Opinion
7:20-CR-131-1FL
03-10-2023
UNITED STATES OF AMERICA v. BRIAN JACKIE HARPER, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, United States Magistrate Judge.
This matter is before the court on Defendant's renewed motion to suppress [DE #132], which has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Government has responded in opposition [DE #136], and Defendant has replied [DE #138]. The time for further filings has expired. The matter is ripe for decision.
STATEMENT OF THE CASE
On July 29, 2020, a federal grand jury returned an indictment charging Brian Jackie Harper with (i) distribution of a mixture and substance containing a quantity of heroin and fentanyl and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C. § 2 (Count 2); and (ii) possession with intent to distribute forty grams or more of a mixture and substance containing a detectable amount of heroin and fentanyl and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 4). (Indictment [DE #1].)
On October 1, 2021, Defendant moved to suppress all evidence obtained or derived from the execution of state-court orders for disclosure of cell phone and global positioning system (“GPS”) data and a state-court warrant to search Defendant's person and the residences and any vehicles located at 719 Melba Court and 4752 Seahawk Court in Wilmington, North Carolina. (Mot. Suppress [DE #83] at 1.) On October 15, 2021, the Government responded in opposition, arguing the searches and seizures complied with the Fourth Amendment. (Resp. Opp'n [DE #84].) On January 25, 2022, the undersigned issued a Memorandum & Recommendation (“M&R”) recommending that the motion to suppress be denied without a hearing. United States v. Harper, No. 7:20-CR-131-1FL, 2022 WL 1600014 (E.D. N.C. Jan. 25, 2022). On April 18, 2022, the court overruled Defendant's objections to the M&R and denied Defendant's motion. United States v. Harper, No. 7:20-CR-131-1FL, 2022 WL 1138032 (E.D. N.C. Apr. 18, 2022).
On October 19, 2022, the grand jury returned a two-count superseding indictment charging Defendant with (i) distribution of a quantity of cocaine and aiding and abetting (Count One); and (ii) possession with intent to distribute a quantity of heroin, 40 grams or more of a mixture and substance containing fentanyl, and a quantity of cocaine (Count Two). (Superseding Indictment [DE #115].) The court re-set Defendant's arraignment to March 13, 2023, and re-opened the pretrial motions deadline, with such motions being due by January 6, 2023. (Order dated Oct. 25, 2022 [DE #120].)
On January 6, 2023, Defendant renewed his motion to suppress. (Renewed Mot. Suppress [DE #132].) As in his earlier motion, Defendant seeks to suppress all evidence obtained or derived from the execution of the state-court orders for disclosure of cell phone and GPS data and the state-court search warrant to search Defendant's person and the residences and any vehicles located at 719 Melba Court and 4752 Seahawk Court in Wilmington, North Carolina. (Id. at 1.) Defendant also requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). (Id. at 12.) On January 10, 2023, the Government responded in opposition, arguing the searches and seizures complied with the Fourth Amendment and that the reasoning set forth in the court's adjudication of Defendant's earlier motion continues to apply. (Resp. Opp'n Renewed Mot. Suppress [DE #136] at 1-2.) Defendant replied (Def. Reply [DE #138]), and the matter is ripe for ruling.
DISCUSSION
Defendant has renewed his previously adjudicated motion for a Franks hearing and motion to suppress and has included additional factual information in the instant motion. Defendant has also supplemented his arguments. The undersigned will summarize the state-court orders and warrant, as well as Defendant's arguments, prior to addressing the merits of Defendant's motion.
Defendant has included the following as attachments to his renewed motion: (A) the Pen Register/Trap and Trace Order (Renewed Mot. Suppress, Ex. A [DE #132-1] (“PRTT Order”)); (B) the GPS Tracker Order for the 2000 Ford F-150 (id., Ex. B [DE #132-2] (“Ford GPS Order”)); (C) the GPS Tracker Order for the 2013 Lincoln MKZ (id., Ex. C [DE #132-3] (“Lincoln GPS Order”)); (D) the search warrant (id., Ex. D [DE #132-4] (“Warrant”)); (E) a transcript of Detective B.D. Chisholm's testimony from Defendant's September 2020 detention hearing (id., Ex. E [DE #132-5] (“Detn. Hr'g Tr.”)); (F) Wilmington Police Department (“WPD”) notes of interviews with a confidential informant from February 18 and 24, 2020 (id., Ex. F [DE #133] (“WPD Interview Notes”)); (G) a WPD police report from February 28, 2020 (id., Ex. F [DE #132-6] (“2/28/2020 WPD Report”)); and (H) GPS data from the tracker attached to the Ford F-150 (id., Ex. H [DE #132-7] (“GPS Data Ford”)). The undersigned will refer to the Ford GPS Order and Lincoln GPS Order collectively as “the GPS Orders.”
