United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge
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.
OF THE CASE
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.
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.
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.
OF THE FACTS
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
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)].
(DE 46 at 2-4).