USA v. Calhoun

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff,
v. 	CRIM ACTION NO. 2:25-CR-18
(KLEEH)
CHARLES ROBERT CALHOUN,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 43], DENYING MOTION TO SUPPRESS [ECF NO. 28], AND
OVERRULING OBJECTIONS [ECF NO. 52]
Pending 	before 	the 	Court 	is 	Defendant 	Charles 	Robert
Calhoun’s 	Motion 	to 	Suppress 	Physical 	Evidence 	[ECF 	No. 	28] 	and
the 	Report 	and 	Recommendation, 	Recommending 	that 	Defendant’s
Motion 	[ECF 	No. 	28] 	to 	Suppress 	Evidence 	Be 	Denied 	[ECF 	No. 	43].
Defendant 	Calhoun 	filed 	an 	objection 	to 	the 	Report 	and
Recommendation 	(“R&R”). 	ECF 	No. 	52. 	For 	the 	reasons 	discussed
herein, the R&R is ADOPTED, the motion to suppress is DENIED, and
the objection is OVERRULED.
I. 	PROCEDURAL HISTORY
Defendant filed his Motion to Suppress Physical Evidence [ECF
No. 28] on September 23, 2025, seeking to suppress the introduction
of 	methamphetamine 	and 	a 	pistol 	that 	he 	believed 	were 	seized 	in
violation of his Fourth Amendment rights. This Court referred the
suppression 	motion 	to 	Magistrate 	Judge 	Aloi. 	ECF 	No. 	29. 	The
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Government filed its Objection to Motion to Suppress [ECF No. 31]
on September 25, 2025. Judge Aloi convened for a motion’s hearing
on 	October 	1, 	2025, 	and 	heard 	sworn 	testimony 	from 	Trooper 	James
Peteete 	(“Peteete”), 	of 	the 	West 	Virginia 	State 	Police 	(“WVSP”);
Corporal 	Damon 	Brock 	(“Brock”) 	of 	the 	WVSP; 	Cassey 	Beverage
(“Beverage”); and Sergeant Joshua Tallman (“Tallman”) of the WVSP.
Several 	exhibits 	were 	also 	admitted 	into 	evidence 	including 	body
cam 	footage 	and 	a 	copy 	of 	the 	stopped 	vehicle’s 	replacement
registration. See ECF No. 43.
Following the hearing, the Government moved for leave to file
a 	supplemental 	objection 	to 	Calhoun’s 	motion 	to 	suppress 	and 	to
schedule a hearing for the Government to present rebuttal evidence.
ECF 	No. 	35. 	Judge 	Aloi 	granted 	the 	Government’s 	motion, 	and 	the
Government accordingly filed its supplemental opposition briefing.
ECF Nos. 36, 38. The second evidentiary hearing occurred on October
28, 	2025. 	ECF 	No. 	41. 	Brock 	and 	Tallman 	testified 	for 	a 	second
time. 	Additionally, 	Judge 	Aloi 	admitted 	evidence 	regarding
communications 	with 	911 	dispatch 	during 	the 	traffic 	stop 	and
additional DMV records for the stopped vehicle. ECF No. 43.
On 	November 	4, 	2025, 	Judge 	Aloi 	entered 	his 	Report 	and
Recommendation, Recommending that Defendant’s Motion [ECF No. 28]
to 	Suppress 	Evidence 	Be 	Denied 	[ECF 	No. 	43]. 	Defendant 	sought
additional 	time 	to 	file 	objections 	to 	the 	R&R, 	which 	the 	Court
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granted, 	and 	Defendant 	filed 	his 	Objection 	to 	Report 	and
Recommendation [ECF No. 52].
II. 	RELEVANT FACTUAL BACKGROUND
The 	Court 	only 	recites 	the 	facts 	relevant 	to 	Defendant’s
objection. 	On 	July 	23, 	2024, 	Defendant 	was 	subject 	to 	a 	traffic
stop, 	conducted 	by 	Troopers 	Brock 	and 	Peteete. 	While 	speaking 	to
Journey 	Robinson 	in 	the 	front 	passenger 	seat, 	Peteete 	testified
that he smelled marijuana emitting from the vehicle. Peteete stated
he 	was 	familiar 	with 	the 	odor 	based 	upon 	his 	training 	and
experience conducting traffic stops and working with a K-9. Peteete
informed 	the 	vehicle 	passengers 	and 	Brock 	that 	he 	believed 	he
smelled marijuana. When asked if she possessed marijuana, Robinson
told 	Peteete 	that 	she 	did 	not 	smoke 	marijuana 	very 	much 	but 	did
use it occasionally.
