United States v. Barker
| Decision Date | 26 June 2013 |
| Docket Number | CRIMINAL NO. 1:13CR18 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ERIC SCOTT BARKER, MEGAN EILEEN DUNIGAN, and ROBERT ALLEN HILL, Defendants. |
Before the Court are the two motions filed by the defendant, Eric Barker ("Barker"), to suppress evidence recovered from his residence. (Dkt. Nos. 14 and 20). Also pending are the motions of Barker's co-defendants, Megan Eileen Dunigan ("Dunigan") and Robert Allen Hill ("Hill"), to suppress evidence recovered from Barker's apartment.1 (Dkt. Nos. 16 and 18). For the reasons that follow, the Court adopts the magistrate judge's Report and Recommendation ("R&R") and denies the pending motions. (Dkt. Nos. 14, 16, 18, and 20).
On March 5, 2013, a grand jury indicted Barker, Dunigan, and Hill on one count of Conspiracy with Intent to Distribute Heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C) (Barker and Dunigan), one count of Possession With Intent to Distribute Herion - Aiding and Abetting, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Barker and Dunigan), and one count of Maintaining Drug-Involved Premises - Aiding and Abetting, in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2 (Barker, Dunigan and Hill). On April 2, 2013, Barker filed a motion to suppress drugs, drug paraphernalia, United States currency, and cellular telephones discovered in his home on February 8, 2013. (Dkt. No. 14). Dunigan and Hill then followed suit with their own motions to suppress those items and also moved to join in Barker's motion.2 Barker then filed a second motion to suppress in which he argued that law enforcement had improperly executed a warrant for his arrest by entering his home absent a reasonable suspicion that he, Barker, was in fact in his residence at the time. He alsosought to have all evidence of criminal activity seized from his home suppressed.
Pursuant to 28 U.S.C. § 636, the Court referred these motions to the Honorable John S. Kaull, United States Magistrate Judge, who conducted a suppression hearing on April 16, 2013. (Dkt. No. 22). On April 13, 2013, Magistrate Judge Kaull entered his R&R recommending that the Court deny both of Barker's motions, as well as those of Dunigan and Hill. The defendants have filed timely objections (dkt. nos. 44, 45), which are now ripe for review.
The Court reviews de novo any portions of a magistrate judge's R&R to which a specific objection is made, 28 U.S.C. § 636(b)(1), but may adopt, without explanation, any of the magistrate judge's recommendations to which no objections are filed. Solis v. Malkani, 638 F.3d 269, 274 (4th Cir. 2011) (citing Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983)). In the absence of a timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (citation omitted). The failure to file specific objections to the magistrate judge's recommendations waives any appellate review of the factual and legal issues presented. Page v.Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); see also Thomas v. Arn, 474 U.S. 140, 150 (1985).
In his second motion to suppress, Barker challenges the execution of the arrest warrant, during which police entered his home without a search warrant, his consent, or any exigent circumstances. (Dkt. No. 20). In the R&R filed on May 13, 2013, Magistrate Judge Kaull found that the entry into Barker's home complied with the Fourth Amendment and recommended that the Court deny the motion. (Dkt. No. 34 at 17). Barker objects to the recommendation on the ground that law enforcement officials executing the warrant had no reason to believe he was actually present in his residence when the police executed the warrant. (Dkt. No. 44 at 1).
On February 8, 2013, Magistrate Judge Kaull issued a warrant for Barker's arrest for various violations of the terms of his supervised release, including failure to provide his probation officer, Vincent Zummo ("Zummo"), with his current residence. (Case No. 1:04CR86, Dkt. Nos. 114, 115). That same day, while watching the residence at 1103 Phillipi Pike, Clarksburg, West Virginia,where, according to a confidential informant, Barker was living, Zummo telephoned Deputy United States Marshal Terry Moore ("Moore") to inform him that Judge Kaull had issued a warrant for Barker's arrest. (Dkt. No. 44-1 at 14, 15). At approximately 2:40 P.M. that afternoon (dkt. no. 23-6 at 5), Moore, who is responsible for coordinating teams to execute arrest warrants, id. at 14, assembled a team composed of four deputy United States Marshals, three members of a special multi-jurisdictional drug task force, and the chief probation officer for the area (the "arrest team"). Id. at 15-16. Moore and the arrest team then rendezvoused with Zummo at the house on Phillipi Pike. Id. at 15-16.
