #19) recommending that this Court deny Defendant's Motion to Suppress (doc. #13); Defendant's Motion to Review Report and Recommendation of Magistrate Judge and Objections (doc. #25); and Response of the United States to Defendant's Objections to R/R (doc. # 27). This Court reviews a Magistrate's RR on a motion to suppress de novo. See 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6^th Cir. 2001).

The Court has considered all of Defendant's objections and need address only one of them here. Defendant argues that one of Judge Hogan's factual findings — that Deputy "Heidemann testified that [Defendant] was brushing marijuana off his pants" as Deputy Heidemann approached Defendant's car — was unsupported by the record. (See doc. #25 at 6.) Defendant argues that, because the evidence presented at the hearing on the motion to suppress did not show that the substance was marijuana, Deputy Heidemann did not have probable cause to search the car on that basis. (Id. at 7.) The RR mentions the substance which Defendant brushed from his pants twice, stating first that Deputy Heidemann "observed Defendant brush something from his pants," and second that Defendant's arrest was based on probable cause arising from, among other reasons, "the presence of a substance spilled from the baggie plus Defendant's effort to sweep same away."

Because Deputy Heidemann testified that the baggie contained marijuana (T.R. at 32), one reading of Judge Hogan's comments is that he believed that the substance Defendant brushed from his pants was marijuana. Defendant argues that the finding was not supported by the evidence because Deputy Heidemann testified that at the time he saw Defendant brush a substance from his pants, Deputy Heidemann did not know what the substance was. (T.R. 26-27.) Even if Judge Hogan erred in that factual conclusion, however, and Defendant's brushing an unidentified substance from his pants did not itself provide probable cause, Deputy Heidemann still had probable cause to search Defendant's car because he smelled marijuana in the car and saw marijuana in plain view on the dashboard. (T.R. 6-7.) See, e.g., United States v. Foster, 376 F.3d 577, 588 (6^th Cir. 2004) (smell of marijuana emanating from vehicle gives officers probable cause to search); United States v. Burnett, 791 F.2d 64, 67 (6^th Cir. 1986) (marijuana in plain view provides officers right to search entire car). Defendant's objection is therefore inconsequential.

As for Defendant's other objections, they are essentially restatements of matters already considered and correctly decided in the RR. They are consequently without merit. The Court therefore OVERRULES all of Defendant's objections; ADOPTS the RR (doc. #19) and consequently DENIES Defendant's Motion to Suppress (doc. #13).

IT IS SO ORDERED.