Opinion
4:22-CR-61-FL
02-14-2024
UNITED STATES OF AMERICA v. KAYAKENEE KESHONICA OLIVER, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter comes before the court on Defendant Kayakenee Oliver's (“Oliver”) motion to suppress. [DE-157]. The Government opposes the motion [DE-170], For the following reasons, it is recommended that the motion to suppress be denied.
I. PROCEDURAL BACKGROUND
On September 28, 2022, a Grand Jury sitting in the Eastern District of North Carolina returned a seven-count indictment naming Oliver and three other individuals. [DE-1], The indictment charges Oliver with knowingly and intentionally conspiring to distribute and possess with the intent to distribute cocaine, fentanyl and methamphetamine in violation of 21 U.S.C. § 841(a)(1); and knowingly and intentionally possessing with the intent to distribute fifty grams or more of methamphetamine, forty grams or more of a mixture and substance containing a detectable amount of fentanyl, and a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Id. A public defender was appointed for Oliver on October 14, 2022 [DE-32], and on October 26, 2023, counsel filed the instant motion to suppress [DE-157]. The Government responded in opposition on December 14, 2023. [DE-170]. In the suppression motion Oliver argues that her Fourth Amendment rights were violated when law enforcement performed a warrantless search of a safe found in a storage shed on her property. The motion also asserts that neither the good faith exception to the exclusionary rule nor the principle of inevitable discovery applies. Oliver moves to suppress all evidence seized as a result of the search of the safe or any other unlawful search, namely quantities of methamphetamine, fentanyl, cocaine, two firearms, and a digital scale.
IL STATEMENT OF FACTS
The undisputed facts taken from the parties' briefs and Detective Nate Edwards's application for search warrant are as follows. On February 1, 2022, Detective Edwards from the Craven County Sherriff's Office charged Oliver's co-defendant and brother, Xzavier Morris, with trafficking in controlled substances and placed him in the Craven County Jail. At this point, Detective Edwards began monitoring Morris's jail calls. Over the next two days, Morris made several phone calls to Oliver and Morris's girlfriend, Kimberly Smith, who is also a co-defendant in this case. During one of the initial calls, Morris requested that Oliver immediately retrieve a safe and move it to another location. Detective Edwards surmised that the safe contained controlled substances because Morris was attempting to raise money to post bond by instructing Smith and Oliver to divide, weigh, and sell items in the safe.
The Fourth Circuit has held that “[w]hen 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)). While Oliver does not contend that the warrant at issue lacked probable cause, she does assert that it lacked sufficient particularity, which is inextricably linked to probable cause. See United States v. Sykes, 2016 WL 8291220 at *10 (E.D. N.C. Aug. 22, 2016) (“[A]s to particularity, “[t]he Fourth Amendment requires that a warrant be ‘no broader than the probable cause on which it is based.'”) (quoting United States v. Hurwitz, 459 F.3d 463,471 (4th Cir. 2006)). As a result, the court has declined to hold an evidentiary hearing, particularly because the facts of the case are undisputed.
On February 2,2022, Detective Edwards obtained a search warrant for a cellular telephone that was seized from Morris during his arrest. A review of the phone's contents revealed communications between Morris and several drug customers regarding the sale of controlled substances. That same day, Detective Edwards intercepted multiple jail calls between Oliver and Morris. In one conversation, Oliver suggested to Morris that an individual called “Scoop” (Theophus White, a co-defendant in this action) could move some of the items in the safe. Then, in a later conversation, Oliver informed Morris that she had spoken to White, and he had agreed to bring money to Oliver and move the items in the safe. With this information in mind, law enforcement located White and followed him to a residence located at 317 Miller Boulevard in Havelock, North Carolina.
After law enforcement placed White at 317 Miller Boulevard, Morris made another jail call to Oliver and Smith. In that conversation, Oliver and Smith advised Morris that White had just left without the drugs, as they had not finished weighing them. At this point, Detective Edwards crossreferenced 317 Miller Boulevard with law enforcement databases as well as the communications extracted from Morris's cell phone. He discovered that Oliver and Morris's mother owned 317 Miller Boulevard, and that Morris frequently used the residence for narcotics sales. Based on this information and that gleaned from the investigation, Detective Edwards sought a search warrant for the residence located at 317 Miller Boulevard.
A Craven County Superior Court Judge issued the search warrant at 11:59 p.m. on February 2, 2022. The warrant states that “there is probable cause to believe that the property and person described in the application on the reverse side and related to the commission of a crime is located as described in the application.” Gov't's Resp. Ex. 1 [DE-170-1] at 1. Additionally, the search warrant mandates law enforcement to “search the premises, vehicle, person and other place or item described in the application for the property and person in question. If the property and/or person are found, make the seizure and keep the property subject to Court Order and process the person according to law.” Id.
The application referenced in the search warrant was prepared by Detective Edwards. It is a multi-page document containing a statement of probable cause, an attachment labelled “items to be seized,” and an attachment entitled “premises, persons, and vehicles to be searched.” Id. at 210. The list of items the application identifies as subject to seizure is broad, but as relevant here, it includes controlled substances, items of drug paraphernalia, and weapons. Id. at 8. The application describes the premises to be searched as a “yellow, vinyl siding house with a black shingled roof.” Id. at 9. Notably, though, the application adds that “[a]ny vehicle on the property” is subject to search as well. Id. at 10. It also includes two photographs: one of the street view of 317 Miller Boulevard, and one of a satellite map pinpointing the property. Id. at 9-10.
Law enforcement executed the search warrant shortly after midnight on February 3, 2023. Officers entered the residence, read the warrant aloud, and asked Oliver to step outside. Detective Edwards then advised Oliver of her Miranda rights and explained that he had listened to the jail calls. The detective also asked Oliver where the drugs were located, and she responded that the drugs were in “the bam,” which investigators deduced was a white storage shed in the backyard area of the residence. Inside the shed, they found a safe underneath an air mattress. When officers opened the safe, they found that it contained methamphetamine, fentanyl, cocaine, two firearms, and a digital scale. Oliver now moves to suppress these items.
III. DISCUSSION
Oliver makes several arguments for suppressing the evidence seized during the February 3, 2023 search of 317 Miller Boulevard. Specifically, she asserts that (1) the search warrant for 317 Miller Boulevard does not mention the shed, thus law enforcement had no basis to search it; (2) the search warrant for 317 Miller Boulevard does not list the safe as an item to be seized, thus law enforcement had no basis to search it; (3) there is no indication that anyone consented to the 4 search of the shed or safe; (3) the good faith exception to the exclusionary rule does not apply in this case; and (4) the principle of inevitable discovery should not apply. This Recommendation addresses each claim in turn.
A. The court may properly consider both the search warrant and the search warrant application in its particularity assessment.
The Fourth Amendment provides that search warrants will not issue unless they particularly describe the place to be searched and the persons or things to be seized. United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010). As a general rule, a supporting affidavit or document may be read together with (and considered a part of) a warrant that otherwise lacks sufficient particularity “if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” Hurwitz, 459 F.3d at 471 (quoting Groh v. Ramirez, 540 U.S. 551, 55758 (2004)). In the Fourth Circuit, however, it is sufficient either for the warrant to incorporate the supporting document by reference or for the supporting document to be attached to the warrant itself. Id. (citing United States v. Washington, 852 F.2d 803, 805 (4th Cir. 1988)); see United States v. Breeden, 2021 WL 3085317, at *6 (E.D. N.C. Jul. 21, 2021).
In the instant case, the search warrant states that “there is probable cause to believe the property and person described in the application on the reverse side [of the warrant] and related to the commission of a crime is located as described in the application.” Gov't, 's Resp. Ex. 1 [DE-170-1] at 1. Further, the warrant instructs law enforcement to “search the premises, vehicle, person and other place or item described in the application for the property and the person in question.” Id. The words of incorporation used are not overly precise, but such specificity is not required. See Hurwitz, 459 F.3d at 471-72. Even one cross-reference to the application would be sufficient to incorporate the document into the warrant, and here, there are multiple. See id. (finding that a search warrant satisfied the particularity requirement where “See Attachment” was entered into the space on the warrant reserved for a description of items to be seized); United States v. Strange, 2021 WL 3193179, at *2, 7-8 (E.D. N.C. Jul. 28, 2021) (finding that a search warrant satisfied the particularity requirement where it authorized law enforcement to search anyone present on the property “that may possess the evidence sought within [the] affidavit”).