Upon arrival, Moore observed a silvery-tan Ford Contour (the "Contour") parked in front of the house. Id. at 16. On January 29, 2013, a white male used the Contour, which was registered to Barker's father, to transport an unnamed passenger to a controlled drug buy conducted by City of Clarksburg Police Officer Robert Root ("Root"), a member of the arrest team and the multi-jurisdictional drug task force. Id. at 48. Although neither Zummo nor Root had contacted Randall Barker to learn if he had loaned the Contour to his son, id. at 66, Lieutenant Brian Purkey had advised Root that he believed Randall Barker was "related to a subject he had investigated in the past," meaning Barker, and that Barker was outof prison and on supervised release. (Dkt. Nos. 23-5 at 1; 44-1 at 65). Based on that information, Root assumed Barker was driving the Contour. (Dkt. No. 44-1 at 65).
With Moore in the lead, the officers approached the house, a two-story structure with three upstairs windows looking out onto the street in front of the house. (Dkt. No. 23-1). Deputy United States Marshal Derek Patrick ("Patrick") announced the team's presence, and stated that they had a warrant for Barker's arrest. (Dkt. No. 23-6 at 5). Nacy Steffich ("Steffich") opened the front door and stated, "Eric lives upstairs." Id. at 5; (Dkt. No. 44-1 at 16). Root, who stood some distance behind Moore, did not hear Steffich's statement, but does recall that she pointed to an interior door that led upstairs when the officers told her they were looking for Barker. (Dkt. No. 44-1 at 51-52). As Moore stood just off the small front porch speaking with Steffich, he observed the curtain in the middle, second-story window "nudged to the side, like somebody was viewing out the window." Id. at 17.
The front door of the house opened into a "common area." Id. Based on Steffich's statements, the officers concluded that Barker lived upstairs through a separate door leading off the common area. Id. at 17, 23. The officers opened that door, and, after Patrick again announced their presence and intent to execute the warrantfor Barker's arrest, they proceeded up a flight of stairs that led away from the front door to the back of the house to what they assumed was Barker's apartment. Id. at 23.3 When Patrick reached the top of the stairs, he stepped off on the landing and to the right. Id. at 23. Moore then opened the door directly at the top of the stairs, which opened into a bathroom where he saw Barker, who had around his arm a "homemade tourniquet" of the sort Root associated with intravenous drugs. Id. at 23, 77. Officers also observed a number of needles in plain view on the bathroom sink. (Dkt. No. 23-5 at 2). Upon Moore's order, Barker laid down on the ground and Moore cuffed him. Id. A search of Barker's person revealed $1,300 in cash in his pants pocket. (Dkt. No. 23-6 at 5).
The Fourth Amendment 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. Undisputably, "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980). Nevertheless, absent a search warrant, law enforcement officials may enter a home to execute an arrest warrantif "there is reason to believe [that the subject of the warrant] is within." United States v. Hill, 649 F.3d 258, 262 (4th Cir. 2011) (quoting Payton, 445 U.S. at 602). Officials must have "(1) reason to believe that the location [to be entered] is the defendant's residence, and (2) . . . a 'reasonable belief' that [the defendant] would be home." Hill, 649 F.3d at 262 (citing United States v. Graham, 553 F.3d 6, 13 (1st Cir. 2009); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995).4 Generally, multiple facts are necessary to support a reason to believe that the subject of the arrest warrant is present at the time of entry. Hill, 649 F.3d. at 264.
Barker objects to the magistrate judge's conclusion that law enforcement officials acted on a reasonable belief that Barker was actually home when they entered his apartment on February 8, 2013, to execute the warrant for his arrest.5 See Payton, 445 U.S. at 602. He contends that none of the officers had personal knowledgeof the underlying investigation into Barker's supervised release violations, and therefore, they could not have entered his apartment based on a reasonable belief that he was within. (Dkt. No. 44 at 2).
Barker's objections are without merit. Here, a confidential informant had alerted Zummo that Barker, who had failed to advise Zummo of his whereabouts, lived at 1103 Phillipi Pike. See United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995) (). The informant did not indicate that Barker shared the residence with anyone. Moreover, the...
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