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United States v. Cantrell

United States District Court, E.D. Kentucky, Northern Division

November 9, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
SHILO W. CANTRELL, et al. DEFENDANTS

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the October 9, 2018 Report and Recommendation (“R&R”) of United States Magistrate Judge Edward B. Atkins (Doc. # 33), wherein he recommends that the Court deny Defendant Lockwood's Motion to Suppress (Doc. # 27), and Defendants Cantrell's and Debarr's Motions for Joinder (Docs. # 30 and 31). Defendant Lockwood having filed Objections (Docs. # 38), Defendant Debarr having filed a Motion to Join Defendant Lockwood's Objections (Doc. # 40), Defendant Cantrell's time for filing objections having now expired, and the Government having responded to the Defendant's Objections (Doc. # 41), the R&R is now ripe for the Court's consideration. For the reasons that follow, Defendant Lockwood's Objections are overruled, Defendant Debarr's Motion to Join is denied as moot, the R&R is adopted, the Motion to Suppress is denied, and the Motions for Joinder are denied.

         I. FACTUAL BACKGROUND

         On March 16, 2018, police in Morehead, Kentucky received a 911 call from an employee at the Days Inn in Morehead. (Docs. # 27 at 3 and 32-1 at 9). The employee claimed she had seen an “altercation” between a man and woman in which the man pointed a gun at the woman. (Doc. # 27 at 3). The employee reported to the police that the man drove off in a black Lincoln Navigator (“black Lincoln”) with an Ohio license plate. (Doc # 32-1 at 9).[1] The police report states that the caller was able to provide the police with the car's license plate number-HHT9297. Id. After receiving the call, Officer Joshua Ison of the Morehead City Police was on patrol and saw a black Lincoln that matched the description given to the police. (Docs. # 27 at 3 and 32-1 at 1). On the basis of the 911 call reporting the altercation, he attempted to pull over the vehicle; when he tried to do so Officer Ison claims the black Lincoln quickly sped up, made a reckless turn, and that someone in the back of the car appeared to be preparing to flee. (Doc. #32-1 at 9). When the car reached a dead end, someone left the car and attempted to run away. When the individual realized he had nowhere to go he returned to the car and, according to the police report, it “appeared that he was moving things around in the back seat.” (Docs. # 27 at 3 and 32-1 at 9).

         Officer Ison had all three occupants-Defendants Lockwood, Cantrell, and Debarr- get out of the car. (Doc. # 32-1 at 9). During the stop, Officer Ison frisked both Defendant Lockwood and Defendant Cantrell for weapons. Id. Neither were found to have weapons, but Defendant Lockwood was found with a large quantity of cash and Defendant Cantrell had a syringe on his person. Id. Both told Officer Ison that Defendant Cantrell had gotten into a fight with a prostitute at the Days Inn, but there was no weapon involved. Id. Officer Ison ultimately charged the driver, Defendant Lockwood, with reckless driving and arrested him. (Docs. # 27 at 3 and 32-1 at 9). Both of his passengers-Defendants Cantrell and Debarr-were arrested for public intoxication. (Doc. # 27 at 3-4). Cantrell was also charged with fleeing evading or police. (Doc. # 32-1 at 1). During the stop, Officer Ison saw drug paraphernalia, including baggies, in plain view in the car. (Doc. # 27 at 4). Officer Ison sought consent to search the black Lincoln for a weapon, but Defendant Lockwood refused. (Doc. # 32-1 at 9). According to the police report, before Defendant Lockwood entered the jail following his arrest, he turned over “two baggies of crystal substance” which were in his pocket. Id.

         Based on the crystal substance and cash in Defendant Lockwood's pocket, and the baggies in plain view, Officer Ison sought and obtained a Kentucky state search warrant to search the black Lincoln. (Docs. # 32-1 at 10 and 32-2). That search yielded pipes often used to smoke drugs, a loaded handgun, and multiple bags of a crystal substance in the car, as well as five cellphones, a computer, and two digital scales. (Doc. # 32-1 at 10). Some of the crystal substance was found behind the back seat and some was found in a McDonald's bag that Officer Ison found “[i]n the passenger side rear floorboard of the vehicle.” Id. In his report, he described much of the crystal substance as appearing to “be pre-packaged for sale.” Id. Nearly one pound of the substance, which was suspected to be methamphetamine, was obtained from the search of the black Lincoln. (Doc. # 32-3 at 2).

         Officer Ison then sought and obtained a search warrant to search two rooms Mr. Lockwood had rented at the Days Inn. (Doc. # 32-1 at 1). The police had already visited the rooms conducting a welfare check for the woman Defendant Cantrell had admitted to having an altercation with. (Docs. # 32-3 at 2 and 32-1 at 9). When the police conducted the welfare check, “it was apparent that some drug activity had taken place” in the rooms. (Doc. # 32-3 at 2). This information, as well as the contents of the black Lincoln were relied upon as probable cause to support the search warrant for Rooms 201 and 202, the rooms rented to Defendant Lockwood at the Days Inn in Morehead. (Doc. # 32-3). A Kentucky state judge signed off on the search warrants. (Docs. # 32-2 and 32-3). The search of Room 201 turned up “three syringes and a baggy containing a crystal substance.” (Doc. # 32-1 at 10). Nothing was found in Room 202. Id.

         II. PROCEDURAL BACKGROUND

         The Indictment in this case charges all three defendants with knowingly and intentionally possessing 50 grams or more or a mixture containing methamphetamine with the intent to distribute. (Doc. # 1). Defendant Cantrell is also charged with possession of a firearm in furtherance of a drug-trafficking crime, and possession of a firearm as a previously-convicted felon. Id.

         On September 19, 2018, Defendant Lockwood filed a Motion to Suppress the evidence obtained from the search of the black Lincoln and the hotel rooms. (Doc. # 27). On September 24, 2018, Defendant Cantrell filed a Motion for Joinder of Defendant Lockwood's motion, (Doc. # 30), and on September 26, 2018 Defendant Debarr filed a similar motion to join Defendant Lockwood's motion. (Doc. # 31). The United States responded to the Motion to Suppress on September 27, 2018, (Doc. # 32), and Magistrate Judge Atkins issued his R&R on October 9, 2018. (Doc. # 33). Defendant Lockwood filed Objections (Doc. # 38), which Defendant Debarr has moved to join (Doc. # 40), and Defendant Cantrell's time for filing objections has now expired, see 28 U.S.C. § 636(b)(1)(c). The Government responded to the Defendant's Objections on November 2, 2018, (Doc. # 41), and Defendant Lockwood filed a reply to the Government's response on November 6, 2018. (Doc. # 42).

         III. ANALYSIS

         A. Standard of Review

          A district judge may refer a motion to suppress, and other related motions, to a magistrate judge for the preparation of an R&R pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal Procedure 59(b)(1). See, e.g., United States v. Jones, 6:16-cr-34, 2018 WL 2329780, at *1 (E.D. Ky. May 23, 2018) (adopting an R&R which dealt with both a motion to suppress and a motion for joinder to the motion to suppress). Parties have fourteen (14) days to object to a magistrate judge's R&R; failure to object to the R&R waives a party's right to review of the R&R. Fed. R. Crim. P. 59(b)(2). If objections are timely filed, the district court must review de novo the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(C). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge . . . [or] may also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id.

         The purpose of objections is to allow “the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985) (footnote omitted). Therefore, objections to the R&R must be specific-they may not be “vague, general, or conclusory . . . [as such objections are] tantamount to a complete failure to object.” Fields v. Lapeer 71-A District Court Clerk, 2 Fed.Appx. 481, 482-83 (6th Cir. 2001). “Moreover, ‘an ‘objection' that does nothing more than state a disagreement with a magistrate'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, 2:10-cr-14, 2017 WL 1356328, at *1 (E.D. Ky. Apr. 11, 2017) (quoting VanDiver v. Martin, 304 F.Supp.2d 934, 938 (E.D. Mich. 2004)).

         A district court has the option, but is not required, to look at new arguments or evidence presented for the first time in objections to an R&R. Muhammad v. Close, 08-1944, 2009 WL 8755520, at * 2 (6th Cir. Apr. 20, 2009); United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). The district court must exercise its discretion in determining whether new evidence should be considered, “rather than summarily accepting or denying” the new evidence. Muhammad, 2009 WL 8755520, at * 2 (quoting Howell, 231 F.3d at 621). This is the case because the “magistrate judge system was designed to alleviate the workload of district courts . . . [and] [t]o require a district court to consider evidence not previously presented to the magistrate would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court.” Howell, 231 F.3d at 622 (citations omitted). “Systemic efficiencies would be frustrated and the magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round.” Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988). The reasoning behind Howell and Muhammad suggest that the district court must use its discretion in deciding whether new arguments should be considered “rather than summarily accepting or denying, ” when the arguments are first raised in objections to an R&R. See Muhammad, 2009 WL 8755520, at * 2; Howell, 231 F.3d at 621.

         Lockwood has raised several objections to the Magistrate Judge's R&R.[2] (Doc. # 38). First, Lockwood objects to a finding of probable cause, based on the facts in the warrant and affidavit, for the search of his car and hotel room. Id. at 6. Second, Lockwood makes a number of factual objections and objects to the lack of an evidentiary hearing before Magistrate Judge Atkins. Id. at 1-3, 7-8. Third, Lockwood makes a number of new arguments regarding the legality of his stop and arrest, and the investigation underlying the affidavits. Id. at 1-2, 6. Fourth, Lockwood objects to Magistrate Judge Atkins's finding of a nexus of criminality. Id. at 3-4. Fifth, Lockwood objects to the Magistrate Judge's characterization of “baggies and scales as paraphernalia.” Id. at 2. Lastly, Lockwood objects to the entering of an R&R that does not consider or rely on United States v. Christian (Christian I), 893 F.3d 846 (6th Cir. 2018), a recent Sixth Circuit case dealing with affidavits for search warrants. Id. at 5. The Court will address each of Lockwood's objections in turn.

         B. The search of Defendant Lockwood's car and hotel room was ...


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