Opinion
No. 5:19-CR-386-1H
01-05-2021
UNITED STATES OF AMERICA v. KENTRELL VENABLE, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on Defendant's motions to suppress [DE ##25, 35], which have been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Government has responded in opposition to the motions to suppress [DE ##27, 39], and the time for further filings has expired. On October 7, 2020, an evidentiary hearing regarding both motions was held at which the Government and Defendant, with counsel, appeared. The matter is ripe for decision.
STATEMENT OF THE CASE
On September 18, 2019, a federal grand jury returned an indictment charging Kentrell Venable with distribution and possession with the intent to distribute a quantity of heroin in violation of 21 U.S.C. § 841(a)(1) (Count 1) and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 2). (Indictment [DE #1].) The indictment charges that the drug offense occurred on or about October 30, 2018, and the gun offense occurred on or about December 1, 2018. (Id.) On March 23, 2020, Mr. Venable filed a motion to suppress evidence seized as a result of a vehicle search on December 1, 2018, arguing that the warrantless search of a vehicle in which he was a passenger violated his Fourth Amendment rights and that all evidence from this search should be suppressed. (Mot. Suppress 12/1/18 Search [DE #25].) On August 3, 2020, Mr. Venable filed a motion to suppress evidence seized as a result of the automobile stop conducted on October 30, 2018, arguing that the traffic stop and subsequent searches violated his Fourth Amendment rights and that all evidence from this incident should be suppressed. (Mot. Suppress 10/30/18 Search [DE #35].)
STATEMENT OF THE FACTS
I. October 30, 2018 Stop and Search
At the evidentiary hearing on Venable's motion, the Government presented the testimony of Sergeant Allen Batchelor and Detective Terry Williams of the Vance County Sheriff's Office. The undersigned makes the following findings of fact based upon the testimony presented.
Sergeant Batchelor has been employed by the Vance County Sheriff since 2016, where he works in the narcotics division. Before this job, he worked in the narcotics division at the Franklin County Sheriff's Office. He has approximately eight years of experience as a narcotics officer and approximately thirteen years as a law enforcement officer in total. In his years of experience as a narcotics officer, he has attended narcotics-specific training, supervised dozens of "controlled" drug transactions, and made dozens of arrests after hand-to-hand drug transactions.
Detective Williams has been employed as a narcotics detective by the Vance County Sheriff for four years and previously worked for the Warren County Sheriff as a narcotics officer for ten years. In his years of experience as a narcotics officer, he has identified numerous hand-to-hand drug transactions, made hundreds of arrests for hand-to-hand drug transactions, and organized hundreds of controlled hand-to-hand drug transactions.
On October 30, 2018, Sergeant Batchelor, Detective Williams, and North Carolina State Bureau of Investigation (SBI) Special Agent Steve Staton went to a Golden Corral restaurant in Henderson, North Carolina, for lunch. This particular Golden Corral is located in a busy commercial area in Henderson, with shopping (Wal-Mart), restaurants (Pizza Hut, Bojangles), a hotel (Red Roof Inn), and convenience stores located nearby. The restaurant was not particularly busy during the time they were there; plenty of parking spaces were available around the restaurant. Batchelor and Williams have previously made drug arrests in this commercial area.
Agent Staton's first name is noted in the Government's response brief. (Gov't Resp. Opp'n Mot. Suppress 10/30/18 Search [DE #39] at 1.)
The three officers prepared to sit down at a table near a window facing the side parking lot of the restaurant. As they were sitting down to eat, they looked through the window and saw a white female wearing pajama pants walk up from behind the Golden Corral to the passenger side of a black Chevrolet Malibu on the side of the restaurant. The officers were approximately fifteen yards away from the Malibu, which was facing the restaurant. As this was happening, Detective Williams said to his fellow officers, "Y'all check this out" or something to that effect as the white female was approximately five to six feet away from the Malibu. The white female walked to the passenger side of the car; Mr. Venable was seated in the front passenger seat of the car. The front passenger seat window was partially rolled down. The white female stood next to the front passenger side of the Malibu for approximately five to six seconds and then turned and walked away from the car with her hands in her pockets. Detective Williams then said to his fellow officers, "Did y'all just see that?" Both Detective Williams and Sergeant Batchelor believed a hand-to-hand drug transaction had just occurred between the white female who had approached the Malibu on foot and the people inside of the Malibu.
Sergeant Batchelor and Detective Williams then put down their trays of food and ran outside to their patrol vehicle to follow the Malibu. Williams drove himself and Batchelor in their patrol vehicle and found themselves immediately behind the Malibu as it was exiting the Golden Corral parking lot. At no point did they lose sight of the Malibu. They followed the Malibu for approximately thirty-five yards until it turned right into a gas station and parked between the fuel pumps and the station convenience store. Detective Williams then turned on his blue lights and approached the driver side of the Malibu while Sergeant Batchelor approached the passenger side. (SBI Agent Staton had followed them in his own car and pulled up next to the right side of the Malibu.) The officers saw the passenger (Mr. Venable) reaching down beside the passenger seat; Detective Williams yelled out for the occupants of the Malibu to put their hands up and unsuccessfully attempted to open the driver's side door. Through the car windows, both officers saw what appeared to be heroin bindles and cash in plain view on Venable's lap. The car doors were eventually unlocked and the officers removed and arrested Venable. Batchelor and Williams attempted to interview Venable after the arrest, but Venable stated that he was caught and was not going to snitch on anybody else.
The officers subsequently identified the driver of the Malibu who provided a written statement. She said that she and Venable pulled into the Golden Corral parking lot, she parked the car, a female reached into the car with a balled fist and exchanged something with Venable, the female walked away, and then they pulled away.
The officers were unsuccessful in their attempt to locate the white female who had approached the Malibu on foot. II. December 1, 2018 Stop and Search
At the evidentiary hearing on Venable's motion, the Government presented the testimony of North Carolina Alcohol Law Enforcement ("ALE") Assistant Special Agent-in-Charge Jack Cates and Special Agent William Aiken. The undersigned makes the following findings of fact based upon the testimony presented.
Agent Cates has worked as an ALE special agent since 2015 and previously worked for the Durham Police Department for approximately thirty years. Agent Aiken has worked as an ALE special agent since 2016 and previously worked for the Granville County Sheriff and Henderson Police Department.
On the evening of November 30, 2018, and into the early morning hours of December 1, 2018, Agents Cates and Aiken were conducting covert surveillance for criminal violations around convenience stores in Henderson. The two officers were in plain clothes and riding in Cates' unmarked, black Ford F-150 truck. At around 12:40 a.m. on December 1, 2018, the officers parked their truck near the front door of the Maza Food Mart, a gas station convenience store which shares a building with a McDonald's restaurant.
The Maza Food Mart was known to Agents Cates and Aiken. Both agents testified that they considered the area to be a high-crime area. Agent Cates has personally made fifteen to twenty drug arrests in and around the Maza Food Mart, observed many more arrests, and seen people use heroin and overdose inside the store. Indeed, a few hours earlier on the same evening, Agents Cates and Aiken had made an arrest for possession of cocaine and a handgun. Agent Aiken confirmed that he has made many arrests at the food mart for drugs and guns, as well.
Agent Cates pulled into the parking space with the front of his truck facing the store. Cates noticed a Chevrolet Impala pull in next to him; there was a female driving the car and a passenger (later identified as Mr. Venable) in the front passenger seat. The female driver exited the Impala and entered the convenience store immediately after parking; Venable remained in the car. At this time, Agent Aiken exited the passenger side of the truck and walked to the right to address some other people. Then, Agent Cates looked down from the driver's seat of the truck and saw Venable pick up and drink from an open Corona beer can several times. This was of interest to Agent Cates because it is illegal for people to consume alcohol on the premises of the Maza Food Mart under N.C. Gen. Stat. § 18B-300.
A city ordinance prohibits consumption of alcohol in public, as well. Henderson, N.C., Code § 10-1 (2020).
Agent Cates then exited his truck and approached Mr. Venable, who was still seated inside of the Impala. Cates displayed his ALE credentials and identified himself as police. Cates saw Venable's eyes widen and then Venable turned quickly and reached down with his right hand as if he was putting something under the passenger seat. Cates then stated that alcohol consumption was unlawful, and he attempted to shine his flashlight into the Impala to see what Venable was doing at the bottom of his seat. Venable kept continuously moving his feet, "as if he was dancing," according to Cates. During this exchange, the open can of Corona beer was between Venable's legs. Cates also saw another can of beer in the center console, which appeared to be empty. Upon questioning, Venable showed Cates an unopened can of malt beverage as well.
Due to Mr. Venable's movements, Agent Cates thought there might be a weapon underneath Mr. Venable's seat. Not wanting to alert Venable to his suspicion, Cates told Venable he had no intention of arresting him for the open container of alcohol but requested Venable's identification. Venable did not have identification but provided enough biographical information for Cates to run a background check. Cates returned to his truck to run a background check on Venable. Cates learned from the state criminal information database CJLEADS (Criminal Justice Law Enforcement Automated Data Services) that Venable had been flagged as armed and dangerous, with a history of weapons violations, a history of assault, and prior murder and manslaughter charges. This information heightened Cates' concern for danger.
Agent Aiken returned to the truck while Agent Cates was still sitting inside of it. Cates asked Aiken to watch Mr. Venable while he returned to speak with Venable. Aiken exited the truck and positioned himself at the Impala's passenger side taillight so he could see Venable. By this time, the driver of the Impala—subsequently identified as a Ms. Alexander—had returned and was seated in the driver's seat. Cates re-approached Venable and told Venable he was going to look in the car to make sure there were no weapons and no more open containers of alcohol in the car. Venable continued to appear nervous; Cates asked him to exit the car four times before Venable complied. As Venable stepped out of the car, he looked in all directions. Venable's conduct—nervousness, refusal to comply with the instruction to step out of the car until the fourth request, and looking around in all directions—made both agents concerned that Venable may flee. Aiken put Venable in handcuffs as soon as possible after Venable exited the car. After Aiken had secured Venable, Cates explained to Ms. Alexander that he intended to search the car to ensure there were no more open containers of alcohol and no weapons. Ms. Alexander did not object and Agent Cates began to search the Impala. Cates found a loaded 9mm Ruger pistol under the passenger seat and showed the handgun to Ms. Alexander. Venable then repeatedly told Ms. Alexander to tell the agents the gun was hers, stating to Ms. Alexander, "You need to tell them that's your gun" and "I see you aren't going to take the gun."
The Government contends that Ms. Alexander consented to the search of her car. (Resp. Opp'n Mot. Suppress 12/1/18 Search [DE #27] at 3, 5.) During the evidentiary hearing, the Government did not call Ms. Alexander as a witness, and thus relied upon the testimony of the agents to prove her putative consent. Defendant objected on the basis of the Confrontation Clause and that the Government was on notice of the issue of Alexander's consent to search. For the reasons explained below, it is unnecessary to reach this issue. --------
DISCUSSION
The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures of "their persons, houses, papers, and effects." U.S. CONST. amend. IV. "This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Terry v. Ohio, 392 U.S. 1, 8-9 (1968). The "[t]emporary detention of individuals . . . by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision." Whren v. United States, 517 U.S. 806, 809-10 (1996).
"[R]easonableness is 'the ultimate touchstone of the Fourth Amendment.'" United States v. Marshall, 747 F. App'x 139, 144 (4th Cir. 2018) (unpublished) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)). Thus, "the 'balance between the public interest and the individual's right to personal security' tilts in favor of a standard less than probable cause" in brief investigatory stops of persons or vehicles. United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145 (1972). Rather, "the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity 'may be afoot.'" Arvizu, 534 U.S. at 273 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). In the context of automobiles, "[o]fficers may stop a vehicle and briefly detain its occupants if they have a reasonable suspicion of illegal activity." United States v. Lusk, 142 F. App'x 680, 683 (4th Cir. 2005) (unpublished) (per curiam) (citing United States v. Singh, 363 F.3d 347, 354 (4th Cir. 2004)); Arvizu, 534 U.S. at 273.
Whether reasonable suspicion exists to support an investigatory stop is a factual question. It is "not readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common sense, nontechnical conceptions that deal with factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act." United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004). "Reasonable suspicion is a 'less demanding standard than probable cause,' requiring a showing 'considerably less than preponderance of the evidence.'" United States v. Jones, 289 F. App'x 593, 597 (4th Cir. 2008) (per curiam) (unpublished) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). "A host of factors can contribute to a basis for reasonable suspicion, including the context of the stop, the crime rate in the area, and the nervous or evasive behavior of the suspect." United States v. George, 732 F.3d 296, 299 (4th Cir. 2013). The presence or absence of reasonable suspicion must be determined in light of the totality of the circumstances confronting the officer, including all information available to the officer and any reasonable inferences that may be drawn at the time of the stop. United States v. Crittendon, 883 F.2d 326, 328 (4th Cir. 1989).
Under the automobile exception to the warrant requirement, police may search an automobile without a warrant if the automobile "is readily mobile and probable cause exists to believe it contains contraband." Maryland v. Dyson, 527 U.S. 465, 467 (1999) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam)). Once a police officer has probable cause to believe an automobile contains evidence of a crime, he may "search every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825 (1982). The scope of a warrantless automobile search made pursuant to the automobile exception is limited only to the extent that it be "as thorough as a magistrate could authorize in a warrant 'particularly describing the place to be searched.'" Id. at 800 (quoting U.S. Const. amend. IV).
Probable cause "exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696 (1996). The court must examine the facts "from the standpoint of an objectively reasonable police officer," giving "due weight to inferences drawn from those facts by . . . local law enforcement officers." Id. at 696, 699. Probable cause is based on the totality of the circumstances and is "a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 231-32 (1983). Probable cause does not require police "to possess an airtight case" before searching, Taylor v. Farmer, 13 F.3d 117, 121 (4th Cir. 1993), but it does require more than mere reasonable suspicion, see United States v. Patiutka, 804 F.3d 684, 691 (4th Cir. 2015).
When the Government seeks to introduce evidence obtained through a warrantless search, it must prove by a preponderance of the evidence that the search was reasonable, i.e. one of the exceptions to the Fourth Amendment's warrant requirement applies. See Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (government bears burden to show legality of warrantless search); United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (burden of proof applicable to a motion to suppress is preponderance of the evidence). However, a defendant seeking to suppress evidence must show that he had a reasonable expectation of privacy in the area searched. United States v. Gray, 491 F.3d 138, 144 (4th Cir. 2007) (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980)). Thus, the burden of proof applicable to a suppression motion shifts from the defendant to the Government if and only if the defendant carries his burden to show that he had a reasonable expectation of privacy that was infringed upon by Government action. See United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013); United States v. Pollins, 145 F. Supp. 3d 525, 538 (D. Md. 2015) (explaining burden shifting). In the context of automobiles, "[a] passenger in a car normally has no legitimate expectation of privacy in an automobile in which he asserts neither a property interest nor a possessory interest and where he disclaims any interest in the seized object." United States v. Carter, 300 F.3d 415, 421 (4th Cir. 2002) (citing Rakas v. Illinois, 439 U.S. 128, 148-49 (1978)). I. October 30, 2018, Analysis
The question regarding the October 30, 2018, seizure is whether reasonable suspicion supported Detective Williams and Sergeant Batchelor's decision to effect a traffic stop of the Chevrolet Malibu in which Venable was a passenger. If so, the heroin bindles the officers saw through the car window on Venable's lap as they approached the Malibu were in plain view and would justify a search of the vehicle under the automobile exception to the warrant requirement. See United States v. Rumley, 588 F.3d 202, 205-06 (4th Cir. 2009) (applying plain-view doctrine in context of traffic stop); Wayne R. LaFave, 3 Search & Seizure: A Treatise on the Fourth Amendment § 7.5(a) (6th ed. Sept. 2020 update) ("There are circumstances . . . in which the plain view is obtained without any prior entry or opening of the vehicle. . . . Another [situation] is when incriminating objects may be seen inside the vehicle by merely standing near it. In the latter situation, as Coolidge [v. New Hampshire, 403 U.S. 443 (1971)] instructs, the question is whether the officer had a 'legitimate reason for being present' in the precise location where he made the observation. If the officer first stopped the car, this of course requires a determination as to the lawfulness of the stopping." (footnotes omitted)).
The totality of circumstances supports a finding of reasonable suspicion to believe that criminal activity was afoot when the officers effected the traffic stop on October 30, 2018. Two narcotics officers with extensive training and experience in narcotics law enforcement were about to have lunch. These officers had previously arrested people for hand-to-hand drug transactions and organized controlled hand-to-hand drug transactions. The restaurant they were dining at was located in a commercial area where they had previously made arrests for drug transactions. Through the window and from a distance of approximately fifteen feet, these officers watched as a female approached the passenger side of the Chevrolet Malibu where Venable was seated and remain there for only a matter of seconds. This female then walked away with her hands in her pockets and the Malibu began to exit the parking lot. The officers both believed they had just seen a hand-to-hand drug transaction. Based on the totality of circumstances, this conduct, in conjunction with the detectives' experience and prior experience with the location in question, would justify a brief investigatory stop of the Malibu and its occupants to investigate whether a drug deal had occurred.
At the evidentiary hearing, Mr. Venable argued the officers admitted they could not see inside of the Malibu and, consequently, their suspicion that a drug deal had just occurred was nothing more than a hunch. (See also Mot. Suppress 10/30/18 Search at 2.) Furthermore, according to Defendant, the officers did not intend to conduct an investigatory stop of the Malibu—they stopped the Malibu to search it and thus this was a "probable cause" stop.
