USA v. Dove

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:23-CR-00151-FDW-DCK
THIS MATTER is before the Court on Defendant’s Objection to the Magistrate Judge’s
Memorandum and Recommendation (“M&R”). (Doc. No. 42.) Defendant seeks review of the
Magistrate Judge’s M&R regarding Defendant’s Motion to Suppress Evidence. (Doc. No. 25). The
Court reviewed the docket, both parties’ filings, and the transcript of the hearing, which includes
both parties’ evidence and arguments. For the reasons set forth below, the M&R is AFFIRMED
and ADOPTED, Defendant’s Objection is OVERRULED, and Defendant’s Motion to Suppress
is DENIED.
I. BACKGROUND
On June 21, 2023, Defendant was indicted on three charges: possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1); possession with intent to distribute fentanyl,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and possession of a firearm in furtherance
of drug trafficking, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A)(i). (Doc.
No. 1.) On May 21, 2024, Defendant filed his Motion to Suppress and memorandum in support.
(Doc. No. 25.) Defendant seeks to suppress evidence found during a May 8, 2023, motor vehicle
search (“the search”). (Id., p. 1.) Defendant claims: 1) he “had a privacy interest” in his belongings;
2) because he “was arrested and secured far away from the location of the vehicle when the search
UNITED STATES OF AMERICA )
)
v. )
) ORDER
SHAMEL MALIK DOVE, )
)
)
Defendant. )
)
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was conducted, the search of the vehicle was not a valid search incident to arrest[;]” and 3) “[t]he
search of the vehicle does not satisfy the automobile exception to the requirement of a search
warrant because police did not have probable cause to believe that the vehicle contained
contraband or evidence of the crime for which [Defendant] was arrested – possession of a firearm
by a felon.” (Id., pp. 8–9.) Defendant argues “the criminal activity being investigated . . . was the
firearm found on [Defendant’s] person. There are no facts that establish a nexus between that
activity and the vehicle parked far away from [Defendant] to merit a search of that vehicle.” (Id.,
p. 10.)
On May 28, 2024, the Government filed its response. (Doc. No. 29.) The Government
argues Defendant “lacks standing to challenge any search of the vehicle [because he] had no
reasonable expectation of privacy in the [vehicle] or its contents as he was no more than one of the
[motor vehicle’s] recent passengers.” (Id., p. 1.) The Government argues the facts here are “directly
analogous” to United States v. Smith, 21 F.4th 122 (4th Cir. 2021), and the Fourth Circuit’s
explanation that “a one-time passenger who has left a vehicle has a lesser privacy interest than
even a passenger” applies here. (Id., pp. 3–4.) The Government claims since Defendant “makes no
showing that he had a reasonable expectation of privacy in the vehicle or its contents” his “rights
under the Fourth Amendment are not implicated by any search of the vehicle.” (Id., p. 4.) The
Government also argues the police would have discovered the items found in the search. (Id., pp.
4–5.)
On June 27, 2024, the Magistrate Judge held an evidentiary hearing, and on July 12, 2024,
the Magistrate Judge issued the M&R denying Defendant’s Motion. (Doc. No. 40.) The Magistrate
Judge concluded Defendant has no standing to challenge the search. (Id., p. 17.) The Magistrate
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Judge also “decline[d] to reach the questions of probable cause and inevitable discovery” because
Defendant did not show he had a reasonable expectation of privacy in the vehicle. (Id.)
Defendant timely filed his Objection to the M&R. (Doc. No. 42.) The Government did not
file a response.
II. STANDARD OF REVIEW
A district court may refer a motion to suppress to a magistrate judge for a recommendation
pursuant to Federal Rule of Criminal Procedure 59(b)(1). A party may file written objections to a
magistrate judge’s memorandum and recommendation within fourteen days of being served with
a copy. 28 U.S.C. § 636(b)(1)(C). “‘Any written objections must specifically identify the portions
of the Report and Recommendation to which objections are made and the basis for such
objections.’” Morgan v. N.C. Dep’t of Health and Human Servs., 421 F. Supp. 2d 890, 893
(W.D.N.C. 2006) (emphasis in original) (quoting Thomas v. Westinghouse Savannah River Co.,
21 F. Supp. 2d 551, 560 (D.S.C. 1997)). Parties “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.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert. denied, 551
U.S. 1157 (2007). Objections which “merely express disagreement with the magistrate’s Report
and Recommendation . . . in lieu of any actual argument or specific assertion of error” do not
sufficiently direct a court to a specific error. Lowdermilk v. LaManna, No. 8:07-2944-GRA, 2009
WL 2601470, at *2 (D.S.C. Aug. 21, 2009). “Frivolous, conclusive or general objections need not
be considered by the district court.” Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir.
1987). “A general objection, or one that merely restates the argument previously presented is not
sufficient to alert the court to alleged errors on the part of the magistrate judge.” Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004).
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A reviewing court must take a deferential standard regarding the credibility of witnesses
where the magistrate judge sits as a trier of fact. See McNairn v. Sullivan, 929 F.2d 974, 977 n.3
(4th Cir. 1991); United States v. MacConnell, No. 3:10-CR-9-FDW-DCK, 2010 WL 3399166, at
*2 (W.D.N.C. 2010). Some courts have explicitly adopted a deferential standard of review for
credibility determinations when the magistrate judge heard the live testimony and observed the
demeanor of the witnesses. See, e.g., United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005)
(“In [making a de novo determination], the district court need not re-hear testimony from the
suppression hearing; its deference to the magistrate’s credibility determinations is appropriate
when they are supported by the record.”).
“Absent a specific, proper, and timely filed objection, the Court reviews only for ‘clear
error,’ and need not give any explanation for adopting the M&R.” United States v. Brooks, 599 F.
Supp. 3d 337, 340 (W.D.N.C. 2022); see also Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005). If proper objections are made, a district court will review the
objections under a de novo standard. 28 U.S.C. § 636(b)(1)(C). 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. § 636(b)(1)(C).
III. ANALYSIS
A. Findings of Fact
At the outset, the Court notes Defendant’s objection to the Magistrate Judge’s factual
summary appears to largely be copied and pasted from his initial Motion to Suppress. Compare
(Doc. No. 25) with (Doc. No. 42). As such, it is difficult for this Court to glean the specific factual
findings of the M&R Defendant objects to. Additionally, the Court notes Defendant lists facts he
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wants included in the factual summary, but he does not provide a specific basis or explanation for
doing so.
The Magistrate Judge entered a proposed factual summary. (Doc. No. 40, pp. 2–11.)
Defendant disputes the Magistrate Judge’s “failure to find” certain facts. (Doc. No. 42, p. 2.)
Defendant claims “[i]t is not clear to the defense whether the [M&R] made findings of fact or
simply recounted what witnesses said at the hearing.” (Id.) Defendant then lists 63 facts he alleges
the Magistrate Judge should have included in the factual summary. (Id., pp. 2–9.) However,
Defendant provides no further explanation or argument. Further, upon review, several of the facts
Defendant claims are missing from the M&R are included in it. Specifically, facts (1), (3), (6),
(14)–(15), (20), (22)–(23), (26), (28)–(30), (32), (39), (41)–(43), (45), and (47)–(48) are all in the
M&R. While Defendant may disagree with the Magistrate Judge’s organization and recitation of
the facts, Defendant does not specifically identify which aspects of the Magistrate Judge’s factual
summary are erroneous and he provides no basis for this objection. Therefore, Defendant’s
objection to the factual summary are not objections as defined in this context, and clear error is the
appropriate standard for review. The Court finds no clear error in the Magistrate Judge’s “Factual
Background” section. Accordingly, Defendant’s objection to the M&R on these points are
OVERRULED and the Court adopts and incorporates by reference the M&R’s “Factual
Summary” section. (Doc. No. 40, pp. 2–11.)
Defendant also objects to two “findings of fact in the Discussion section of the [M&R].”
(Doc. No. 42, p. 9–10.) While Defendant provides more context and argument here, his objection
appears to once again simply be with how the Magistrate Judge phrased the M&R. (Id.)
Nevertheless, the Court reviews this de novo.
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The Court begins with (64): Defendant “had walked across the street to a restaurant[.]”
(Doc. No. 40, p. 15; Doc. No. 42, p. 9.) Defendant argues the “detectives who testified at the
hearing all testified that the arrest occurred around 100 yards away from the vehicle. The body-
worn camera footage showed that to reach the patio of the restaurant from the parking lot where
the vehicle was parked, one would have to cross a busy street and then walk around the corner to
a separate street.” (Doc. No. 42, p. 9.) Defendant provides no further explanation for this objection.
In reviewing Defendant’s Motion, Defendant writes “Ms. Sellers parked in the lot behind
the Starbucks . . . .” (Doc. No. 25, p. 3.) Defendant continues, explaining “Ms. Sellers, Mr. Steele,
[Defendant] and the Fourth Man then walked approximately 70 yards from the parking lot to the
entrance of Red @ 28th . . . .” (Id., p. 4.) Defendant also includes a screenshot of a map, which
shows the Starbucks parking lot on the right side of Scott Avenue and the restaurant on the left
side of Scott Avenue. (Id., p. 3.) At the hearing, Detective Hinton guessed the vehicle was parked
about 100 yards from the restaurant and Detective Cameron testified there are multiple ways to
reach the restaurant from the parking lot, including by crossing Scott Avenue.
Upon de novo review, this Court finds Defendant exited the parked vehicle in the Starbucks
parking lot, crossed Scott Avenue, and entered the restaurant. Accordingly, Defendant’s objection
to the M&R on this point is OVERRULED.
The Court next considers (65): Defendant “had voluntarily exited the [vehicle] over twenty
minutes prior to the search.” (Doc. No. 40, pp. 16–17; Doc. No. 42, p. 9.) Defendant argues “[t]he
evidence demonstrates that approximately 53 minutes – not twenty minutes – passed from when
[Defendant] exited the [vehicle] to when he was arrested.” (Doc. No. 42, p. 9.) Defendant claims
“[i]t is reasonably inferred that Det. Cameron would not have gone to get an arrest warrant for
[Defendant] until officers had confirmed his location in the parking lot . . . [t]hus, approximately
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53 minutes passed between when [Defendant] was located by officers in the parking lot . . . .” (Id.)
Defendant writes “[t]his twenty-minute estimate would not include the time it took for [Defendant]
to exit the vehicle, walk to the restaurant, spend time inside the restaurant during which officers
lost sight of him, and then come onto the patio where he was ultimately arrested.” (Doc. No. 42,
p. 10.)
To start, the Court highlights that the Magistrate Judge wrote “over twenty minutes[,]”
(Doc. No. 40, pp. 16–17), not twenty minutes as Defendant seems to argue, (Doc. No. 42, pp. 9–
10). Also, in reviewing the hearing transcript, the Court notes witnesses could not remember the
exact timing of when Defendant exited the vehicle, arrived at the restaurant, and was arrested. For
example, Detective Cameron estimated around 20 minutes passed from when Defendant exited the
vehicle and was arrested, while Detective Wallace estimated 15 to 20 minutes elapsed between
when he saw Defendant leave the vehicle and the arrest. Additionally, Detective Hinton testified
he did not know exactly when Defendant was arrested, and further explained the specific time
written in the arrest report might not be accurate depending on how the arrest went. Upon de novo
review, this Court finds Defendant exited the parked vehicle over twenty minutes prior to the
search. Therefore, Defendant’s objection to the M&R on this point is OVERRULED.
B. Conclusions of Law
Turning to Defendant’s objection to the conclusions of law, Defendant objects to the
M&R’s determination that Defendant lacks standing. (Doc. No. 42, pp. 10–12.) Defendant also
objects to the Magistrate Judge declining to consider the questions of probable cause and inevitable
discovery, based on the finding Defendant failed to meet his burden of demonstrating a reasonable
expectation of privacy in the vehicle. (Id., pp. 12–15.)
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“The concept of standing in Fourth Amendment cases can be a useful shorthand for
capturing the idea that a person must have a cognizable Fourth Amendment interest in the place
searched before seeking relief for an unconstitutional search . . . .” Byrd v. United States, 584 U.S.
395, 410 (2018). “[T]he threshold question in every suppression case is ‘the existence of a
reasonable expectation of privacy in the area searched.’” United States v. Bellina, 665 F.2d 1335,
1339 (4th Cir. 1981) (citing United States v. Ramapuram, 632 F.2d 1149, 1154 (4th Cir. 1980)).
“‘Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.’” Rakas
v. Illinois, 439 U.S. 128, 133–34 (1978) (citing Alderman v. United States, 394 U.S. 165, 174
(1969)). “[I]f the individual seeking to challenge a search does not have a legitimate expectation
of privacy in the property or place being searched, the individual lacks ‘standing’ and the inquiry
ends without consideration of the merits of the search claim.” United States v. Ferebee, 957 F.3d
406, 412 (4th Cir. 2020). “In order to demonstrate a legitimate expectation of privacy, [a
defendant] ‘must have a subjective expectation of privacy, and . . . that subjective expectation must
be reasonable.’” United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (citing United States
v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997)).
In Smith, the Fourt Circuit held a defendant, who was a recent passenger in a car, lacked
standing and his motion to suppress was properly denied on that basis. Smith, 21 F.4th at 133.
