Opinion
CRIMINAL 1:22-CR-66-1
02-09-2024
UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM KEVIN GLOVER, Defendant.
KLEEH JUDGE
REPORT AND RECOMMENDATION RECOMMENDING THAT DEFENDANT'S MOTION TO SUPPRESS [ECF NO. 217] BE DENIED
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
Pending before the undersigned United States Magistrate Judge is a motion to suppress [ECF No. 217] filed by Defendant William Kevin Glover (“Defendant”) on January 23, 2024. By Referral Order dated January 29, 2024 [ECF No. 220], the Hon. Thomas S. Kleeh, Chief United States District Judge, referred the motion to the undersigned for conducting a hearing and entering a Report and Recommendation as to disposition of the motion.
The Court also is in receipt of the Government's response in opposition to Defendant's motion, filed on February 5, 2024. [ECF No. 229]. The undersigned conducted a hearing on Defendant's motion on February 7, 2024, at which the Court heard arguments of counsel. At the hearing, the undersigned determined that the issues raised in Defendant's motion are purely legal and not factual in nature. Thus, factual development via witness testimony, introduction of exhibits into evidence, and the like, was not necessary. Accordingly, the Court did not receive testimony or exhibits into evidence during the hearing.
Based on a detailed review of Defendant's motion [ECF No. 217], the Government's response [ECF No. 229], and the arguments of counsel at the above-noted hearing, the undersigned RECOMMENDS that Defendant's motion to suppress be DENIED as set forth herein.
I. FACTUAL AND PROCEDURAL BACKGROUND, AND SUMMARY OF ARGUMENTS
Defendant stands accused in an eleven-count Indictment which a Grand Jury returned against him and two co-defendants on October 4, 2022. [ECF No. 1]. Defendant is named in eight counts of the Indictment as follows: in Count One with Conspiracy to Possess with Intent to Distribute and Distribute Fentanyl, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); in Counts Two, Three, and Four with Distribution of Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)C); in Count Five with Distribution of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); in Count Nine with Possession with Intent to Distribute 50 Grams or more of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii); in Count Ten with Possession with Intent to Distribute Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and in Count Eleven with Maintaining Drug-Involved Premises, in violation of 21 U.S.C. §§ 856(a)(1) and 856(b).
By his motion, Defendant argues that there are issues with the reliability of witnesses and the chain of custody of evidence on which Count Two and Count Three are based. Defendant also argues that evidence supporting Count Nine, Count Ten, and Count Eleven is “fruit of the poisonous tree” and thus is improper.
To clarify, Defendant's motion does not appear to pertain to Count One, Count Four, or Count Five, in which he also is charged. This is not to suggest that the motion should pertain to these other counts - only to note that the motion does not pertain to every count in which Defendant is charged.
Based upon the parties' briefs and the arguments of counsel at the hearing before the undersigned, it appears that Greater Harrison County Drug and Violent Crimes Task Force (“Task Force”) allegedly conducted controlled buys of illegal drugs from Defendant on October 15, 2021 (giving rise to Count Two) and October 18, 2021 (giving rise to Count Three). As for the controlled buy of October 15, 2021, Defendant argues that the discovery produced by the Government does not make clear which of the two confidential informants (“CI”) utilized is alleged to have been the purchaser, or why two CIs were needed. Defendant also highlights how one of the CIs overdosed in the course of the controlled buy. Thus, per Defendant, exactly who handled the evidence and how they will testify about it is questionable, and the evidence should be excluded. As for the controlled buy of October 18, 2021, Defendant complains that the bag containing drugs which the CI allegedly purchased ripped in the CI's pocket, spilling some contents. He also argues that the evidence does not reflect the weight of the drugs which the Task Force allegedly obtained. Defendant also makes some suggestion about tampering with this evidence. Thus, per Defendant, that evidence is unreliable and should be excluded.
Further, based upon the parties' briefs and argument at the hearing, it appears that on January 26, 2022, the Task Force obtained a search warrant from state circuit court for Defendant's residence. The Task Force executed the search warrant on January 27, 2022, giving rise to the charges in Count Nine, Count Ten, and Count Eleven. Because the affidavit of the Task Force Officer in support of the search warrant relies, in part, on the evidence obtained from the controlled buys on October 15, 2021 and October 18, 2021, Defendant argues that the evidence seized during the execution of the search warrant on January 27, 2022 should be suppressed as “fruit of the poisonous tree.”
For its part, the Government stresses that Defendant does not raise constitutional challenges in his suppression motion. Suppression motions typically raise arguments about law enforcement misconduct in violation of the Fourth Amendment and/or the Fifth Amendment. However, Defendant's motion comes down to arguments about authentication/sufficiency/chain of custody of evidence, and credibility of witnesses, which in the instant matter have nothing to do with legality of law enforcement's actions. As such, the Government argues, Defendant's motion is not properly presented as a motion to suppress but instead should be handled as a motion in limine by the presiding District Judge, or otherwise should be the subject of argument at trial and evaluated by the trier of fact.
II. LEGAL ISSUES AND ANALYSIS
A. Legal Principles
As a foundational matter, the undersigned notes the well-established principle that the Fourth Amendment of the United States Constitution protects “[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. Moreover, “the general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 700 (1981).
To this end, a motion to suppress evidence is a mechanism to challenge the acquisition of evidence against a criminal defendant on the basis of evidence being illegally (typically, unconstitutionally) obtained by law enforcement. After all, the “exclusionary rule” provides that a court should exclude evidence obtained by dint of law enforcement's unlawful arrest or search. See Mapp v. Ohio, 367 U.S. 643 (1961). The policy for the exclusionary rule is to suppress evidence to deter law enforcement from acting in excess of its authority. Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations and quotations omitted); Herring v. U.S., 555 U.S. 135, 139-140 (2009); U.S. v. Rush, 808 F.3d 1007, 1010 (4th Cir. 2015).
Relatedly, the purpose of a motion to suppress is not to challenge the sufficiency or admissibility of evidence. See U.S. v. Musgrave, 726 F.Supp. 1027 (W.D. N.C. 1989) (“As the Government contends . . . evidentiary issues are better addressed at trial through a motion in limine rather than a motion to suppress.”); U.S. v. Pavlock, 2010 WL 4789156, *3 (N.D. W.Va. Oct. 25, 2010) (explaining that non-constitutional challenges to the propriety of evidence are more properly presented via a motion in limine rather than a motion to suppress).
B. Analysis
In the case at bar, the necessary sequential analysis is as follows. The first issue is whether Defendant raises challenges about the legality/constitutionality of the acquisition of evidence herein. Then, if Defendant does raise such challenges, then an analysis of the constitutionality of the Task Force's conduct is in order. However, if Defendant does not raise such challenges, that is the end of the inquiry, insofar as a request to suppress evidence altogether is concerned.
In review of Defendant's motion, the Government's characterization of it is correct. That is to say, it is not per se a motion to suppress evidence. Defendant does not challenge, in the first place, the constitutionality of how evidence against him was obtained. As such, the undersigned does not proceed to the second step of the analysis to review the constitutionality of the Task Force's conduct.
Not for nothing, but Defendant's motion contains some citations to caselaw which have no bearing on the analysis here. That is to say, caselaw cited from state appellate courts certainly is not binding on this Court. Counsel is cautioned about relying heavily on caselaw that is not handed down by the United States Supreme Court or the United States Court of Appeals for the Fourth Circuit.
More particularly, as to the controlled buy of October 15, 2021, Defendant raises a concern that he cannot determine which CI allegedly obtained drugs from Defendant and provided them to the Task Force. He states that the reason for using two CIs is unclear. And he emphasizes that one of the CIs appears to have overdosed and was administered Narcan in the course of the controlled buy. Thus, Defendant questions the chain of custody of the evidence obtained from the controlled buy and the reliability of witness testimony against him. As for the controlled buy on October 18, 2021, Defendant posits that the evidence obtained “appears tainted and problematic for the government” in that the bag containing the drugs allegedly purchased from Defendant ripped when it was in the CI's pocket, spilling some contents. Also, as to these drugs from the October 18 controlled buy, Defendant states that the Government's evidence does not indicate the weight of the drugs allegedly obtained.
While it was not addressed in the arguments of counsel at the hearing before the undersigned, it appears that the Government may take issue with Defendant's factual characterizations here. The Government suggests that only a small amount of the drugs fell from the bag, provides information about the weight and type of drugs obtained by dint of DEA laboratory analysis, and explains how the Task Force handled the material after the controlled buy. [ECF No. 229, at 3]. The undersigned points this out not to suggest anything about the correctness about the Government's version of the facts, but rather to highlight how Defendant faults the Government about factual/evidentiary issues, not constitutional ones.
Nevertheless, Defendant does not argue that these concerns amount to a constitutional defect or other illegality. He does not explain how questions about a CI's credibility, or about chain of custody of evidence in this context, amount to constitutional-level challenges to the Task Force's conduct. Indeed, in review of the information adduced to the undersigned, it is not certain that such an argument even could be made. The issues about which Defendant complains may, for example, provide fodder for cross-examination at trial, argument to the jury about witness reliability, or perhaps, a motion in limine. The undersigned does not suggest anything about the propriety or impropriety about such strategy. Of course, the contours of any such trial tactic or written motion would be for Defendant's counsel alone to determine. The undersigned observes only that these are issues which are more commonly raised in other manners, not by a motion to suppress.
Turning to the portion of Defendant's motion in which he seeks outright dismissal of the charges contained in Count Nine, Count Ten, and Count Eleven, a motion to suppress evidence is not the proper vehicle to seek such relief. A motion to suppress is a mechanism by which a defendant can seek to block introduction of evidence. And if a defendant is successful in the motion to suppress, it may result in the inability (or at least greater difficulty) for the Government to prosecute the charge. But a motion to suppress is not for seeking dismissal of a charge altogether.
Defendant points out that Count Nine, Count Ten, and Count Eleven resulted from evidence collected from execution of the search warrant on January 27, 2022. The Task Force's request for the search warrant was supported, in part, by evidence of the two controlled buys noted above. As such, because Defendant argues that the two controlled buys were defective, he also argues that evidence obtained during the search of January 27, 2022 amounts to “fruit of the poisonous tree.”
The “fruit of the poisonous tree” principle is, basically, that evidence ultimately obtained as a result of law enforcement's illegal acts should be suppressed. United States v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997), abrogated in part on other grounds Dickerson v. United States, 530 U.S. 428 (2000). In the instant matter, the affidavit which the Task Force provided in support of the search warrant obtained from state circuit court includes information about the controlled buys of October 15, 2021 and October 18, 2021. [ECF No. 229-4, at 12]. However, as the Government correctly argued in the hearing before the undersigned, Defendant improperly attempts to shoehorn a “fruit of the poisonous tree” argument onto his dispute about the quality of the evidence obtained from the two controlled buys of October 15, 2021 and October 18, 2021. Simply put, a “fruit of the poisonous tree” argument turns on allegations of improper law enforcement conduct. But Defendant does not argue that law enforcement's conduct in the course of these two controlled buys was improper or unconstitutional. Instead, he takes issue with witness reliability and credibility, chain of custody of evidence, and the like. As explained above, in the context of the instant matter, these do not amount to arguments about constitutional illegality or defect. Thus, because Defendant has not argued that the controlled buys of October 15, 2021 and October 18, 2021 present constitutional issues, he cannot cite to those controlled buys to claim that the subsequent search of January 27, 2022 (which resulted, in part, from the two earlier controlled buys) was a constitutionally defective act that yielded “fruit of the poisonous tree.”
As discussed with counsel at the hearing before the undersigned, the search warrant issued by the state circuit court (with its supporting materials) is extensive. [ECF No. 229-4]. The affidavit presented to the state circuit judge contains a dense recitation of the facts of the Task Force's investigation of Defendant and others. The affidavit certainly contains information about the controlled buys of October 15, 2021 and October 18, 2021, and Defendant takes exception to those buys. However, the affidavit is based on voluminous information in addition to that about the two controlled buys. As such, at the hearing before the undersigned, the Government argued that, even absent the information about these two controlled buys, the affidavit was sufficient to support issuance of the search warrant. The undersigned tends to agree. Accordingly, Defendant's argument about how evidence obtained from the search of January 27, 2022 was “fruit of the poisonous tree” is unavailing.
IV. CONCLUSION
Accordingly, the undersigned FINDS that Defendant has not presented issues which are those which are proper to address via a motion to suppress evidence. Thus, for the reasons set forth herein, the undersigned RECOMMENDS that Defendant's Motion to Suppress [ECF No. 217] be DENIED.
Any party shall have fourteen (14) days from the date of service of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the presiding United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of Court is DIRECTED to transmit copies of this Report and Recommendation to counsel of record as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.