Opinion
No. 7:18-CR-185-1H
04-16-2020
UNITED STATES OF AMERICA v. SHAWN SCOTT FONVILLE, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on Defendant's motion to suppress [DE #61], which has 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 motion to suppress [DE #64], and the time for further filings has expired. On September 13, 2019, the parties filed a joint notice informing the court that an evidentiary hearing was not necessary [DE #67]. Accordingly, the matter is ripe for decision.
STATEMENT OF THE CASE
On November 7, 2018, a federal grand jury returned an indictment charging Shawn Scott Fonville ("Fonville") with the following offenses: conspiracy to distribute and possess with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1) (count one); possession with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1) (count three); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (count four); and two counts of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (counts five and six). Presently before the court is Fonville's motion to suppress evidence seized on July 30, 2018, from 2705 Mayfair Drive, Apartment 201, Wilmington, North Carolina, as well as from a 2003 Dodge Intrepid registered to Fonville.
STATEMENT OF THE FACTS
For purposes of the motion presently before the court, the parties have agreed there are no disputed material facts. The undersigned therefore makes the following findings of fact based upon the facts presented in Defendant's motion, the Government's response, and any exhibits submitted therewith.
Detective W. Morris ("Detective Morris") of the City of Wilmington Police Department ("WPD") has been a law enforcement officer since 2010. (Search Warrant [DE #64-2] at 4.) He is assigned to the Narcotics Enforcement Unit and was previously part of the Accelerated Criminal Enforcement Team, concentrating on street-level narcotics and weapons interdiction. (Id.) He has specialized training in the enforcement of controlled substances laws, has conducted surveillance of open-air drug markets, and has made numerous narcotics arrests. (Id.)
From November 2014 to July 2018, WPD detectives received information from numerous sources that an individual named "Scottie" was involved in narcotics sales and distribution in the Wilmington area. (Search Warrant ¶ 16; Mot. Suppress at 2; Gov't's Resp. at 2.) The detectives were familiar with Fonville due to his history of narcotics involvement, and they knew Fonville was on federal probation for controlled substance and firearms offenses. (Search Warrant ¶ 17; Gov't's Resp. at 2; Def.'s Previous Judgment [DE #64-1].)
In May 2018, Detective Morris began surveillance of Wilmington's Long Leaf Park area, where a number of persons have been arrested for purchasing heroin. (Search Warrant ¶ 18; Mot. Supress at 2; Gov't's Resp. at 2.) In interviews with four separate people, "Scottie" was named as the person controlling and selling heroin in the area. (Search Warrant ¶ 18; Mot. Supress at 2; Gov't's Resp. at 3.) Detectives identified "Scottie" as Fonville with the use of a photograph shown to interviewees. (Id.) Through these interviews, Detective Morris also discovered that "Scottie" made frequent trips to New York to transport large amounts of heroin to Wilmington for distribution. (Search Warrant ¶ 18; Mot. Supress at 2; Gov't's Resp. at 4.) Two individuals who sold heroin for Fonville in the 2800 block of Penn St (Long Leaf Park area) were identified as Brandon McKiver and Christopher McKiver, Fonville's cousin and uncle, respectively. (Search Warrant ¶ 19; Mot. Supress at 3.)
On July 3, 2018, Detective Morris conducted a controlled purchase of heroin from Christopher McKiver using a confidential informant ("CI"). (Search Warrant ¶ 20; Mot. Suppress at 3; Gov't's Resp. at 3.) The purchase was arranged to take place at 2815 Penn Street but was later changed to 1122 Harbour Drive, the address listed with U.S. Probation as Fonville's residence. (Search Warrant ¶¶ 20-21; Mot. Suppress at 3; Gov't's Resp. at 3.) On July 10, 2018, Detective Morris conducted another controlled purchase of heroin and observed the CI purchase heroin from Brandon McKiver at 2815 Penn Street. (Search Warrant ¶ 22; Mot. Suppress at 3.)
On July 16, 2018, Detective Morris observed a controlled purchase of heroin from Fonville. (Search Warrant. ¶ 23; Mot. Supress at 3; Gov't's Resp. at 3.) During multiple surveillance operations in July 2018, Detective Morris saw Fonville leave 2705 Mayfair Drive Apartment 201 and go directly to 2815 Penn Street in a gold Dodge Intrepid. (Search Warrant ¶ 24; Mot. Suppress at 3; Gov't's Resp. at 3-4.) Fonville would stay at the 2705 Mayfair Drive apartment overnight and leave early in the mornings for work Monday through Friday. (Search Warrant ¶ 25; Mot. Suppress at 3-4; Gov't's Resp. at 4.) After work, Fonville would return to 2705 Mayfair Drive for a brief period then drive to 2815 Penn Street. (Id.) Detective Morris observed both of Fonville's registered cars, a gold Dodge Intrepid and a black Honda Accord, at 2705 Mayfair Drive. (Search Warrant. ¶ 26.)
A CI informed Detective Morris that Fonville had a dispute with both Christopher and Brandon McKiver and, as a result, brought in an unknown black male named "G" to conduct narcotics sales for him. (Search Warrant ¶ 27; Mot. Suppress at 4.) During surveillance operations in July 2018, Detective Morris observed an unknown black male drive Fonville's black Honda Accord between 2815 Penn Street and 2705 Mayfair Drive several times a day. (Search Warrant ¶ 28.)
"G" was later identified as Zabar Irick, Fonville's co-defendant in this case. (Mot. Supress at 4 n.1; see also Indictment [DE #1].)
On Friday, July 27, 2018, a CI informed Detective Morris that Fonville had left for New York and would return on Sunday, July 29, around 10:30 pm. (Search Warrant ¶ 29; Mot. Suppress at 4; Gov't's Resp. at 4.) WPD detectives set up a surveillance and observed Fonville arrive at the 2705 Mayfair Drive apartment in a rental vehicle and enter the residence carrying a trash bag and a shoebox. (Id.) On July 30, 2018, Fonville left the 2705 Mayfair Drive apartment and drove to work. (Search Warrant ¶ 30; Mot. Suppress at 4; Gov't's Resp. at 4.)
On July 30, 2018, WPD detectives saw "G" leave the 2705 Mayfair Drive apartment driving Fonville's black Honda Accord. (Search Warrant ¶ 31; Mot. Suppress at 4; Gov't's Resp. at 4.) WPD officers pulled "G" over for a traffic infraction; upon being stopped, "G" fled the vehicle on foot. (Id.) Officers observed "G" throw approximately thirty bags of heroin on the ground while running; additional narcotics were located on "G" when apprehended. (Search Warrant ¶ 31; Mot. Suppress at 4-5; Gov't's Resp. at 4-5.)
On July 30, 2018, Detective Morris obtained a warrant to search 2705 Mayfair Drive Apartment 201 from a North Carolina Superior Court Judge. Upon execution of the warrant, officers seized heroin, a revolver, ammunition, drug paraphernalia, cash, and paperwork mailed to Fonville. (Mot. Suppress at 5; Gov't's Resp. at 5.) Officers then traveled to Fonville's place of employment and searched his automobile, which led to the seizure of a handgun. (Mot. Suppress at 5.)
DISCUSSION
Fonville moves to suppress the seized evidence on the ground the warrant authorizing the search of the apartment was not supported by probable cause. Specifically, Defendant argues the affidavit submitted by Detective Morris failed to establish a nexus between 2705 Mayfair Drive Apartment 201 and any criminal activity. (Def.'s Mot. Suppress at 8.) Defendant further contends that the good faith exception does not apply. The Government counters that the facts support a finding of probable cause. (Gov't's Resp. at 5.)
The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures and that "no Warrants shall issue, but upon probable cause." U.S. CONST. AMEND. IV. "[I]n 'the ordinary case,' seizures of personal property are 'unreasonable within the meaning of the Fourth Amendment,' without more, 'unless . . . accomplished pursuant to a judicial warrant,' issued by a neutral magistrate after finding probable cause." Illinois v. McArthur, 531 U.S. 326, 330 (2001) (quoting United States v. Place, 462 U.S. 696, 701, (1983)); see also United States v. Harris, 403 U.S. 573, 577 (1971) (search warrants must be supported by probable cause to satisfy dictates of Fourth Amendment).
Probable cause exists when there is "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "Probable cause is therefore 'not a high bar.'" United States v. Bosyk, 933 F.3d 319, 325 (4th Cir. 2019) (quoting District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 586, 199 L. Ed. 2d 453 (2018)). "Probable cause may be founded on hearsay and information received from informants." United States v. DeQuasie, 373 F.3d 509, 518 (4th Cir. 2004). When reviewing a warrant for probable cause, the issuing official should consider the totality of the circumstances, including the basis of a confidential informant's knowledge. Gates, 462 U.S. at 238. "[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the 'laminated' total." United States v. Baker, 577 F.2d 1147, 1151 (4th Cir. 1978) (quoting Smith v. United States, 358 F.2d 833, 837 (D.C. Cir. 1966)).
Whether a search warrant is supported by probable cause depends "not [on] whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched." United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6 (1978)). "[T]he nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence." United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). "This nexus may be established . . . by information or surveillance . . . linking [a] residence to drug activity, such that it is reasonable to believe that evidence of drug activity will be found at the residence." United States v. Randolph, 261 F. App'x 622, 626 (4th Cir. 2008). "A sufficient nexus can exist between a defendant's criminal conduct and his residence even when the affidavit supporting the warrant 'contains no factual assertions directly linking the items sought to the defendant's residence.'" United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (finding a sufficient nexus between a defendant's suspected drug activity and three residences in which he periodically stayed) (quoting United States. v. Servance, 394 F.3d 222, 230 (4th Cir. 2005)).
Here, the affidavit in support of the search warrant application established probable cause. The affidavit stated that multiple CIs had identified Fonville as "Scottie," the individual who controlled heroin sales in the Long Leaf Park area of Wilmington, and described how Fonville acquired narcotics from New York to distribute in the Wilmington area. Detective Morris knew Fonville was a convicted felon with a history of narcotics involvement and was on federal probation for drug and firearms offenses. The afffidavit explained that the 2705 Mayfair Drive apartment was where Fonville returned after work and spent the night, though 1122 Harbour Drive was listed as his residence with the U.S. Probation Office. Both of Fonville's registered vehicles were observed at the 2705 Mayfair Drive location on numerous occasions. The affidavit further described how "G," who sold heroin for Fonville, had been seen driving between the 2705 Mayfair Drive location and 2815 Penn Street (Long Leaf Park area) multiple times a day. On July 16, 2018, Detective Morris saw Fonville selling heroin to an individual who had been documented by WPD as a reliable confidential informant.
Fonville argues that no information connected Mayfair Drive to the Long Leaf Park area. However, the affidavit describes "multiple surveillance operations[ ] in the month of July 2018" where Fonville was seen leaving 2705 Mayfair Drive Apartment 201 and driving directly to 2815 Penn Street (Long Leaf Park area). Contrary to Fonville's argument, the absence of an estimated distance between Mayfair Drive and the Long Leaf Park area is of no consequence. Fonville was seen commuting to work, on a regular basis, from Mayfair Drive, as well as driving back and forth from the Mayfair Drive apartment to 2815 Penn Street (Long Leaf Park area). Further, "G" was observed driving a vehicle registered to Fonville's name driving multiple times a day between the Mayfair Drive location and the Long Leaf Park area.
The affidavit further recounts how WPD detectives conducted a surveillance of the Mayfair Drive apartment upon being informed that Fonville had gone to New York on Friday, July 27, 2018, and would return on Sunday, July 29, 2018. Upon his return to Wilmington driving a rental vehicle, Fonville drove to 2705 Mayfair Drive where he and a female passenger exited the vehicle and entered Apartment 201, Fonville carrying what appeared to be a trash bag and a shoe box. The next day, "G" left the Mayfair Drive apartment driving one of Fonville's automobiles. When stopped for a traffic violation, "G" fled the vehicle, discarding approximately thirty bindles of heroin.
The facts and circumstances to be considered here (all of which were presented in support of the search warrant application) include Fonville's past criminal history, Detective Morris' training and experience, information provided by the CIs, evidence of controlled purchases, and WPD's surveillance of Fonville, "G," and others. Based upon these circumstances, there is a substantial basis to support the issuing judge's determination that there was probable cause to believe (i) that Fonville was engaged in the distribution of heroin, and (ii) that evidence of Fonville's illegal activities would be found at 2705 Mayfair Drive Apartment 201 because Fonville had been staying there. See United States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) ("Under these circumstances, it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key."). Accordingly, Fonville's motion to suppress should be denied.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's Motion to Suppress [DE #61] be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until April 30, 2020, to file written objections to the Memorandum and 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 Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation 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 Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 16th day of April 2020.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge