USA v. Dove

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:23-CR-151-FDW-DCK
THIS MATTER IS BEFORE THE COURT on Defendant’s “Motion To Suppress And
Memorandum In Support” (Document No. 25). This motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and is ripe for disposition. Having carefully
considered the briefs, testimony, and oral arguments, the undersigned will respectfully recommend
that the motion be denied.
I. PROCEDURAL HISTORY
On June 21, 2023, Defendant Shamel Malik Dove (“Defendant” or “Dove”) was indicted
for: (1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (2)
possession with intent to distribute fentanyl in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); and
(3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i). (Document No. 1). Defendant, through counsel, filed a “Motion To Suppress
And Memorandum In Support” (Document No. 25) on May 21, 2024, seeking to suppress certain
Government evidence in the case. The “Government’s Response To Defendant’s Motion To
Suppress” (Document No. 29) was filed on May 28, 2024. “Defendant’s Reply To Government’s
Response to Defendant’s Motion To Suppress” (Document No. 34) was filed June 12, 2024.
UNITED STATES OF AMERICA, )
) MEMORANDUM AND
Plaintiff, ) RECOMMENDATION
)
v. )
)
SHAMEL MALIK DOVE, )
)
Defendant. )
)
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The undersigned held a hearing on the “Motion To Suppress...” on June 27, 2024.
The principal questions before the Court are whether Defendant has standing to move to
suppress evidence recovered from the search of the vehicle in which he was a recent passenger,
and if so, whether the search of the vehicle was lawful.
II. FACTUAL SUMMARY
As noted, the Court conducted a hearing in this matter on June 27, 2024, at which the
Government and Defendant each presented witness testimony and argument. The Government
presented the testimony of one law enforcement officer—Detective Trey Hinton (“Hinton”) of the
Charlotte-Mecklenburg Police Department (“CMPD”). Defendant presented the testimony of two
law enforcement officers—Detectives J.D. Cameron (“Cameron”) and William Wallace
(“Wallace”) of CMPD; Defendant also presented the testimony of Shaquille Steele (“Steele”).
Evidence also included cross-examination of the witnesses, presentation of body-worn camera
footage from each of the officers, presentation of a satellite image of the area of the search,
presentation of an Instagram photo posted by one of the witnesses, and police reports and narratives
written by the aforementioned officers.
First, the Government presented the testimony of Detective Trey Hinton. Detective Hinton
has been employed with CMPD since about 2018 and has been a detective in the North Tryon
Division since 2022. Detective Hinton works with Operation SCARLET (Stolen Car and
Recovery Law Enforcement Team), and the May 2023 arrest of Defendant was part of Detective
Hinton’s work with Operation SCARLET. Prior to Operation SCARLET, Detective Hinton
worked on Operation 4140 for about two years, which specialized in the investigation of narcotics,
guns, drugs, and human trafficking in the Sugar Creek area of Charlotte. During his work with
Operation 4140, Detective Hinton performed undercover work purchasing illegal narcotics and
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firearms. Detective Hinton estimated that, over the course of his career, he has encountered
firearms several hundred times.
The Government asked Detective Hinton about Defendant’s arrest on May 8, 2023.
Detective Hinton recalled that sometime that day, Detective Cameron informed Detective Hinton
that Defendant had an indictment, and as part of his work with Operation SCARLET, Detective
Cameron had also obtained a record for a stolen vehicle relating to Defendant. Detective Cameron
informed Detective Hinton that he had located an individual who was posting on social media with
Defendant. Detective Hinton, along with other detectives, then traveled to that location and
identified Defendant sitting on the patio of a restaurant with the man from the social media post,
later identified as Steele, and a woman, later identified as Shi’dae Sellers (“Sellers”). Detectives
learned that Sellers had an unrelated order for arrest and placed Defendant and Sellers under arrest
on the patio of the restaurant. Detective Hinton testified that, at the time of the arrests, the Ford
Explorer in which Defendant, Steele, and Sellers had arrived was parked across the street from the
restaurant. Detective Hinton is not aware of any contact between Defendant and the Ford Explorer,
other than when Defendant exited the parked vehicle to walk across the street to the restaurant.
When officers arrested Defendant, he attempted to flee, and officers, including Detective
Hinton, took Defendant to the ground. Based on Detective Hinton’s training and experience, he
believed Defendant was concealing contraband in his pants. Detectives searched Defendant’s
pants and removed a firearm that was concealed in Defendant’s underwear.
Based on the firearm recovered from Defendant’s person, Detective Hinton testified that
he believed there existed probable cause to search the Ford Explorer. Detective Hinton testified
that based on his training and experience, when a firearm is recovered during an arrest, it is
common for the arrestee to have ammunition, additional firearms, magazines, and other firearm-
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related items in their vehicle or in any place they have just come from. Detective Hinton has made
numerous arrests of people who possessed firearms on their persons and had just exited a vehicle;
Detective Hinton estimated that in about sixty percent of these instances, additional contraband is
found inside of the vehicle. Detective Hinton testified that even if he had not believed officers had
probable cause to search the Ford Explorer, he still would have looked into the windows of the
vehicle from the outside.
The Government then asked Detective Hinton about the search of the Ford Explorer. At
some point that day, detectives discovered Sellers to be the registered owner of the Ford Explorer.
Upon placing her under arrest, law enforcement obtained the keys to the Ford Explorer and traveled
across the street to search the vehicle. Detective Hinton testified that at the time of the search, the
Ford Explorer was parked in a public surface lot, the search occurred during the daytime, the lot
had no gate, there were other cars and pedestrians in the vicinity, and the lot was surrounded by
open businesses. The lot was roughly one hundred yards from the restaurant.
Detective Hinton and Detective Wallace were both present for the search of the Ford
Explorer. As Detective Wallace approached the driver’s side of the vehicle to put on his gloves,
Detective Hinton began to look though the passenger-side windows. Detective Hinton observed
what appeared to be a clear plastic bag containing blue pills in the back seat on the passenger’s
side and announced to Detective Wallace that he saw oxycodone pills in the back seat. Detective
Hinton made this observation through the window of the closed passenger-side doors, and, upon
making the observation, pressed his body-worn camera to the window of the vehicle to capture his
view of the back seat. Detective Hinton testified that Exhibit 4, a screengrab of his body-worn
camera footage, fairly and accurately represents what Detective Hinton saw when he looked
through the window of the Ford Explorer.
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When Detective Hinton observed the pills, Detective Wallace had potentially already
opened the driver’s door, but Detective Hinton testified that no other doors had been opened, and
no one, including Detective Wallace, had entered or touched anything in the back seat of the
vehicle. Based on his training and experience, Detective Hinton believed the bag of pills to be
blue oxycodone pills. Detective Hinton further testified that he had seen pills that appeared similar
to those he saw in the back of the Ford Explorer hundreds of times and had purchased such pills
many times during his undercover experience. Because the pills readily appeared to Detective
Hinton to be illegal contraband, Detective Hinton testified that, upon seeing the pills though the
window, he would have searched the Ford Explorer, even if Detective Wallace had not opened the
driver’s-side door.
On cross-examination of Detective Hinton, Defendant’s counsel inquired about Detective
Hinton’s knowledge about Operation SCARLET’s investigation into Defendant and his
knowledge about Defendant’s associates. Detective Hinton recalled that Detective Cameron had
observed Defendant with Steele in an Instagram post and recalled Steele being present on the
restaurant patio where Defendant was arrested. Detective Hinton was unable to answer
Defendant’s counsel’s questions about Steele and Sellers because he was not the lead detective on
Defendant’s case. Detective Hinton recalled hearing from Detective Wallace that Sellers was the
driver of the Ford Explorer on May 8, 2023, when the vehicle was parked across the street from
the restaurant where Defendant was eventually arrested.
Defendant’s counsel presented Exhibit 12, which Detective Hinton identified as Detective
Cameron’s police report. Defendant’s counsel noted that the report approximated the time of
Defendant’s arrest as 3:52 p.m.
