United States v. Harvey

• Decision Date: 25 October 2012
• Docket Number: Criminal Action No. 1:12CR29.
• Citation: 901 F.Supp.2d 681
• Court: U.S. District Court — Northern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Samad Madir HARVEY, Defendant.

901 F.Supp.2d 681

UNITED STATES of America, Plaintiff,

v.Samad Madir HARVEY, Defendant.

Criminal Action No. 1:12CR29.

United States District Court,

N.D. West Virginia.

Oct. 25, 2012.

Zelda E. Wesley, U.S. Attorney's Office, Clarksburg, WV, for Plaintiff.

MEMORANDUM OPINION AND ORDER ADOPTING REPORTS AND RECOMMENDATIONS

IRENE M. KEELEY, District Judge.

Before the Court are the defendant's two motions to suppress a firearm recovered during a search of his residence. (Dkt. Nos. 20 & 21). At a hearing on October 9, 2012, the Court heard oral argument on the motions, after which, for the reasons that follow, it ADOPTED the magistrate judge's Reports and Recommendations in their entirety (dkt. nos. 33 & 35), DENIED the first motion to suppress(dkt. no. 20), GRANTED the second motion to suppress (dkt. no. 21), and SUPPRESSED the firearm.

I.

On May 1, 2012, a grand jury indicted the defendant, Samad Madir Harvey (“Harvey”), for being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On September 13, 2012, Harvey filed two motions to suppress the .22 caliber pistol that is the basis of the Indictment in this case. (Dkt. Nos. 20 & 21). 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 September 24, 2012. Later that same week, he entered two separate Reports and Recommendations (“R & Rs”) recommending that the Court deny the first motion to suppress (dkt. no. 33) and grant the second motion to suppress (dkt. no. 35). The defendant filed timely objections to the first R & R on October 2, 2010 (dkt. no. 40), and, seven days later, the government filed timely objections to the second R & R (dkt. no. 47). The parties' motions are now ripe for review.

II.

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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

III.

The defendant's first motion to suppress challenges the constitutionality of the police officer's stop of the car in which he was a passenger. (Dkt. No. 20). In an R & R issued on September 26, 2012, Magistrate Judge Kaull found that this traffic stop complied with the Fourth Amendment and recommended that the Court deny the motion. (Dkt. No. 33 at 10). Harvey objects to the recommendation on the ground that there was no antecedent traffic violation and thus “no lawful basis” for the stop in this case. (Dkt. No. 40 at 4).

A.

On December 16, 2010, Officer Kenneth Walker Murphy (“Officer Murphy”), a member of the Street Crimes Unit of the Morgantown Police Department, was on patrol within the city limits of Morgantown, West Virginia. (Dkt. No. 44 at 5, 19). At approximately 9:45 p.m., he observed “a silver Jaguar driving on University Avenue without a registration displayed.” Id. at 5. He proceeded to follow the vehicle until he was able to conduct a traffic stop. Id. at 5–6; see also id. at 18 (“My original reason for the stop was because there was no registration.”). The stop itself occurred at the house where both Harvey, one of two passengers in the silver Jaguar, and the driver resided. Id. at 6.

After the officer exited his vehicle and approached the Jaguar on foot, he noticed a piece of “white paper,” which he identified as a New Jersey temporary registration card, in the rear window. Id. at 6; see also id. at 18 (“Once I turned [a spotlight] on to illuminate the vehicle, I saw that registration.”). The rear window was not tinted, and the card itself was not obscured. Id. at 44. Officer Murphy testified that the display of this temporary card nevertheless violated Morgantown City Code (“MCC”) § 351.03, ¹ which requires a registration plate to be “clearly visible.” Id. at 6. He thus proceeded with the normal incidents of a routine traffic stop, asking the driver, later identified as Rashawn Billingsley (“Billingsley”), for his license, registration, and proof of insurance. Id. at 7, 8. Billingsley, who identified himself by a false name, was unable to produce any of the requested documents. Id. at 8.

While Officer Murphy was questioning Billingsley, three other police officers, Officer Trump, Sgt. Knight, and Officer Jason Kevin Ammons (“Officer Ammons”), arrived at the scene to serve as backup. Id. at 26. After Officer Trump signaled to the other officers that he could smell marijuana emanating from the open windows of the car, id. at 26–27, they removed the three individuals from the Jaguar and performed a limited pat-down for weapons. Id. The officers then conducted a search of the vehicle, where they found a device for smoking marijuana, i.e., a water bong, in the trunk. Id. at 27. As this search concluded, the officers' focus turned to affirmatively identifying the three occupants of the silver Jaguar. Id. As discussed in detail later in this opinion, Officer Ammons was “tasked with locating [Harvey's] identification.” Id.

B.

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. The “[t]emporary detention of individuals during the stop of an automobile by police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons' within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

As such, the familiar “dual inquiry” of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), governs the legality of police conduct in routine traffic stops. United States v. Guijon–Ortiz, 660 F.3d 757, 764 (4th Cir.2011) (citing United States v. Rusher, 966 F.2d 868, 875 (4th Cir.1992)). In order to survive judicial scrutiny, the police officer's conduct during a traffic stop must be both “justified at its inception,” Rusher, 966 F.2d at 875, and “sufficiently limited in scope and duration.” Guijon–Ortiz, 660 F.3d at 764 (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)).

1.

The government contends that Officer Murphy had reasonable, articulable suspicion to believe Billingsley was driving without “clearly visible” registration in violationof MCC § 351.03. As a general rule, an automobile stop “must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct.” United States v. Wilson, 205 F.3d 720, 722–23 (4th Cir.2000). Although “a mere ‘hunch’ ” is generally insufficient, “a reasonable basis need not establish probable cause and may well ‘fall[ ] considerably short of satisfying a preponderance of the evidence standard.’ ” United States v. Massenburg, 654 F.3d 480, 485 (4th Cir.2011) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). An officer's observation of a traffic violation, no matter how minor, provides probable cause to stop the driver. United States v. Hassan El, 5 F.3d 726, 730 (4th Cir.1993); see also United States v. Davis, 460 Fed.Appx. 226, 230 (4th Cir.2011) (“Traffic stops are justified at their inception when officers observe a violation of the applicable traffic laws.” (citing United States v. Branch, 537 F.3d 328, 335 (4th Cir.2008)).

The Morgantown City Code section relied upon by Officer Murphy states in pertinent part:

Registration plates issued for vehicles required to be registered shall be attached to the rear thereof. Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than twelve inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.

MCC § 351.03; see alsoW. Va.Code § 17A–3–15. The Court notes that there is a paucity of authority concerning both this municipal provision and its statutory analogue; no federal or state court in West Virginia has elaborated on the contours of this particular traffic offense. Nevertheless, as the defendant points out in his objections, the plain meaning of Section 351.03 is clear: a registration plate, “at all times,” must be displayed such that it is clearly visible and legible to an officer following at a safe distance. MCC § 351.03.

Here, in order to justify the stop of Billingsley's vehicle, Officer Murphy must have possessed “some minimal level of objective justification,” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), to believe that the temporary registration was not displayed “in a place and position to be clearly visible” pursuant to MCC § 351.03. Officer Murphy credibly testified that (1) the vehicle's registration was not in the “proper registration spot,” i.e., the license plate well, where it “would normally go,” (dkt. no. 44 at 17); (2) although he looked at the window of the car as well as the license plate well prior to initiating the traffic stop, he did not see any registration, id. at 16–17; and (3) he did not observe...