Opinion
No. 5:17-CR-39-FL-1
12-20-2018
UNITED STATES OF AMERICA v. CHARLES MALONE EVANS, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter comes before the court on Defendant's Motion to Suppress Cell Phone Data. [DE-56]. The Government responded in opposition to Defendant's motion. [DE-67]. The undersigned held an evidentiary hearing on September 10, 2018, to further develop the record and allowed the parties to file supplemental briefing in order to respond to a case cited by the Government during the hearing. [DE-70, -73]. Defendant filed supplemental briefing in support of his motion, [DE-71], and the Government filed supplemental briefing in opposition, [DE-72]. Accordingly, this matter is ripe for review. For the reasons stated below, it is recommended that Defendant's motion to suppress be denied.
I. PROCEDURAL BACKGROUND
This case arises from an investigation into the February 2, 2015 death of Eric Darden ("Darden") from a heroin overdose. On February 8, 2017, a Grand Jury sitting in the Eastern District of North Carolina returned an indictment charging Defendant with two counts: (1) Distribution of a Quantity of Heroin, in violation of 21 U.S.C. § 841(a)(1); and (2) Distribution of a Quantity of Heroin, Resulting in Death or Serious Bodily Injury, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). Indictment [DE-1]. At the suppression hearing, Defendant did not present any evidence. The Government presented the testimony of Sergeant Gregory Pawluk of the Apex Police Department. [DE-73].
In the official hearing transcript, Sergeant Pawluk's name is spelled "Pollock." [DE-73]. The court elects to use the spelling "Pawluk," as it is contained in the February search warrant, the April Pen Register Order, and the Government's filings. Additionally, Sergeant Pawluk was promoted to his present rank of sergeant in 2018. Hr'g Tr. [DE-73] at 4:11. Because he was a detective when he conducted the investigation in 2015, the court will refer to him as Detective Pawluk for ease of reference when discussing the investigation.
II. STATEMENT OF THE FACTS
On February 1, 2015, Darden overdosed on heroin and was treated at a local hospital. Gov't's Resp. [DE-67] at 2. Darden checked himself out of the hospital and was transported home by family to recover. Id. The next day, on February 2, 2015, officers with the Apex Police Department responded to a reported overdose by Darden, who was later pronounced dead. Hr'g Tr. [DE-73] at 4:17-21. Law enforcement searched Darden's cell phone, which showed that Darden had communicated with William Mayhew ("Mayhew") on February 1, 2015, asking if Mayhew could obtain heroin for Darden. Id. at 4:22-5:3. In the last text message Darden sent to Mayhew, hours before the first overdose was reported, Darden informed Mayhew that he was outside Mayhew's residence. Gov't's Resp. [DE-67] at 2. Law enforcement later searched Mayhew's cell phone, which showed that Mayhew had communicated with someone referred to as "CJ." Hr'g Tr. [DE-73] at 5:14-18. During his interview, Mayhew stated that the heroin purchased that day and provided to Darden had come from Defendant, who he knew as "CJ." Id. 5:24-6:3.
On February 25, 2015, Detective Pawluk sought and obtained a search warrant for the telephone number associated with "CJ." Gov't's Resp., Ex. A [DE-67-1]. In the application for the search warrant, Detective Pawluk described the investigation that led law enforcement to believe "CJ" was the individual who sold heroin to Mayhew on February 1, 2015. Id. at 6-8. The phone number associated with "CJ" was listed in the search warrant application. Id. at 8. Wake County Superior Court Judge Kendra D. Hill signed the search warrant seeking account holder information, incoming and outgoing phone call records, and text message records including all data sent and received (SMS, MMS, photographs, videos or any other retained data) for a period beginning at 0000 hours EST on January 1, 2015 through 2359 hours EST on February 25, 2015 for the telephone number associated with Defendant. Id. at 5-9. Pursuant to the search warrant, Detective Pawluk obtained records from Verizon Wireless indicating that Mayhew and Defendant had exchanged text messages regarding drug sales. Gov't's Resp. [DE-67] at 4.
On April 21, 2015, Detective Pawluk submitted an application for an order authorizing the following: (1) the installation of a pen register, trap and trace device, and direct connect/dispatch services; and (2) the release of "call detail, subscriber information, and cell site information, RTT, historical GPS, precision location information (GPS), E-911, Nelos, or Mobile Locator Service Information." Gov't's Resp., Ex. B [DE-67-2]. In the application for the order, Detective Pawluk described the investigation that led law enforcement to believe that Mayhew purchased heroin from "CJ," who used the phone number associated with Defendant. Id. at 1-8. Wake County Superior Court Judge James Hardin signed the order. Pursuant to the order, Detective Pawluk obtained records from Verizon Wireless that indicated Darden, Mayhew, and Defendant were in the same vicinity on the day of the heroin sale that allegedly led to Darden's death. Gov't's Resp. [DE-67] at 5.
III. DISCUSSION
Defendant moves to suppress all cell phone information and data obtained pursuant to both the February search warrant and the April order, arguing the data was seized as the result of an unlawful search in violation of the Fourth Amendment to the United States Constitution and the Supreme Court's decision in Carpenter v. United States, — U.S. —, 138 S. Ct. 2206 (2018). Def.'s Mot. [DE-56] at 1. A. The data obtained pursuant to the February 25, 2015 search warrant
Although Defendant moves to suppress "cell phone information and data obtained by an insufficient search warrant signed on February 25, 2015," he makes no arguments that the February search warrant is invalid or that the data was produced in an unconstitutional search. Def.'s Mot. [DE-56] at 1. Rather, Defendant only argues that location data obtained pursuant to the April order ought to be suppressed and references the February search warrant to demonstrate that it did not authorize production of location data, so it cannot justify the constitutionality of the April search. Id. at 4.
The February search warrant never purported to seek location data—the type of information protected by the Court in Carpenter—but rather sought substantive data such as call logs and text message content. See 138 S. Ct. at 2219 (differentiating between the lesser expectations of privacy involving pen registers and telephone call logs with the invasive nature of location information). Therefore, the ruling in Carpenter does not apply to the February search warrant. Id. Instead, the issue is whether the warrant was sufficient to authorize production of phone call records, text message records, photographs, videos, and any other substantive, non-location information obtained pursuant to the warrant.
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 search warrants: (1) they must be issued by neutral, disinterested magistrates; (2) they must be supported by probable cause; and (3) they must particularly describe the place to be searched and the things to be seized. United States v. Dalia, 441 U.S. 238, 255 (1979) (citations omitted). The February search warrant is facially sufficient. First, the warrant was issued by a detached, neutral North Carolina Superior Court judge. Next, the application contained a sufficient factual basis to support a finding of probable cause where it detailed Darden's overdose, text messages between Darden and Mahew regarding the purchase of heroin, and evidence from Mahew's telephone indicating he purchased drugs from Defendant leading up to the heroin sale to Darden. Gov't's Resp., Ex. A [DE-67-1] at 13-14. Finally, the warrant described with particularity the contents to be seized, i.e., account holder information, call records, and text messages between January 1, 2015 and February 25, 2015 for the specified phone number. Id. at 11. Accordingly, because the February search warrant meets the Fourth Amendment requirements, it is recommended that Defendant's motion to suppress the substantive cell phone information obtained pursuant to the February search warrant be denied. B. The location data obtained pursuant to the April 21, 2015 order
Defendant argues that the April order is not a warrant in form or substance, so the search of his cell phone location data was unconstitutional. Def.'s Mot. [DE-56] at 5. In supplemental briefing, Defendant further argues that the judge lacked authority to issue the April order, and the April order cannot act as a search warrant under state of federal law. Def.'s Mem. [DE-71] at 3-9. The Government contends that the April order is the functional equivalent of a warrant, so it does not offend the Fourth Amendment or, alternatively, that the good faith exception to the exclusionary rule applies. Gov't's Resp. [DE-67] at 8-15; Gov't's Suppl. Resp. [DE-72] at 4-10.
1. The state court judge had authority to issue order to disclose cell site location information ("CSLI")
Defendant argues for the first time in his supplemental briefing that the North Carolina Superior Court judge who signed the April order lacked authority to order a telecommunications company to disclose CSLI because North Carolina state law does not permit a judge to issue an order requiring such information be disclosed to the government. Def.'s Mem. [DE-71] at 3-5.
The April order authorized the installation and use of a pen register and trap and trace device and the release of CSLI and other subscriber information pursuant to 18 U.S.C. § 2703(d), the Stored Communications Act, and N.C. Gen. Stat. §§ 15A-262 and 15A-263. Gov't's Resp., Ex. B [DE-67-2]. The Stored Communications Act ("SCA") authorizes the collection of CSLI. 18 U.S.C. § 2703(c); see Carpenter, 138 S. Ct. at 2212 ("[The SCA] permits the Government to compel the disclosure of certain telecommunications records when it 'offers specific and articulable facts showing that there are reasonable grounds to believe' that the records sought 'are relevant and material to an ongoing criminal investigation.'") (citing 18 U.S.C. § 2703(d)). A state court may issue an order under § 2703 if it is not prohibited by state law. 18 U.S.C. § 2703(d). Defendant, citing N.C. Gen. Stat. §§ 15A-262 and 15A-263, argues that North Carolina law does not grant a judge the authority to issue an order for disclosure of CSLI. However, the SCA does not require a grant of authority under state law but rather allows a state court to issue an order under § 2703 unless prohibited by state law. 18 U.S.C. § 2703(d). Defendant points to no prohibitive North Carolina law, and prior to Carpenter North Carolina courts affirmed the collection of CSLI pursuant to the SCA. See, e.g., State v. Forte, 810 S.E.2d 339 (N.C. Ct. App. 2018) (affirming denial of motion to suppress evidence collected from a § 2703 order signed by a state superior court judge); State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528 (2015) (affirming use of state court order to obtain CSLI pursuant to 18 U.S.C. § 2703 and N.C. Gen. Stat. §§ 15A-261, 15A-262, and 15A-263). Accordingly, the North Carolina Superior Court judge had authority to issue the April order under the SCA at the time it was signed.
2. The April 21, 2015 Order was the functional equivalent of a search warrant
In Carpenter, the Supreme Court held that seven days of historical CSLI obtained from a defendant's wireless carriers constituted a Fourth Amendment search for which the government must generally obtain a warrant upon a showing of probable cause. 138 S. Ct. at 2217 & n.3, 2221. As a result, an order issued pursuant to the SCA is insufficient to obtain cell location data because it requires only a showing that the data is "relevant and material to an ongoing criminal investigation," and not a showing of probable cause. Id. The Government does not dispute that it conducted a Fourth Amendment search based on the information obtained from Defendant's cell phone, but contends the April order is the functional equivalent of a warrant.
The April order, on its face, meets the requirements for a search warrant necessary to satisfy the Fourth Amendment under Dalia, 441 U.S. at 255. First, the order was issued by a detached, neutral North Carolina Superior Court judge. Gov't's Resp., Ex. B [DE-67-2] at 15; Dalia, 441 U.S. at 255 (citing Connally v. Georgia, 429 U.S. 245, 250-51 (1977) (per curiam)). Second, the application for the order contains a sufficient factual showing to establish probable cause that the CSLI from Defendant's phone was relevant and material to the investigation of Darden's overdose death. Dalia, 441 U.S. at 255 (citing Warden v. Hayden, 387 U.S. 294, 307 (1967)). The officer's sworn application stated that when police responded to the report of Darden's overdose, a witness informed officers that he and Darden bought the heroin from Mayhew, who had fled the scene. Gov't's Resp., Ex. B [DE-67-2] at 5-6. After Mayhew was arrested, he disclosed in an interview that he purchased the heroin from Defendant and provided Defendant's phone number to police. Id. In addition to the finding required by § 2703, the Superior Court judge found that probable existed. Id. at 10. Third, the order particularly describes the place to be searched and the things to be seized. Dalia, 441 U.S. at 255 (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). The order authorized the search of Defendant's cell phone records for a particular number and the seizure of specific information, including historical CSLI, for a 60-day period beginning January 28, 2015. Gov't's Resp., Ex. B [DE-67-2] at 9-15. Because the April order meets the constitutional requirements for a search warrant, Defendant's Fourth Amendment rights were not violated by the search of his phone records despite the fact that the order was issued under the SCA. See United States v. Hargett, No. 5:15-CR-374-D, Hr'g Tr. [DE-153] at 39-45 (E.D.N.C. Aug. 17, 2018) (finding no Fourth Amendment violation where an order to obtain CSLI, issued pursuant to § 2703(d) and N.C. Gen. Stat. §§ 260-264 by a North Carolina Superior Court judge, met the requirements for a warrant); United States v. Myles, No. 5:15-CR-172-F-2, 2016 WL 1695076, at *7-8 (E.D.N.C. Apr. 26, 2016) (concluding orders issued by a North Carolina Superior Court judge under the SCA, Fed. R. Crim. P. 41(d), and N.C. Gen. Stat. §§ 15A-262, 263 "effectively served as a warrant that complied with the three requirements of the Warrant Clause of the Fourth Amendment" as set forth in Dalia); United States v. Wilford, 961 F. Supp. 2d 740, 772-73 (D. Md. 2013) (concluding orders issued under state pen register statute satisfied the Fourth Amendment's warrant requirement), aff'd, 689 F. App'x 727, 730 (4th Cir. May 9, 2017); see also United States v. Sykes, No. 5:15-CR-184-FL, 2016 WL 8291220, at *10 (E.D.N.C. August 22, 2016) (finding it immaterial for purposes of probable cause determination whether the applications were for orders as opposed to warrants) (citing Wilford, 961 F. Supp.2d at 773), adopted by 2016 WL 6882839 (E.D.N.C. Nov. 22, 2016).
Defendant argues in supplemental briefing that the April order cannot operate as a search warrant for two reasons: (1) it fails to comply with technical requirements for search warrants found in N.C. Gen. Stat. § 15-246(1), i.e., it lacks the time and date of issuance above the signature of the issuing officer; and (2) it fails to comply with Fed. R. Crim. P. 41(d), because a state court judge may only issue a search warrant under Fed. R. Crim. P. 41(b) at the request of a federal law enforcement officer or attorney for the government, and the order lacks the necessary contents required by Fed. R. Crim. P. 41(e)(2) related to the execution and return of the warrant. Def.'s Mem. [DE-71] at 7-8.
The warrant must command the officer to:
(i) execute the warrant within a specified time no longer than 14 days;
(ii) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and
(iii) return the warrant to the magistrate judge designated in the warrant.
First, "it is not the province of the Fourth Amendment to enforce state law." Virginia v. Moore, 553 U.S. 164, 178, (2008); see United States v. Queen, 732 F. Supp. 1342, 1347 (W.D.N.C. 1990) ("[E]very circuit court which has addressed the issue has held that evidence obtained in violation of state law, including state constitutional rights, is nonetheless admissible in a federal prosecution if properly obtained under federal law"). The SCA order in Hargett, which the court found sufficient under the Fourth Amendment, also lacked the time of issuance above the judge's signature. No. 5:15-CR-374-D, [DE-120-1] at 1-5. Because the SCA order meets the constitutional warrant requirements of the Fourth Amendment set forth in Dalia, the fact that it does not meet a statutory technical requirement under North Carolina law does not require suppression of evidence.
Second, the asserted violations of Rule 41(d) and (e) were technical in nature rather than constitutional. See United States v. Ritter, 752 F.2d 435, 440 (9th Cir. 1985) (concluding that a search conducted pursuant to a telephonic search warrant authorized by a state, rather than a federal, magistrate was a technical violation of Rule 41 and did not require suppression of evidence absent prejudice or deliberate disregard of the rule); Wilford, 961 F. Supp. 2d at 773 (finding orders signed by a state court judge authorizing the "pinging" of a cell phone satisfied the Fourth Amendment's warrant requirement and recognizing that "there is no inherent impropriety in the Government's reliance on a warrant issued by a state judge, even in a criminal case eventually prosecuted in federal court.") (citing United States v. Claridy, 601 F.3d 276, 281-82 (4th Cir. 2010)); United States v. Nesbitt, No. 2:08-CR-1153-DCN, 2010 WL 297689, at *3 n.4 (D.S.C. Jan. 19, 2010) (concluding that violation of Fed. R. Crim. P. 41(e)(2)(A) was non-constitutional and did not warrant suppression) (citing United States v. Davis, 313 F. App'x 672, 2009 WL 489998, at *2 (4th Cir. Feb. 27, 2009)). A non-constitutional violation of Fed. R. Crim. P. 41 results in suppression "only when the defendant is prejudiced by the violation . . . or when there is evidence of intentional and deliberate disregard of a provision in the Rule." United States v. Deichert, 232 F. Supp. 3d 772, 782 (E.D.N.C. 2017) (rejecting defendant's contention that issuance of a search warrant by a magistrate judge sitting in the wrong district in violation of Rule 41 required suppression because the violation was non-constitutional, not intentional or reckless, and did not prejudice defendant's case). The SCA order in Hargett, which the court found sufficient under the Fourth Amendment, also suffered from the deficiencies asserted here. No. 5:15-CR-374-D, [DE-120-1] at 1-5 Defendant has not argued prejudice and there is no reason to believe a federal magistrate judge would not have issued a warrant on the same showing. Further, nothing before the court indicates an intentional violation of Rule 41. Accordingly, no Fourth Amendment violation occurred and the motion to suppress should be denied.
3. The good faith exception to the exclusionary rule applies
Even if the April order failed to meet the warrant requirements, the good faith exception to the exclusionary rule should apply. 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). The good faith exception was later extended to an officer's reliance on a statute authorizing warrantless administrative searches, Illinois v. Krull, 480 U.S. 340, 349-50 (1987), and an officer's reliance on binding appellate precedent, Davis v. United States, 564 U.S. 229, 232 (2011).
Here, the officer relied upon a North Carolina Superior Court order issued under the SCA and related provisions of North Carolina law. [DE-67-2] at 9. In the case of United States v. Chavez, the Fourth Circuit applied the good faith exception where investigators "reasonably relied on court orders and the Stored Communications Act in obtaining the cell site records." 894 F.3d 593, 608 (4th Cir.), cert. denied, 139 S. Ct. 278 (2018). The Chavez court reasoned that although Carpenter was controlling going forward, it had no effect on Chavez's case, explaining that the exclusionary rule's "sole purpose . . . is to deter future Fourth Amendment violations." Id. (quoting Davis, 564 U.S. 236-37).
Defendant points to no binding precedent at the time the April order issued holding that obtaining CSLI from a cell service provide was a Fourth Amendment search; in fact, the Fourth Circuit in 2016 held that "the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant." United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc), abrogated by Carptenter, 138 S. Ct. at 2217; see also Myles, 2016 WL 1695076, at *9 (applying good faith exception to CSLI evidence obtained pursuant to an SCA order and noting that "at the time the pen/trap orders were signed, no Fourth Circuit precedent existed regarding historical or real-time CSLI - just conflicting district court decisions on the subject."). Likewise, within months of the April order being issued, the North Carolina Court of Appeals affirmed the use of a state court order to obtain CSLI pursuant to the SCA and, alternatively, held that even if a search warrant was required the good faith exception would apply. Perry, 243 N.C. App. 156, 167 & 175-76, 776 S.E.2d 528, 536 & 541-42.
Finally, Defendant has proffered no evidence that the officer was dishonest or reckless in applying for the order or that he lacked an objectively reasonable belief that probable cause existed. Because the officer's reliance on the SCA, North Carolina law, and a state court order was objectively reasonable, suppression of the evidence would not serve the exclusionary rule's purpose of deterring Fourth Amendment violations. See Chavez, 894 F.3d at 608 ("[W]hen investigators 'act with an objectively 'reasonable good-faith belief' that their conduct is lawful,' the exclusionary rule will not apply," and "[o]bjectively reasonable good faith includes 'searches conducted in reasonable reliance on subsequently invalidated statutes.'") (quoting Davis, 564 U.S. at 238-39); see also Hargett, No. 5:15-CR-374-D, Hr'g Tr. [DE-153] at 45-46 (applying the good faith exception to the exclusionary rule where officers obtained CSLI in reliance on an order issued by a North Carolina Superior Court judge under the SCA). Accordingly, the good faith exception to the exclusionary rule applies and the motion to suppress should be denied.
IV. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that the Defendant's motion to suppress [DE-56] 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 January 3, 2018 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 20th day of December, 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge