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United States v. Gilmore

United States District Court, W.D. North Carolina, Charlotte Division

April 10, 2018

UNITED STATES OF AMERICA,
v.
CYNTHIA GILMORE, Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on Defendant Cynthia Gilmore's “Objections to Magistrate Judge's Memorandum and Recommendation” (the “Objection”). (Doc. No. 1033). The Memorandum and Recommendation (“M&R”) (Doc. No. 1015) entered on January 29, 2018, by the magistrate judge recommended this Court deny Defendant's “Motion to Suppress in Limine” (the “Motion”) (Doc. No. 892). The Government responded in opposition to Defendant's Objection (Doc. No. 1093), arguing the M&R correctly recommends denial of Defendant's Motion to Suppress. After reviewing the briefs, testimony, and evidence presented before the magistrate judge, for the reasons set forth, the Court OVERRULES Defendant's Objections, ACCEPTS and ADOPTS the M&R, and DENIES Defendant's Motion.

         I. Standard of Review

         A district court may refer a motion to suppress to a magistrate judge for a recommendation pursuant to Federal Rule of Criminal Procedure 59(b)(1). If a party timely files “specific written objections” to the proposed recommendations, the “district judge must consider de novo any objection to the magistrate judge's recommendation.” Fed. R. Crim. P. 59(b)(2)-(3); see also 28 U.S.C. § 636. The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

         II. Findings of Fact

         The M&R summarizes the factual background and findings based on the evidence presented relevant to the instant motion:

Defendant Gilmore is charged with one count of participating in a racketeering conspiracy in furtherance of the Nine Trey Gangster “Hood” of the United Blood Nation. During the hearing, the Court heard testimony from former Raleigh Police Officer Ross Weatherspoon, Officer Brandon Johnson, and FBI Special Agent Chad Pupillo.
On August 10, 2011 at approximately 4:00 a.m. Raleigh police officers Ross Weatherspoon and Brandon Johnson heard a radio transmission reporting a shooting and home invasion at a residential development in the vicinity of Woodmeadow Parkway and Sunnybrook Road. A second radio transmission advised that a suspect vehicle had been stopped by officers on Woodmeadow Parkway. Two suspects were detained at the scene and a third had fled on foot. The fleeing suspect was described as a black male, five feet eight or nine inches tall, and weighing around 150 pounds. Officers Weatherspoon and Johnson responded to the scene. Officer Johnson initially drove through the development in search of the fleeing suspect. He then joined Officer Weatherspoon who had set up a perimeter near the entrance to the development on Pleasant Garden Lane.
Within approximately twenty minutes of setting up the perimeter, the officers observed a Nissan Ultima approaching en route to leaving the development. The officers flagged down the Ultima and it stopped on Pleasant Garden Lane. This was the first vehicle spotted by the officers since setting up the perimeter. The officers intended to flag down any vehicle leaving the development. They planned to ask the occupants of the vehicle if they had seen anyone matching the description of the fleeing suspect.
Officer Weatherspoon approached the passenger side while Officer Johnson approached the driver. Officer Weatherspoon observed what he described as a “black mass” in the back seat. He quickly realized that this was a person lying across the back seat of the vehicle. Officer Johnson secured both Defendant Cynthia Gilmore who was the driver and the front seat passenger. Officer Weatherspoon removed the third individual from the back seat. This individual matched the description of the fleeing suspect. He appeared nervous and was breathing heavily. His pants were wet and covered with grass and mud. A Raleigh police captain who was involved in the original stop of the suspect vehicle arrived and identified the individual from the back seat as the one who fled the scene.
Defendant admitted to the officers that she knew the individual who was lying across the back seat and had picked him up from some nearby apartments. Officers transported Defendant to the police station for further questioning. Defendant was then charged with being an accessory after the fact in violation of state law.
Officers seized Defendant's cell phone and turned it in to the police department's property section. The Raleigh Police Department Evidence Control Form indicates that the phone was checked into evidence that same day. Defendant's phone was checked out of property along with other seized items for the trial of her co-defendants in state court during August and September 2012. The charges against Defendant were ultimately dismissed in September 2012. The evidence log shows that her phone remained in the Raleigh police property section until FBI agents obtained custody of it on October 20, 2017. On October 23, 2017, a U.S. Magistrate Judge in this District issued a search warrant for Defendant's phone based upon an application from an FBI agent. Examination of the phone's contents revealed a connection to the email address “cynthiagilmore75” as well as other self-identifying information relating to Defendant. Defendant has never attempted to claim her phone from the Raleigh Police Department.

(Doc. No. 1015, pp. 1-3.)

         Throughout the Objection, Defendant generally challenges and broadly asserts error in the M&R's findings of fact, arguing the M&R omits and minimizes “critical” testimony and facts. (Doc. No. 1033, pp. 4, 5, 7.) First, these generic objections do not trigger de novo review. Orpiano, 687 F.2d at 47. Defendant's arguments, instead, appear to broadly challenge the witnesses' credibility. “[I]t is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress.” U.S. v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008). By referring the instant motion to the magistrate judge for M&R, it becomes the duty of the magistrate judge to observe witnesses and weigh credibility. A “de novo determination is not necessarily the same as a de novo hearing ... even as to those findings based on the magistrate's judgment as to the credibility of the witnesses before him.” Proctor v. State Government of North Carolina, 830 F.2d 514, 518 n. 2 (4th Cir.1987). Section 636(b) “grants the [district] judge the broad discretion to accept, reject, or modify the magistrate's proposed findings” United States v. Raddatz, 447 U.S. 667 at 680 (1980), and “it is unlikely that a district judge would reject a magistrate's proposed findings ...


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