Opinion
No. 7:18-CR-00103-FL-1
03-05-2020
United States of America v. Marcus Robinson, Defendant.
Memorandum & Recommendation
Defendant Marcus Robinson claims that the New Hanover County Sheriff's Office violated his Fourth Amendment rights during their investigation into his alleged drug trafficking activities. He argues that deputies violated his rights by obtaining historic and real-time cell site location information without a valid warrant, pulled him over without probable cause, and unconstitutionally delayed a traffic stop to allow a drug-sniffing dog to arrive at the scene. These constitutional violations, Robinson claims, led to him making incriminating statements. He seeks to have all of this evidence excluded from his trial. Ultimately, after considering Robinson's arguments, the undersigned finds no reason to exclude the evidence involved in this motion. Thus, the undersigned recommends that the district court deny Robinson's motion to suppress.
I. Background
A. Investigation
Detective Wes Baxley of the New Hanover County Sheriff's Office (NHCSO) received information from a confidential defendant in November 2017 about drug dealing in the Wilmington, North Carolina area. The CD told Baxley that he had, in the past, purchased crack and powdered cocaine from a man he knew as "Poopy." Mot. to Suppress Hr'g Tr. 5:24-6:6, D.E. 80. The CD gave Baxley Poopy's phone number and the name of the Facebook account of Poopy's girlfriend, Keya Youins. Id. 6:7-9. The CD then identified Marcus Robinson as Poopy based on a photograph. Id. 7:18.
Shortly thereafter, Detective Baxley submitted an affidavit and application to a North Carolina Superior Court judge for authorization to conduct electronic surveillance on Robinson. D.E. 59-1. This application authorized the collection of information associated with the Robinson's phone, including historic and real-time cell site location information (CSLI), for a period of thirty days. Id.
Baxley's affidavit contained the following facts:
• A CD said they had purchased multiple ounces of cocaine from a person who went by the name Poopy. D.E. 59-1 at 2.
• The CD described Poopy as a bald, light-skin black male around 5'9" in height and 170 pounds with a lazy left eye. Id.
• Poopy traveled from Leland, North Carolina to Wilmington, North Carolina when meeting the CD for drug transactions. Id.
• Poopy drove a black Mercedes during the drug transactions. Id.
• The CD provided detectives with Poopy's phone number. Id.
• The CD provided a Facebook page for Poopy's girlfriend, who was listed on Facebook as Keya Youins. Id.
• Youins's Facebook page stated she was from New Haven, Connecticut. Id.
• Using law enforcement databases, detectives located a woman named Lakeya Samone Youins in Winnabow, North Carolina. Databases also indicated that Lakeya Youins had "a history in Connecticut." Id.
• When detectives showed the CD a photo of Lakeya Youins, the CD confirmed that she was Poopy's girlfriend. Id.
• Law enforcement databases indicated that Robinson was involved with Youins. Id.
• When shown a photo of Robinson, the CD confirmed that Robinson was Poopy. Id.
• Law enforcement officers conducted surveillance at Youins's residence and saw a black Mercedes with a Connecticut license plate parked there. Id.
The judge approved the initial application, along with five additional applications. Aside from two modifications, the applications were essentially identical. The December 5, 2017 affidavit characterized the CD as "reliable." Application and Affidavit at 2, D.E. 59-2. The last application stated that reliable sources verified that Robinson visited areas in Connecticut known for drug activity. Application and Affidavit at 2, D.E. 59-6.
Each order authorized the Government to obtain, among other things, historic and real-time CSLI for Robinson's phone for a period of thirty days. Overall, the Government monitored Robinson's phone from November 2017 through April 2018.
Though not included in the affidavits and applications, Detective Baxley testified at the suppression hearing that officers observed Robinson making five trips to and from the Connecticut area during the time he was under surveillance and that the FBI Task Force in New Haven told officers that Youins and Robinson were known to sell large amounts of cocaine in North Carolina. Mot. to Suppress Hr'g Tr. 14:11-19.