Although incorporation by reference alone is sufficient for particularity purposes in the Fourth Circuit, Hurwitz, 459 F.3d at 471-and Detective Edwards's application is incorporated by reference into the search warrant at issue here-this Recommendation briefly addresses incorporation by attachment. In Groh, 540 U.S. at 554, the Supreme Court found that a search warrant application and affidavit were not incorporated into a search warrant because the warrant did not incorporate the documents by reference, “nor did either the affidavit or the application (which had been placed under seal) accompany the warrant [at the time of execution].” Since then, some district courts have found that attachment should be assessed as of the time of filing for a search warrant, while others have found that attachment should be assessed as of the time of the warrant's execution. The Fourth Circuit has yet to rule on the matter.
For example, in United States v. Indivior, Inc., the court found that a search warrant application and affidavit were not incorporated into the warrant by attachment even though both documents were available to law enforcement during the search, because “the rationale behind accompaniment of the supporting documents is for the subject of the search to be able to inspect it rather than the agents executing the search.” 448 F.Supp.3d 587, 600 (W.D. Va. 2020) (citing Groh, 540 U.S. at 557-58); see also United States v. Skinner, 2021 WL 1725543, at *10 & n.3 (E.D. N.C. Apr. 29, 2021). However, in United States v. Chatrie, the court interpreted incorporation by attachment as requiring a document to accompany the “warrant itself in order for a court to read the document alongside the warrant.” 590 F.Supp.3d 901, 916 n.23 (emphasis added) (citing Hurwitz, 459 F.3d at 470); see also United States v. Gregg, 833 F.Supp.2d 535, 538-39 (E.D. Va. 2011).
In the instant case, it is not clear whether Detective Edwards's application was attached to the warrant at the time of execution, though it is evident that the application was attached at the time of filing. The warrant details that the application is “on the reverse side,” Gov't, 's Resp. Ex. 1 [DE-170-1] at 1. Additionally, the Government avers that when investigators arrived at 317 Miller Boulevard on February 3, 2023, they “read the search warrant aloud,” Gov't's Resp. [DE-170] at 4. However, there are no specific facts indicating that the application was available at that time for Oliver to inspect it. Critically, though, even if the application was not attached to the search warrant at the time of execution, because it was incorporated into the warrant by reference, it is appropriate to evaluate particularity in light of both documents.
B. Oliver did not consent to law enforcement's search of the shed or safe, but the searches were lawful.
Oliver argues that even though she told law enforcement officers that the drugs were in the shed, she did not consent to officers searching the shed or the safe they found there. Moreover, Oliver asserts that her lack of consent paired with the fact that the shed was not listed as a searchable location on the warrant and the fact that the safe was not listed as an item to be seized mandates suppression of the evidence. In support, Oliver relies on United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994), where the Fourth Circuit confirmed that while the plain view doctrine may justify the warrantless seizure of a container believed to contain contraband, any subsequent search of its concealed contents must either be accompanied by a search warrant or justified by one of the exceptions to the warrant requirement, like consent.
The court agrees that Oliver did not properly consent to the search of the shed or safe. To be valid, consent to search must be knowing and voluntary. United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007) (citations omitted); United States v. Boone, 245 F.3d 352, 361 (4th Cir. 2001) (citations omitted). The Government has the burden of establishing valid consent to search, and it must do so by a preponderance of the evidence. Buckner, 473 F.3d at 554. In this case, the Government has not even attempted to argue that Oliver consented to the search, and the court finds that such an argument would be difficult to make.
Voluntary consent is “the product of an essentially free and unconstrained choice by its maker[,]” whereas involuntary consent occurs when “a defendant's will was overbome in a particular case[.]” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). Here, Oliver merely told law enforcement where the drugs were located. She did not resist the ensuing search, but she also did not consent to it for Fourth Amendment purposes. See Bumper v. North Carolina, 391 U.S. 543, 548-549 (1968) (holding that the government's burden of proving valid consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”). Even without Oliver's consent, though, neither the search of Oliver's shed nor the search of the safe violated the Fourth Amendment, as explained further below.
C. The search of the shed was lawful.
A search conducted pursuant to a warrant is limited in scope by the terms of the search warrant's authorization. United States v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009) (citing cases). However, a search warrant is not a “constitutional strait jacket.” Id. (citing United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988)). Thus, when interpreting search warrants, courts “must heed the Supreme Court's reminders to employ a ‘commonsense and realistic' approach... and avoid ‘hypertechnical' scrutiny . . . lest police officers be encouraged to forgo the warrant application process altogether.” Id. (quoting United States v. Ventresca, 380 U.S. 102,108 (1965); United States v. Robinson, 275 F.3d 371, 380 (4th Cir. 2001)).
In the instant case, Oliver argues that “[i]n the warrant, the affiant did not list or identify the bam outside of the house, which should not be considered part of the curtilage of the home.” Def.'s Mot. [DE-157] at 4. As previously discussed, the scope of the search warrant in this case is appropriately assessed by considering both the warrant and Detective Edwards's application. See supra § III(A). Critically, Detective Edwards's application describes the premises to be searched as a “yellow, vinyl siding house with a black shingled roof,” and lists 317 Miller Boulevard, Havelock, North Carolina as the address. Gov't's Resp. Ex. 1 [DE-170-1] at 9. It also includes a picture of the residence in question where the shed is clearly visible, as well as a picture of a satellite view of map that pinpoints 317 Miller Boulevard. Id. at 9-10.
Since Katz v. United States, 389 U.S. 347, 360 (1967), the touchstone of Fourth Amendment jurisprudence has been the question of whether a person has a “constitutionally protected reasonable expectation of privacy.” No single factor determines whether an individual may claim that a place should be free of government intrusion if not authorized by warrant. Oliver v. United States, 466 U.S. 170, 177 (1984). However, the Supreme Court has long stressed “the overriding respect of the sanctity of the home.” Id. at 178 (citing Payton v. New York, 445 U.S. 573, 601 (1980)). The Court has also recognized that Fourth Amendment protections-including the search warrant requirement-extend to the curtilage of the home. Id. at 180.
The curtilage is defined as “the area to which extends the intimate activity associated with the ‘sanctity of a man's home and the privacies of life.” Id. (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). When its boundaries are contested, courts will apply a multi-factor test that assesses the proximity of the area to the home, whether the area is within an enclosure surrounding the home, the nature and uses to which the area is put, and the steps taken by the resident to protect the area from observation by passerby. United States v. Dunn, 480 U.S. 294-95 (1987). In the Fourth Circuit, this test has been largely simplified in cases involving sheds and similar outbuildings that are located close to the home. This is because the court has found that these structures are part of the curtilage and thus are included within the scope of a search warrant for that home. See, e.g., United States v. Montieth, 662 F.3d 660, 670 n.2 (4th Cir. 2011) (district court did not err in concluding that shed was within curtilage and that warrant for the residence was sufficient to include the shed, which was within a privacy fence and close to the residence). Importantly, this holds true even if the shed is not specifically mentioned in the text of the search warrant. See id.', United States v. Stewart, 129 Fed.Appx. 758, 768 (4th Cir. 2005).
Here, applying the “commonsense and realistic” interpretive approach favored by the Supreme Court, see Ventresca, 380 U.S. at 108, the court finds that under either the Dunn standard or the Fourth Circuit model, the storage shed is part of the curtilage of 317 Miller Boulevard and therefore included in the search warrant for the residence. To begin with, the search warrant generally refers to 317 Miller Boulevard, which is the address where the shed is located. Gov't's Resp. Ex. 1 [DE-170-1] at 9. Next, the application includes a photograph of the residence where the shed is clearly visible and a satellite image targeting the entire property. Id. Finally, while the shed is not enclosed by a privacy fence, it nonetheless resembles the backyard storage shed discussed in Monteith since it is near the home and adjacent driveway. Montieth, 662 F.3d at 670 n.2. Consequently, suppression is not warranted on these grounds.
D. The search of the safe was lawful.
A search warrant satisfies the Fourth Amendment's particularity requirement “if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended.” U.S. v. May, 2009 WL 928386 at *6 (E.D. N.C. Apr. 3, 2009) (citing Steele v. United States, 267 U.S. 498, 503 (1925); United States v. Owens, 848 F.2d 462, 463 (4th Cir. 1988)). The Fourth Amendment also requires “a particular description of the things to be seized[,]... [which] is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the items leaves nothing to the discretion of the 10 ' officer executing the warrant.” Williams, 592 F.3d at 519 (internal citations and quotations omitted). In determining whether the particularity requirement is met, courts look to the probability that the description in the warrant may result in the search of the wrong location. May, 2009 WL 928386 at *6 (citing United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979) (“The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.” (emphasis added))).
In the instant case, Oliver argues that although Detective Edwards noted in his application “that (in his experience) drug traffickers will keep records, money, and other items in safes and noted the details of the jail calls, a safe was not listed in the items to be seized.” Def.'s Mot. [DE-157] at 3-4. However, as previously discussed, the scope of the search warrant in this case is appropriately assessed in light of both the warrant and Detective Edwards's entire application. See supra § III(A). Consequently, the warrant's mandate to “search the premises, vehicle, person, and other place or item described in the application,” Gov't, 's Resp. Ex. 1 [DE-170-1] at 1 (emphasis added), is not limited to the “items to be seized” attachment. Viewing the relevant documents holistically and applying the Supreme Court's “commonsense and realistic” interpretive approach, see Ventresca, 380 U.S. at 108, it is clear that the safe constitutes “a place or item described in the application” as containing contraband identified on the list of items to be seized, see Gov't, 's Resp. Ex. 1 [DE-170-1] at 1, and that the application's descriptions of the safe and its contents are sufficiently particular.
Turning first to the application's description of the safe, in the “statement of probable cause for search warrant” section, Detective Edwards avers that he “was able to determine that Morris . had a safe . . . with a large amount of narcotics.” Id. at 6. Next, Detective Edwards notes that “Morris called Smith and [Oliver]... and asked them to go move the safe to another location with them doing so.” Id. Detective Edwards also explains that surveillance and other investigative efforts suggested that the narcotics (which he suspected were inside the safe) had been moved to Oliver's residence, 317 Miller Boulevard. Id. at 7. And lastly, Detective Edwards included the contraband that he describes in his probable cause statement as likely to be found in the safe on the “list of items to be seized” from 317 Miller Boulevard. See id. at 8 (listing, among other things, controlled substances, items of drug paraphernalia, and weapons). All told, these details were enough to ensure that officers executing the warrant could locate the safe and identify it as an item described in the application as containing contraband, i.e., a search location. See May, 2009 WL 928386 at *6 (finding particularity requirement satisfied where search warrant listed incorrect address for residence, but incorporated application provided the name of the resident's occupant). This conclusion is cemented by the fact that “[c]ourts have repeatedly recognized that the executing officers', as well as the requesting officers', surveillance of and resultant familiarity with the premises to be searched ... is a factor supporting the validity of a warrant,” id. at * 10 (citing cases), and here, Detective Edwards both requested and executed the search warrant for 317 Miller Boulevard.
With respect to the methamphetamine, fentanyl, cocaine, firearms, and digital scale seized from the safe, these items are clearly within the warrant's scope. Applying the two-pronged standard articulated by the Fourth Circuit in Williams, 592 F.3d at 519, Detective Edwards's application sufficiently links the contraband and other items included on the “items to be seized” list with a designated crime: drug trafficking. The application also explains that the items subject to seizure are located at 317 Miller Boulevard and, more specifically, are likely to be found inside of a safe. Thus, in executing the search warrant, law enforcement did not have “free rein to ransack and take what they liked. The search was for a purpose which the [officers] were not free to exceed.” United States v. Phillips, 588 F.3d at 228.
Given that the safe and its contents are identified with sufficient particularity in Detective Edwards's application for search warrant, Oliver's argument that United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994), mandates suppression is without merit. As previously detailed, in Williams, 41 F.3d 192, the Fourth Circuit found that while the plain view doctrine may justify the warrantless seizure of a container believed to contain contraband, any subsequent search of its concealed contents must either be accompanied by a search warrant or justified by one of the exceptions to the warrant requirement. Id. However, in this case, the searched container and its concealed contents were identified in the search warrant by incorporation from the application. As a result, law enforcement did not need to rely on an exception to the warrant requirement to lawfully search the safe. Suppression of the evidence is inappropriate on this basis.
E. Good Faith
The Government argues that even if the searches of the shed and safe were improper, blanket suppression is unwarranted because law enforcement acted reasonably and in good faith. Gov't's Resp. [DE-170] at 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)). However, 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 comers 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.United States v. Burton, 756 Fed.Appx. 295, 301 (4th Cir. 2018) (quoting United States v. Wellman, 663 F.3d 224, 228-29 (4th Cir. 2011)), cert, denied, 139 S.Ct. 1636 (2019).
Here, there is no indication in the record-and Oliver does not assert-that Detective Edwards was dishonest or reckless in applying for the order, that the Superior Court judge acted as a “rubber stamp,” or that the affidavit was so lacking in indicia of probable cause that it would have been unreasonable to rely on it. With respect to the fourth Burton factor, Oliver contends that law enforcement erred by searching the safe without a warrant or sufficient evidence of consent when officers were aware, or should have been aware, that 1) the safe was owned by Morris, not Oliver; 2) the safe was not specifically listed in the search warrant; and 2) the safe was located in a backyard storage shed that was not specifically listed on the search warrant. Def.'s Mot. [DE-157] at 6-7. However, as discussed above, even though Oliver did not consent to officers searching the shed or safe, both areas were included in the search warrant via incorporation from the application. Furthermore, Oliver's specific argument that “exclusion is appropriate in order to deter agents in a similar situation from thinking that a warrant is unnecessary if probable cause seems clear to the agents,” id. at 7, does not satisfy the criteria that the Fourth Circuit identified in Burton, 756 Fed.Appx. at 301.
With respect to Oliver's claim that law enforcement knew or should have known that the safe was owned by Morris, that argument also fails to establish that suppression is required in this case. In determining whether a defendant has a valid basis for challenging a search, the crux of the inquiry is whether they had an “individualized expectation of privacy that was ‘objectively reasonable.'” United States v. Rose, 3 F.4th 722, 727 (4th Cir. 2021) (quoting United States v. Castellanos, 716 F.3d 828, 832 & n.3 (4th Cir. 2013)). To establish a reasonable expectation of privacy, a defendant must identify evidence objectively establishing their ownership, possession, or control of the property at issue. Id. Here, Oliver has made no such identification; in fact, she has done the opposite and claimed that the safe was owned by Morris. As a result, she has no standing to challenge the search of the safe under Rose. Id. Since she has also failed to show unreasonableness and bad faith under Burton, even if the relevant searches were improper, the good faith exception will bar suppression of the evidence.
F. Inevitable Discovery
The Government argues that if law enforcement's searches violated the Fourth Amendment and the good faith exception is inapplicable, suppression is still inappropriate because the evidence would have inevitably been discovered. Gov't's Resp. [DE-170] at 9-11. “Inevitable discovery demands that the prosecution prove by a preponderance of the evidence: first, that police legally could have uncovered the evidence; and second, that police would have done so.” United States v. Alston, 941 F.3d 132, 138 (4th Cir. 2019). The inevitable discovery rule is “grounded in reasonableness” and “merely reflects the underlying purpose of the exclusionary rule: the deterrence of illegal police conduct in the search for evidence.” United States v. Rodriquez, 750 F.Supp. 1272, 1277 (W.D. N.C. 1990), aff'd, 972 F.2d 343 (4th Cir. 1992).
In support of its claim that the inevitable discovery doctrine applies in the instant case, the Government asserts that as Detective Edwards was preparing the search warrant, other members of the investigative team obtained a statement from Smith confirming that drugs were present at 317 Miller Boulevard. Gov't's Resp. [DE-170] at 10. Additionally, once law enforcement arrived at the residence, Oliver waived her Miranda rights and admitted that the drugs were in the shed, and that she had moved the safe there after seeing a police vehicle near the house. Id. The Government states that, given these factors, probable cause existed for law enforcement to seek a second search warrant for the shed and the safe containing the drugs, and execution of that warrant would have inevitably revealed the evidence Oliver now seeks to suppress. Id. at 10-11.
The Government's argument fails because while law enforcement might have had probable cause to obtain a second search warrant for the shed and safe, they elected not to do so. The Fourth Circuit has stated that “[t]he existence of probable cause for a warrant, in and of itself and without any evidence that the police would have acted to obtain a warrant, does not trigger the inevitable discovery doctrine any more than probable cause, in and of itself, renders a warrantless search valid.” United States v. Allen, 159 F.3d 832, 841 (4th Cir. 1998). And here, the Government offers no evidence that law enforcement would have acted to obtain another warrant. Accordingly, the inevitable discovery doctrine is inapplicable in this case.
IV. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Oliver's motion to suppress [DE-157] 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 February 12,2024 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). 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).