Peteete’s K-9 partner, Sebes, was on site during the traffic
stop. 	During 	the 	stop, 	Peteete 	retrieved 	the 	K-9 	and 	took 	him
around 	a 	sweep 	of 	Defendant’s 	vehicle. 	Sebes 	alerted 	twice 	for
drugs 	on 	the 	rear 	passenger 	door. 	Thereafter, 	the 	officers
conducted 	a 	search 	of 	the 	vehicle. 	During 	the 	traffic 	stop, 	none
of 	the 	vehicle 	passengers 	admitted 	to 	consuming 	marijuana, 	but
Robinson 	hypothesized 	that 	the 	marijuana 	smell 	could 	have 	come
from 	her 	home. 	Brock 	reasoned 	to 	Robinson 	that 	the 	odor 	could 	be
on her clothes. Additionally, burned foil was found in Robinson’s
possession. 	She 	remarked 	during 	the 	traffic 	stop 	that 	the 	foil
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could have smelled like weed. Peteete testified that he knew from
his 	training 	and 	experience 	that 	tin 	foil 	could 	be 	used 	to 	smoke
or 	consume 	drugs. 	The 	officers 	recovered 	methamphetamine, 	a
pistol, 	plastic 	baggies, 	and 	approximately 	$3,600 	from 	the
vehicle. No marijuana was found in the vehicle.
III. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court must review
de 	novo 	only 	the 	portions 	to 	which 	an 	objection 	has 	been 	timely
made. 	28 	U.S.C. 	§ 	636(b)(1)(C). 	Otherwise, 	“the 	Court 	may 	adopt,
without 	explanation, 	any 	of 	the 	magistrate 	judge’s
recommendations” to which there are no objections. 	Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby 	v. 	Davis, 	718 	F.2d 	198, 	199 	(4th 	Cir. 	1983)). 	Courts 	will
uphold portions of a recommendation to which no objection has been
made 	unless 	they 	are 	clearly 	erroneous. 	See 	Diamond 	v. 	Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
IV. 	DISCUSSION
Defendant objects to the magistrate judge’s finding that WVSP
officers Peteete and Brock had probable cause to search the vehicle
based on the odor of marijuana. ECF No. 52. Defendant disputes the
finding 	of 	fact 	that 	Peteete 	detected 	the 	odor 	of 	marijuana 	and
argues 	Peteete’s 	claim 	regarding 	the 	marijuana 	odor 	is 	not
credible. 	Id. 	Defendant 	thus 	contends 	that 	without 	the 	claimed
odor, there would not have been a basis to extend the vehicle stop
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for 	a 	dog 	sniff 	and 	would 	not 	have 	had 	probable 	cause 	to 	search
the vehicle. Id.
Defendant 	does 	not 	challenge 	the 	validity 	of 	the 	initial
traffic stop or that the K-9’s positive identification on the car
would create probable cause. Rather, Defendant’s objection focuses
on 	the 	credibility 	of 	Peteete’s 	claim 	that 	he 	smelled 	marijuana
and 	that 	basis 	to 	continue 	detaining 	the 	car 	to 	conduct 	a 	K-9
sniff. 1
A. Applicable Law
The Fourth Amendment to the United States Constitution provides,
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon 	probable 	cause, 	supported 	by 	Oath 	or
affirmation, 	and 	particularly 	describing 	the
place 	to 	be 	searched, 	and 	the 	persons 	or
things to be seized.
The Supreme Court of the United States has further held that
warrantless 	seizures 	are 	“per 	se 	unreasonable 	under 	the 	Fourth
Amendment, subject to only a few specifically established and well
1 	Because 	a 	canine 	sniff 	is 	aimed 	at 	“detecting 	evidence 	of 	ordinary
criminal wrongdoing” it is not an ordinary incident of a traffic stop.
