United States District Court, E.D. North Carolina, Eastern Division
W. FLANGAN United States District Judge
matter comes before the court on defendant's motion to
suppress (DE 21). Pursuant to 28 U.S.C. § 636(b)(1)(B)
and Federal Rule of Criminal Procedure 59(b), United States
Magistrate Judge James E. Gates, entered memorandum and
recommendation (“M&R”), wherein it is
recommended that defendant's motion be denied. Defendant
filed objections to the M&R and the government responded.
In this posture, the issues raised are ripe for ruling. For
the reasons that follow, defendant's motion to suppress
OF THE CASE
October 3, 2018, defendant was indicted on three counts: 1)
possession with the intent to distribute 28 grams or more of
cocaine base (crack) and a quantity of cocaine and heroin, 2)
possession of a firearm in furtherance of a drug trafficking
crime, and 3) possession of a firearm and ammunition by a
convicted felon. Defendant filed the instant motion to
suppress on December 28, 2018, seeking suppression of all
evidence seized as a result of a search of defendant's
residence in February 2018. The government responded in
opposition, and the magistrate judge held an evidentiary
hearing on the motion on April 17, 2019. At hearing, the
government introduced testimony of officers Michael Sawyer
(“Sawyer”), Nick Fiedler (“Fiedler”),
Christopher Drake (“Drake”), and John Rainer
(“Rainer”), with the Craven County Sheriff's
Office. The court also admitted exhibits offered by the
government comprising photographs of defendant's
residence and items found in the residence, as well as a disc
containing video from a security camera system at the
residence. In addition, the court admitted exhibits offered
by defendant comprising additional photographs of
defendant's residence, the vicinity thereof, and
photographs of the feed from the security camera system at
magistrate judge entered M&R on August 30, 2019.
Defendant filed objections on October 16, 2019, and the
government responded on November 29, 2019.
court incorporates herein by reference the magistrate
judge's findings of fact (see M&R (DE 35) at 3-14),
where such findings are supported by the testimony and
evidence received at evidentiary hearing. The court addresses
in the analysis herein specific objections raised by
defendant to factual findings in the M&R.
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). 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. §
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend.
IV. “[S]earches conducted outside the judicial process
. . . are per se unreasonable under the Fourth Amendment -
subject only to a few specifically established and
well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967).
such exception applies where “the exigencies of the
situation make the needs of law enforcement so compelling
that a warrantless search is objectively reasonable under the
Fourth Amendment.” Kentucky v. King, 563 U.S.
452, 459 (2011). The types of exigent circumstances that
justify a warrantless seizure include, among other things,
the “imminent destruction of evidence, ”
United States v. Brown, 701 F.3d 120, 126 (4th Cir.
2012), and “risk of danger to the police or to other
persons inside or outside the dwelling.” United
States v. Moses, 540 F.3d 263, 270 (4th Cir. 2008)
determine whether such “exigent circumstances”
justify a warrantless seizure, courts weight the following
non-exclusive list of factors: 1) “the degree of
urgency involved and the amount of time necessary to obtain a
warrant”; 2) “the officer's reasonable belief
that the contraband is about to be removed or
destroyed”; 3) “information indicating the
possessors of the contraband are aware that the police are on