I. The Orders and Warrant
On March 2, 2020, North Carolina Superior Court Judge George F. Jones (“Judge Jones”) issued an order authorizing use of a pen register and/or trap and trace device for a telephone number believed to be used by Defendant. (PRTT Order.) Detective B.D. Chisholm of the Wilmington, North Carolina, Police Department applied for this order, which Judge Jones issued pursuant to both federal and state statutory law. (PRTT Order at 7-8 (referencing 18 U.S.C. §§ 2703(d), 3122-3127 and N.C. Gen. Stat. §§ 15A-260 through -264).)
On March 4, 2020, Judge Jones issued an order, upon application from Detective Chisholm, authorizing installation of a GPS tracking device on a 2013 Lincoln MKZ automobile believed to have been used by Defendant in connection with drug trafficking. (Lincoln GPS Order.) Next, on March 9, 2020, again upon application from Detective Chisholm, Judge Jones issued an order authorizing installation of a GPS tracking device on a 2000 Ford F-150 vehicle believed to have been used by Defendant in connection with drug trafficking. (Ford GPS Order.)
On March 20, 2020, Detective Chisholm applied for, and Judge Jones issued, a warrant to search the following for evidence of drug trafficking: 719 Melba Court, Apt. I, Wilmington, NC; 4752 Seahawk Square, Apt. B8, Wilmington, NC; the Lincoln and Ford vehicles specified in the GPS Orders; any vehicle located within the curtilage of the Melba Court and Seahawk Square residences or within the dominion and control of persons located within said residences; and any outbuildings associated with said residences. (Warrant.)
II. Defendant's Arguments
A. PRTT and GPS Orders
Defendant makes three broad arguments regarding the PRTT and GPS Orders: (i) the PRTT Order violates Carpenter v. United States, 138 S.Ct. 2206 (2018), because it was issued pursuant to a state statute that did not require probable cause to obtain historical cell phone location data, and the GPS Orders violate United States v. Jones, 565 U.S. 400 (2012) (requiring probable cause for government installation of GPS tracking device on a person's automobile), because the GPS Orders were not supported by probable cause (Renewed Mot. Suppress at 5); (ii) a Franks hearing is required because Detective Chisholm made false statements and recklessly omitted material information regarding the confidential informant in the supporting affidavit, which were intended to and did mislead Judge Jones (id. at 78); and (iii) the supporting affidavits do not “provide an adequate basis to establish probable cause” such that the PRTT Order and GPS Orders would comply with the Fourth Amendment's warrant requirement (id. at 5-6).
As to his Franks argument, Defendant first alleges that the following statement from Detective Chisholm (which occurs in each supporting affidavit) is false and was made with the intent to mislead Judge Jones:
The week of February 29, 2020 Detectives with the Wilmington Police Department conducted a controlled drug buy operation. The Wilmington Police Department used a confidential information to make a controlled purchase of crack cocaine from HARPER.(Renewed Mot. Suppress at 7; PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.) Defendant contends this statement is false because the confidential informant did not buy drugs from Defendant during this controlled buy operation. (Renewed Mot. Suppress at 7 (citing 2/28/2020 WPD Report and Warrant at 8).) Defendant argues that this allegedly false statement is crucial to the probable cause determination because it tends to corroborate the confidential informant's information and, conversely, that the confidential informant's inability to purchase drugs from Defendant during the controlled buy operation undermines the confidential informant's credibility. (Renewed Mot. Suppress at 7.)
Defendant's motion only alleges this false statement in regards to the GPS Orders. (Renewed Mot. Suppress at 7 (referencing “Exhibit B and C”)).
Second, Defendant contends the following factual statements in the supporting affidavits are also false:
• The confidential informant provided a physical description of Defendant;
• The confidential informant said that Defendant was on probation;
• The confidential informant made a positive photo identification of Defendant;
• The confidential informant observed Defendant operating a green Ford F-150; and
• The confidential informant gave Detective Chisholm license plate numbers for any automobile; and
• Detective Chisholm corroborated information provided by the confidential informant before submitting the affidavits.(Renewed Mot. Suppress at 7.) Defendant contends the foregoing statements are false because they are not included in WPD notes from interviews with the confidential informant and there is nothing explaining how Detective Chisholm corroborated the information obtained from the confidential informant before submitting the affidavits. (Id. (relying on cross-reference to WPD Interview Notes).)
Third, Defendant contends that Detective Chisholm recklessly omitted material information in the supporting affidavits regarding the confidential informant's criminal history, pending sentencing, pending criminal charges, and unserved warrants. (Renewed Mot. Suppress at 8.)
B. Search Warrant
Defendant makes three broad arguments regarding the search warrant: (i) the warrant is overbroad to the extent it “uses generalized information to allow [the] government to search anywhere they believed Harper to have been at any given time, and any person on the property” and “permits the search of any other vehicle as may be located with[in] the curtilage of the residences to be search[ed]” (Renewed Mot. Suppress at 9-10 (citing United States v. Lyles, 910 F.3d 787, 795 (4th Cir. 2018), in support)); (ii) the factual allegations upon which the warrant was based fail to establish probable cause (id. at 10); and (iii) a Franks hearing is required because Detective Chisholm made the same false statements and material omissions as discussed above in regards to the PRTT and GPS Orders and “mispresent[ed] facts regarding the controlled drug buy operation occurring the week of March 15, 2020, referenced in Paragraph 8 of the affidavit” (id. at 11).
Defendant's overbreadth argument is nearly a carbon copy of the argument he made in his initial suppression motion but for the citation to Lyles, 910 F.3d at 795. (Compare Mot. Suppress at 4 with Renewed Mot. Suppress at 9-10.)
Defendant argues that the facts in Detective Chisholm's affidavit do not establish probable cause because (1) it is unclear how many confidential informants Detective Chisholm references; (2) the affidavits do not show how the confidential informant's statements were corroborated; (3) there is not a sufficient nexus between the criminal conduct and “[Defendant's] residence at Sea Hawk Square or the Melba Court apartment”; and (4) the affidavit refers to stale information to the extent it references a traffic stop from December 2019 and there is no information as to when the confidential informant allegedly purchased drugs from Defendant. (Renewed Mot. Suppress at 10.)
Defendant contends the following are false statements in the warrant affidavit that necessitate a Franks hearing:
• The confidential informant is reliable;
• The confidential informant provided a description of Defendant;
• The confidential informant regularly bought drugs from Defendant;
• The statement in Paragraph 8 of the affidavit that Defendant was observed arriving at a particular location driving a green Ford F-150 with license plate TAW-5591 for a controlled drug buy operation during the week of
March 15, 2020, in which a confidential informant purchased cocaine from a “local drug dealer”;
• The confidential informant observed Defendant in a Ford F-150;
• The confidential informant provided license plate information; and
• Detective Chisholm corroborated information provided by the confidential informant before submitting the affidavits.(Renewed Mot. Suppress at 10-11.) As to the statement about the controlled drug purchase operation referenced in Paragraph 8 of the affidavit, Defendant contends these are “misrepresentations” when compared with “police reports provided in discovery and [Detective Chisholm's] testimony at the detention hearing.” (Id. at 11.) More specifically, Defendant argues that the police officers who were observing this particular controlled buy operation “ma[d]e no report of identifying a person who met with Terrance McIntyre” and the “audio/video recording of the CI at the scene states that she can't see who McIntyre is meeting with [and] thinks it is ‘an old white guy.'” (Id. at 11.)
In support of his request for a Franks hearing, Defendant argues that “the police visits to 719 Melba Court responding to domestic disturbance[s] do not support the search of any property or vehicle”. (Renewed Mot. Suppress at 11.) Defendant does not explain why he believes this information is false or contains material omissions. (Id.) This would appear relevant to whether probable cause supported issuance of the search warrant for the Melba Court apartment. See Harper, 2022 WL 1600014, at *9.
Although not explained in Defendant's summary of the facts relevant to the issuance of the search warrant (Renewed Mot. Suppress at 8-9), the transcript of Detective Chisholm's testimony at Defendant's detention hearing makes clear that the “local drug dealer” referenced in the affidavit is Terrance McIntyre (Detn. Hr'g Tr. at 6-8, 10-17).
Lastly, Defendant contends that Detective Chisholm recklessly omitted material information in the supporting affidavits regarding the confidential informant's criminal history, pending sentencing, pending criminal charges, and unserved warrants. (Renewed Mot. Suppress at 11.)
III. Analysis
A. PRTT and GPS Orders
i. Franks Argument
In Franks, the Supreme Court held that there is a “presumption of validity” to search warrant applications, Franks, 438 U.S. at 171, but “carved out a narrow exception to this rule, whereby an accused is entitled to an evidentiary hearing on the veracity of statements in the affidavit” where a defendant makes a substantial preliminary showing that probable cause for the search was premised upon false statements in the affidavit, United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). When a defendant's argument for a Franks hearing depends on omissions, the showing necessary to justify a hearing is “even higher.” United States v. Clenney, 631 F.3d 658, 664 (4th Cir. 2011) (citing United States v. Tate, 524 F.3d 449, 454-55 (4th Cir. 2008)); see also United States v. Haas, 986 F.3d 467, 474 (4th Cir. 2021) (citing Tate, 524 F.3d at 454-55). Because Defendant seeks to challenge the PRTT and GPS Orders on the basis of false and omitted information, the court must first determine whether Defendant has made a “substantial preliminary showing” to justify a Franks hearing. See Franks, 438 U.S. at 155-56.
“[T]o make the ‘substantial preliminary showing' required by Franks, a defendant's ‘allegations [of Franks-type misconduct] must be accompanied by an offer of proof.'” United States v. Chandia, 514 F.3d 365, 373 (4th Cir. 2008) (alteration in original) (quoting Franks, 438 U.S. at 171). “For instance, ‘[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.'” Chandia, 514 F.3d at 373 (quoting Franks, 438 U.S. at 171). A defendant is entitled to an evidentiary hearing if and only if he makes the substantial preliminary showing. Haas, 986 F.3d at 474. Once at the hearing, the defendant must then prove by a preponderance of the evidence that the Franks prongs have been met. Id. If he succeeds, “the search warrant [is] voided and the fruits of the search excluded.” Id. (quoting Franks, 438 U.S. at 156; citing United States v. Colkley, 899 F.2d 297, 300-01 & n.2 (4th Cir. 1992) (explaining differing burdens)).
Where a defendant relies on omissions to make a Franks argument, he “must provide a substantial preliminary showing that (1) law enforcement made an omission; (2) law enforcement made the omission ‘knowingly and intentionally, or with reckless disregard for the truth,' and (3) the inclusion of the omitted evidence in the affidavit would have defeated its probable cause.” Haas, 986 F.3d at 474 (quoting Colkley, 899 F.2d at 300-01).
Importantly, “warrant affidavits are ‘normally drafted by nonlawyers in the midst and haste of a criminal investigation.'” United States v. Moody, 931 F.3d 366, 372 (4th Cir. 2019) (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). Such affidavits “must be interpreted in a commonsense manner” and not “held to the standard of what judges or lawyers feel they would have written.” Moody, 931 F.3d at 372. “And the mere fact that information was omitted from an affidavit cannot alone show recklessness or intentionality.” Haas, 986 F.3d at 475 (citing United States v. Shorter, 328 F.3d 167, 171 (4th Cir. 2003)). Negligence or innocent mistake is not sufficient to show the intent to mislead. Moody, 931 F.3d at 371. To the extent a defendant premises his argument on the reckless disregard of the affiant, he must show that the affiant was “subjectively aware that the false statement or omission would create a risk of misleading the reviewing [] judge.” United States v. Pulley, 987 F.3d 370, 377 (4th Cir. 2021).
Defendant has failed to make the substantial preliminary showing to justify a Franks hearing for several reasons.
First, Defendant has not shown that Detective Chisholm's statement in the supporting affidavits regarding the controlled purchase operation during the week of February 29, 2020, is false. The affidavit does not state that the controlled purchase operation during the week of February 29, 2020, resulted in the acquisition of drugs from Defendant. (PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.) Rather, it states that law enforcement officers “conducted a controlled buy operation” and “used a confidential informant to make a controlled purchase of crack cocaine from [Defendant].” The infinitive of the verb “make” is not limited to Defendant's preferred interpretation meaning something akin to “completed.” See Make, Merriam-Webster's Collegiate Dictionary 750 (11th ed. 2003) (listing numerous definitions including “to carry out”). Defendant's argument is the type of “subjective disagreement” with facts in an affidavit that is insufficient to show intentional or reckless disregard for the truth. Moody, 931 F.3d at 370. This is a prime example of an argument about technical style and writing that nonlawyers are not expected to have mastered, especially law enforcement officers in the “midst and haste of a criminal investigation.” Moody, 931 F.3d at 372.
In Defendant's earlier motion, he argued that Detective Chisholm made a material omission regarding this controlled purchase transaction. See Harper, 2022 WL 1600014, at *5-6 (analyzing Defendant's earlier argument).
Second, Defendant's argument that WPD notes of interviews with the confidential informant do not contain as much factual information as Detective Chisholm's affidavits contain entails that Detective Chisholm lied in his affidavits lacks merit. Simply because the WPD officer who interviewed the confidential informant did not jot down every piece of information does not mean that the confidential informant did not relay more information than is present in the notes. See, e.g., Note, Merriam-Webster's Collegiate Dictionary 848 (11th ed. 2003) (“a condensed or informal record” or “a brief comment or explanation”). To accept Defendant's argument would mean that a witness statement not documented in writing by law enforcement could never be used to support an application for a warrant. Defendant cites no authority for such a proposition, nor is the undersigned aware of any.
Third, Defendant's argument that Detective Chisholm recklessly omitted material information about the confidential informant's criminal history, pending criminal charges, and unserved warrants lacks merit. As explained in connection with Defendant's first motion to suppress, Harper, 2022 WL 1600014, at *6, omission of this information, without more, is insufficient to meet Defendant's heavy burden under Franks, Haas, 986 F.3d at 475; see also United States v. Woodfork, 999 F.3d 511, 517 (7th Cir. 2021) (“We trust that warrant-issuing judges are aware that the individuals upon whom law enforcement relies to make drug purchases through controlled buys are likely to have criminal histories, and it is not a stretch to assume that the judge here knew that a confidential source buying methamphetamine likely had some criminal history.”); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 970 (7th Cir. 2003) (“[C]ourts are aware that informants are frequently facing charges and hoping for deals.”), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Indeed, a confidential informant's pending sentencing and criminal charges can also create “a strong motive to supply accurate information.” United States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991). Moreover, as will be explained in more detail below, the supporting affidavits contained sufficient factual information to support probable cause such that inclusion of the confidential informant's criminal history and pending charges would not have undermined the probable cause finding.
ii. Probable Cause and Carpenter/Jones Arguments
Defendant argues that the PRTT and GPS Orders fail to comply with recent Supreme Court decisions requiring search warrants for cell phone location history (Carpenter) and installation of GPS tracking devices (Jones). (Renewed Mot. Suppress at 5.) However, as the court previously explained, it is immaterial whether the PRTT and GPS Orders are styled as “orders” rather than “warrants.” Harper, 2022 WL 1600014, at *2 (citing United States v. Wilford, 961 F.Supp.2d 740, 773 (D. Md. 2013)). The question is whether the PRTT and GPS Orders, on their face, meet the requirements for a search warrant. This court has expressly held that a PRTT Order issued by a North Carolina judge can function as a search warrant. United States v. Evans, No. 5:i7-CR-39-FL, 2018 WL 7051095, at *3-4 (E.D. N.C. Dec. 20, 2018) (specifically addressing the effect of Carpenter in the context of 18 U.S.C. § 2703(d) and N.C. Gen. Stat. §§ 15A-262 & -263 and discussing analysis of such orders under the Fourth Amendment and United States v. Dalia, 441 U.S. 238 (1979)), mem. & recommendation adopted by 2019 WL 238033 (E.D. N.C. Jan. 16, 2019). Accordingly, the undersigned will explain why the PRTT and GPS Orders meet the requirements for search warrants under Dalia, 441 U.S. at 255.
To satisfy the Fourth Amendment, search warrants must meet the following requirements:
First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. Finally, “warrants must particularly describe the ‘things to be seized,'” as well as the place to be searched.Dalia, 441 U.S. at 255 (citations omitted).
Probable cause exists when, after considering the totality of the circumstances set forth in an affidavit supporting a warrant application, 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, 238 (1983). “Facts establishing probable cause need only warrant a man of reasonable caution to believe that evidence of a crime will be found and do not require a showing that such a belief be correct or more likely true than false.” United States v. Davis, 939 F.Supp.2d 535, 560 (E.D. N.C. 2013) (internal quotation marks omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)); see also United States v. Gondres-Medrano, 3 F.4th 708, 714 (4th Cir. 2021) (“Probable cause has long been understood to encompass circumstances that, while less than a preponderance, ‘warrant suspicion.'” (quoting Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813))). “Probable cause is therefore ‘not a high bar.'” United States v. Bosyk, 933 F.3d 319, 325 (4th Cir. 2019) (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018)).
Information received from informants or tipsters, whether known or anonymous, can contribute to a finding of probable cause. Gondres-Medrano, 3 F.4th at 714-15. In the context of anonymous informants or tipsters, corroboration of information in the tip informs the reliability or veracity of the informant. Id. at 715; United States v. Hodge, 354 F.3d 305, 309 (4th Cir. 2004) (“The degree to which an informant's story is corroborated may also be an important factor.”). In contrast, less corroboration is required when an informant's identity is known to police. See Harper, 2022 WL 1138032, at *4 (citing Gondres-Medrano, 3 F.4th at 716).
Warrants are given great deference, and review is limited to whether the issuing official had a “substantial basis” for finding probable cause. Lyles, 910 F.3d at 791 (quoting Gates, 462 U.S. at 238-39). Such review is limited to the “information actually presented to the magistrate during the warrant application process.” Lyles, 910 F.3d at 791 (quoting Owens ex rel. Owens v. Lott, 373 F.3d 267, 277 (4th Cir. 2004)). “[R]eviewing courts must resist the temptation to ‘invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.'” United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990) (quoting Gates, 462 U.S. at 236) (second and third alterations in original).
The PRTT and GPS Orders comply with the Fourth Amendment's search warrant requirements. First, they were issued by a neutral, detached North Carolina Superior Court judge. See Evans, 2018 WL 7051095, at *4. Second, Judge Jones had a substantial basis for finding probable cause that the information sought in connection with the PRTT and GPS Orders would reveal evidence relevant and material to the investigation of Defendant for drug crimes. The supporting affidavits include information that (1) a known confidential informant provided WPD with a physical description of Defendant, made a positive photo identification of Defendant, described vehicles operated by Defendant, provided a license plate number for one vehicle operated by Defendant, and had previously purchased drugs from Defendant (PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2); (2) a confidential informant conducted a controlled drug buy operation with WPD during the week of February 23, 2020, and during this operation Defendant made statements about the quantity of narcotics in his possession (PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2); (3) Detective Chisholm confirmed that a license plate number that the confidential informant attributed to Defendant matched a vehicle registered in Defendant's name (Ford GPS Order at 2; Lincoln GPS Order at 2); and (4) WPD detectives corroborated the confidential informant's tip that Defendant operated a green Ford F-150 by a WPD police report of a traffic stop on December 21, 2019, wherein Defendant was operating a green Ford F-150 and was found in possession of heroin paraphernalia and a large amount of cash (Ford GPS Order at 2). Such facts provide a sufficient nexus to the cell phone number and automobiles such that Judge Jones had a substantial basis for finding probable cause to believe that the information sought in the PRTT Order and information obtained by installation of the GPS devices on the particular automobiles would reveal evidence of drug trafficking by Defendant. See Harper, 2022 WL 1138032, at *5-6. Finally, the PRTT Order and GPS Orders were issued for a particular phone and two particular automobiles (identified by VIN and license plate numbers). (PRTT Order; Ford GPS Order; Lincoln GPS Order.)
The PRTT Order states that Judge Jones found “there is probable cause to believe that BRIAN JACKIE HARPER is using the cellular phone . . . to further and facilitate” various drug crimes. (PRTT Order at 7, 9.) The GPS Orders also include express language as to probable cause. (Ford GPS Order at 4; Lincoln GPS Order at 4.)
This court previously explained why there is sufficient nexus to the cell phone number for the PRTT Order:
While the connection between defendant and the cell phone number certainly could have been clearer, as “warrant affidavits are normally drafted by nonlawyers . . . they must be interpreted in a commonsense manner, neither held to the standard of what judges or lawyers feel they would have written if given the opportunity nor judged as an entry in an essay contest.” United States v. Pulley, 987 F.3d 370, 380 (4th Cir. 2021). So interpreting the affidavit, and based on the totality of circumstances including the role cell phones generally play in drug trafficking, the officers' successful arrangement of a meeting with defendant, the realistic means by which officers would have obtained the number (namely, the confidential informant), the affiant's identification of Verizon Wireless specifically as the subscriber and description of the number as assigned to defendant, the magistrate judge could reasonably infer a connection between defendant and the number identified. Notably, defendant provides no law to the contrary.Harper, 2022 WL 1138032, at *5; see also id. (citing United States v. Gibson, 547 Fed.Appx. 174, 185 n.1 (4th Cir. 2013) (Davis, J., concurring in part and concurring in the judgment), and United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992), for the proposition that modern cell phones are a “recognized tool of drug-traffickers”).
Defendant argues that (i) the supporting affidavits fail to provide a basis for finding the confidential informant to be reliable and trustworthy; (ii) the PRTT supporting affidavit does not state who provided the cell phone number attributed to Defendant or how Detective Chisholm had reason to believe the number belonged to Defendant; (iii) the GPS supporting affidavits do not specify which license plate number the confidential informant provided to WPD, to which automobile the license plate number corresponded, how Detective Chisholm identified the other automobile, and how either automobile is relevant to the alleged drug crimes. (Renewed Mot. Suppress at 6.) These arguments were previously raised and rejected by the court in the adjudication of Defendant's first motion to suppress. See Harper, 2022 WL 1138032, at *4-6 (explaining how the confidential informant's reliability and credibility was corroborated, the nexus to the particular cell phone number, and the nexus to the two automobiles). For the reasons previously explained, the arguments are still without merit and should therefore be rejected.
B. Search Warrant
i. Overbreadth Argument
Defendant's overbreadth argument is nearly a carbon copy of the argument he made in his earlier suppression motion but for the citation to Lyles, 910 F.3d at 795. (Compare Mot. Suppress at 4 with Renewed Mot. Suppress at 9-10.) It should be rejected for the reasons previously explained. See Harper, 2022 WL 1600014, at *10. Furthermore, Lyles is readily distinguishable from this case.
In Lyles, the only facts supplied to support a warrant to search a residence were that three marijuana stems and three empty packs of rolling papers were seized from a trash pull conducted outside the residence. Lyles, 910 F.3d at 790-91. The warrant application did not proffer facts about an “earlier, unrelated [homicide] investigation,” nor did it identify the homeowner or even name the defendant. Id. at 791. In contrast here, the search warrant application contains detailed information regarding Defendant's suspected drug sales (information obtained from a confidential information using recording equipment and corroborated via WPD investigation), the automobiles operated by Defendant, and evidence connecting Defendant to both addresses listed in the warrant. (Warrant at 6-9.) To highlight, the affidavit states that Defendant was “recorded on an audio surveillance device” speaking about “large quantity of narcotics in his possession, the amount he is able to acquire, his frustrations with cooking such a large amount of crack cocaine, and how he operates his drug trafficking organization.” (Warrant at 8.) The warrant affidavit at issue here contains ample evidence of significant drug trafficking by Defendant that pales in comparison to the three marijuana stems and empty rolling paper packs in Lyles.
ii. Probable Cause
Defendant's arguments that the facts in the Warrant affidavit do not establish probable cause should be rejected because Judge Jones had a substantial basis for his finding of probable cause and issuance of the search warrant. The following facts established a fair probability to believe that evidence of drug dealing would be found at the locations noted in the search warrant:
• During the week of February 16, 2020, the CI told Detective Chisholm that he could purchase heroin from a person named “B” who was on federal probation, lived at an apartment on Seahawk Square and in another unknown location, and drove a newer-model Lincoln automobile and a green truck. (Warrant at 6.) During the week of February 23, 2020, the CI provided a license plate number of HDX-3175 for the Lincoln. (Id. at 7.)
• Chisholm corroborated the above facts by presenting the CI with a photograph of Defendant from a law enforcement database (the CI identified Defendant as “B” with 100% certainty); learning from said database that Defendant's address registered with federal probation was 4752 Seahawk Square, Apartment B8; confirming that the Lincoln with tag HDX-3175 was registered to Defendant; confirming that on December 21, 2019, Defendant was stopped for a traffic violation driving a green Ford F-150 truck and in possession of drug paraphernalia and a large amount of cash; and learning that police had
reported to 719 Melba Court for domestic violence calls on February 12 and 22, 2020, where they encountered Defendant (police filmed these encounters with body-worn cameras). (Warrant at 6-7.)
• During the week of February 29, 2020, the CI attempted to purchase drugs from Defendant through a controlled buy operation, was not able to acquire drugs from Defendant, and audio recorded Defendant discussing his drug trafficking organization. (Warrant at 8.)
• GPS tracking devices on the Lincoln and Ford showed both vehicles were routinely at 719 Melba Court, which police confirmed with surveillance. (Warrant at 8.)
• During the week of March 15, 2020, the CI completed a controlled drug purchase of cocaine from an unidentified local drug dealer. The CI told police that the local drug dealer had to contact his supplier to obtain the drugs. Defendant was observed by police arriving at the drug sale location in the green Ford, which the local drug dealer entered. The GPS tracking device on the Ford showed Defendant leaving 719 Melba Court, driving to the location of the controlled buy, and then driving directly to 4752 Seahawk Square. (Warrant at 8-9.)
When these facts are considered in their totality, see Gates, 462 U.S. at 238, they show a fair probability to believe that Defendant was actively engaged in the sale of drugs, operated both the Lincoln and Ford vehicles, frequented residences at both the Seahawk Square and Melba Court apartments, and traveled between these residences shortly before and after a drug transaction. Chisholm corroborated the CI's information about Defendant's identity, the residences, and the automobiles, see United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993) (reliability of informant's tip corroborated by police confirmation of suspect's address, car, and alias), and then conducted two controlled buy operations, each of which resulted in the acquisition of evidence tending to show Defendant sold drugs. That Defendant had been driving the Ford only three months earlier and was in possession of a large quantity of heroin packaging material and a large amount of cash further corroborates the informant's initial statements to Chisholm that Defendant required the informant to purchase a minimum amount of heroin, and, more generally, bolsters the probable cause finding. (See Warrant at 6 (informant told Chisholm that “B” required him to purchase a minimum amount of heroin per week).) So too does the fact that Defendant was on federal supervised release related to heroin distribution convictions. See, e.g., United States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (criminal history can contribute to probable cause). Therefore, Judge Jones had a substantial basis for believing that evidence of drug trafficking would be located at both apartments, in both automobiles, and on Defendant's person. The facts listed above show how the confidential informant's statements were corroborated and the nexus between the criminal conduct and the residences identified in the search warrant. Defendant's argument about not knowing how many confidential informants were referenced is irrelevant. And his argument that the December 2019 traffic stop is stale information is meritless because that information, obtained only three months earlier, tended to corroborate the confidential informant's information and the WPD investigation more generally. Accordingly, Defendant's argument as to the lack of probable cause for the search warrant should be rejected.
While Detective Chisholm did not detail Defendant's prior criminal history in the affidavit, he was undoubtedly aware of Defendant's federal criminal history as it is referenced in the affidavit. See United States v. McKenzie-Gude, 671 F.3d 452, 459 (4th Cir. 2011). Defendant was serving a three-year term of supervised release in connection with federal drug convictions for which he was sentenced in March 2008 to 175 (later reduced to 150) months' imprisonment. See Judgment & Reduction Order, United States v. Harper, No. 7:07-CR-114-1FL, ECF Nos. 48, 75 (E.D. N.C. ).
iii. Franks Arguments
Except for an argument about the controlled buy operation occurring during the week of March 15, 2020, all of Defendant's arguments in support of his Franks motion as to the search warrant are identical to his Franks arguments as to the PRTT and GPS Orders. These arguments should be rejected for the same reasons explained above.
Defendant also makes the following argument regarding the controlled buy operation occurring during the week of March 15, 2020:
In paragraph 8 of the search warrant affidavit, Chisholm misrepresents the facts as reported in police reports provided in discovery and his testimony at the detention hearing. Officers observing the Handy Hugo make no report of identifying a person who met with Terrance McIntyre. The affidavit fails to identify whether this CI is the same or different from the others in the affidavit. The audio/video recording of the CI at the scene states that she can't see who McIntyre is meeting with [and] thinks it is “an old white guy.”(Renewed Mot. Suppress at 11.) The paragraph in the affidavit that Defendant contends contains misrepresentations is as follows:
The week of March 15, 2020 Detectives with WPD VICE UNIT conducted a controlled purchase operation with a Confidential Informant that targeted a local drug dealer. The Confidential Informant advised VICE Detectives that the drug dealer called his ‘plug' or ‘supplier' to obtain enough cocaine to sell to the Confidential Informant. HARPER was seen arriving at the location in his green Ford-F150 with NC registration TAW-5591. HARPER's location was documented on GPS devices. The local drug dealer entered the green Ford-F150 occupied by HARPER. Moments later the local drug dealer met with the Confidential Informant and had a large amount of cocaine in his possession that he didn't have prior to meeting with Brian Harper.(Warrant at 8.) Defendant's argument should be rejected for the following reasons.
First, the only police report attached to the instant motion concerns a controlled buy operation occurring on February 28, 2020. (See 2/28/2020 WPD Report.) Therefore, Defendant has failed to show the reports conflict with Detective Chisholm's affidavit. See Chandia, 514 F.3d at 373. Second, the search warrant affidavit does not state that the confidential informant identified Defendant as the person who met with the local drug dealer (McIntyre). (Compare Warrant at 8 with Renewed Mot. Suppress at 11.) Third, a review of Detective Chisholm's testimony at the detention hearing does not support Defendant's argument. Detective Chisholm testified that WPD officers observing the controlled buy operation occurring on March 17, 2020, observed Defendant arriving on scene in a green Ford F-150 and confirmed that said truck was registered to Defendant. (Detn. Hr'g Tr. at 7, 18.) This is consistent with information in the affidavit. (Warrant at 8.) The Ford GPS Order data indicates that the vehicle was at 425 College Road in Wilmington at 2:09 p.m. on March 17, 2020. (Ford GPS Data.) This is also consistent with information in the affidavit. (Warrant at 8-9.) Detective Chisholm testified that this controlled buy operation took place at “the Han-Dee Hugo's at North College” (Detn. Hr'g Tr. at 6), which also appears consistent with the GPS data and the affidavit (Ford GPS Data; Warrant at 9). Accordingly, Defendant has failed to meet his heavy burden to justify a Franks hearing.
C. Good Faith Exception
Lastly, even if the state-court orders and search warrant were not supported by probable cause, the good faith exception to the warrant requirement announced in United States v. Leon, 468 U.S. 897 (1984), would prevent application of the exclusionary rule.
Generally, evidence seized in violation of the Fourth Amendment is subject to suppression under the exclusionary rule, the purpose of which is to deter future, unlawful conduct by law enforcement. United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009). Because the deterrent purpose is not served in all circumstances, an exception exists where “evidence [is] obtained pursuant to a search warrant issued by a neutral magistrate . . . if the officer's reliance on the warrant was ‘objectively reasonable.'” United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (quoting Leon, 468 U.S. at 922).
“[A] warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” Leon, 468 U.S. at 922 (internal quotation marks omitted). Thus, “the fruits of a search conducted under the authority of a warrant, even a ‘subsequently invalidated' warrant” are subject to suppression only where “‘a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.'” Perez, 393 F.3d at 460-61 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)). Suppression remains the appropriate remedy only where: (1) the judicial official who issued the warrant was misled by information the affiant knew to be false or would have known to be false but for the officer's reckless disregard of the truth; (2) the issuing official “wholly abandoned his judicial role” as a neutral and detached magistrate; (3) the warrant is based on an affidavit that is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) the warrant is “so fatally deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923. In the Fourth Circuit, a court is permitted to “look beyond the facts stated in the affidavit and consider uncontroverted facts known to the officers but inadvertently not disclosed” to the issuing official when determining if reliance on the warrant was objectively reasonable. McKenzie-Gude, 671 F.3d at 459.
As explained above, there is no reason to believe Detective Chisholm misled Judge Jones as to the PRTT Order, the GPS Orders, or the search warrant, thus negating the exception to the good faith rule established in Leon. Furthermore, as explained above, the supporting affidavits set forth ample basis for the probable cause findings, and the places to be searched and items to be seized were limited to those places and things reasonably connected to Defendant's suspected drug trafficking. Therefore, the only remaining exception to Leon is whether Judge Jones wholly abandoned his role as a neutral and detached magistrate. But Defendant has proffered no evidence to suggest this. Accordingly, Leon would apply even if the statecourt orders and warrant at issue were not valid.
CONCLUSION
For the foregoing reasons, Defendant has failed to make a substantial preliminary showing to warrant an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and it is RECOMMENDED that Defendant's Renewed Motion to Suppress [DE #132] be DENIED without a hearing.
IT IS DIRECTED that a copy of this Order and Memorandum & Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until March 24, 2023, to file written objections to the Order and Memorandum & 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 Order and Memorandum & Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b); Local Crim. R. 1.1 (permitting modification of deadlines specified in local rules), 5.3(c) (E.D. N.C. Dec. 2019).
A party that does not file written objections to the Order and Memorandum & Recommendation by the foregoing deadline, will be giving up the right to review by the presiding district judge as described above, and the presiding district judge may enter an order or judgment without such review. In addition, a party's failure to file written objections by the foregoing deadline may 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 United States v. Jones, 658 Fed.Appx. 188, 189 (4th Cir. 2016).