United States District Court, E.D. Kentucky, Southern Division, London
Gregory F. Van Tatenhove, United States District Judge
matter is before the Court on the Report and Recommendation
[R. 107] filed by United States Magistrate Judge Hanly A.
Ingram, addressing the Motion to Suppress filed by Defendant
Bobby Green. [R. 74.] On February 20, 2017, Detective
Benjamin Graves of the Kentucky State Police observed a
vehicle traveling at high speed, crossing the center line of
a two-lane highway. [R. 107 at 2.] Detective Graves attempted
an unsuccessful traffic stop of the vehicle before pursuing
the vehicle at a speed between eighty-five and ninety miles
per hour through several Kentucky counties. Id.
After more than twenty miles of this chase, a fellow officer
deployed a spike strip, which disabled the vehicle.
Id. The vehicle slowed to a speed below fifteen
miles per hour, at which time Detective Graves observed the
driver exit the car, jump over an embankment, and flee.
Id. Because of prior encounters, Detective Graves
recognized this driver as Defendant Bobby Green. Id.
Graves attempted, unsuccessfully, to find the driver before
returning to the abandoned car. Id. Inside the car,
he located a cell phone, a rifle, a blue plastic container
with an assortment of pills, and a black pouch containing
digital scales, plastic baggies, and three empty syringes.
Id. He opened the phone to review the text messages,
directory, and list of contacts, where he discovered text
messages referring to the owner of the phone as
“Bobby” and “Green.” Id. at
2-3. Another text message asked the owner to return home to
care for children, and Detective Graves noted the phone
number that sent this message. Id. at 3. Later, he
called the number and learned it belonged to Mr. Green's
wife, Kim Green. Id. Detective Graves did not review
the phone for any additional evidence. Id.
25, 2017, a federal grand jury returned an indictment
charging Mr. Green with three counts of possession with
intent to distribute methamphetamine and two counts related
to his possession of a firearm. [R. 1.] On September 28,
2017, a superseding indictment was returned, adding
additional defendants. [R. 20.] Mr. Green was arraigned on
the superseding indictment on October 4, 2017, at which time
he pleaded not guilty. [R. 34.] Trial for Mr. Green is
currently scheduled for May 29, 2018. [R. 110.]
Green filed a Motion to Suppress on January 19, 2018,
claiming Detective Graves violated his Fourth Amendment
rights by examining the contents of his cell phone without
obtaining a search warrant. [R. 74.] On January 22, 2018,
Magistrate Judge Ingram directed the Government to file a
response. [R. 75.] The Government argued that the cell phone
had been abandoned, and therefore, Mr. Green had no right to
privacy in its contents. [R. 80.] On February 16, 2018, Judge
Ingram held an evidentiary hearing on the matter. [R. 89.]
Subsequent to the hearing, on February 27, 2018, Mr. Green
filed an additional memorandum in support of his Motion to
Suppress. [R. 97.]
March 27, 2018, Judge Ingram filed his Recommended
Disposition. [R. 107.] He determined, “[T]he seizure
and subsequent search of a cell phone left in an abandoned
vehicle after the defendant fled from police did not violate
the Fourth Amendment.” Id. at 6 (citing
United States v. Foster, 65 Fed.Appx. 41, 46 (6th
Cir. 2003). According to Judge Ingram, Mr. Green clearly
abandoned the vehicle and his actions “very clearly
disclaimed any ownership in the property.” [R. 107 at
7.] Mr. Green did not display any reasonable expectation of
privacy in either the vehicle or its contents. Id.;
Foster, 65 Fed.Appx. at 46; United States v.
Oswald, 783 F.2d 663, 663-67 (6th Cir. 1986).
Accordingly, Judge Ingram recommended this Court deny Mr.
Green's Motion to Suppress.
Ingram then notified parties of their appeal rights pursuant
to 28 U.S.C. § 636(b)(1) and Fed. R. Crim. Pro. 59(b),
directing parties to file any objections within fourteen (14)
days of service of the Recommendation. [R. 107 at 8.] As of
this date, neither party has filed objections nor sought an
extension of time to do so.
this Court must make a de novo determination of
those portions of the Report and Recommendation to which
objections are made. 28 U.S.C. § 636(b)(1)(c). When no
objections are made, this Court is not required to
“review . . . a magistrate's factual or legal
conclusions, under a de novo or any other standard. . .
.” See Thomas v. Arn, 474 U.S. 140, 151
(1985). Parties who fail to object to a magistrate's
report and recommendation are also barred from appealing a
district court's order adopting that report and
recommendation. United States v. Walters, 638 F.2d
947 (6th Cir. 1981). Nevertheless, this Court has examined
the record, and agrees with the Magistrate Judge's Report
the Court having considered the record and being otherwise
sufficiently advised, it is hereby ORDERED
Recommended Disposition [R. 107] as to
Defendant Bobby Green is ADOPTED as and ...