Opinion
7:20-CR-131-1FL
01-25-2022
UNITED STATES OF AMERICA v. BRIAN JACKIE HARPER, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendant's motion to suppress [DE #83], 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 [DE #84], and the time for further filings has expired. The matter is ripe for decision.
STATEMENT OF THE CASE
On July 29, 2020, a federal grand jury returned an indictment charging Brian Jackie Harper with distribution of a mixture and substance containing a quantity of heroin and fentanyl, and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C. § 2 (Count 2), and possession with the intent to distribute forty grams or more of a mixture and substance containing a detectable amount of heroin and fentanyl, and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 4). (Indictment [DE #1].)
On October 1, 2021, Defendant moved to suppress all evidence obtained or derived from the execution of state-court orders for disclosure of cell phone and GPS data and a state-court warrant to search Defendant's person and the residences and any vehicles located at 719 Melba Court and 4752 Seahawk Court in Wilmington, North Carolina. (Mot. Suppress [DE #83] at 1.) On October 15, 2021, the Government responded in opposition, arguing the searches and seizures complied with the Fourth Amendment. (Resp. Opp'n [DE #84].)
DISCUSSION
Defendant makes three arguments regarding the state-court orders for cell phone and GPS information: (i) these orders are not warrants and therefore evidence seized in connection with their execution is subject to suppression, (ii) these orders do not comply with North Carolina statutory requirements, and (iii) these orders are not supported by probable cause due to omission of material facts relating to the criminal informant (“CI”) by the affiant. (Mot. Suppress at 3-4.)
As to the search warrant, Defendant argues that it (i) violates certain statutory sections of North Carolina procedural law applying to search warrants and is therefore “facially invalid, ” (ii) is overbroad to the extent it authorized a search of “anywhere [law enforcement officers] believed [Defendant] to have been” and any automobile located in the curtilage of the two specified residences, (iii) is based on an affidavit that lacks probable cause due to staleness of certain information, and (iv) is based on the affiant's omission of material information about the CI. (Mot. Suppress at 4-6.)
Before analyzing Defendant's arguments, the undersigned summarizes these state-court orders and search warrant, which the Government has submitted as exhibits to its brief.
I. The Orders and Warrant
On March 2, 2020, North Carolina Superior Court Judge George F. Jones (“Judge Jones”) issued an order authorizing use of a pen register and/or trap and trace device for a telephone number believed to be used by Defendant. (Resp. Opp'n, Ex. A [DE #84-1] (“PRTT Order”).) Detective B.D. Chisholm of the Wilmington, North Carolina, Police Department applied for this order, which Judge Jones issued pursuant to both federal and state statutory law. (PRTT Order at 6-7, 12 (referencing 18 U.S.C. §§ 2703(d), 3122-3127, and N.C. Gen. Stat. §§ 15A-260 through -264).)
On March 4, 2020, Judge Jones issued an order, upon application from Detective Chisholm, authorizing installation of a global positioning system (“GPS”) tracking device on a 2013 Lincoln MKZ automobile believed to have been used by Defendant in connection with drug trafficking. (Resp. Opp'n, Ex. C [DE #84-3] (“Lincoln GPS Order”).) Next, on March 9, 2020, again upon application from Detective Chisholm, Judge Jones issued an order authorizing installation of a GPS tracking device on a 2000 Ford F-150 vehicle believed to have been used by Defendant in connection with drug trafficking. (Resp. Opp'n, Ex. B [DE #84-2] (“Ford GPS Order”).) For ease of use, the undersigned will refer collectively to these as “the GPS Orders.”
On March 20, 2020, Detective Chisholm applied for, and Judge Jones issued, a warrant to search the following for evidence of drug trafficking: 719 Melba Court, Apt. I, Wilmington, NC; 4752 Seahawk Square, Apt. B8, Wilmington, NC; the Lincoln and Ford vehicles specified in the GPS Orders; any vehicle located within the curtilage of the Melba Court and Seahawk Square residences or within the dominion and control of persons located within said residences; and any outbuildings associated with said residences. (Resp. Opp'n, Ex. D [DE #84-4] (“Warrant”).) The return of service indicates that the warrant was issued around 9:00 a.m. on March 20, 2020, and executed later that morning around 10:44 a.m. (Warrant at 16.)
II. Analysis
A. Orders
Plaintiff contends that evidence obtained pursuant to the PRTT Order and GPS Orders should be suppressed (and not considered in the probable cause analysis in the search warrant application) because it was not obtained pursuant to a warrant. (Mot. Suppress at 3.) Plaintiff further argues (i) the PRTT Order and GPS Orders “do not comply with the statutory procedural requirements set forth in Article 11 of the North Carolina General Statutes”; (ii) do not meet the constitutional requirements for search warrants; and (iii) “do not set forth reliable probable cause based on the omission of facts related to the CI and the lack of reliability of the CI beyond the affiant's statement.” (Mot. Suppress at 3-4.) These arguments should be rejected for the following reasons.
i. Form and Statutory Violation Arguments
It is immaterial whether the PRTT Order and GPS Orders are styled as “orders” rather than “warrants.” United States v. Wilford, 961 F.Supp.2d 740, 773 (D. Md. 2013) (citing Dalia v. United States, 441 U.S. 238, 256-59 (1979)) (noting that the Title III wiretap order at issue in Dalia was deemed by the Supreme Court to be “a warrant issued in full compliance” with the Fourth Amendment's warrant requirement). What matters is whether the PRTT Order and GPS Orders complied with the following substantive requirements set forth by the Supreme Court:
First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. Finally, “warrants must particularly describe the ‘things to be seized, '” as well as the place to be searched.Dalia, 441 U.S. at 255 (citations omitted). To whatever extent Plaintiff argues that the evidence obtained pursuant to the PRTT Order and GPS Orders should be suppressed because those were “orders” and not “warrants, ” that argument should be rejected. See Dalia, 441 U.S. at 256-59; Wilford, 961 F.Supp.2d at 773.
Defendant's argument that the PRTT Order and GPS Orders are based on affidavits lacking probable cause due to omission of information regarding the CI (Mot. Suppress at 4) is more fully discussed below.
Defendant's argument that the PRTT Order and GPS Orders do not comply with North Carolina statutory requirements should also be rejected. Although not specified by Defendant, he presumably intends to reference Article 11 of Chapter 15A of the North Carolina General Statutes. See N.C. Gen. Stat. §15A-241 through -259 (North Carolina's Criminal Procedure Act sections applying to search warrants). Plaintiff fails to explain how the PRTT Order and GPS Orders do not comply with North Carolina's procedural requirements, aside from the probable cause related requirements that are relevant to Plaintiff's other arguments. (See Mot. Suppress at 2-4.) Furthermore, ‘‘there is no exclusionary rule generally applicable to statutory violations, ” and “[f]ederal not state law ‘governs the admissibility of evidence obtained by state officers but ultimately used in a federal prosecution.'” United States v. Clenney, 631 F.3d 658, 667 (4th Cir. 2011) (first quoting United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006); and then quoting United States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994)); see also California v. Greenwood, 486 U.S. 35, 43 (1988) (“We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.”); Virginia v. Moore, 553 U.S. 164, 171-73 (2008) (reaffirming line of precedent holding that “when States go above the Fourth Amendment minimum, the Constitution's protections concerning search and seizure remain the same”). For these reasons, Defendant has failed to put forth any plausible basis for suppressing evidence on the ground that the PRTT Order and GPS Orders failed to comply with state procedural laws.
Article 12 of Chapter 15A sets forth the procedures for pen registers and trap and trace devices. While the PRTT Order is styled as a pen register or trap and trace order, Defendant contends that law enforcement used it to obtain historical location data for the cell phone, which would bring it within the ambit of Carpenter v. United States, 138 S.Ct. 2206 (2018) (holding that a search warrant is needed for law enforcement to obtain such information). Here, Defendant conclusorily states that historical cellular phone location data was obtained pursuant to the PRTT Order and used as part of the basis for the warrant. (Mot. Suppress at 3.) Defendant has proffered no evidence to support this contention. However, the Government has included the PRTT Order and Warrant, including the supporting affidavits. Therefore, the undersigned evaluates Defendant's argument based on the materials proffered by the Government.
ii. Franks Argument
At its core, Defendant's argument about the PRTT Order and GPS Orders concerns information omitted from the supporting affidavits regarding the CI. Specifically, Defendant contends Detective Chisholm omitted three categories or pieces of information related to the CI: (1) the controlled buy during the week of February 29, 2020, mentioned in paragraph 3 of the supporting affidavit was unsuccessful (i.e. no transfer of drugs occurred), (2) facts regarding the CI's criminal history, pending sentencing, pending felony charges, and “charges that Wilmington Police Department were holding to serve” on the CI, and (3) facts to support Chisholm's statement in the affidavits that the CI was a reliable informant. (Mot. Suppress at 1-3.)
Defendant proffers no evidence as to his allegations regarding the CI's history and pending charges, nor does he identify any information the inclusion of which would have called into question the CI's reliability. (Mot. Suppress at 1-3.)
In support of his contention that the controlled buy during the week of February 29, 2020, was not successful, Defendant points to paragraph 6 of Detective Chisholm's affidavit supporting the search warrant, which states:
The week of February 29, 2020 Detectives with the Wilmington Police Department conducted a controlled drug buy operation. The Wilmington Police Department used a confidential informant to make a controlled purchase of crack cocaine from HARPER. WPD provided controlled drug buy funds to make the purchase of crack cocaine from HARPER. HARPER arrived and met with the CI. HARPER did not proceed with the narcotic[s] transaction, but instead spoke about the large quantity of narcotics in his possession, the amount he is able to acquire, his frustrations with cooking such a large amount of crack cocaine, and how
he operates his drug trafficking organization for approximately 40 mins. This conversation was recorded on an audio surveillance device.(Warrant at 8; see Mot. Suppress at 3 (“In this search warrant, Chisholm states the CI was sent to Harper to purchase crack cocaine but no transaction occurred.”).) In contrast, the paragraph from the PRTT Order and GPS Orders that Defendant takes issue with states:
The week of February 29, 2020 Detectives with the Wilmington Police Department conducted a controlled drug buy operation. The Wilmington Police Department used a confidential informant to make a controlled purchase of crack cocaine from HARPER. WPD provided controlled drug buy funds to make the purchase of crack cocaine from HARPER. HARPER made mention about the quantity of narcotics in his possession and made repeated references to this.(PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.)
As Defendant notes, this argument invokes Franks v. Delaware, 438 U.S. 154 (1978). (See Mot. Suppress at 4 (“These facts constitute material omissions which warrant suppression under Franks.”).) Franks held that there was a “presumption of validity” to search warrant applications, Franks, 438 U.S. at 171, but “carved out a narrow exception to this rule, whereby an accused is entitled to an evidentiary hearing on the veracity of statements in the affidavit” where a defendant makes a substantial preliminary showing that probable cause for the search was premised upon false statements in the affidavit, United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). Because Defendant seeks to challenge the PRTT Order and GPS Orders on the basis of omitted information, the court must first determine whether Defendant has made a “substantial preliminary showing” to justify a Franks hearing. See Franks, 438 U.S. at 155-56. Furthermore, because Defendant's Franks argument depends on omissions, the showing necessary to justify a hearing is “even higher.” Clenney, 631 F.3d at 664 (citing United States v. Tate, 524 F.3d 449, 454-55 (4th Cir. 2008)); see also United States v. Haas, 986 F.3d 467, 474 (4th Cir. 2021) (citing Tate, 524 F.3d at 454-55).
In a situation where a defendant relies on omissions to make a Franks argument, he “must provide a substantial preliminary showing that (1) law enforcement made an omission; (2) law enforcement made the omission ‘knowingly and intentionally, or with reckless disregard for the truth,' and (3) the inclusion of the omitted evidence in the affidavit would have defeated its probable cause.” Haas, 986 F.3d at 474 (quoting United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990)). Importantly, “warrant affidavits are ‘normally drafted by nonlawyers in the midst and haste of a criminal investigation.'” United States v. Moody, 931 F.3d 366, 372 (4th Cir. 2019) (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). Such affidavits “must be interpreted in a commonsense manner” and not “held to the standard of what judges or lawyers feel they would have written.” Moody, 931 F.3d at 372. “And the mere fact that information was omitted from an affidavit cannot alone show recklessness or intentionality.” Haas, 986 F.3d at 475 (citing United States v. Shorter, 328 F.3d 167, 171 (4th Cir. 2003)). Negligence or innocent mistake are not sufficient to show the intent to mislead, Moody, 931 F.3d at 371, and to the extent a defendant premises his argument on the reckless disregard of the affiant, he must show that the affiant was “subjectively aware that the false statement or omission would create a risk of misleading the reviewing [] judge, ” United States v. Pulley, 987 F.3d 370, 377 (4th Cir. 2021).
“[T]o make the ‘substantial preliminary showing' required by Franks, a defendant's ‘allegations [of Franks-type misconduct] must be accompanied by an offer of proof.'” United States v. Chandia, 514 F.3d 365, 373 (4th Cir. 2008) (alteration in original) (quoting Franks, 438 U.S. at 171). “For instance, ‘[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.'” Chandia, 514 F.3d at 373 (quoting Franks, 438 U.S. at 171). A defendant is entitled to an evidentiary hearing if and only if he makes the substantial preliminary showing. Haas, 986 F.3d at 474. Once at the hearing, the defendant must prove by a preponderance of the evidence that the Franks prongs have been met; if he succeeds, “the search warrant [is] voided and the fruits of the search excluded.” Id. (quoting Franks, 438 U.S. at 156; citing Colkley, 899 F.2d at 300-01) & n.2 (explaining differing burdens).
Here, Defendant's arguments fail for several reasons. And he has, accordingly, failed to make the requisite substantial preliminary showing to justify a Franks hearing.
First, Defendant has put forth no evidence-for example, witness statements, affidavits, or other supporting documentary evidence-to support his motion, nor has he explained why he has not done this. Such offer of proof is a requirement under Franks, 438 U.S. at 171, and its absence alone justifies denying Defendant a Franks hearing. See Chandia, 514 F.3d at 373 (“Because Chandia did not make the required offer of proof in support of his allegations of misconduct, the district court did not err in omitting a Franks hearing); cf. Mot. Suppress, United States v. Lull, No. 5:14-CR-106-BO, ECF No. 29 (E.D. N.C. filed Oct. 10, 2014) (attaching CI's agreement with police department, search warrant and supporting affidavit, and police investigative reports to motion), district court's denial of motion reversed and case remanded by 824 F.3d 109 (4th Cir. 2016). As to his argument that Detective Chisholm omitted information regarding the CI's reliability, Defendant has not identified any misinformation provided by the CI that would undermine Chisholm's statement and support conducting a Franks hearing. See Haas, 986 F.3d at 475 (analyzing similar problem in a request for a Franks hearing).
Even Detective Chisholm's more fulsome statement in the search warrant affidavit, which makes it abundantly clear that the controlled buy operation during the week of February 29, 2020, did not result in the purchase of drugs by the CI, does not suggest that the CI was unreliable.
Second, as to Defendant's argument about the February 29, 2020, controlled buy operation, it is not even clear that the paragraph in Chisholm's supporting affidavits about which Defendant complains contains the omission he alleges. There is no mention of a completed drug purchase. (PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.) Defendant's suggestion is the type of “subjective disagreement” with facts in an affidavit that is insufficient to show intentional or reckless disregard for the truth. Moody, 931 F.3d at 370. And while Detective Chisholm's statement in the search warrant affidavit may have been more explicit about the February 29, 2020, controlled buy operation, that does not show that the statements in the PRTT and GPS affidavits were misleading, much less intentionally or recklessly so. Indeed, it is difficult to imagine why Detective Chisholm would have intentionally omitted information regarding this controlled buy operation-as the paragraph in the search warrant affidavit makes clear, although the controlled buy operation did not result in the transfer of drugs, it did result in an audio recording of Defendant talking about his drug trafficking organization. This is a prime example of an argument about technical style and writing that nonlawyers are not expected to have mastered, especially law enforcement officers in the “midst and haste of a criminal investigation.” Moody, 931 F.3d at 372. Any omission by Detective Chisholm in this respect was at most negligent.
Defendant's argument about the February 29, 2020, controlled buy operation also fails because inclusion of the omitted information would not have defeated the affidavit's probable cause. Regardless of whether the CI succeeded in obtaining drugs from Defendant during the controlled buy, it is undisputed that Defendant repeatedly mentioned that he possessed drugs. (PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.) The paragraph in the search warrant affidavit that Defendant relies on explicitly states that the CI recorded Defendant talking about his possession, processing, and transfer of large amounts of drugs. (Warrant at 8; Mot. Suppress at 3.) Given the additional facts alleged by Detective Chisholm in the PRTT and GPS affidavits, and the lack of any argument by Defendant explaining how probable cause is defeated, Defendant has failed to make a substantial preliminary showing that inclusion of the allegedly omitted information would defeat probable cause.
For example, Detective Chisholm averred that the CI (i) described Defendant and identified him based on photographs in a database, (ii) had purchased heroin from Defendant numerous times, and (iii) described automobiles driven by Defendant and provided a license plate number that Chisholm confirmed was registered to Defendant. (PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.)
Third, Defendant fails to offer any support, other than conclusory assertions, that the omission of information regarding the CI's criminal history and pending charges was intentionally designed to mislead Judge Jones or somehow undermines the probable cause finding. The mere omission of garden-variety aspects of a CI's criminal history, without more, is insufficient to meet Defendant's burden under Franks. Haas, 986 F.3d at 475; see also United States v. Woodfork, 999 F.3d 511, 517 (7th Cir. 2021) (“We trust that warrant-issuing judges are aware that the individuals upon whom law enforcement relies to make drug purchases through controlled buys are likely to have criminal histories, and it is not a stretch to assume that the judge here knew that a confidential source buying methamphetamine likely had some criminal history.”); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 970 (7th Cir. 2003) (“[C]ourts are aware that informants are frequently facing charges and hoping for deals.”), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Defendant offers no specific reasons as to why the CI's criminal history and pending charges were constitutionally required to be disclosed by Detective Chisholm. See Haas, 986 F.3d at 475-76 (conducting analysis of similar argument and contrasting general criminal history facts with particular instances of misconduct discussed in United States v. Lull, 824 F.3d 109 (4th Cir. 2016)).
The CI's pending sentencing and criminal charges can also create “a strong motive to supply accurate information.” United States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991).
In sum, Defendant has set forth no basis for the court to grant suppression because of state statutory violations or constitutional deficiencies in the PRTT and GPS Orders, and he has failed to make a substantial preliminary showing regarding omissions in the supporting affidavits that would justify a Franks hearing. Accordingly, the undersigned recommends that Defendant's challenge to the PRTT and GPS Orders be rejected and his motion with respect to these orders be denied.
B. Search Warrant
Defendant also argues that evidence obtained pursuant to the search warrant should be suppressed because the warrant (i) violates applicable North Carolina law and is therefore “facially invalid”; (ii) is based on the affiant's aforementioned omission of material information about the CI; (iii) is overbroad to the extent it authorized a search of “anywhere [law enforcement officers] believed [Defendant] to have been” and any automobile located in the curtilage of the two specified apartments; and (iv) is based on an affidavit that lacks probable cause due to staleness of certain information, lack of particularity, and a conclusory statement regarding the CI's reliability. (Mot. Suppress at 4-6.) Because Defendant's overbreadth, particularity, and staleness arguments all relate to the probable cause finding, these arguments will be analyzed together.
i. Statutory Violations
Defendant argues that the warrant fails to comply with certain procedural requirements of North Carolina statutory law. (Mot. Suppress at 4.) For the reasons explained above regarding Defendant's similar argument about the PRTT and GPS Orders, this argument should be rejected. See Clenney, 631 F.3d at 667; Greenwood, 486 U.S. at 43; Moore, 553 U.S. at 171-73.
ii. Franks Argument
Defendant makes the same Franks-based argument regarding Detective Chisholm's omission of information regarding the CI's criminal history and pending charges as he did in the context of the PRTT and GPS Orders, albeit without the allegation of omission as to the February 29, 2020, controlled buy operation. (Mot. Suppress at 6.) For the reasons explained above, this argument should be rejected. See Haas, 986 F.3d at 475.
iii. Probable Cause
“Before searching a home, the government generally must obtain a warrant, supported by probable cause.” United States v. Bosyk, 933 F.3d 319, 324-25 (4th Cir. 2019) (first citing Fernandez v. California, 571 U.S. 292, 298 (2014); and then citing U.S. Const. amend. IV). “A warrant is constitutionally sound when issued by a neutral magistrate and supported by probable cause.” United States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (first citing U.S. Const. amend. IV; and then citing Illinois v. McArthur, 531 U.S. 326, 330 (2001)). Probable cause exists when, after considering the totality of the circumstances set forth in an affidavit supporting a warrant application, 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). “Facts establishing probable cause need only warrant a man of reasonable caution to believe that evidence of a crime will be found and do not require a showing that such a belief be correct or more likely true than false.” United States v. Davis, 939 F.Supp.2d 535, 560 (E.D. N.C. 2013) (internal quotation marks omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)); see also United States v. Gondres-Medrano, 3 F.4th 708, 714 (4th Cir. 2021) (“Probable cause has long been understood to encompass circumstances that, while less than a preponderance, ‘warrant suspicion.'” (quoting Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813))). “Probable cause is therefore ‘not a high bar.'” Bosyk, 933 F.3d at 325 (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018)).
Information received from informants or tipsters, whether known or anonymous, can contribute to a finding of probable cause. Gondres-Medrano, 3 F.4th at 714-15. In the context of anonymous informants or tipsters, corroboration of information in the tip informs the reliability or veracity of the informant. Id. at 715; United States v. Hodge, 354 F.3d 305, 309 (4th Cir. 2004) (“The degree to which an informant's story is corroborated may also be an important factor.”).
Warrants are given great deference, and review is limited to whether the issuing official had a “substantial basis” for finding probable cause. United States v. Lyles, 910 F.3d 787, 791 (4th Cir. 2018) (quoting Gates, 462 U.S. at 238-39). Such review is limited to the “information actually presented to the magistrate during the warrant application process.” Lyles, 910 F.3d at 791 (quoting Owens ex rel. Owens v. Lott, 373 F.3d 267, 277 (4th Cir. 2004)).
Generally, evidence seized in violation of the Fourth Amendment is subject to suppression under the exclusionary rule, the purpose of which is to deter future, unlawful conduct by law enforcement. United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009). Because the deterrent purpose is not served in all circumstances, an exception exists where “evidence [is] obtained pursuant to a search warrant issued by a neutral magistrate . . . if the officer's reliance on the warrant was ‘objectively reasonable.'” United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (quoting United States v. Leon, 468 U.S. 897, 922 (1984)).
“[A] warrant issued by a [judge or] magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” Leon, 468 U.S. at 922 (internal quotation marks omitted). Thus, “the fruits of a search conducted under the authority of a warrant, even a ‘subsequently invalidated' warrant” are subject to suppression only where “‘a reasonably well trained officer would have known that the search was illegal despite [judicial] authorization.'” Perez, 393 F.3d at 460-61 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)). Suppression remains the appropriate remedy only where: (1) the judicial official who issued the warrant was misled by information the affiant knew to be false or would have known to be false but for the officer's reckless disregard of the truth; (2) the issuing official “wholly abandoned his judicial role” as a neutral and detached magistrate; (3) the warrant is based on an affidavit that is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) the warrant is “so fatally deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923. In the Fourth Circuit, a court is permitted to “look beyond the facts stated in the affidavit and consider uncontroverted facts known to the officers but inadvertently not disclosed” to the issuing official when determining if reliance on the warrant was objectively reasonable. United States v. McKenzie-Gude, 671 F.3d 452, 459 (4th Cir. 2011).
Judge Jones had a substantial basis for his finding of probable cause and issuance of the search warrant. The following facts established a fair probability to believe that evidence of drug dealing would be found at the locations noted in the search warrant:
• During the week of February 16, 2020, the CI told Detective Chisholm that he could purchase heroin from a person named “B” who was on federal probation, lived at an apartment on Seahawk Square and in another unknown location, and drove a newer-model Lincoln automobile and a green truck. (Warrant at 6.) During the week of February 23, 2020, the CI provided a license plate number of HDX-3175 for the Lincoln. (Id. at 7.)
• Chisholm corroborated the above facts by presenting the CI with a photograph of Defendant from a law enforcement database (the CI identified Defendant as “B” with 100% certainty); learning from said database that Defendant's address registered with federal probation was 4752 Seahawk Square, Apartment B8; confirming that the Lincoln with tag HDX-3175 was registered to Defendant; confirming that on December 21, 2019, Defendant was stopped for a traffic violation driving a green Ford F-150 truck and in possession of drug paraphernalia and a large amount of cash; and learning that police had reported to 719 Melba Court for domestic violence calls on February 12 and 22,
2020, where they encountered Defendant (police filmed these encounters with body-worn cameras). (Warrant at 6-7.)
• During the week of February 29, 2020, the CI attempted to purchase drugs from Defendant through a controlled buy operation, was not able to acquire drugs from Defendant, and audio recorded Defendant discussing his drug trafficking organization. (Warrant at 8.)
• GPS tracking devices on the Lincoln and Ford showed both vehicles were routinely at 719 Melba Court, which police confirmed with surveillance. (Warrant at 8.)
• During the week of March 15, 2020, the CI completed a controlled drug purchase of cocaine from an unidentified local drug dealer. The CI told police that the local drug dealer had to contact his supplier to obtain the drugs. Defendant was observed by police arriving at the drug sale location in the green Ford, which the local drug dealer entered. The GPS tracking device on the Ford showed Defendant leaving 719 Melba Court, driving to the location of the controlled buy, and then driving directly to 4752 Seahawk Square. (Warrant at 7-8.)
When these facts are considered in their totality, see Gates, 462 U.S. at 238, they show a fair probability to believe that Defendant was actively engaged in the sale of drugs, operated both the Lincoln and Ford vehicles, maintained residences at both the Seahawk Square and Melba Court apartments, and traveled between these residences shortly before and after a drug transaction. Chisholm corroborated the CI's information about Defendant's identity, residences, and automobiles, see United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993) (reliability of informant's tip corroborated by police confirmation of suspect's address, car, and alias), and then conducted two controlled buy operations, each of which resulted in the acquisition of evidence tending to show Defendant sold drugs. That Defendant had been driving the Ford only three months earlier and was in possession of a large quantity of heroin packaging material and a large amount of cash further corroborates the CI's initial statements to Chisholm that Defendant required he purchase a minimum amount of heroin, and, more generally, bolsters the probable cause finding. (See Warrant at 6 (CI informed Chisholm that “B” required him to purchase a minimum amount of heroin per week).) So too does the fact that Defendant was on federal supervised release related to heroin distribution convictions. See, e.g., United States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (criminal history can contribute to probable cause). Therefore, Judge Jones had a substantial basis for believing that evidence of drug sales would be located at both apartments, in both automobiles, and on Defendant's person.
While Detective Chisholm did not detail Defendant's prior criminal history in the affidavit, he was undoubtedly aware of Defendant's federal criminal history as it is referenced in the affidavit. See McKenzie-Gude, 671 F.3d at 459. Defendant was serving a three-year term of supervised release in connection with federal drug convictions for which he was sentenced in March 2008 to 175 (later reduced to 150) months' imprisonment. See Judgment & Reduction Order, United States v. Harper, No. 7:07-CR-114-1FL, ECF Nos. 48, 75 (E.D. N.C. ).
Defendant's arguments about particularity, staleness, and overbreadth should be rejected for the following reasons. First, as explained above, the affidavit sets forth sufficient information to establish probable cause to believe Defendant was involved in drug sales and that evidence would be located in the apartments and automobiles identified. See Grossman, 400 F.3d at 217-18 (noting that sufficient nexus can exist between a suspect's criminal conduct and residence even when the affidavit does not specifically link the criminality to the residence and that “it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key”). The GPS tracker evidence from the March 15, 2020, controlled buy operation provides even more evidence to believe that evidence of drug trafficking would be located in the two apartments. And the domestic violence calls to the Melba Court apartment during February 2020 support the finding that Defendant resided at that apartment.
Defendant argues that evidence from the GPS tracking devices should be excluded from consideration in the search warrant's probable cause finding. (Mot. Suppress at 5.) This argument is without merit as the GPS Orders complied with the Fourth Amendment. See supra at 4-14.
Second, Defendant's staleness arguments fail to take into consideration the totality of facts in the affidavit. While paragraph 1 of the affidavit does not explicitly say when the CI had previously purchased heroin from Defendant, several other facts in the affidavit support the inference that Defendant was involved in drug trafficking at the time of the warrant application: (i) Defendant required the CI to purchase a minimum amount of drugs, (ii) the CI identified the Seahawk Square apartment as a current residence for Defendant, (iii) the CI provided a license plate for the Lincoln and said Defendant drives a green Ford truck, (iv) Defendant was stopped in December 2019 driving the green Ford while in possession of drug packaging materials and a large amount of cash, and (v) Defendant was audio recorded during the week of February 29, 2020, talking about his drug trafficking operation. To the extent Defendant specifically argues that the December 2019 traffic stop does not support the probable cause finding, he fails to appreciate that it confirmed his operation of the green Ford truck and showed that he was in possession of drug packaging materials and a large amount of cash only a few months before the search warrant was issued. Such evidence tends to show that Defendant was engaged in the continued sale of drugs.
Third, Defendant's argument about the “failed” controlled buy during the week of February 29, 2020, does not undermine the CI's credibility or the probable cause finding. Defendant omits from his argument that during the controlled buy operation he was audio recorded talking about his drug operation. Regardless of whether Defendant provided the CI with drugs on that occasion, that controlled buy operation resulted in evidence that was included in the affidavit and which supported the probable cause finding.
Fourth, Defendant's overbreadth argument is meritless. To comply with the Fourth Amendment, a warrant must be ‘“no broader than the probable cause on which it is based.'” United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006) (quoting United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002)). Defendant contends that the warrant was akin to a general search warrant because it authorized police to search “anywhere they believed [Defendant] to have been.” (Mot. Suppress at 4.) To the contrary, the warrant was limited to searching two residences and two automobiles which, for the reasons explained above, police had probable cause to believe Defendant used to traffic drugs. To the extent Defendant argues the warrant was overbroad because it authorized the search of vehicles within the curtilage of the two apartments, Defendant fails to show that the apartment building parking lots would qualify as curtilage. See United States v. Jackson, 728 F.3d 367, 374 (4th Cir.2013) (trash can located two-to-three feet beyond apartment's patio in apartment complex courtyard not within curtilage); United States v. Makell, 721 Fed.Appx. 307, 308 (4th Cir. 2018) (per curiam) (common hallway of apartment building-“including the area in front of [the defendant]'s door”-not within curtilage); United States v. Pyne, 175 Fed.Appx. 639, 640-41 (4th Cir. 2006) (per curiam) (common parking garage not within curtilage) (citing United States v. Stanley, 597 F.2d 866, 870 (4th Cir. 1979)). Moreover, Defendant does not contend that any evidence he seeks to suppress was seized from a vehicle other than the Lincoln and Ford.
Lastly, even if the search warrant was not supported by probable cause, the good faith exception to the warrant requirement announced in United States v. Leon, 468 U.S. 897 (1984), would prevent application of the exclusionary rule. As explained above, there is no reason to believe Detective Chisholm misled Judge Jones, thus negating the Franks exception to Leon. The supporting affidavit also set forth ample basis for the probable cause finding; places to be searched and items to be seized were limited to those places and things reasonably connected to Defendant's suspected drug trafficking. Therefore, the only remaining exception to Leon is whether Judge Jones was somehow biased. But Defendant has proffered no evidence to suggest this. Accordingly, Leon would apply even if it were determined that the search warrant was not supported by probable cause.
CONCLUSION
For the foregoing reasons, Defendant has failed to make a substantial preliminary showing to warrant an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and it is RECOMMENDED that Defendant's Motion to Suppress [DE #83] 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 February 8, 2022, 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)(1); 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 Fed.Appx. 188, 189 (4th Cir. 2016).