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United States v. Vawter

United States District Court, W.D. Missouri, Southern Division

October 24, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA WILLIAM VAWTER, and ANGELO CHARLES VETRANO, Defendants.

ORDER

DOUGLAS HARPOOL, District Judge.

Before the Court is Defendant Vetrano's Motion to Suppress and/or Dismiss the Indictment (Doc. 36) and Defendant Vawter's Motion to Suppress and/or Dismiss the Indictment (Doc. 41). Defendants seek to suppress the 200 pounds of marijuana found inside the airplane in which they were traveling, on grounds that such evidence was discovered as the result of an unlawful detention. Defendants advance numerous arguments why the detention was unlawful including: lack of reasonable suspicion, reasonable suspicion derived from unlawful means, and excessive detention under Terry. Defendants further seek a Franks hearing in order to ascertain the identity and veracity of the confidential informant from whom the authorities received information. In an alternative argument, Defendants seek to dismiss the indictment on equal protection grounds due to alleged selective prosecution of marijuana offenses proscribed by 21 U.S.C.§ 841.

Pursuant to the governing law and in accordance with Local Rule 72.1 of the United States District Court for the Western District of Missouri, Defendants' motions were referred to the United States Magistrate Judge for preliminary review under 28 U.S.C. § 636(b). The parties submitted briefs reflecting their positions (Docs. 36, 37, 39, 41, 42) and Magistrate Judge Rush held a suppression hearing. (Doc. 50). Following the hearing, the parties submitted additional briefs arguing the issues presented. (Docs. 54, 55, 59, 61, 62). Judge Rush completed a preliminary review of the motions and submitted a report and recommendation to the undersigned. (Doc. 65). In his report and recommendation, Judge Rush recommends that the court deny the Defendants' motions in full. Each Defendant filed exceptions to the report and recommendation. (Docs. 66, 67).

Both Defendants request de novo review of all of the issues presented in their underlying motions and suggestions in support thereof.[1] The Court notes that such a broad review of general and vague objections to the Magistrate's report and recommendation is inappropriate. As the local rules explain, in response to a magistrate judge's report and recommendation, a party may file and serve "written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objections are made and the basis for such objections." L.R. 74.1(a)(2) (emphasis added). Appellate courts affirm the denial of de novo review where a party's objections lack specificity. See, e.g., United States v. Prather, 79 F.Appx. 790, 792 (6th Cir. 2003); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002); see also Velez-Padro v. Thermo King De Puerto Rico, Inc., 465 F.3d 31, 32 (1st Cir. 2006) (stating that "[c]onclusory objections that do not direct the reviewing court to the issues in controversy do not comply"); Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990) (reminding parties that "objections must be timely and specific to trigger de novo review by the District Court of any portion of the magistrate's report and recommendation.").

Accordingly, the Court will address only the specific objections furthered by Defendants. After a de novo review, the Court finds Judge Rush's analysis correct, overrules Defendants' objections, and adopts the report and recommendation of the United States Magistrate Judge.

ANALYSIS

The objections stated by Defendants can be broken down into the following four categories: (I) unlawful detention, (II) parallel construction, (III) Franks hearing, and (IV) equal protection.[2]

I. Unlawful Detention

Defendants argue that they were unlawfully seized in violation of the Fourth Amendment. They claim that the officer's actions were not justified at the inception of the detention nor were they reasonably related in scope to the circumstances that justified the initial interference.

1. When Fourth Amendment "Seizure" Began

Defendants object to the Judge Rush's finding that the initial encounter between the Defendants and Agent Hodges was "consensual and constitutionally permissible." Defendants argue that they were "seized" from the moment Agent Hodges approached them because no reasonable person in the Defendants' position would have felt free to leave under the circumstances.

"[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has seized' that person" and the Fourth Amendment is implicated. Terry v. Ohio, 392 U.S. 1, 16 (1968). However, the Supreme Court has repeatedly held that mere questioning by a police officer does not constitute a seizure. Muehler v. Mena, 544 U.S. 93, 101 (2005). Although "most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." I.N.S. v. Delgado, 466 U.S. 210, 216 (1984) (internal citations omitted). "[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage." Muehler, 544 U.S. at 101 (quoting Florida v. Bostick, 501 U.S. 429, 434-35 (1991)). Only when the officer's "conduct or questioning is so intimidating, threatening, or coercive that a reasonable person would not feel free to leave, " has the person been "seized." U.S. v. Jones, 269 F.3d 919, 925 (8th Cir. 2001).

Here, the Defendants were not "seized" upon their initial encounter with federal agents. Defendants landed their airplane voluntarily and were nearly finished fueling by the time the federal agents parked their jet. The credible testimony indicates that two agents wearing flight suits and gun belts approached Defendant Vawter's airplane. Another agent, who carried a rifle-type gun, stayed back in the jet at a distance of roughly thirty to forty feet from the Defendants. As the agents approached, they did not run, have their weapons drawn, or suggest that the plane was stolen. Instead, Agent Hodges asked to speak to the pilot and requested identification and certain flight documentation pursuant to federal regulation. He then accompanied Mr. Vawter to the plane as Mr. Vawter retrieved those documents from his wallet. During that time, Agent Hodges witnessed the appearance of the plane, observed Mr. Vawter's behavior, and asked some routine questions concerning Mr. Vawter's flight.

Based on the information observed, the agent made a decision to continue the investigation after checking Mr. Vawter's identification and documentation. "A police officer may conduct a brief, investigatory stop of an individual if the officer reasonably suspects that the individual is involved in criminal activity." United States v. Lawhorn, 735 F.3d 817, 820 (8th Cir. 2013) cert. denied, 134 S.Ct. 1563 , 188 L.Ed.2d 574 (U.S. 2014). Such a stop "allows an officer with reasonable suspicion to detain an individual in order to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." United States v. Suitt, 569 F.3d 867, 870-71 (8th Cir. 2009) (internal citations and quotations omitted). When Agent Hodges finished checking Mr. Vawter's documents, asked about contraband on board the airplane, and ...


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