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Defendant’s counsel then inquired about the search of the Ford Explorer and the keys to
the vehicle. Detective Hinton did not remember which officer found the keys but did recall that
they were recovered from Sellers. Detective Hinton further testified that because he believed there
was probable cause to search the vehicle, officers would have broken the window to search the
Ford Explorer if they had not located the keys. Defendant’s counsel presented Exhibit 11, which
is Detective Wallace’s body-worn camera footage from the search of the Ford Explorer. From the
body-worn camera footage, Detective Hinton identified himself announcing that he saw the pills
to Detective Wallace and testified that he made this announcement at about the same time that
Detective Wallace opened the front door to the Ford Explorer. Detective Hinton further testified
that he may have made the announcement a few seconds after he actually saw the pills. The
parking lot was one hundred yards from the patio where Defendant was arrested, and Defendant
and Sellers were both under arrest and not near the vehicle at the time of the search.
The Defendant then presented the testimony of Detective J.D. Cameron. Detective
Cameron has worked as part of Operation SCARLET since April 2023. Detective Cameron
testified that during the course of his investigation into Defendant, he learned that Defendant
associated with Shaquille Steele and was arrested with Steele in February of 2023. On May 8,
2023, Defendant was present on the patio with Steele and Sellers to celebrate Steele’s birthday.
Detective Cameron also learned that day that Steele and Sellers had a romantic relationship with
each other. Defendant’s counsel then presented Exhibit 14, an Instagram post depicting two men
whom Detective Cameron identified as Defendant and Steele.
While attempting to locate Defendant, Detective Cameron took a screenshot of the
Instagram post and asked Sergeant Jaco Vargas, the supervisor for Operation SCARLET, to track
the location of Steele, whom Detective Cameron knew to be on electronic monitoring. While
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Sergeant Vargas was tracking the location of Steele, Detective Cameron went to the state
magistrate’s office around 3:00 p.m. to obtain a warrant for Defendant’s arrest for possession of a
stolen motor vehicle. Detective Cameron, who was in a marked police vehicle, waited on a side
street near the restaurant until the time of the arrest. While in his vehicle, he heard other officers
announcing that the occupants of the Ford Explorer were seen on the patio of the restaurant. Just
before the arrest, Detective Cameron drove to the patio of the restaurant and noted that the
occupants of the Ford Explorer all appeared calm on the patio, and no officers had seen any of the
people on the patio commit any crimes that day. Detective Cameron estimated that roughly twenty
minutes elapsed between the time Defendant was seen on the patio by other Detectives and the
time he was arrested.
When Detectives made the arrest of Defendant, Detective Cameron placed Sellers under
arrest because she had an order for arrest for a misdemeanor. Detectives identified Sellers when
Detective Wallace, while surveilling Defendant, relayed the license plate number of the Ford
Explorer through the radio, and Detectives discovered that the vehicle was registered to Sellers
and that she had an order for arrest. Detective Cameron did not recall, specifically, the basis for
Sellers’ order for arrest but did recall that it had nothing to do with the Ford Explorer. Upon
arresting Sellers, Detective Cameron testified that he performed a search incident to arrest and an
inventory search of her purse. During the search of the purse, Detective Cameron found the keys
to the Ford Explorer. Detective Cameron completed the search of Sellers’ purse, and took her keys
to his police vehicle, before eventually handing them off to another detective who used the keys
to search the Ford Explorer. Sellers did not consent to the search of her purse, did not consent to
Detective Cameron’s taking her keys, and did not consent to the search of the Ford Explorer.
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Detective Cameron estimated about twenty minutes elapsed between the time Defendant exited
the Ford Explorer and the arrests of Defendant and Sellers.
Defendant’s counsel then inquired about the identity of the fourth individual who had
arrived in the Ford Explorer, along with Defendant, Steele, and Sellers. Defendant’s counsel
presented Exhibit 11, body-worn camera footage from Detective Wallace, and from that footage,
Detective Cameron identified the fourth individual sitting on the patio during the arrest as the
fourth individual that Detective Wallace observed exiting the Ford Explorer. Detective Cameron
did not speak to or obtain any information from this fourth individual, explaining that, at that point,
officers had no reason to detain him.
On cross-examination of Detective Cameron, the Government inquired about the search of
Sellers’ purse. Detective Cameron testified that the purse did not belong to Defendant, and nothing
found inside of the purse connected the purse to Defendant. Detective Cameron further testified
that he has never seen Defendant in the Ford Explorer.
Defendant next presented the testimony of Detective William Wallace, a Detective with
CMPD assigned to Operation SCARLET. Detective Wallace has been employed by CMPD since
August 2018. Defendant’s counsel inquired about how Detective Wallace initially located
Defendant. Detective Wallace testified that on the afternoon of May 8, Sergeant Vargas advised
Detective Wallace that Steele’s electronic monitoring device was reporting Steele’s location as
1713 Scott Avenue, in a parking lot. Detective Wallace traveled to the parking lot where Steele’s
location was reported, and observed a silver SUV, with its doors open and four individuals
beginning to exit the vehicle; Detective Wallace observed that a woman exited the driver’s seat
of the vehicle, Steele was seated in the front passenger’s seat of the vehicle, and the fourth
individual exited the back seat of the vehicle on the driver’s side. Detective Wallace noted that
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two of the men exiting the vehicle appeared to be Defendant and Steele, based on the Instagram
photo Detective Wallace had seen. Detective Wallace then parked his vehicle in the lot, positioned
to observe the four occupants exit the vehicle. From his new vantage point, Detective Wallace
saw all four individuals walk away from the Ford Explorer, across Scott Avenue, and towards the
restaurant. Detective Wallace did not observe any suspicious behavior from the four individuals
as they exited the Ford Explorer and walked towards the restaurant, where Detective Wallace lost
sight of them. Detective Wallace remained in his vehicle until other officers radioed that they
were prepared to apprehend Defendant, and Detective Wallace walked across the street to the patio
of the restaurant.
As Detective Wallace approached the patio, Defendant ran into him. Defendant’s counsel
presented Exhibit 11, Detective Wallace’s body-worn camera footage, and from that footage
Detective Wallace identified 3:53 p.m. as the time stamp at the time Defendant ran into Detective
Wallace, during the arrest. As Detective Hinton was placing Defendant under arrest, Detective
Hinton asked Detective Wallace to assist. Detective Wallace then removed a concealed firearm
from Defendant’s underwear. Detective Wallace testified that, based on his training and
experience, individuals who illegally possess firearms often have additional contraband concealed
elsewhere. Detective Wallace further noted that Defendant’s felon status might incentivize him to
store any contraband he may possess in a location not on his person. Based on the firearm
recovered from Defendant, Detective Wallace’s training and experience, and the totality of the
circumstances, Detective Wallace believed there was probable cause to search the Ford Explorer.
Detective Wallace estimated fifteen to twenty minutes elapsed between the time he observed
Defendant exit the Ford Explorer and the time Defendant was arrested.
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On cross-examination, the Government inquired about Defendant’s connection to the Ford
Explorer. Detective Wallace testified that Defendant was not driving the Ford Explorer, that
Defendant was not the registered owner of the Ford Explorer, that prior to seeing Defendant exit
the Ford Explorer on May 8, Detective Wallace had never seen Defendant in the Ford Explorer
before, and that during the search of the vehicle, Detective Wallace did not find any documentation
connecting Defendant to the vehicle. Detective Wallace further testified that the vehicle was not
stopped by police, but had been parked and voluntarily left in a public parking lot, during the
daytime, with pedestrian traffic in the area, before the occupants walked to the restaurant.
Defendant was not inside the Ford Explorer when it was searched.
The Government then inquired about the search of the Ford Explorer. Detective Wallace
testified that when Detective Hinton announced that he saw the pills in the backseat, Detective
Wallace had not yet moved into the backseat area of the vehicle.
Defendant next presented the testimony of Shaquille Steele.1 Defendant’s counsel inquired
about Steele’s relationship to Sellers. Steele testified that prior to his incarceration, he lived with
Sellers for several years, and she is the mother of his four children. Steele further testified that
Sellers drives a silver Ford Explorer, but that she only infrequently drives Steele in that vehicle,
and she rarely, if ever, drives Steele to meet with friends in that vehicle.
Defendant’s counsel then inquired about the events of May 8, 2023. Steele testified that
on that day, he invited Defendant to celebrate Steele’s birthday with Steele, Sellers and a fourth
individual. Steele testified that he, Defendant, Sellers, and the fourth individual went inside the
restaurant to order drinks and food before moving to the patio. During the arrest that occurred on
the patio, Sellers was also arrested. Steele testified that Sellers was arrested for a failure to appear,
1 Steele was in custody and was accompanied by his appointed lawyer from a recent state criminal case. Steele
asserted his Fifth Amendment Rights as to some questions on direct examination, but not others.