Police found two handguns and a bag of heroin in a motor vehicle, and the defendant filed a motion
to suppress the evidence, arguing in part that the search violated his reasonable expectation of
privacy. Id. at 128–29. The district court denied the motion, finding the defendant “lacked standing
to raise a Fourth Amendment challenge.” Id. at 129. On appeal, the defendant raised several
arguments, including that “he can challenge the search because he had a legitimate expectation of
privacy in the [car] . . . .” Id.
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The Fourth Circuit described the defendant in Smith as “merely an invited guest,” and
explained “[m]erely being in a car with the permission of its owner does not confer a legitimate
expectation of privacy.” Id. at 130. The Fourth Circuit “has recognized that both bystanders and
recent passengers have lesser privacy interests than passengers.” Id. at 131. Courts can consider
certain factors when deciding whether a defendant has an expectation of privacy in a vehicle, such
as whether the defendant left personal belongings, like a cellphone, behind, whether a defendant
previously used the vehicle, whether the defendant had a key, and whether the defendant regularly
stored items in the vehicle. Id. at 129, 131. Importantly though, “[w]hen 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 consent to a search of the car or that the car’s contents will
come into plain view of the police.” Id. at 130.
In Smith, the Fourth Circuit concluded that although the defendant argued he intended to
return to the car, “subjective intentions are not sufficient to establish a legitimate expectation of
privacy . . . [o]therwise, defendants could create impenetrable zones of privacy based solely on
their say-so.” Id. The Fourth Circuit also held because the defendant “lacks standing” it did not
“need to pass on the merits of his Fourth Amendment claim.” Id. at 129.
Upon de novo review, the Court finds Defendant did not have a reasonable expectation of
privacy in the vehicle and lacks standing. To start, Defendant was only an invited guest and a
recent passenger in the vehicle, and therefore has a lesser privacy interest. Also, in considering the
factors laid out in Smith, Defendant does not have a reasonable expectation of privacy sufficient
for standing. Defendant did not have the keys to the vehicle, (Doc. No. 25, p. 6), and there is no
evidence that Defendant regularly stored his personal belongings in the vehicle.
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Notably, Defendant seeks to add one new fact through his objection. Defendant argues he
“agreed to join the [birthday] celebration, and Mr. Steele told [Defendant] that they would give
him a ride to and from the celebration.” (Doc. No. 42, p. 2) (emphasis added). Defendant argues
“[i]t was [Defendant’s] intention to return to the vehicle, along with the totality of the
circumstances of Mr. Steele inviting him to celebrate his birthday with him and offering him a ride
to and from the restaurant, that establishes [Defendant] had a reasonable expectation of privacy in
the vehicle searched and standing to challenge the search.” (Id., p. 12.) However, the Court cannot
find evidence of Defendant’s intent to return to the vehicle in Defendant’s Motion to Suppress or
in his brief in support. (Doc. No. 25.) The Court also cannot find evidence of Defendant’s intent
to return to the vehicle in the evidentiary hearing transcript. Defendant’s counsel seemingly
attempted to elicit this fact at the hearing through Mr. Steele’s testimony, but Mr. Steele declined
to answer and invoked his Fifth Amendment privileges. Defendant’s counsel’s arguments are
generally not considered evidence. See Bowman v. Johnson, No. 3:08cv449, 2011 WL 1167320,
at *8 (E.D. Va. Mar. 24, 2011) (“Of course, the unsworn statements in . . . [a party’s] brief generally
do not constitute admissible evidence.”). As such, Defendant’s argument that he had standing,
(Doc. No. 42, pp. 11–12), is unpersuasive.
For these reasons, upon de novo review, the Court finds Defendant lacks standing to
challenge the search of the vehicle. Since Defendant lacks standing, this Court does not need to
decide the merits of his Fourth Amendment claim. Therefore, Defendant’s objection to the M&R
on this point is OVERRULED.
To the extent Defendant attempts to also assert a Motion to Suppress and/or a Motion in
Limine to exclude evidence seized through the state court warrants, (Doc. No. 42, pp. 7–8), the
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Court denies those without prejudice to reassert such argument in a separate motion prior to or at
trial.
IV. CONCLUSION
IT IS THEREFORE ORDERED that for the foregoing reasons, the Magistrate Judge’s
M&R, (Doc. No. 40), is AFFIRMED and ADOPTED, Defendant’s Objection to the M&R, (Doc.
No. 42), is OVERRULED, and Defendant’s Motion to Suppress, (Doc. No. 25), is DENIED.
IT IS SO ORDERED.
Signed: October 17, 2024
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