Opinion
CRIMINAL ACTION 4:21-cr-00111-RBH-1 4:21-cr-00111-RBH-2
09-27-2021
United States of America, v. Monroe Kenneth Jackson and Verntirell Jerwon Dukes, Defendants.
ORDER
R. Bryan Harwell, Chief United States District Judge.
This matter is before the Court on a motion to suppress [ECF No. 106] and a motion to dismiss [ECF No. 105] brought by Defendants Verntirell Jerwon Dukes and Monroe Kenneth Jackson (collectively, “Defendants”). The Court held an evidentiary hearing on September 23, 2021, and took the matter under advisement. For the following reasons, the Court now denies the motion to suppress and the motion to dismiss.
Defendant Dukes originally filed the motions, see ECF Nos. 105 & 106, and Defendant Jackson subsequently joined in the motions. See ECF No. 111.
Factual and Procedural Background
On or about March 16, 2021, Defendants were charged in a six count indictment. See ECF No. 40. Defendants were each charged with felon in possession of a firearm in violation of 18 U.S.C. § 922(g), 924(a)(2), and 924(e) and possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). Defendant Jackson was charged with possession with intent to distribute heroin, methamphetamine, and fentanyl in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). Defendant Dukes was charged with possession with intent to distribute fentanyl and heroin in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C). Their charges stem from a search of 604 Hammond Drive in Myrtle Beach, South Carolina, on July 23, 2020. Law enforcement conducted this search pursuant to a warrant that was issued on July 17, 2020.
Defendant Jackson is charged in Counts One through Three and Defendant Dukes is charged in Counts Four through Six of the indictment. See ECF No. 40.
The affidavit supporting the application for the search warrant indicated that during June and July of 2020, the affiant investigated the illegal sale and distribution of narcotics by Defendant Jackson after the affiant was informed Defendant Jackson was selling various types of narcotics within the Myrtle Beach city limits. During the investigation, the Myrtle Beach Police Department's (“MBPD”) Street Crimes Unit utilized a confidential informant (“CI”) to conduct three controlled buys of Methamphetamine from Defendant Jackson on June 12, June 19, and July 15, 2020. The CI wore audio and video recording devices during the transactions, and the recordings corroborated the information the CI provided to the officers. The substances obtained by the CI were also field tested and tested positive for the presence of Methamphetamine. The last of the controlled buys, which occurred within 72 hours of the signing of the search warrant, took place at 604 Hammond Drive. On July 16, 2020, MBPD responded to 604 Hammond Drive in reference to a drug overdose. An individual was found unresponsive inside the residence and transported to the hospital to receive Narcan to reverse the effects of the drug overdose.
Discussion
I. Motion to Suppress
Defendants move to suppress the evidence recovered from the search of 604 Hammond Drive. Defendants argue (1) there was not probable cause to obtain a search warrant to search 604 Hammond Drive, (2) even if there was probable cause to obtain the search warrant, there was no longer probable cause for the search at the time the search was conducted, (3) Defendant Dukes's bedroom (“Room E”) was not particularly described in the warrant, and (4) the officers who conducted the search did not activate their body cameras during the search.
Defense Exhibit One, a Case Supplemental Report from MBPD, indicates officers were given assignments to process separate rooms inside of 604 Hammond Drive. The report designated a letter for each room in the residence in order to help process evidence found. Thus, the scene processing officers designated the room as Room E, as the rooms were not labeled to the execution of the search warrant.
This argument is addressed infra Section II with the discussion of Defendants' motion to dismiss [ECF No. 105].
A. Probable Cause
Defendants argue probable cause was lacking because the affidavit in support of the search warrant was deficient as only one of the three controlled buys set forth in the affidavit took place at 604 Hammond Drive and the only other information related to that address was a drug overdose on July 16, 2020. See ECF No. 106 at 3.
The Fourth Amendment, which protects individuals from “unreasonable searches, ” provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The Fourth Amendment requires that warrants: (1) be issued by a neutral, detached magistrate, (2) contain a particularized description of the place to be searched and persons or things to be seized, and (3) be based on probable cause, supported by oath or affirmation. United States v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994). A magistrate judge must examine the totality of the circumstances to determine whether probable cause exists, and whether a warrant should be issued. Id. 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, 214 (1983). “In determining whether a search warrant is supported by probable cause, the crucial element is not 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).