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which was unrelated to the Ford Explorer. After answering some questions by Defendant’s
counsel, Steele asserted his Fifth Amendment rights and declined to answer further questions.
Steele was not cross-examined by the Government.2
III. STANDARDS OF REVIEW
The Constitution’s Fourth Amendment protects individuals from unreasonable searches
and seizures. The text of the Fourth Amendment “signals that . . . it confers ‘a personal right that
must be invoked by an individual.’” United States v. Smith, 21 F.4th 122, 129 (4th Cir. 2021)
(quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)). In order to successfully challenge a search
allegedly violative of the Fourth Amendment, “a defendant must show both ‘that he personally has
an expectation of privacy in the place searched, and that his expectation is reasonable.’” Smith,
21 F.4th at 129 (quoting Carter, 525 U.S. at 88). “The defendant bears the burden of demonstrating
his legitimate expectation of privacy in the area searched.” Smith, 21 F.4th at 130 (citing Rawlings
v. Kentucky, 448 U.S. 98, 104 (1980)).
A legitimate expectation of privacy is not established solely through legitimate presence in
a particular place. Rakas v. Illinois, 439 U.S. 128, 148 (1978). Nor does ownership of the item
seized, by itself, confer a privacy interest in the area searched. United States v. Manbeck, 744
F.2d 360, 374 (4th Cir. 1984) (“The privacy interest that must be established to support standing
is an interest in the area searched, not an interest in the items found . . . [O]wnership of the item
seized is, by itself, insufficient to confer a privacy interest in the area searched”). Both legitimate
presence and ownership of the items found should be considered in analyzing a legitimate
expectation of privacy. See Rakas, 439 U.S. at 148; Manbeck, 744 F.2d at 374. But if a passenger
2 The Government did ask Steele several questions on cross-examination, which he answered. Based on Steele’s
earlier assertion of his Fifth Amendment rights, the Court sustained an objection by Defendant’s counsel and struck
Steele’s cross-examination answers.
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asserts neither a property nor a possessory interest in the car and simultaneously disavows any
interest in the seized objects, that passenger normally has no legitimate expectation of privacy.
United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992).
A mere passenger in a vehicle is entitled to a lesser expectation of privacy than an owner
or driver of the vehicle. See Smith, 21 F.4th at 130; Manbeck, 744 F.2d at 374-75 (“[Defendant]
could only show that he was a passenger in the van with the permission or acquiescence of [the
owner/driver of the van]. This showing alone is insufficient to vest Defendant with an expectation
of privacy in the van.”); Rakas, 439 U.S. at 148 (“here petitioners’ claim is one which would fail
even in an analogous situation in a dwelling place, since they made no showing that they had any
legitimate expectation of privacy in the glove compartment or area under the seat of the car in
which they were merely passengers.”). This interest is further diminished where the passenger
also disclaims any interest in the items seized. See Moreno-Azua v. United States, No. 3:11-CR-
386-FDW-DSC-1, 2016 SL 1563130 (W.D.N.C. Apr. 15, 2016) (citing United States v. Carter,
300 F.3d 415, 421 (4th Cir. 2002)) (“a car’s passenger ‘normally has no legitimate expectation of
privacy in an automobile in which he asserts neither a property interest nor a possessory interest
and where he disclaims any interest in the seized object.”).
Further, the Fourth Circuit has held that “both bystanders and recent passengers have lesser
privacy interests than passengers.” Smith, 21 F.4th at 131 (citing United States v. Rose, 3 F.4th
722, 730 (4th Cir. 2021)). A recent passenger’s “inten[tion] to return to the vehicle” at some later
time is “not sufficient to establish a legitimate expectation of privacy.” Smith, 21 F.4th at 131. In
Smith, the defendant rode as a passenger to a convenience store, where he exited the vehicle,
leaving his personal cellphone in the car, while he entered the store. Id. at 130. The Fourth Circuit
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held that the defendant did not have a “legitimate expectation of privacy in the vehicle.” Id. at
131. The Fourth Circuit reasoned that:
“[a]fter leaving the [vehicle], [Defendant] lost control over his
phone: others could move or look through what had been left behind.
When someone leaves personal belongings behind in another’s car,
he assumes the risk that the car’s owner will consent to a search of
the car or that the car’s contents will come into plain view of the
police.”
Id. at 130. The Fourth Circuit further explained that “[f]undamentally, a person who cannot assert
a legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private repository for
his personal effects.” Id. (citing United States v. Hargrove, 647 F.2d 411, 412 (4th Cir. 1981))
(internal quotation marks omitted).
IV. DISCUSSION
The central issues raised by Defendant’s “Motion To Suppress And Memorandum In
Support” (Document No. 25) are: does Defendant Dove have standing to move to suppress
evidence recovered from the search of the Ford Explorer; and if so, was there probable cause to
search the vehicle, and does the doctrine of inevitable discovery apply to the evidence recovered
from the vehicle? The undersigned finds that Defendant has failed to meet his burden of
establishing that he had a reasonable expectation of privacy in the Ford Explorer, and thus, he
lacks standing to move to suppress evidence recovered from that search.
1. Standing
Defendant asserted in his briefing and at the hearing that he had an objectively and
subjectively reasonable expectation of privacy in the Ford Explorer and thus has standing to
contest the legality of the search. See (Document No. 34, pp. 5-6). Defendant argues in his reply
brief that “[a]nyone who travels with friends in a car to an event location . . . is likely to return to
that vehicle after the event in order to get home,” and “[w]e have all been in this situation, and a
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reasonable passenger believes that he or she can leave personal items in the car without exposing
them to search by the police.” (Document No. 34, p. 6). Thus, Defendant contends, “Mr. Dove
therefore trusted that he could leave belongings in the car while they celebrated his friends’
birthday at the restaurant,” and “[i]n such circumstances, he had both a subjective and objective
expectation of privacy in the automobile that was searched.” Id. Defendant cites to no legal
authority in his standing argument briefing. (Document No. 34, pp. 5–6).
Essentially, Defendant argues his intention to return to personal items he left in the Ford
Explorer vests him with a privacy interest in that vehicle, absent the owner’s consent to a police
search. This argument has been squarely rejected by the Fourth Circuit. See Smith, 21 F.4th at
130–31. The defendant in Smith argued that “leaving his phone in the car demonstrates his
legitimate expectation of privacy.” Id. at 130. The Fourth Circuit held that the defendant’s leaving
personal possessions in the car was “one fact to be considered,” but “does not by itself grant
[Defendant] standing.” Id. The Fourth Circuit further emphasized that “this is especially so given
that Smith was no longer in the car when it was stopped.” Id.
Additionally, the defendant in Smith argued that his intention to return to the vehicle should
vest him with a privacy interest in the vehicle. The Fourth Circuit again disagreed, finding
“[T]his glosses over the key point: Smith left the [vehicle]. The
police did not stop the [vehicle] while Smith was in the car; nor was
he just getting out as the police arrived. Instead, Smith was in the
convenience store, well away from the [vehicle]. Though Smith
claims that when he left the [vehicle] he intended to return,
subjective intentions are not sufficient to establish a legitimate
expectation of privacy. Otherwise, defendants could create
impenetrable zones of privacy based solely on their say-so.”
Id. at 131 (emphasis added).
The facts in this case are closely analogous to the Smith case. Here, Defendant rode as a
passenger in the Ford Explorer, which he did not own. Defendant then voluntarily exited the
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parked vehicle and was arrested around twenty minutes later at a location across the street. The
police did not stop the vehicle, nor was Defendant just getting out as the police arrived. In fact,
the starkest contrast between the facts here and the facts in Smith is that in Smith, the vehicle was
still running, and the defendant had exited only to briefly run into a convenience store. Id. Here,
by contrast, Defendant had walked across the street to a restaurant, ordered food and drinks, and
was sitting on the patio before being arrested. No evidence suggests Defendant returned to the
Ford Explorer after he initially exited the vehicle in the parking lot. Defendant was further from
the Ford Explorer both spatially and temporally than Smith was from the vehicle in his case.
At the hearing, Defendant presented an Instagram post depicting Defendant with Shaquille
Steele on Steele’s birthday. According to Steele’s testimony, he had a romantic relationship and
multiple children with Shi’dae Sellers, who was the registered owner and the driver of the Ford
Explorer.
Defendant contended at the hearing that his relationship to Steele strengthens his own
privacy interest in the Ford Explorer. Defendant argues that because Steele posted a picture of
himself with Defendant on Steele’s birthday, they must be close friends. Because Defendant may
be close friends with the partner of the owner and driver of the vehicle, Defendant asserts that
Defendant’s privacy interest in the vehicle is strengthened. The undersigned notes, however, that
Steele testified at the hearing that he infrequently rode in the Ford Explorer. The undersigned does
not find that Defendant’s potential relationship to someone who is the romantic partner of the
vehicle’s owner vests Defendant with a privacy interest in that vehicle, especially in light of
Steele’s testimony that he, himself, infrequently rides in the Ford Explorer.
Defendant’s counsel also noted that police did not receive consent to search the Ford
Explorer. The undersigned finds that the vehicle owner’s lack of consent to the police’s search of
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the Ford Explorer does not somehow vest Defendant with a personal privacy interest in that
vehicle.
In closing argument, Defendant’s counsel cited to two cases to support the argument that
Defendant had a reasonable expectation of privacy in the vehicle. Defendant’s counsel cited to
Byrd v. United States, pointing to the Supreme Court’s language that the court in Rakas v. Illinois
“did not hold that passengers cannot have an expectation of privacy in automobiles,” and further,
“the Court disclaimed any intent to hold that a passenger lawfully in an automobile may not invoke
the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a
possessory interest in it.” Byrd v. United States, 584 U.S. 395, 406 (2018).
The undersigned agrees with Defendant that there is no automatic rule barring standing for
a passenger of a vehicle to challenge a search of that vehicle. However, in this case, Defendant
was not a passenger because he was not “in [the] automobile” when it was searched by police. Id.
(emphasis added). At most, Defendant was a recent passenger because he had voluntarily exited
the vehicle over twenty minutes prior to the search. The Fourth Circuit has “recognized that both
bystanders and recent passengers have lesser privacy interests than passengers.” Smith, 21 F.4th
at 131. Thus, Dove’s position is highly dissimilar to the Defendant in Byrd, who was driving the
vehicle at the time it was pulled over and searched by State Troopers. Id.
Defendant also cited to Katz v. United States, pointing to the Supreme Court’s language
that “[n]o less than an individual in a business office, in a friend’s apartment, or in a taxicab, a
person in a telephone booth may rely on the protection of the Fourth Amendment. Katz v. United
States, 389 U.S. 347–52 (1967) (emphasis added). Defendant’s counsel contended that the
“taxicab” language suggests that a privacy interest can be recognized for passengers with little
connection to the vehicle itself. This argument, however, misses a key point: a taxicab passenger
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would be in the vehicle. Here, Defendant was no longer a passenger: he had voluntarily exited
the Ford Explorer over twenty minutes prior to the search. Thus, whatever privacy interest a
passenger may or may not have in the Ford Explorer is not relevant to Dove’s privacy interest.
Here, the undersigned finds that Defendant has not met his burden of demonstrating a
reasonable expectation of privacy in the Ford Explorer, and thus, Defendant does not have standing
to argue that the search violated his Constitutional rights.
2. Probable Cause and Inevitable Discovery
Because the undersigned finds that Defendant has failed to meet his burden of
demonstrating a reasonable expectation of privacy in the Ford Explorer, and thus lacks standing,
the undersigned will respectfully decline to reach the questions of probable cause and inevitable
discovery.
V. CONCLUSION
Defendant has no standing to allege a violation of his own Fourth Amendment rights based
on officers’ search of the Ford Explorer. Defendant was not the owner of the Ford Explorer, he
was not the driver, and he was not in the vehicle at the time of the search. As a mere recent
passenger, Defendant has not met his burden of establishing a reasonable expectation of privacy
in the vehicle, which is necessary for Defendant to assert the search was violative of his own Fourth
Amendment rights.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendant’s “Motion To Suppress And Memorandum In Support” (Document No. 25) be
DENIED.
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V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED.
Signed: July 12, 2024
Case 3:23-cr-00151-JAG-DCK Document 40 Filed 07/15/24 Page 18 of 18