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United States v. Toole

June 3, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALGERNON TOOLE, A/K/A "AL" EVERETTE TOOLE, A/K/A "E", DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Defendants Algernon Toole ("sometimes Algernon") and Everette Toole ("sometimes Everette") were indicted on federal drug conspiracy charges.*fn1 I referred all pretrial proceedings and motions to United States Magistrate Judge Marian W. Payson pursuant to 28 U.S.C. § 636(b).

Several motions were filed by both defendants, including motions to suppress which required several days of hearings. At the conclusion of those proceedings, Magistrate Judge Payson issued a thorough 49-page Decision and Order/Report and Recommendation concerning the motions that had been filed to that point. For the most part, Magistrate Judge Payson denied or recommended denial of defendants' motions.*fn2

I. Motions to Disclose the Government's Confidential Informants and Motions for Severance

Both defendants moved for disclosure of the confidential informants identity. Clearly such an informant was involved in the transaction involving Everette Toole and apparently the Government intends to call this witness at trial. Magistrate Judge Payson discussed in some detail the applicable law concerning early disclosure of such informants. I agree with Magistrate Judge Payson's analysis.

Generally, such disclosure is not required. See Roviaro v. United States, 353 U.S. 53, 59 (1957). Magistrate Judge Payson discussed the necessary showing that need be made, and I agree with her assessment that such a showing has not been made in this case. As Magistrate Judge Payson notes, there has been extensive discovery that sets forth in some detail the evidence against the defendants. Magistrate Judge Payson's decision denying disclosure of the confidential informant is affirmed.

Everette Toole also sought severance. Magistrate Judge Payson denied the motion finding that a joint trial, which is generally preferable in such circumstances, would not cause Everette substantial prejudice. I see no basis to modify that decision and, therefore, her decision is affirmed.*fn3

II. Suppression Motions of Algernon Toole

Algernon Toole was stopped in a motor vehicle as he traveled west in a rental car on Interstate 90 near Willoughby Hills, Ohio. Physical evidence was seized, principally a substantial sum of money and Algernon made statements on the highway and later at the local police station.

Magistrate Judge Payson discusses in some detail the circumstances surrounding the traffic stop of Algernon. This summary, consisting of six pages in the Report and Recommendation, describes the decision of Officer Matthew Naegele, Willoughby Hills, Ohio Police Department to stop Algernon's vehicle and later decide to tow the vehicle and search it.

Magistrate Judge Payson discusses the legality of the initial traffic stop, and she credits the officer's version of what occurred. Neither defendant nor his passenger testified at the hearing, so the officer's testimony stands unrebutted. Magistrate Judge Payson describes the fact that the vehicle was a rental car and neither defendant nor his passenger were authorized, by the rental contract, to operate the vehicle. A check with the Budget Rental Agency confirmed that fact.

I concur with the Magistrate Judge's decision that the stop was justified as was the decision to pat frisk Algernon since he was to be placed in the rear of the police vehicle. Seizure of a substantial bundle of money found in Algernon's pocket was justified.

Other sums were also discovered in the trunk of the car. After a canine dog alerted on the vehicle and after receiving information that Algernon's car had previously been involved in a drug trafficking incident, the officers obtained a search warrant. Forty-two thousand dollars ($42,000) was discovered in the trunk during execution of the warrant. Magistrate Judge Payson found no reason to suppress the evidence based on the fact there was a search warrant and also based on the fact, on instructions from the rental car agency, the vehicle was to be towed and would have been searched pursuant to the inventory policies of the Willoughby Hills Police Department.

In sum, I agree with the Magistrate Judge's recommendation that the evidence seized from Algernon and from the motor vehicle was properly seized and, therefore, I deny ...


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