B. Vehicle Stop
Through real-time tracking and surveillance, law enforcement believed that Robinson traveled to New Haven, Connecticut on April 16, 2017. In an attempt to locate him, Baxley briefed other law enforcement officers on his investigation and instructed them to look for a black Mercedes with a Connecticut tag heading towards Wilmington. Mot. to Suppress Hr'g Tr. 18:8-10. The next afternoon, the officers saw Youins's Mercedes on a highway near Wilmington.
At 5:32 p.m., after observing the vehicle speeding and failing to signal while changing lanes, Corporal Jason Spivey pulled the Mercedes over. When he approached the vehicle, Youins was in the driver's seat and Robinson was in the front passenger seat. Spivey requested Youins's license and registration. She was able to provide her license, but she could not find her registration card.
Spivey attempted to talk with Youins and Robinson as they looked for the registration. Only Youins responded to Spivey's questions; Robinson would not make eye contact with him.
Robinson continued to look for the registration in the glove box and passenger door compartment. Spivey had difficulty seeing Robinson's hands as he searched for the card. Because he knew that Robinson had a previous charge for assault on a law enforcement official, Spivey asked Robinson to step out of the car. Spivey felt that Robinson was overly nervous. And, despite the temperature being only 64 degrees, Spivey saw that Robinson was sweating. Spivey handcuffed Robinson for safety purposes but informed him he was not under arrest. Mot. to Suppress Hr'g Tr. 58:21-22, 59:5-8.
Deputy Grant Gregory arrived at the scene of the traffic stop less than three minutes after Spivey pulled the Mercedes over. Mot. to Suppress Hr'g Tr. 60:18-25. Beginning at 5:45 p.m., Deputy Gregory conducted a canine sniff of the vehicle. At 5:48 p.m., the dog gave a positive alert near the front of the car. A search under the vehicle's hood in the engine compartment revealed a bag containing white powder, later found to be cocaine.
Officers then placed Robinson under arrest.
C. Custodial Statements
Law enforcement officers interviewed Robinson after his arrest. Before answering questions, Robinson executed a written form waiving his Miranda rights. D.E. 63-1. Robinson admitted that the substances deputies found in his car were crack and powder cocaine. He estimated that there was 50 grams of crack and 200 grams of cocaine. Robinson admitted that he sold drugs in around Wilmington, including the Houston Moore area.
Robinson told deputies that he paid $8,500 for the drugs in New Haven, Connecticut. He said he would cook the crack before he returned to North Carolina. On each trip to Connecticut, Robinson would bring back at least half a kilogram of cocaine. Of each purchase, half would be cocaine and half would be crack.
In May 2018, a federal grand jury indicted Robinson on two drug offenses. D.E. 1. Several months later, he filed this motion to suppress.
II. Discussion
The Fourth Amendment to the Constitution provides two distinct, but related protections to the people. To begin with, it 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. And then it goes on to provide 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." Id.
Robinson claims that law enforcement officers violated the Fourth Amendment in several ways. He takes issue with law enforcement officers accessing his historic and real-time CSLI without a warrant. He also challenges the basis for the traffic stop and contends that deputies improperly extended the traffic stop to allow a drug-sniffing dog to arrive at the scene. Without the unconstitutional surveillance, traffic stop, and search, Robinson argues, he would not have made incriminating statements to law enforcement officers. The undersigned will address each of these arguments, but ultimately finds that there is no basis to suppress the evidence against Robinson.
A. Historic and Real-Time CSLI
Robinson first argues that the orders obtained by the New Hanover County Sheriff's Office to obtain, among other things, his historical and real-time CSLI do not satisfy the Fourth Amendment. He argues that the affidavit submitted in support of the orders did not establish probable cause to believe he was engaged in criminal activity. Building on this first argument, Robertson claims that, after the Supreme Court's decision in Carpenter v. United States, the deputies violated his Fourth Amendment rights by obtaining his CSLI without a valid warrant.
1. Whether the Orders Satisfy the Requirements for a Warrant
The initial question regarding the surveillance issue is whether the orders allowing the Government to obtain Robinson's CSLI satisfy the Fourth Amendment. Robinson argues that they do not because the supporting affidavits do not establish probable cause to believe he was engaged in criminal activity. He claims, among other things, that the information in the warrant should be considered stale because the confidential defendant did not specify when he allegedly purchased cocaine from Robinson.
Robinson also makes arguments about the confidential defendant's credibility and whether the warrant is overbroad. Due to the court's resolution of the staleness issue, the court will not address these other arguments. --------
Probable cause exists "'exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found' in a particular place." United States v. Doyle, 650 F.3d 460, 471 (4th Cir. 2011) (quoting Ornelas v. United States, 517 U.S. 590, 696 (1996)). In reviewing the issuance of a warrant, courts give "[g]reat deference . . . to . . . a magistrate's assessment of the facts when making a determination of probable cause." United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992). The determinative question is not whether the reviewing judge believes that there was probable cause to issue the warrant, but instead "whether the magistrate had a substantial basis for his conclusion that probable cause existed." Id.
The Fourth Circuit has previously explained that "there is no question that time is a crucial element of probable cause." United States v. McCall, 740 F.2d 1331, 1335 (4th Cir. 1984). This is because a judge may only issue a warrant if it based on "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.'" Id. at 1335-36 (quoting Sgro v. United States, 287 U.S. 206, 210 (1932)).
Despite the deferential standard given to the judgment of a judicial official issuing a warrant, a reviewing court will reject a warrant if the information provided in support of the warrant did not establish when the relevant criminal conduct occurred. The Fourth Circuit reached this conclusion in United States v. Doyle. In that case, law enforcement obtained a search warrant as part of an investigation into allegations of child sexual assault. Doyle, 650 F.3d at 463-64. As part of the warrant application, the affiant stated, "that one of the alleged victims 'disclosed to an Uncle that Doyle had shown the victim pictures of nude children.'" Id. at 472. A search of Doyle's hard drive turned up images of child pornography, which lead to federal charges against him. Id.
During a suppression hearing, Doyle argued that the warrant application lacked sufficient details to establish "probable cause to support a search for child pornography." Id. at 470. On appeal, the Fourth Circuit agreed. The court found "it was unreasonable to believe that probable cause was demonstrated to search Doyle's home given the complete absence of any indication as to when the pictures were possessed." Id. at 474. The supporting affidavit "did not include any mention of when ... the pictures were shown to" the child victim. Id. And the affiant did not "inform the magistrate of the timing of the alleged offenses, instead only relaying the dates of his interviews of the alleged victims." Id. The court found that "even if the affidavit established probable cause, it was completely devoid of indicia that the probable cause was not stale." Id. at 475. Thus, the court determined it was appropriate to suppress the evidence obtained from the search. Id. at 476.
The affidavits presented in support of the orders in this case suffer from a similar problem to the warrant application in Doyle.
The probable cause portion of the applications begin by explaining that a confidential defendant had come forward with information about a cocaine trafficker who went by the nom de guerre of Poopy. The affidavit explains that, "The CD stated he/she has purchased multiple ounces of Cocaine from 'POOPY'." See e.g., D.E. 59-1 at 2 ¶5. An identical statement is in each of the six applications submitted by law enforcement officers. There is nothing in the affidavits establishing that the sale to the CD took place near the time the CD spoke with Baxley. The transactions could have taken place months or even years before the conversation occurred. The failure to include information in the affidavit about when the CD purchased cocaine from Poopy requires the court to find that the affidavit is insufficient because it is "completely devoid of indicia that the probable cause was not stale." Doyle, 650 F.3d at 475.
The United States argues that the reference to November 2017 in the first sentence establishes the time frame of the confidential defendant's purchases. But a cursory examination of the affidavit's language demonstrates that this is not the case. The initial sentence reads, "In the month of November 2017, I, Det. W. Baxley, received [sic] from a Confidential Defendant herein referred [to] as CD." See, e.g., D.E. 59-1 at 2. The reference to November 2017 undoubtedly refers to when Detective Baxley received something (presumably information) from the confidential defendant. The language regarding the confidential defendant's transaction with Poopy does not appear until the next paragraph and is not associated with any date. Thus, this argument does not cure the staleness issue.
2. Constitutionality of Obtaining CSLI without a Warrant
Given the conclusion that the warrants were invalid, the court must consider whether obtaining historic and real-time CSLI from Robinson's phone without a warrant violated the Fourth Amendment. Although the Supreme Court's decision in Carpenter v. United States established that law enforcement needs to obtain a warrant prior to obtaining historic CSLI, Carpenter was not the law when the events in this case took place. In fact, the Fourth Circuit, sitting en banc, had held that no warrant was necessary to obtain historic CSLI.
And even today there is no clarity on whether a warrant is required to obtain real-time CSLI. The Supreme Court disclaimed Carpenter's applicability to the issue of obtaining real-time CSLI and the Fourth Circuit has not ruled on the issue. Thus, there is no basis to exclude the historical or real-time CSLI information obtained by the Government.
a) Historic CSLI
The question of whether the Fourth Amendment requires law enforcement officers to obtain a warrant for historical CSLI is governed by the Supreme Court's decision in Carpenter. There, prosecutors used the provisions of the Stored Communications Act to obtain historic CSLI as part of an investigation into a series of robberies. 138 S. Ct. 2206, 2212 (2018). The Act "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.'" Id. (quoting 18 U.S.C. § 2703(d)). Law enforcement requested seven days of CSLI from one of Carpenter's cell-service providers, but they only produced two days of cell-site records. Id. The cell-site information eventually led officers to arrest Carpenter for crimes related to the robberies. Id.
Carpenter argued at a suppression hearing that obtaining the historic CSLI without a warrant violated his Fourth Amendment rights. Id. The district court disagreed and a jury convicted Carpenter on almost all of the charges against him. Id. at 2212-13. After an unsuccessful appeal of the suppression issue, his case arrived at the Supreme Court. Id. at 2213.
The Supreme Court framed the issue raised by Carpenter as "how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person's past movements through the record of his cell phone signals." Id. at 2216. It candidly acknowledged that the answer to this question "does not fit neatly under existing precedents." Id. at 2214. The case required the Court to resolve an apparent conflict between two lines of cases. Weighing in favor of Carpenter's position were a line of cases, including United States v. Knotts, 460 U.S. 276 (1983) and United States v. Jones, 565 U.S. 400 (2012), that "addresses a person's expectation of privacy in his physical location and movements . . . ." Carpenter, 138 S. Ct. at 2215-16. Weighing against Carpenter's position were a second line of cases related to the third-party doctrine, including Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 425 (1976), that held that a person has no privacy interest in information that is shared with a third party. Id.
The Supreme Court ultimately determined that "accessing seven days of CSLI constitutes a Fourth Amendment search." Id. at 2217 n.3. This conclusion was based, in large part, on the Court's assessment that "cell phone location information is detailed, encyclopedic, and effortlessly compiled." Id. at 2216. And given the ubiquity of cell phones, CSLI allowed law enforcement to obtain "a detailed and comprehensive record of the person's movements" and to do so "at practically no expense." Id. at 2217-18.
Allowing law enforcement access to this amount of data about a person's movements ran against "'society's expectation . . . that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period.'" Id. at 2217 (quoting Jones, 565 U.S. at 430) (Alito, J., concurring)). The Court proceeded to find that "[g]iven the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter's claim to Fourth Amendment protection." Id. at 2220.
And thus, unless a recognized exception to the warrant requirement applied, the Government needed to obtain a warrant, not just a § 2703(d) order, before it could access Carpenter's CSLI. Id. at 2221.
But the Supreme Court issued Carpenter several months after Robinson's arrest. And at the time officers obtained his CSLI, the controlling law in the Fourth Circuit was that a warrant was not required to obtain historical CSLI. United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc), abrogated by Carpenter v. United States, 138 S. Ct. 2206 (2018).
The state of the law at the time of the Government's action weighs heavily in its favor. The exclusionary rule bars "'the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.'" United States v. Wilford, 961 F. Supp. 2d 740, 756-57 (D. Md. 2013) (quoting Davis v. United States, 564 U.S. 229 (2011)). It applies to "'evidence obtained during illegal police conduct'" and "'evidence that is the indirect product of illegal activity.'" Id. (quoting United States v. Oscar-Torres, 507 F.3d 224, 227 (4th Cir. 2007)).
But the exclusionary rule is not designed to "'redress the injury' occasioned by an unconstitutional search." Wilford, 961 F. Supp. 2d at 759 (quoting Stone v. Powell, 438 U.S. 465, 486) (1976)). Rather, its purpose is deterring future Fourth Amendment violations. Id. (quoting Davis, 131 S. Ct. at 2426). The purpose of the exclusionary rule is not served when officers act "with an objectively reasonable good-faith belief that their conduct is lawful[.]" United States v. Chavez, 894 F.3d 593, 608 (4th Cir.), cert. denied, 139 S. Ct. 278 (2018). Among the circumstances satisfying this standard are "'searches conducted in reasonable reliance on subsequently invalidated statues.'" Id. (quoting Davis, 564 U.S. at 239).
Thus, the Fourth Circuit has recognized that "the good-faith exception to the exclusionary rule applies" to challenges to historic CSLI obtained through a § 2703 order prior to the Carpenter decision. Chavez, 894 F.3d at 608. A review of the orders issued here shows that they comply with the SCA's requirements, even if they lack probable cause. Robinson has not argued to the contrary. Thus, the good-faith exception applies here and Robinson's challenge to the historical CSLI should be denied.
3. Real-Time CSLI
While Carpenter requires the Government to obtain a warrant prior to seeking historic CSLI, it did not address how the Fourth Amendment applies to real-time CSLI. In fact, the Supreme Court expressly stated that its ruling did not "express a view on" real-time CSLI. Carpenter, 138 S. Ct. at 2220. Prior to the hearing in this matter, the court instructed the parties to be prepared to address the test the court should apply to a challenge to collection of real-time CSLI. D.E. 65. The parties both maintain that after Carpenter, the Government needs to obtain a warrant to obtain real-time CSLI. But the parties' positions are contrary to both the text and history of the Fourth Amendment as well as Katz's reasonable expectation of privacy test.
Extending the warrant requirement to real-time CSLI is contrary to the original understanding of the Fourth Amendment's text. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV (emphasis added). As noted by dissenting justices in Carpenter, this language means that its protections only apply to a person's own houses, papers, and possessions. See Carpenter, 138 S. Ct. at 2226-27 (Kennedy, J., dissenting) (explaining that the Fourth Amendment asks "whether the Government's actions constitute a 'search' of the defendant's person, house, papers, or effects"), 2241-43 (Thomas, J., dissenting) ("To come within the text of the Fourth Amendment, Carpenter must prove that the cell-site records are his[.]" (emphasis in original)), 2255 (Alito, J., dissenting). Accord Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia, J., concurring) ("The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.") (emphasis in original). Thus, to be entitled to invoke the Fourth Amendment's protections over his real-time CSLI, Robinson would need to demonstrate that the data was his in some sense. He has not done so.
But even if he had some ownership interest in his real-time CSLI, he would still have difficulty showing that it was protected under the Fourth Amendment as originally understood. CSLI appears to fall outside of the original public meaning of the term "papers," which focused on an individual's private papers containing their thoughts and opinions. Jeffrey Bellin, Fourth Amendment Textualism, 118 Mich. L. Rev. 233, 261 (2019) (discussing definition of papers at the time of the founding). And there is no basis to conclude that CSLI qualifies as an effect under the original meaning of the Fourth Amendment, as that provision referred to personal property. Altman v. City of High Point, 330 F.3d. 194, 200-01 (4th Cir. 2003) (discussing the original understanding of the term "effects"); Maureen E. Brady, The Lost "Effects" of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L.J. 946 (2016) (same). Cf. Laura K. Donahue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1301 (2016) (arguing original public meaning of effects referred to "commercial items and goods").
Robinson's position also fares poorly under the Katz reasonable expectation of privacy test. The Katz test is based on the premise that the item in question is one that a person "seeks to preserve as private[.]" Katz v. United States, 389 U.S. 347, 352 (1967). And invoking Katz's protections requires a showing "that a person have exhibited an actual (subjective) expectation of privacy" in the item at issue. Id. at 361 (Harlan, J., concurring).
Given the rapid pace at which technology permits, and people voluntarily allow, the disclosure of location information to third parties, the question of whether the public truly has a reasonable expectation of privacy in their location (among other digital information) is one that will continually be in need of examination and reconsideration. For example, recent news reports claim that, in the aftermath of Carpenter, the "the federal government has essentially found a workaround by purchasing location data used by marketing firms rather than going to court on a case-by-case basis." Byron Tau & Michelle Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, Wall Street Journal, Feb. 7, 2020, available at https://www.wsj.com/articles/federal-agencies-use-cellphone-location-data-for-immigration-enforcement-11581078600 (last accessed Mar. 3, 2020). The location information is not gathered surreptitiously, but, instead "is drawn from ordinary cellphone apps, including those for games, weather and e-commerce, for which the user has granted permission to log the phone's location." Id.
As any modern smartphone user knows, users give innumerable applications access to their real-time location information. The information is provided for any number of reasons, including obtaining results from a search engine that are tailored to the user's location, finding someone to give the user a ride from one point to another, having food delivered to a user's location, and to help the users find new friends or romantic interests. The question of how much sharing of location information a user can engage in before it can be said that they are no longer exhibiting an expectation of privacy in that information is not an easy one to answer. This is particularly true for the judicial branch, which sees discrete cases with individualized facts that are resolved years after the events in question occurred.
The legislative process is much better suited to weighing the competing interests of security and privacy that are at the center of this debate. And it is also able to deal with changing circumstances on the ground much more nimbly than the judicial branch.
In the past when advances in technology have impacted personal privacy, Congress has stepped in to address these concerns. See Jones, 565 U.S. at 427-28 (Alito, J., concurring) (citations omitted) ("After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law."); Riley v. California, 573 U.S. 373, 408 (2014) (Alito, J., concurring) (discussing the enactment of legislation governing wiretapping after Katz).
And this is not the first time that there have been calls for Congress to address privacy in the digital age. See, e.g., Jones, 565 U.S. at 429 ("In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative."). Riley, 573 U.S. at 408 (Alito, J., concurring) (suggesting that legislatures are better positioned to address "privacy protection in the 21st century"); Carpenter, 138 S. Ct. at 2261 (Alito, J., dissenting) (explaining that "[l]egislation is much preferable to the development of an entirely new body of Fourth Amendment caselaw for many reasons"). But to date, these calls for legislative action have gone unheeded.
As was the case with historical CSLI, at the time the Government obtained Robinson's real-time CSLI, the law of this circuit was that a § 2703(d) order was all that was necessary to do so. Graham, 824 F.3d at 425. The court has not located, and Robinson has not cited, any binding decision that required the Government to obtain a warrant to obtain real-time CSLI. Thus, there was no Fourth Amendment violation and, even if there was, the good-faith exception would also insulate the real-time CSLI from exclusion. See United States v. Hargett, No. 18-4890, 2020 WL 290666, at *1-2 (4th Cir. Jan. 21, 2020) (holding that there was no reason to suppress real-time CSLI obtained with a § 2703 order before Carpenter). Robinson has not challenged the validity of the § 2703 orders and the court's review shows that they comply with the SCA's requirements. Thus, the district court should deny Robinson's motion to suppress the real-time CSLI.
4. Traffic Stop
Robinson also contends that the vehicle search was unconstitutional for two reasons. First, he argues that officers lacked probable cause to pull him over. And second, he maintains that they unconstitutionally prolonged the traffic stop to conduct a canine sniff. The Government argues that the vehicle stop and search were permissible because officers had witnessed traffic violations and had a reasonable suspicion of criminal activity to extend the stop. The undersigned finds the Government's position persuasive.
When a police officer stops an automobile and detains the occupants briefly, the stop amounts to a seizure under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996); see also United States v. Arvizu, 534 U.S. 266, 273 (2002) (noting that the Fourth Amendment's protection against "unreasonable searches and seizures" extends to "brief investigatory stops of persons or vehicles").
Courts assess the constitutionality of a traffic stop under the two-prong standard set forth in Terry v. Ohio, 392 U.S. 1 (1968). See Arizona v. Johnson, 555 U.S. 323, 330-31 (2009). It must first assess whether the articulated bases for the traffic stop were legitimate. See United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). Second, the court must examine whether the actions of the authorities during the traffic stop were "reasonably related in scope" to the bases for the seizure. Id. (internal quotation marks omitted).
The first Terry prong is satisfied "whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation." Arizona v. Johnson, 555 U.S. at 327. Such a violation includes failure to comply with traffic laws. See, e.g., United States v. Green, 740 F.3d 275, 279 n. 1 (4th Cir. 2014); United States v. Digiovanni, 650 F.3d 498, 506-07 (4th Cir. 2011). Courts need not discern an officer's subjective intent in stopping a vehicle, see United States v. Branch, 537 F.3d 328, 340 (4th Cir. 2008), but simply must ask whether "the circumstances, viewed objectively, justify th[e] action," Whren, 517 U.S. at 813 (internal quotation marks omitted). See also United States v. Johnson, 734 F.3d 270, 275 (4th Cir. 2013) (observing that a traffic stop is legitimate "when officers observe a traffic violation, regardless of their true, subjective motives for stopping the vehicle").
The second Terry prong restricts the range of permissible actions that a police officer may take after beginning a traffic stop. An officer may conduct safety-related checks that do not bear directly on the reasons for the stop, such as requesting a driver's license and vehicle registration, or checking for criminal records and outstanding arrest warrants. See Rodriguez v. United States, 575 U.S. 348, 354-57 (2015).
Although it is true that "[w]hile diligently pursuing the purpose of a traffic stop, officers also may engage in other investigative techniques unrelated to the underlying traffic infraction or the safety of the officers[,]" officers may not "prolong the roadside detention" to do so. United States v. Hill, 852 F.3d 377, 382 (4th Cir. 2017). Ultimately, "[i]f a traffic stop is extended in time beyond the period that the officers are completing tasks related to the traffic infractions, the officers must either obtain consent from the individuals detained or identify reasonable suspicion of criminal activity to support the extension of the stop." Id. at 381.
Reasonable suspicion is a "commonsense, nontechnical" standard that relies on the judgment of experienced law enforcement officers, "not legal technicians." See Ornelas, 517 U.S. at 695 (internal quotation marks omitted). The articulated factors supporting the reasonable suspicion "must in their totality serve to eliminate a substantial portion of innocent travelers," and show a connection to criminal activity. United States v. Williams, 808 F.3d 238, 246 (4th Cir. 2015) (internal quotation marks omitted). And while an officer may extend a traffic stop when he possesses reasonable suspicion, he cannot search the stopped vehicle unless he obtains consent, secures a warrant, or develops probable cause to believe the vehicle contains evidence of criminal activity. See United States v. Baker, 719 F.3d 313, 319 (4th Cir. 2013).
The evidence before the court demonstrates that that there was probable cause to pull the Mercedes over. Spivey testified that he observed Robinson's car speeding. He claims that the vehicle was traveling at about 10 miles over the speed limit. This is valid probable cause to pull the car over.
Robinson claims that the dash cam video from Spivey's car disproves this theory because it does not show the car traveling at the speed Spivey claims. While this is true, there is nothing in the record that establishes the relationship between when Spivey observed the car speeding and when the video began. Thus, the fact that the video does not show the vehicle speeding does not undermine Spivey's testimony.
And the video also undermines Robinson's argument that Spivey unreasonably extended the traffic stop. There was undoubtedly a delay in completing the traffic-infraction related portion of the stop. But it was due to Youins and Robinson being unable to produce registration information for the Mercedes. The video shows that there was an extended effort to determine who was the vehicle's registered owner. The Supreme Court has held that among the activities an officer may undertake after pulling someone over for a traffic infraction is "inspecting the automobile's registration[.]" Rodriguez, 575 U.S. at 355. And, in any event, the information provided by the CD, bolstered by the deputies' investigation, and the information provided by the FBI task force in Connecticut provided probable cause to conduct a dog sniff of the Mercedes. The district court should deny this portion of Robinson's motion to suppress.
B. Fruit of the Poisonous Tree
Finally, given the above analysis, Robinson's argument that the court should suppress the evidence seized from the vehicle search and his later in-custody statements as fruit of the poisonous tree fails. Because there was no Fourth Amendment violation, neither the evidence seized from the search of Robinson's vehicle nor his custodial statements are subject to suppression as "fruit of the poisonous tree."
III. Conclusion
For these reasons, the undersigned recommends that the court deny Robinson's motion to suppress. D.E. 59.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: March 5, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge