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United States v. Melvin

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

April 22, 2019

UNITED STATES OF AMERICA
v.
JAMES MELVIN, II, Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This 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.

         STATEMENT OF THE CASE

         Indictment 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.

         On 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 warrant.

         The 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.

         The magistrate judge entered the M&R on February 15, 2019. Defendant objected on March 15, and the government responded on March 27, 2019.

         STATEMENT OF FACTS

         The 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.

         COURT'S DISCUSSION

         A. Standard of Review

         The 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).

         B. Analysis

         In his 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 ...


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