United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant's motion to
suppress (DE 33). Pursuant to 28 U.S.C. § 636(b)(1)(B),
a magistrate judge entered memorandum and recommendation
(“M&R”) wherein it is recommended that the
court deny the motion (DE 39). Defendant objected, and the
government responded. In this posture, the issues raised are
ripe for ruling. For the reasons set forth below, the court
adopts the M&R and denies the motion.
OF THE CASE
filed November 21, 2017, charges defendant with 1) conspiracy
to distribute and possess with intent to distribute heroin,
and 2) possession with intent to distribute one kilogram or
more of heroin.
November 2, 2018, defendant filed the instant motion to
suppress all evidence collected pursuant to a search of
defendant's vehicle following a traffic stop on July 3,
2016. The government responded in opposition, relying on: 1)
a cell phone tracking warrant, 2) photographs of gloves and
evidence capsules, 3) a vehicle tracking warrant, 4)
photograph of seized heroin, and 5) a cell phone search
magistrate judge held an evidentiary hearing on the instant
motion on January 30, 2019, at which the government presented
testimony of James Duffy (“Duffy”), special agent
with the United States Drug Enforcement Administration
(“DEA”); James Yowell (“Yowell”), a
Fayetteville police officer and former task force officer
with the DEA; Rober Reeves (“Reeves”), a former
trooper with the North Carolina Highway Patrol and former
task force officer with the DEA; John Pierce
(“Pierce”) a captain with Hoke County
sheriff's office; Brandon Covington
(“Covington”), a trooper with the North Carolina
Highway Patrol; and Mark Davies (“Davies”), a
sergeant with Hoke County sheriff's office. In addition
to the evidence attached to the government's opposition,
the government introduced into evidence at hearing a video of
Covington's dash cam.
magistrate judge entered the M&R on February 15, 2019.
Defendant objected on March 15, and the government responded
on March 27, 2019.
court incorporates herein by reference the magistrate
judge's background summary of testimony given at the
suppression hearing and other evidence of record
(see M&R (DE 39) at 1-5), where such summary
accurately describes such evidence.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). 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). A “de novo determination is not necessarily the
same as a de novo hearing and . . . the decision to rehear
testimony is within the sole discretion of the district
judge, 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)
(internal quotations omitted). 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).
motion to suppress, defendant contends that Covington, who
initiated the July 3, 2016, traffic stop of defendant, was
without sufficient reasonable suspicion of criminal drug
trafficking activity to justify a 25 minute prolongation of
the traffic stop while he waited for a canine to arrive to
inspect the vehicle. The magistrate judge correctly and
thoroughly addressed this argument in the M&R. Therefore,
the court adopts the analysis in the M&R as ...