Rodriguez v. United States, 575 U.S. 348, 355 (2015). 	Law enforcement
may detain a vehicle while awaiting a drug dog’s arrival and sniff, but
the 	detention 	must 	be 	reasonable, 	with 	officers 	using 	“diligence 	in
pursuing their investigation” and minimizing intrusion upon the suspect.
United 	States 	v. 	McBride, 	676 	F.3d 	385, 	395 	(4th 	Cir. 	2012). 	When 	a
trained 	dog 	“alerts” 	to 	the 	presence 	of 	narcotics, 	this 	constitutes
probable 	cause 	to 	search 	the 	vehicle. 	Illinois 	v. 	Caballes, 	543 	U.S.
405, 409-10 (2005).
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delineated 	exceptions.” 	Katz 	v. 	United 	States, 	389 	U.S. 	347, 	357
(1967). 	One 	such 	exception 	is 	the 	investigative 	stop, 	which 	is
also referred to as a Terry stop. Terry v. Ohio, 392 U.S. 1 (1968).
A Terry stop has been held to be constitutional when the officer’s
action 	is 	supported 	by 	an 	articulable, 	reasonable 	suspicion 	that
the person seized had engaged in criminal activity. United States
v. 	Sokolov, 	490 	U.S. 	1, 	7 	(1989). 	A 	brief 	detention 	for
investigative 	purposes 	is 	reasonable 	if 	an 	officer 	“observes
unusual conduct which leads him reasonably to conclude in light of
his 	experience 	that 	criminal 	activity 	may 	be 	afoot.” 	Terry, 	392
U.S. at 30; see also Turmon v. Jordan, 405 F.3d 202, 205 (4th Cir.
2005).
Reasonable 	suspicion 	“defies 	precise 	definition.” 	United
States 	v. 	McCoy, 	513 	F.3d 	405, 	411 	(4th 	Cir. 	2008). 	To 	determine
whether 	reasonable 	suspicion 	exists, 	courts 	consider 	“the
‘totality of the circumstances’ to determine if the officer had a
‘particularized 	and 	objective 	basis’ 	for 	believing 	that 	the
detained 	suspect 	might 	be 	armed 	and 	dangerous.” 	United 	States 	v.
George, 732 F.3d 296, 299 (4th Cir. 2013), cert. denied, 134 S.Ct.
1530 	(2014) 	(citations 	omitted). 	Multiple 	factors 	may 	together
“create a reasonable suspicion even where each factor, taken alone,
would be insufficient.” Id. at 300 (citing United States v. Branch,
537 F.3d 328, 339 (4th Cir. 2008)).
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The 	Supreme 	Court 	of 	the 	United 	States 	has 	“counseled 	lower
courts 	to 	give 	‘due 	weight’ 	to 	the 	factual 	inferences 	drawn 	by
police 	officers 	as 	they 	investigate 	crime.” 	Id. 	(citing 	United
States v. Arvizu, 534 U.S. 266, 273 (2002)). An officer “must have
a particularized and objective basis for suspecting the particular
person stopped of criminal activity.” United States v. Cortez, 449
U.S. 	411, 	417-18 	(1981). 	Furthermore, 	an 	officer 	can 	extend 	a
traffic 	stop 	to 	investigate 	a 	crime 	completely 	unrelated 	to 	the
event 	that 	provided 	the 	justification 	for 	the 	stop 	in 	the 	first
place. 	United 	States 	v. 	Digiovanni, 	650 	F.3d 	498, 	511 	(4th 	Cir.
2011). 	But 	a 	prolonged 	traffic 	stop 	requires 	“a 	‘reasonable
suspicion’ 	that 	illegal 	activity 	is 	afoot.” 	Branch, 	537 	F.3d 	at
336 (citing Florida v. Royer, 460 U.S. 491, 500 (1983)).
As summarized by the Fourth Circuit:
If 	a 	police 	officer 	observes 	a 	traffic
violation, 	he 	is 	justified 	in 	stopping 	the
vehicle for long enough to issue the driver a
citation 	and 	determine 	that 	the 	driver 	is
entitled to operate his vehicle. 	The driver’s
consent or reasonable suspicion of a crime is
necessary 	to 	extend 	a 	traffic 	stop 	for
investigatory 	purposes. 	In 	order 	to
demonstrate 	reasonable 	suspicion, 	a 	police
officer 	must 	offer 	“specific 	and 	articulable
facts” 	that 	demonstrate 	at 	least 	“a 	minimal
level 	of 	objective 	justification” 	for 	the
belief 	that 	criminal 	activity 	is
afoot. 	Judicial 	review 	of 	the 	evidence
offered 	to 	demonstrate 	reasonable 	suspicion
must 	be 	commonsensical, 	focused 	on 	the
evidence 	as 	a 	whole, 	and 	cognizant 	of 	both
context 	and 	the 	particular 	experience 	of
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officers charged with the ongoing tasks of law
enforcement.
Branch, 537 F.3d at 337 (citations omitted). 	A search or seizure
in violation of these principles triggers the “exclusionary rule,”
which “forbids the use of improperly obtained evidence at trial.”
Herring v. United States, 555 U.S. 135, 139 (2009).
1. Credibility Determinations
Defendant 	contends 	that 	Peteete’s 	claim 	that 	he 	smelled
marijuana in the car was not credible, and thus, Defendant objects
to 	the 	magistrate 	judge’s 	reliance 	on 	Peteete’s 	testimony.
Defendant 	asks 	this 	Court 	to 	make 	its 	own 	determination 	as 	to
whether Peteete detected the odor of marijuana. ECF No. 52.
“Where 	a 	party 	objects 	to 	a 	magistrate 	judge's 	credibility
determinations, 	the 	district 	court 	must 	conduct 	a 	de 	novo
determination 	on 	credibility, 	but 	the 	court 	need 	not 	‘rehear 	the
contested testimony in order to carry out the statutory command to
make the required “determination”’ under § 636.” United States v.
Michaels, 	2019 	WL 	6974756, 	at 	*3 	(N.D.W. 	Va. 	Dec. 	20, 	2019)
(quoting 	United 	States 	v. 	Raddatz, 	447 	U.S. 	667, 	674 	(1980)). “A
magistrate 	judge's 	credibility 	determinations 	based 	on 	live
testimony 	are 	entitled 	to 	deference 	where 	they 	are 	supported 	by
the record as a whole.” United States v. Boatrite, 165 F. Supp. 3d
484, 489–90 (N.D.W. Va. 2016). “[T]he district court may consider
the 	record 	developed 	by 	the 	Magistrate 	Judge 	to 	make 	a 	de 	novo
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determination 	on 	the 	credibility 	of 	witnesses.” 	United 	States 	v.
Perry, 	2019 	WL 	2189514, 	at 	*2 	(E.D. 	Va. 	May 	21, 	2019), 	aff'd, 	92
F.4th 500 (4th Cir. 2024).
In 	the 	R&R, 	the 	magistrate 	judge 	accepted 	testimony 	from
Peteete that he told Brock about smelling marijuana. The magistrate
judge believed this testimony because it was bolstered by evidence
that Robinson told Peteete that she smoked marijuana occasionally
and that she stated a material on foil in the vehicle could smell
like 	marijuana. 	ECF 	No. 	43 	at 	pp. 	28-29. 	Robinson 	further 	told
Brock 	that 	if 	there 	was 	marijuana 	at 	issue, 	it 	would 	be 	at 	her
home 	and 	not 	in 	the 	car. 	Brock 	told 	her 	that 	the 	smell 	could 	be
coming from her clothes, and she did not dispute this hypothesis.
Id. 	Thus, 	Judge 	Aloi 	concluded 	that 	the 	evidence 	presented
supported 	finding 	that 	Peteete 	smelled 	marijuana 	and 	that 	the
officers had probable cause. Id.
In 	his 	objection, 	Calhoun 	argues 	that 	the 	evidence 	the
magistrate 	judge 	used 	to 	bolster 	Peteete’s 	testimony 	was
speculation 	and 	conjecture. 	ECF 	No. 	52. 	Accordingly, 	Defendant
asks this Court to reject the R&R and suppress the evidence seized
on July 23, 2024. Id.
After 	a 	thorough 	de 	novo 	review 	of 	the 	entire 	record,
including 	the 	audio 	recordings 	of 	the 	evidentiary 	hearings, 	the
Court finds Judge Aloi’s credibility determination is supported by
the 	record. 	Defendant 	contends 	the 	record 	does 	not 	support 	Judge
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Aloi’s credibility determination for Peteete because Brock did not
also smell marijuana and no marijuana was found in the car. Based
on the entirety of the record, this objection is without merit.
The evidence shows that Peteete is trained to detect the smell
of 	marijuana 	and 	has 	been 	conducting 	traffic 	stops 	since 	2012.
While Brock did not personally smell marijuana on Robinson, Peteete
told him that he smelled the substance and Brock observed Peteete
questioning 	the 	vehicle 	passengers 	about 	marijuana. 	Furthermore,
Robinson did not deny that she smelled like marijuana. Rather, she
provided 	possible 	explanations 	for 	the 	odor, 	including 	stating
that 	she 	could 	have 	weed 	at 	home 	and 	smoked 	from 	time 	to 	time.
Robison furthermore did not challenge Brock’s hypothesis that the
odor could be coming from her clothes.
This 	Court 	takes 	a 	deferential 	standard 	regarding 	the
credibility 	determinations 	made 	by 	Judge 	Aloi 	because 	he 	sat 	as
the 	trier 	of 	fact. 	The 	Court 	agrees 	with 	the 	Magistrate 	Judge's
findings of witness credibility regarding the officers’ testimony
and 	finds 	that 	Brock’s 	testimony 	does 	not 	discredit 	Peteete’s
testimony. Brock did not disagree that Peteete smelled marijuana;
rather, 	Brock 	personally 	did 	not 	smell 	it. 	The 	Court 	is 	not
persuaded 	to 	overrule 	the 	Magistrate 	Judge's 	determination
regarding Peteete’s credibility when Robinson admitted to smoking
weed 	occasionally 	and 	did 	not 	deny 	the 	presence 	of 	the 	odor.
Furthermore, 	during 	the 	search, 	Robinson 	hypothesized 	that 	the
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discovered burned tin foil could have been the source of the odor.
The 	record 	as 	a 	whole 	does 	not 	support 	the 	Court’s 	rejection 	of
the 	R&R 	or 	a 	finding 	that 	Peteete 	outright 	lied 	about 	smelling
marijuana.
Rather, 	Peteete’s 	claim 	that 	he 	smelled 	marijuana 	is
bolstered 	by 	the 	fact 	that 	he 	waited 	to 	search 	the 	vehicle 	until
completing the K-9 sniff. It is well-established that the smell of
marijuana emitting from a vehicle creates probable cause to search
the 	vehicle. 	See 	United 	States 	v. 	Lewis, 	606 	F.3d 	193, 	198 	(4th
Cir. 2010). Where probable cause exists to search the vehicle based
on 	the 	smell 	of 	marijuana, 	the 	Fourth 	Amendment 	permits 	a
warrantless search of “any containers or compartments found within
it.” 	United 	States 	v. 	Lesane, 	361 	F. 	App’x 	537, 	539 	(4th 	Cir.
2010). 	Thus, 	the 	officers 	had 	authority 	for 	the 	search 	at 	that
time. However, Peteete corroborated his suspicion by conducting a
K-9 	sniff, 	with 	a 	K-9 	already 	on 	the 	scene. 	The 	K-9’s 	positive
indication 	for 	drugs 	on 	the 	vehicle 	supported 	Peteete’s 	belief
that 	he 	smelled 	marijuana. 	Even 	more, 	the 	mere 	fact 	that 	Peteete
sought 	confirmation 	supports 	he 	sincerely 	believed 	he 	smelled
marijuana, as the K-9’s sniff could have disputed his belief. Thus,
the record as a whole supports the magistrate judge's credibility
determinations, 	and 	this 	Court 	will 	afford 	them 	appropriate
weight.
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V. 	CONCLUSION
For 	the 	foregoing 	reasons, 	the 	R&R 	[ECF 	No. 	43] 	is 	ADOPTED,
the 	motion 	to 	suppress 	[ECF 	No. 	28] 	is 	DENIED, 	and 	the 	objection
is OVERRULED [ECF No. 52].
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Order 	to
counsel of record.
DATED: April 15, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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