United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge.
matter is before the Court upon Defendant Donald R.
Conway's Motion to Suppress (Doc. # 25), and Magistrate
Judge Candace J. Smith's Report and Recommendation
(“R&R”), wherein she recommends that
Defendant's Motion to Suppress be denied. (Doc. # 35).
The Defendant having filed Objections to the R&R (Docs. #
37 and 40),  and the Government having responded to the
Defendant's Objections (Doc. # 38), the Motion to
Suppress is ripe for the Court's review. For the reasons
that follow, the Defendant's Objections are overruled,
the R&R is adopted, and Defendant's Motion to
Suppress (Doc. # 25) is denied.
FACTUAL AND PROCEDURAL BACKGROUND
December 28, 2016, Covington Police Officer Kyle Shepard
stopped Defendant Donald R. Conway for a traffic violation in
Covington, Kentucky. (Doc. # 25 at 4). Officer Shepard
approached Conway and informed him that he was stopped
because his front windshield was unlawfully tinted in
violation of Ky. Rev. Stat. Ann. § 189.100. Id.
Conway complied with Officer Shepard's request and
provided his identification. (Doc. # 35 at 3).
Officer Shepard approached Conway's vehicle, he detected
the odor of what he believed to be marijuana emanating from
the vehicle. Id. At the time of the stop, Conway was
smoking a Black & Mild cigar, but Officer Shepard
testified that the cigar did not smell like it contained any
marijuana. Id. Officer Shepard did not see
any drugs or other contraband in the car in plain view.
Id. Officer Shepard asked Conway whether he had any
drugs or weapons inside of the vehicle or whether anyone had
smoked marijuana in the car recently. Id. Conway
denied having drugs or weapons in the vehicle and denied that
anyone had smoked marijuana recently. Id.
Shepard returned to his patrol vehicle to check Conway's
information. Id. at 4. Shortly thereafter, Officer
Galvin Adkisson arrived at the scene and briefly conferred
with Officer Shepard. Id. Officer Adkisson then
approached Conway's vehicle on the passenger side.
Id. Officer Adkisson testified that he smelled what
he recognized as marijuana coming from the vehicle.
checking Conway's information, Officer Shepard returned
to the vehicle and asked Conway to exit the vehicle.
Id. After Conway complied, Officer Shepard asked
Conway to put his hands on top of the vehicle. Id.
at 5. Officer Shepard then performed a pat-down of
Conway's person. Id. At the evidentiary hearing
on the Motion to Suppress, Officer Shepard testified that he
performs a pat-down every time he gets someone out of a
vehicle if he knows that he is going to be searching the
vehicle because he does not want anyone with weapons to be
sitting behind him while he performs the search. Id.
Shepard patted down Conway's pocket area approximately
ten times over the course of a few seconds. Id.
Officer Shepard felt something that he believed to be
narcotics, which led him to withdraw the item from
Conway's pocket. Id. The item was a bag of white
powder, which Officer Shepard believed to be either cocaine
or fentanyl. Id. Upon finding the white powder,
Officer Shepard placed Conway under arrest and searched the
rest of his person. Id. Officer Shepard completed
his search of Conway's person and placed Conway in the
back of the patrol cruiser. Id.
the officers secured Conway in the patrol cruiser, Officer
Shepard and Officer Adkisson searched Conway's vehicle.
Id. at 6. During the search of the vehicle, the
officers found multiple bags of suspected narcotics, as well
as a bag of ammunition. Id. at 7. After further
searching, the officers also located marijuana in
Conway's vehicle. Id. Approximately one gram of
marijuana was found inside of a leather jacket pocket,
wrapped up in paper, and stuffed down into a Black & Mild
cigar box. Id. Officer Shepard testified that the
marijuana that was found was very pungent-stronger than what
he typically encounters. Id. Officer Adkisson also
testified that the seized marijuana had a strong smell.
sister, Tiffany Estes, was present at the scene while
Conway's vehicle was searched. Id. at 9. Estes
testified that she stood “about three to five feet,
three to five inches, somewhere in there” from
Conway's vehicle and did not smell any marijuana
emanating from the car. Id. On cross-examination,
Estes testified that she was standing a few feet away from
Conway's vehicle and never actually leaned inside.
the officers located the marijuana, Officer Shepard returned
to the police cruiser and informed Conway of his Miranda
rights. Id. at 7. He further informed Conway that
once he arrived at the jail, he would be charged with an
additional felony if any other contraband was located during
the initial screening and search. Id. During the
drive to the jail, Conway informed Officer Shepard that he
had some contraband hidden in his underwear. Id.
Officer Shepard pulled over into a parking lot and conducted
an additional search of Conway's person, which revealed
another bag of narcotics. Id.
Shepard testified that he had a conversation with Conway
regarding the source of the narcotics and the possibility of
cooperating with law-enforcement officers. Id. at 8.
Based upon that conversation, Officer Shepard called
Detective Anthony Jansen, who later interviewed Conway at the
Covington Police Department headquarters garage. Id.
Detective Jansen also read Conway his Miranda warnings before
he began interviewing Conway. Id. Following
Detective Jansen's interview, Officer Shepard transported
Conway to jail. Id. Officer Shepard then applied for
a search warrant to search five cellular phones seized during
the search of Conway's vehicle. Id. at 9.
November 9, 2017, a federal grand jury returned an Indictment
against the Defendant, charging him with possession of a
mixture or substance containing heroin, as well as a mixture
of substance containing cocaine, with the intent to
distribute in violation of 21 U.S.C. § 841(a)(1). (Doc.
# 1). The Indictment also charged the Defendant with being a
felon in possession of ammunition in violation of 18 U.S.C.
§ 922(g)(1). Id.
March 29, 2018, the Defendant filed a Motion to Suppress,
arguing that the December 28, 2016 warrantless stop and the
subsequent search of his vehicle and person violated his
constitutional rights. (Doc. # 25). After the United States
filed its Response (Doc. # 27) and the Defendant filed his
Reply (Doc. # 28), Judge Smith held an evidentiary hearing on
May 4, 2018 (Doc. # 31), and subsequently issued an R&R,
recommending that Defendant's Motion to Suppress be
denied. (Doc. # 35).
R&R having been objected to (Docs. # 37 and 40), and the
United States having responded to said Objections (Doc. #
38), the Motion to Suppress (Doc. # 25) and the R&R (Doc.
# 35) are ripe for the Court's review.
Standard of Review
to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal
Procedure 59, a district court may refer a motion to suppress
to a magistrate judge for the preparation of a report and
recommendation. “The magistrate judge must promptly
conduct the required proceedings and enter on the record a
recommendation for disposing of the matter, including any
proposed finding of fact.” Fed. R. Crim. P. 59(b)(1).
If a party files timely objections to the recommendation, the
district court must consider those objections de novo and
“accept, reject, or modify the recommendation.”
Fed. R. Crim. P. 59(b)(3). Failure to object to a Magistrate
Judge's findings or conclusions results in waiver of
those objections. Fed. R. Crim. P. 59(b)(2).
the objections must be specific. “[V]ague, general or
conclusory objections” are “tantamount to a
complete failure to object.” Cole v. Yukins, 7
Fed.Appx. 354, 356 (6th Cir. 2001) (citing Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995)). Therefore, “an
‘objection' that does nothing more than state a
disagreement with a magistrate judge's suggested
resolution, or simply summarizes what has been presented
before, is not an ‘objection' as that term is used
in this context.” United States v. Vanover,
No. 2:10-cr-14-DLB, 2017 WL 1356328, *1 (E.D. Ky. Apr. 11,
2017) (quoting VanDiver v. Martin, 304 F.Supp.3d 934, 938
(E.D. Mich. 2004)).
Defendant has raised multiple objections to Magistrate Judge
Smith's R&R. (Docs. # 37 and 40). The Defendant's
first four objections center around Judge Smith's finding
that the officers had probable cause to search the
Defendant's vehicle. (Doc. # 37 at 1-4). First, the
Defendant objects to Judge Smith's finding that Officer
Shepard and Officer Adkisson actually smelled marijuana
emanating from the Defendant's vehicle. Id. at
1. Second, the Defendant objects to the evidence Judge Smith
used to support the finding that Officer Shepard and Officer
Adkisson smelled marijuana. Id. at 2. Third, the
Defendant objects to Judge Smith's credibility
determination, which concluded that Officer Shepard's and
Officer Adkisson's testimony was more credible than the
testimony of Tiffany Estes, a witness-and the Defendant's
sister-who was also at the scene. Id. at 3. And
fourth, the Defendant objects to Judge Smith's finding
that the officer's had “no incentive to lie,
” arguing that “there could be negative
consequences to their careers in law enforcement if they were
untruthful.” Id. at 4.
Defendant's fifth, sixth, and seventh objections focus on
Judge Smith's recommendation that the Court decline to
suppress evidence seized during the frisk of the
Defendant's person, despite having found that the frisk
was unconstitutional. Id. Specifically, Judge Smith
recommended that suppression of such evidence was unwarranted
because the evidence inevitably would have been discovered.
Id. The Defendant objects to Judge Smith's
conclusion, arguing that because the officers did not
actually smell marijuana, the search of the car was
unconstitutional, and thus there would not have been an
inevitable discovery of the items on the Defendant's
person pursuant to a search incident to arrest. Id.
The Defendant further objects to Judge Smith's alleged
failure determine whether the officers exceeded the
permissible scope of a search for weapons. Id. at 5.
Defendant's eighth and ninth objections concern the
validity of the search warrant for the Defendant's five
cellular phones, which were seized during the search of the
vehicle. Id. In addition to contesting Judge
Smith's finding that the search warrant was sufficiently
particular, the Defendant also takes issue with Judge
Smith's finding that “a reasonably well-trained
officer would not have known that the search of his cell