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United States v. Moore

United States District Court, E.D. North Carolina, Southern Division

July 25, 2017

UNITED STATES OF AMERICA,
v.
LEROY MOORE, JR., Defendant.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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.

         STATEMENT OF THE CASE

         On 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.

         Evidentiary 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.

         In 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.

         STATEMENT OF THE FACTS

         The 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 13:14-18)].
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).

         COURT'S ...


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