Robert B. Jones, Jr. United States Magistrate Judge

MEMORANDUM AND RECOMMENDATION

This matter comes before the court on Defendant Charles Anthony Walker, Jr.'s motion to suppress. [DE-242]. The Government responded in opposition to the motion [DE-255], and the court held an evidentiary hearing on May 11, 2020. For the reasons that follow, it is recommended that the motion to suppress be denied.

I. PROCEDURAL BACKGROUND

A Grand Jury sitting in the Eastern District of North Carolina returned an indictment charging Walker with conspiracy to commit robbery in violation of 18 U.S.C. § 1951; two counts of robbery and aiding and abetting in violation of 18 U.S.C. §§ 1951 and 2; and using and carrying firearms during and in relation to a crime of violence, possession of firearms in furtherance of a crime of violence, and aiding and abetting in violation of 18 U.S.C. §§ 924(c) and 2. [DE-14]. With leave of court, Walker filed a motion to suppress out of time, contending that a search warrant was not supported by probable cause. [DE-241, -242]. Walker also filed three exhibits in support of his motion. [DE-243-1 through -243-3]. At the suppression hearing, the Government presented one witness, Special Agent Daniel Robertson.

II. STATEMENT OF FACTS

On November 19, 2018, Special Agent Robertson completed an application for a warrant to search an Infiniti G37 vehicle with NC license plate number FHV-5325. [DE-243-1] at 1. In the accompanying affidavit, Special Agent Robertson wrote that Walker and his co-defendants conspired to commit armed robberies of two Kay Jewelers. Id. at 3. One robbery occurred on July 28, 2018 in Elizabeth City, NC, and the other occurred on October 11, 2018 in Garner, NC. Id. Special Agent Robertson asserts that the vehicle, a grey four-door sedan with tinted windows, was used in preparation for and commission of the October 11 robbery. Id. at 4.

On October 7, 2018, four days before the robbery, an employee at a Verizon store near the Kay Jewelers noticed the vehicle acting suspiciously in the parking lot. Id. at 5. The employee suspected that the vehicle was casing the Verizon store, so he sent photographs of the vehicle to police. Id. The license plate was visible in the photographs, and police identified Defendant as the registered owner of the car. Id. at 6.

On the day of the robbery, video surveillance cameras from several nearby stores captured the suspects leaving the Kay Jewelers at 4:03 p.m. Id. at 6. One of the suspects dropped a gun while fleeing, stopped, and ran back to retrieve the gun. Id. at 7. The suspects were recorded getting into a silver four-door sedan with tinted windows. Id. At 4:04 p.m., a camera recorded a silver four-door sedan with tinted windows driving much faster than other vehicles in the area; it made two left turns without stopping at stop signs and left the area. Id. at 6-7. Police believed that the vehicle depicted in the surveillance footage is the Infiniti that is the subject of the search warrant. Id.

Special Agent Robertson's affidavit further states that cell site data from the towers in the vicinity of the Kay Jewelers indicated that the phone number 336-470-4796 (hereinafter referred to as "x4796") was in the area at the approximate time of the robbery. Id. at 7. The phone number was also in contact with a number believed to belong to Christopher Wellington Brown, a robbery suspect, at the time of the robbery. Id. at 11. The affidavit alleges that x4796 is associated with the vehicle in several ways. Id. at 7-11. First, a Car Fax report indicates that maintenance was performed on the vehicle in September and October 2018, and x4796 was left as a contact number on both occasions. Id. at 7-8. Additionally, in a recorded jail phone call between Tomika Lloyd, who was then an inmate at the Guilford County Jail, and x4796, Ms. Lloyd refers to the caller as "Preme." Id. at 9. "Preme" is Walker's alias, and Walker is the registered owner of the car. Id. Additionally, during one phone call, Walker states that he is with Malik, who is believed to be Malik Shawn Maynard, one of the robbery suspects. Id. Walker also states that he is on his way to New York and says "instant replay," to which Ms. Lloyd responds, "say less." Id.

On October 13, 2018, two days after the robbery, license plate readers in New York City captured the vehicle entering the city at 4:16 p.m. and leaving at 9:31 p.m. Id. at 9-10. The vehicle was parked in the Diamond District at 6:11 p.m. Id. at 10. The affidavit concludes that the vehicle was used in preparation for and commission of the October 11 robbery, and there is probable cause to believe it was used to transport proceeds of the robbery to New York. Id. at 11. Special Agent Robertson states that Walker may use the vehicle to store evidence of the crime. Id.

On November 19, 2018, United States Magistrate Judge Kimberly Swank signed a warrant authorizing a search of the vehicle. [DE-243-2] at 1. The search was executed on November 29, 2018, and officers seized a DEA Special Agent badge, a New Jersey turnpike ticket, glasses, and five cell phones from the car. Id. at 2.

III. DISCUSSION

Walker contends that the search warrant was not supported by probable cause because the affidavit failed to sufficiently establish a connection between the vehicle and the October 11 robbery. Def.'s Mem. [DE-243] at 2-3. The Government counters that there was probable cause to believe that evidence or fruits of the robbery would be found in the car and that the good faith exception applies. Gov't's Resp. [DE-255] at 5-9.

A. Probable Cause

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. The Supreme Court has interpreted the Fourth Amendment to establish only three requirements for warrants: they must (1) be issued by neutral, disinterested magistrates; (2) be supported by probable cause; and (3) particularly describe the place to be searched and the things to be seized. United States v. Dalia, 441 U.S. 238, 256 (1979) (citations and quotations omitted). Probable cause is "not defined by bright lines and rigid boundaries[,]" but instead "allows a magistrate to review the facts and circumstances as a whole and make a common sense determination of whether 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "[P]robable cause is a flexible, common-sense standard . . . . [that] merely requires that the facts available to the officer would 'warrant a man of reasonable caution'" to believe that evidence of a crime may be discovered and does not require "any showing that such a belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)); see also Williams, 974 F.2d at 481. Sufficient information must be presented to the magistrate to allow for the exercise of independent judgment; the magistrate cannot simply ratify the bare conclusions of others. Gates, 462 U.S. at 239.

"When reviewing the probable cause supporting a warrant, a reviewing court must consider only the information presented to the magistrate who issued the warrant." United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996) (citing United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990)). Because probable cause is evaluated through a "totality of circumstances" analysis and based on a person's common sense, great deference is accorded to a magistrate's assessment of the facts before her. United States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (citing Gates, 462 U.S. at 230; Blackwood, 913 F.2d at 142). The court's review is therefore limited to whether there was a "substantial basis for determining the existence of probable cause." Id. (quoting Gates, 462 U.S. at 239).

Here, there was a substantial basis for Judge Swank's determination that probable cause existed to believe that evidence or fruits of the robbery would be found in the vehicle. Special Agent Robertson's affidavit indicates that the vehicle is connected to the robbery in five ways. First, an employee of a nearby Verizon store observed the vehicle acting suspiciously a few days before the robbery; the employee thought the driver might be casing the Verizon store in preparation for a robbery, so the employee took a photograph of the car. The vehicle was identified by its license plate—and Defendant was then identified as the owner—from the Verizon employee's photograph. Second, the phone number associated with the car through Carfax maintenance records was in the vicinity of the Kay Jewelers and made contact with the phone number of one of the robbery suspects at the approximate time of the robbery. Third, a vehicle similar in appearance was observed on various video cameras at the time of the robbery. The suspects entered the vehicle, and the vehicle sped away, driving faster than other traffic. Fourth, recorded jail phone calls made shortly after the robbery between Tamika Lloyd and the phone number associated with the vehicle contain coded conversations; Defendant tells Ms. Lloyd that he is with Malik, a robbery suspect, and that they are travelling to New York. He says "instant replay," and Ms. Lloyd tells him to say less. Fifth, the vehicle was captured on license plate readers in the Diamond District of New York City shortly after the robbery. The vehicle remained in the city for only a few hours.

Considering the totality of the circumstances, the affidavit sufficiently connects the vehicle to the robbery such that there was probable cause to believe that evidence or fruits of the robbery would be found in the vehicle. See United States v. McNeal, 818 F.3d 141, 150 (4th Cir. 2016) (holding that "there was ample cause to believe that McNeal was using the Taurus to plan and commit bank robberies" when he used the vehicle to case target banks and an informant advised law enforcement that the vehicle was used during a robbery); United States v. Abramski, 706 F.3d 307, 318 (4th Cir. 2013) (holding that an affidavit supporting a search warrant sufficiently connected the defendant's home to a robbery when the defendant "was flagged as a suspicious customer at the bank just a few days before the robbery," had a motive rob a bank, was seen wearing clothes similar to the robber and with a car matching the description of the getaway car, and "had purchased firearms with a large amount of cash after the bank robbery"), aff'd, 573 U.S. 169 (2014); United States v. Akinkoye, 185 F.3d 192, 199 (4th Cir. 1999) (holding that an affidavit was supported by probable cause when the agent was informed by a bank and victim that "fraud was afoot" and receipts from the bank bore "striking similarities" to the defendant's handwriting); United States v. Colkley, 899 F.2d 297, 302 (4th Cir. 1990) (holding that an affidavit was supported by probable cause when it alleged that the defendant was a robbery suspect based on photographic identification and past robberies, he purchased cars with cash shortly after the robbery, one car was paid for with bait bills, and an informant told police that the defendant had committed a robbery "that bore a remarkable resemblance" to the one at issue). Accordingly, it is recommended that Defendant's motion to suppress be denied.

B. The Good Faith Exception

The Government argues, alternatively, that even if the affidavit presented to Judge Swank was insufficient, the good faith exception should apply, and the evidence should not be suppressed. Gov't's Rep. [DE-255] at 9-11.

Evidence obtained in violation of the Fourth Amendment is generally precluded from use in a criminal proceeding against the individual whose rights were violated. United States v. Thomas, 908 F.3d 68, 72 (4th Cir. 2018) (citing United States v. Kimble, 855 F.3d 604, 610 (4th Cir. 2017)). In United States v. Leon, 468 U.S. 897, 921 (1984), the Court recognized a "good faith exception" to the exclusionary rule, whereby "evidence obtained by an officer who acts in objectively reasonable reliance on a search warrant will not be suppressed, even if the warrant is later deemed invalid." Thomas, 908 F. 3d at 72 (citing Leon, 468 U.S. at 922). In evaluating the good faith exception, the court can "look beyond the four corners of the affidavit" presented to the magistrate and consider "'uncontroverted facts' known to an officer but 'inadvertently not presented to the magistrate' in assessing the officer's objective good faith." Id. at 73 (quoting McKenzie-Gude, 671 F.3d at 460). The Fourth Circuit has recognized four "limited instances" where the exception will not apply:

(1) when the affiant based his application on knowing or reckless falsity; (2) when the judicial officer wholly abandoned his role as a neutral and detached decision maker and served merely as a 'rubber stamp' for the police; (3) when the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when the warrant was so facially deficient that the executing officers could not reasonably have presumed that the warrant was valid.

Here, there is no indication in the record that Special Agent Robertson was dishonest or reckless in applying for the order, that Judge Swank acted as a "rubber stamp," that the affidavit was so lacking that it would have been unreasonable to rely on it, or that Special Agent Robertson lacked an objectively reasonable belief that probable cause existed. Defendant contends that the "affidavit is devoid of any specific evidence suggesting how the search of Mr. Walker's Infiniti is related to criminal activity." Def.'s Mem. [DE-243] at 3. However, as discussed above, the affidavit alleges that the car is connected to the robbery in several respects: it was observed acting suspiciously in the vicinity several days before the robbery, video footage captures the suspects entering a silver four-door sedan with tinted windows shortly after the robbery, the phone number associated with the car through maintenance records was in the vicinity during the robbery and contacted the phone number of one of the suspects at the approximate time of the robbery, and the car was in the Diamond District of New York for several hours two days after the robbery. Defendant's argument that the affidavit was devoid of indicia of probable cause is not credible. Accordingly, even if the warrant were not supported by probable cause, application of the good faith exception is warranted, and it is recommended that Defendant's motion to suppress be denied.

IV. CONCLUSION

For the reasons stated herein, it is RECOMMENDED that Defendant's motion to suppress [DE-242] 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 May 29, 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, e.g., 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). Any response to objections shall be filed by within 14 days of the filing of the objections.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will 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).

Submitted, this the 15th day of May, 2020.

/s/_________

Robert B. Jones, Jr.

United States Magistrate Judge