The Court finds the warrant authorizing the search was not lacking in probable cause. The affidavit in support of the search warrant indicated the CI's third controlled buy occurred at 604 Hammond Drive within 72 hours of the signing of the search warrant. The CI was searched prior to and after the controlled buy, and the controlled buy was corroborated by audio and video recordings. See United States v. DeQuasie, 373 F.3d 509, 518 (4th Cir. 2004) (““It is well settled that probable cause may be founded upon . . . information received from informants.”); see also Lalor, 996 F.2d at 1581 (indicating one factor “in determining whether an informant's report establishes probable cause is the degree to which it is corroborated.”). The affidavit in support of the search warrant also indicated the CI observed a rifle in plain view at 604 Hammond Drive. Additionally, on July 16, 2020, one day prior to the signing of the search warrant, officers with the MBPD responded to 604 Hammond Drive in reference to a drug overdose that required an unresponsive individual to be transported to the hospital and receive Narcan to reverse the effects of overdose.
Under the totality of the circumstances the controlled buy and the drug overdose at 604 Hammond Drive, both of which occurred within 72 hours of the signing of the search warrant, provided probable cause for the issuance of the search warrant because it was reasonable to believe that evidence of narcotics distribution would be present in the location where narcotics were sold and used.
The controlled buy and the drug overdose at 604 Hammond Drive also establish a sufficient nexus between evidence of narcotic distribution and the residence. See United States v. Anderson, 851 F.2d 727, 729-30 (4th Cir. 1988) ("[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.").
B. Staleness of Probable Cause
Defendants argue even if there was probable cause at the time the search warrant was signed, on July 17, 2020, there was no longer probable cause for the search when the warrant was executed on July 23, 2020. See ECF No. 106 at 4-5.
“A valid search warrant may issue only upon allegations of ‘facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.'” United States v. McCall, 740 F.2d 1331, 1335-36 (quoting Sgro v. United States, 287 U.S. 206 210-11 (1932)). Thus, the staleness of a search warrant may be an issue if the government waits an extended period of time between the information provided and the execution of a warrant. Id. at 1336. In determining whether a valid warrant became invalid due to a lapse of time, the court's fundamental concern is whether “the facts alleged in the warrant furnish probable cause to believe, at the time the search was actually conducted, that evidence of criminal activity was located at the premises to be searched?” Id. In making that determination, the existence of probable cause cannot be quantified by simply counting the number of days between the issuance and execution of a warrant. Id. A court must consider “all the facts and circumstances of the case, ” such as the nature of the alleged criminal activity, the duration of the activity, and the nature of the property to be seized. United States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004).
The warrant in this case authorized police to seize evidence of narcotics distribution, a crime that is often part of an ongoing enterprise rather than an isolated incident. See, e.g., United States v. Blizzard, 313 Fed.Appx. 620, 621 (4th Cir. 2009) (unpublished per curium opinion) (noting that narcotics distribution is a “crime often part of an ongoing enterprise rather than an isolated incident.”); United States v. Williams, 177 Fed.Appx. 914, 921 (11th Cir. 2006) (“By its nature, drug-dealing is an ongoing activity, not an isolated occurrence.”). As such, courts have upheld search warrants in narcotics distribution cases despite the passage of lengths of time between the events in affidavits and the execution of search warrants similar to those in this case. See, e.g., United States v. Walthour, 202 Fed.Appx. 367, 369 (11th Cir. 2006) (finding that even though two of the three controlled buys referenced in the affidavit occurred months before the application for the search warrant, the last of the controlled buys, which occurred within 72 hours of when the affidavit was sworn and nine days before the search warrant was executed, was sufficient to overcome any claim of staleness); United States v. Jordan, 485 F.Supp.3d. 664, 673 (E.D. Va. 2020) (finding the “ongoing nature of [the defendant's] narcotics distribution, which amounted to three controlled buys over several months, rendered the recency of the information in . . . [the] affidavit less crucial and ‘suggested that probable cause was not diminished solely by the passage of time'” even though the search warrant was not executed until four weeks after the last observed illegal transaction) (quoting United States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004))). The occurrence of two narcotics related events, the controlled buy and the drug overdose, on two separate occasions, establish the ongoing nature of narcotics related activities at 604 Hammond Drive, and negates Defendants' staleness arguments.
Along with illegal drugs, financial proceeds of dealing in illegal drugs, and firearms, the search warrant authorized the seizure of “books, records, receipts, notes, ledgers and other papers pertaining to the use, purchase, manufacture, distribution, and/or transportation of illegal drugs, ” which are of such nature that they are not ordinarily destroyed or moved from one place to another. See United States v. Rhynes, 196 F.3d 207, 234 (4th Cir. 1999) vacated on other grounds 218 F.3d 310 (4th Cir. 2000).
Although not definitive, this Court also notes the execution of the warrant in issue occurred within the time period prescribed by both Federal Rule of Criminal Procedure 41(e)(2)(A)(i) and South Carolina Code Annotated § 17-13-140. See Fed. R. Crim. P. 41(e)(2)(A)(i) ("The warrant must command the officer to . . . execute the warrant within a specified time no longer than 14 days); S.C. Code Ann. § 17-13-140 ("Any warrant issued hereunder shall be executed and return made only within ten days after it is dated.").
Based on the foregoing, the ongoing nature of the crime, the nature of the property to be seized, and the relative recency of the information in the warrant suggest that probable cause, which was present at the time of the warrant was signed, was not diminished at the time of the warrant's execution solely by the passage of eight days since the controlled buy, seven days since the drug overdose, or six days since the warrant was signed. C. Particularity
Carolina Constitution is without merit. See United States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994) (“[T]he Fourth Amendment, not federal rules or state law, governs the admissibility of evidence obtained by state officers but ultimately used in a federal prosecution.”). Any argument that Defendant Dukes had a particularized privacy interest in Room E based on the South
Defendants argue that Room E was not particularly described as a place to be searched in the warrant. See ECF No. 106 at 5. “The particularity requirement is satisfied when an officer in possession of a search warrant describing a particular place to be searched can reasonably believe that the warrant is sufficiently particular and that they are searching the correct location.” Yanez-Marquez v. Lynch, 789 F.3d 434, 462 (4th Cir. 2015). If there is a mistake in the description of the place to be searched, there is not a Fourth Amendment violation if the officers executing the search warrant reasonably believe they are searching the correct location and that the warrant is sufficiently particular. See id.
To the extent that Defendant Dukes argues his bedroom, designated as Room E by the scene processing officers, should not have been included in the search, there is no indication that either before the search or during the search officers would recognize 604 Hammond Drive was a multi-unit dwelling such that it would require a separate search warrant for Room E. See Maryland v. Garrison, 480 U.S. 79, 86-87 (1987) (indicating the court must determine whether the officers knew or should have known that the residence was a multi-unit dwelling before conducting the search and whether in the course of executing the search warrants officers learned or should have learned that the residence was a multi-unit dwelling); see also Yanez-Marquez, 789 F.3d at 463 (analyzing whether officers reasonably believed the location was a single-family home both before obtaining a search warrant and while executing the search warrant).
The search warrant described the premises to be searched as follows:
[L]ocated at 604 Hammond Dr, which is located within the city limits of Myrtle Beach, South Carolina; further described as a single story, one family house. The building is described as white in color with a tan and brown roof with black accents. The property is described as “604 Hammond Dr”, which is posted on a mailbox on the south west corner of the property. The mailbox is black in color with the number “604" on it in white writing. An officer in possession of the search warrant could reasonably believe that the warrant particularly provided for the search of the entire “one family house.” There is no indication in the warrant that 604 Hammond Drive is a multi-unit dwelling. The warrant specifically referred to the location as a “one family house, ” listed one address, and included a photograph of the home's only
mailbox, which was labeled with a single address.
Furthermore, this Court finds the testimony of Sergeant Garrett Spencer and Officer Donald Snyder is credible and establishes that officers did not encounter anything during the execution of the search warrant to provide reason to believe 604 Hammond Drive was a multi-unit dwelling. Sergeant Spencer, was present during the execution of the search warrant as a member of the Special Weapons and Tactics team (“SWAT”) assigned to secure 604 Hammond Drive. Sergeant Spencer testified that although there were two doors on the front of the residence, only one of the doors had the street number next to it. He stated there was nothing to give officers the impression they were in a multi-unit residence such as letters or numbers on the interior doors. Officer Snyder, a patrolman first class assigned to the MBPD Street Crimes Unit, assisted with securing suspects and the search of the residence for evidence. Officer Snyder testified there were no separate kitchens or kitchenettes in the home and there were four bedrooms and two hall bathrooms. Sergeant Spencer and Officer Snyder described the home's floor plan as very open and indicated there was one mailbox and they did not see any exterior type locks on the bedroom doors.Although there were eight people found inside the home during the execution of the search warrant, because there were no indications of a multi-unit dwelling such as separate kitchens, addresses, mailboxes, or signage designating separate units, there was no reason for officers to believe 604 Hammond Drive was a multi-unit dwelling. See United States v. McLellan, 792 F.3d 200, 212 (1st Cir. 2015) (“[A] a warrant for a single-unit residence authorizes the search of that entire dwelling regardless of who the area being searched belongs to, so long as the items delineated in the warrant could reasonably be found in the searched area.”); United States v. Schwinn, 376 Fed.Appx. 974, 982 (11th Cir. 2010) (“That a dwelling might be shared with others is not, by itself, enough to require officers to exclude portions of that dwelling from the warrant's scope: probable cause often exists to search the entire dwelling because it is reasonable to assume that the suspect has access to the entire dwelling.”); Durham v. McElynn, 254 Fed.Appx. 892, 896 (3d Cir. 2007) (“While [the defendant] may have had a roommate, this does not convert his single-family home into an apartment house or multi-unit building.”); United States v. Ayers, 942 F.2d 1468, 1480 (9th Cir. 1991) (“A search warrant for the entire premises of a single family residence is valid, notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of a residence.”)
As previously indicated, Defense Exhibit One, a Case Supplemental Report from MBPD, uses letters to designate rooms within the residence. Those letters were officer assigned to help with processing evidence and were not present in any way on the doors of the individual bedrooms The Case Supplemental Report also refers to each room as the primary room where different individuals resided. That designation was also an after the fact designation made by law enforcement during the processing of evidence to indicate whose belongings were found in each room.
Based on the foregoing, law enforcement reasonably believed the warrant was sufficiently particular both before and during the execution of the search warrant, and they reasonably believed they were searching the correct location.
D. Good Faith Exception to Probable Cause
Even assuming arguendo that the warrant application failed to establish probable cause, the Court would still find the search valid under the good faith exception to the warrant requirement because it was objectively reasonable for the officers conducting the search to believe that the search of 604 Hammond Drive was authorized by a valid warrant. See ECF No. 114.
Under the good faith exception to the warrant requirement, “evidence obtained from an invalidated search warrant will be suppressed only if ‘the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.'” Lalor, 996 F.2d at 1583 (quoting U.S. v. Leon, 468 U.S. 897, 926 (1984)). Ordinarily “a warrant issued by a magistrate . . . suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (internal quotation marks omitted). The Court's analysis is “confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal” in light of “all of the circumstances.” Leon, 468 U.S. at 922 n.23. There are, however, four circumstances in which the good faith 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. United States v. Wellman, 663 F.3d 224, 228-29 (4th Circ. 2011); see Leon, 468 U.S. at 923.
Defendants' motion to suppress does not address the good faith exception. Upon a review of the motion, Defendants do not assert that the affidavit was false or the magistrate acted as a rubber stamp. Furthermore, the affidavit supporting the warrant was not so lacking in indica of probable cause as to render official belief in its existence entirely unreasonable. The affidavit cited a controlled buy and a drug overdose that occurred at 604 Hammond Drive within 72 hours of the signing of the search warrant, which under the totality of the circumstances is sufficient to establish probable cause that narcotic related evidence would be found in the home. Thus, official belief in the affidavit is not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Likewise the warrant was not so facially deficient that the executing officers could not reasonably have presumed the warrant was valid because, as previously indicated, the warrant described the events that established probable cause, the location to be searched, and the property to be seized with particularity. As such, considering the totality of the information, the good faith exception would apply even if Defendants' probable cause arguments had merit, which they do not.
II. Motion to Dismiss and Motion to Suppress for Failure to Use Body Cameras
Through the motion to suppress and the motion to dismiss, Defendants argue evidence from the search should be suppressed and the case dismissed because officers failed to follow MBPD policy by failing to activate their body worn cameras (“BWCs”). See ECF Nos. 105 & 106. MBPD's policy on when and how to use BWCs provides as follows: 3. WHEN AND HOW TO USE THE BODY-WORN CAMERA (BWC)
A. The BWC shall also be activated when an officer arrives at a call for service or initiates any law enforcement or investigative encounter between an officer and a member of the public, including, but not limited to: . . . weapons are present or alleged to be present . . . Additionally, the BWC shall be activated during the following situations . . . during tactical activities, including the execution of search warrants . . . during the initial inventory of seized money or any high value property.
Sergeant Spencer and Officer Snyder testified that MBPD interprets that policy such that the standard custom and practice of MBPD is that BWC has to be activated during the tactical portion of the execution of a search warrant. They testified BWC may properly be deactivated once a residence is cleared and any suspects have been removed, but should be reactivated in the presence of the suspects or the public. They stated BWCs are not required to be activated during the evidentiary search of the property following a residence being deemed secure and that the evidentiary search is documented with photographs and written reports. Sergeant Spencer stated that even if weapons were in the residence, it would still be standard practice to deactivate BWCs during the search of the residence for evidence because once the residence was cleared there are no officer safety concerns. Task Force Officer Kahzim Yazici agreed that in accordance with MBPD policy, BWCs are not required to be activated during the evidentiary search after a residence is cleared.
Sergeant Spencer is now the supervisor of the MBPD Street Crimes Unit and part of his job is ensuring his unit is in compliance with the BWC policy. He testified that the standard practice for BWC activation has been the same the entire time he has been with MBPD. Sergeant Spencer has served on SWAT for ten years and he has served on various units within MBPD.
The Court finds the testimony of Sergeant Spencer, Officer Snyder, and Task Force Manager Yazici credible as to their understanding of MBPD's standard custom and practice for when BWCs are required to be activated. In this case, the initial entry into the residence was recorded by SWAT's BWCs until the residence was secured and cleared. At the hearing, the Government played videos from BWC recordings of the officers' interaction with the Defendants. After the residence was cleared, BWCs were not activated for the evidentiary search of 604 Hammond Drive. The officers' understanding and practice was not necessarily inconsistent with the written BWC policy, nor does it give rise to any bad faith on their part.
Even if there was a violation of the MBPD BWC policy in this case, there is no showing that the officers involved in the search of 604 Hammond Drive acted in bad faith in not utilizing their BWCs during the evidentiary search of the residence. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”); Miller v. Vasquez, 868 F.2d 1116, 1120-21 (9th Cir. 1989) (applying the Youngblood bad faith standard to cases of failure to collect potentially exculpatory evidence); Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir. 1994) (noting bad faith requires more than a showing of mere negligence, but rather “must turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”); Gilliam v. Sealy, 932 F.3d 216, 241 (4th Cir. 2019)(citing Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (highlighting that bad faith requires that the police “intentionally withhold or destroy evidence or otherwise act in bad faith.”).
Because the officers' activation and deactivation of BWC during the search were in accord with a reasonable interpretation of MBPD's written BWC policy and there is no evidence the officers acted in bad faith in photographing the evidentiary search instead of utilizing their BWCs, Defendants' motion to dismiss and motion to suppress as related to the use of BWC should be denied.
Any argument about the failure to use BWC during the evidentiary search after 604 Hammond Drive was cleared may go to the credibility of the officers and is not a basis to dismiss Defendants' charges or suppress evidence.
Conclusion
For the reasons stated above, Defendants' [105] motion to dismiss and [106] motion to suppress and are DENIED.
IT IS SO ORDERED.