The undersigned rejects Defendant's arguments. First, reasonable suspicion is based on the totality of the circumstances and is a less demanding standard than probable cause. Wardlow, 528 U.S. at 123. "Seemingly innocent factors, when viewed together, can amount to reasonable suspicion." United States v. Foster, 824 F.3d 84, 89 (4th Cir. 2016). The Fourth Amendment does not require that the officers witness a crime to justify a Terry stop. See Wardlow, 528 U.S. at 123; Foster, 824 F.3d at 89. Sergeant Batchelor and Detective Williams have articulated more than an "inchoate and unparticularized suspicion" that the conduct they observed was a hand-to-hand drug transaction. See Wardlow, 528 U.S. at 123. The officers had an objective justification for effecting a brief investigatory stop of the car based on their personal experience with numerous hand-to-hand drug transactions, arrests for such offenses in the location at issue, and the extremely brief interaction they observed between the woman and the Malibu in the side parking lot of the restaurant.
Second, whether the officers intended to conduct a "probable cause" search of the Malibu as they were approaching it is of no moment because they observed heroin bindles and cash on Mr. Venable's lap in plain view from outside of the car. See Rumley, 588 F.3d at 206 (explaining that an officer's intent to search an automobile before observing contraband in plain view did not undermine the legality of the search and noting that Texas v. Brown, 460 U.S. 730, 740 (1983), upheld "a police officer's right to 'peer into the interior of [an] automobile'"). II. December 1, 2018, Analysis
The Government has identified several bases to justify the warrantless search of the Chevrolet Impala in which Venable was a passenger on December 1, 2018. (Resp. Opp'n Mot. Suppress 12/1/2018 Search [DE #27] (arguing that Defendant lacked standing to challenge the automobile search and that the car's owner consented to the search; the automobile exception justified the search; and a protective sweep of the car was justified under Michigan v. Long, 463 U.S. 1032 (1983)).)
Mr. Venable has not argued, either in his brief or at the evidentiary hearing, that he had a reasonable expectation of privacy in the area of the Impala where the agents located the Ruger pistol. (See Mot. Suppress 12/1/2018 Search.) Based on the facts presented at the evidentiary hearing, it appears that any such argument would be meritless. There is no evidence that Venable owned or had any possessory interest in the Impala. The statements Venable made to Ms. Alexander after the seizure indicate he was disclaiming any possessory interest in the gun. Accordingly, Venable has failed to carry his burden to show that he, as a passenger in the Impala, had a reasonable expectation of privacy in the area beneath the passenger seat. See Castellanos, 716 F.3d at 833 n.4 (emphasizing that it was the defendant's burden to show a reasonable expectation of privacy in the area searched and explaining how the defendant failed to meet this burden despite being on notice of the issue).
Moreover, assuming Mr. Venable had a reasonable expectation of privacy in the area underneath the passenger seat, the automobile exception to the warrant requirement would justify the agents' search of the car. Under the automobile exception, an officer may search any part of an automobile if there is probable cause to believe the car contains evidence of a crime. See Ross, 456 U.S. at 825. Here, Agent Cates observed Venable in the passenger seat of a parked car drinking from an open beer in a location where alcohol consumption was prohibited by state law. Cates also saw an empty beer can in the car from his viewpoint outside of the car. That is enough evidence to cause a person of ordinary prudence to believe that an alcohol-related crime had occurred, see Ornelas, 517 U.S. at 696, and that evidence of that offense would be located in the car, see United States v. Robinson, 94 F.3d 643 (4th Cir. 1996) (per curiam) (unpublished table decision) ("The plain view of the two open alcohol containers, in violation of the law, allowed the officers to search for other open containers because it was reasonable to believe that other contraband might be found within the vehicle."); United States v. Howton, 260 F. App'x 813, 817 (6th Cir. 2008) (unpublished) (citing United States v. McGuire, 957 F.2d 310, 314 (7th Cir. 1992)) (applying automobile exception when police had probable cause to believe an open container of alcohol offense had been committed). Accordingly, the automobile exception to the warrant requirement justified the warrantless search of the Impala.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's Motion to Suppress [DE #25] be DENIED and Defendant's Motion to Suppress [DE #35] be DENIED.
IT IS DIRECTED that a copy of this Order and Memorandum & Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 19, 2021, to file written objections to the Order and Memorandum & Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Order and Memorandum & Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Crim. P. 59(b); Local Crim. R. 1.1 (permitting modification of deadlines specified in local rules), 5.3(c) (E.D.N.C. Dec. 2019).
A party that does not file written objections to the Order and Memorandum & Recommendation by the foregoing deadline, will be giving up the right to review by the presiding district judge as described above, and the presiding district judge may enter an order or judgment without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See United States v. Jones, 658 F. App'x 188, 189 (4th Cir. 2016).
This 5th day of January 2021.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge