Opinion
5:23-CR-276-1FL
02-14-2024
UNITED STATES OF AMERICA v. MARKUS ODON MCCORMICK, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK United States Magistrate Judge
This matter is before the court on Defendant's pro se motions to suppress [DE ##29, 30], motions for Franks hearing [DE ##53, 54], motion to dismiss [DE #64], and motion in limine [DE #85], which have been referred for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) by the Honorable Louise W. Flanagan, United States District Judge. The Government has responded in opposition [DE ##51, 52, 82, 83, 94], and the time for further filings has expired. This matter is therefore ripe for ruling.
STATEMENT OF THE CASE
On September 7, 2023, a federal grand jury returned an indictment charging Markus Odon McCormick with (i) possession with intent to distribute five grams or more of methamphetamine, a quantity of cocaine, and a quantity of fentanyl, in violation of 21 U.S.C. § 841(a)(1) (Count 1); (ii) brandishing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2); and (iii) two counts of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) & 924 (Counts 3 and 4). (Indictment [DE #1].)
Defendant filed two motions to suppress on October 23, 2023; two motions for Franks hearing on November 27, 2023; the motion to dismiss on December 1, 2023; and the motion in limine on January 11, 2024. The substance of the motion to dismiss [DE #64] and the motion in limine [DE #85] is duplicative of the substance in Defendant's Motion to Suppress Evidence on Grounds of No Actual or Constructive Possession [DE #29]. These motions all address searches conducted on December 10, 2020, at 727 Orchard Street, Hope Mills, North Carolina, and will therefore be addressed together. Defendant's Motion to Suppress Unlawfully Obtained Evidence [DE #30] and Motion for Franks Hearing [DE #53] both address searches occurring on December 21, 2020, at 1622 Newark Avenue, Fayetteville, North Carolina, and will therefore be addressed together. The last remaining motion is Defendant's Motion for Franks Hearing [DE #54], which concerns the search of a cell phone seized from Defendant's person during his arrest on December 10, 2020.
For ease of reference, the undersigned will refer to this suppression motion as Mot. Suppress Orchard St. Search.
For ease of reference, the undersigned will refer to this suppression motion at Mot. Suppress Newark Ave. Search and the Franks motion as Mot. Franks Newark Ave.
For ease of reference, the undersigned will refer to this motion as Mot. Franks Phone.
DISCUSSION
Some key aspects of Fourth Amendment doctrine are relevant to Defendant's motions and will therefore be summarized before the analysis of Defendant's motions.
I. Fourth Amendment Background
The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures “of their persons, houses, papers, and effects.” U.S. Const. amend. IV. “This generally requires law-enforcement officers to seek a warrant from an impartial judicial officer before searching or seizing ‘persons, houses, papers, [or] effects[.]” United States v. Ochoa, 539 F.Supp.3d 504, 506 (E.D. N.C. 2021) (quoting U.S. Const. amend. IV) (alterations in original); see also United States v. Taylor, 54 F.4th 795, 803 (4th Cir. 2022). “[R]easonableness is ‘the ultimate touchstone of the Fourth Amendment.'” United States v. Marshall, 747 Fed.Appx. 139, 144 (4th Cir. 2018) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). “If a search or seizure falls within one of the historic exceptions to the warrant requirement, it is reasonable for Fourth Amendment purposes even when it is conducted without a warrant.” Ochoa, 539 F.Supp.3d at 506-07 (citing United States v. Brown, 701 F.3d 120, 126 (4th Cir. 2012)).
A. Suppression and Reasonable Expectation of Privacy
In general, evidence obtained by law enforcement through violation of the Fourth Amendment is subject to suppression under the exclusionary rule. See, e.g., United States v. Gaines, 668 F.3d 170, 173 (4th Cir. 2012). The burden of proving a Fourth Amendment violation lies with the party seeking suppression. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Where the evidence was obtained through a warrantless search, the burden shifts to the Government to prove by a preponderance of the evidence that the search was reasonable, i.e. one of the exceptions to the Fourth Amendment's warrant requirement applies. See Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (government bears burden to show legality of warrantless search); United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (burden of proof applicable to a motion to suppress is preponderance of the evidence).
However, “Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (quoting Brown v. United States, 411 U.S. 223, 230 (1973)). “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134. To obtain suppression of evidence, a defendant must show that he had a reasonable expectation of privacy in the property searched. United States v. Gray, 491 F.3d 138, 144 (4th Cir. 2007) (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980)); see also United States v. Carter, 300 F.3d 415, 421 (4th Cir. 2002) (“A passenger in a car normally has no legitimate expectation of privacy in an automobile in which he asserts neither a property interest nor a possessory interest and where he disclaims any interest in the seized object.”). Thus, the burden of proof as to a warrantless search will shift from the defendant to the Government if and only if the defendant carries his burden to show that he had a reasonable expectation of privacy that was infringed upon by Government action. See United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013); United States v. Pollins, 145 F.Supp.3d 525, 538 (D. Md. 2015) (explaining burden shifting).
B. Warrantless Arrest
The Fourth Amendment permits a warrantless arrest in a public place if the arresting officers have probable cause to believe the suspect has committed an offense. United States v. Wen Bin Chen, 811 F.Supp.2d 1193, 1203 (M.D. N.C. 2011) (first citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004); and then citing United States v. Tate, 648 F.2d 939, 943 (4th Cir. 1981)). “Probable cause to justify an arrest means facts and circumstances with the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).
C. Search Incident to Arrest
Under the search incident to arrest exception to the warrant requirement, “a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee's person and the area ‘within his immediate control.'” Davis v. United States, 564 U.S. 229, 232 (2011) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)); see also Chen, 811 F.Supp.2d at 1202 (first citing Virginia v. Moore, 553 U.S. 164, 177 (2008); and then citing United States v. Robinson, 414 U.S. 218, 235 (1973)).
D. Protective Sweep
“[W]arrantless searches of a residence ‘are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.” United States v. Everett, ___F.4th___,___, 2024 WL 236514, at *7 (4th Cir. 2024) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One exception is for law enforcement officers to conduct a protective sweep. Everett, ___F.4th at___, 2024 WL 236514, at *7 (citing Maryland v. Buie, 494 U.S. 325, 333 (1990)). “[A] protective sweep of a residence is permissible when the facts ‘warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.'” Everett, ___F.4th at___, 2024 WL 236514, at *8 (quoting Buie, 494 U.S. at 334). “Such a sweep can be justified when law officers have an interest ‘in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.'” Everett, ___F.4th at___, 2024 WL 236514, at *7 (quoting Buie, 494 U.S. at 333).
E. Franks
A warrant issued by a neutral and detached magistrate or judge is entitled to great deference and should be overturned “only if there is no ‘substantial basis' for concluding that probable cause existed.” Simmons v. Poe, 47 F.3d 1370, 1380 (4th Cir. 1995) (quoting United States v. Leon, 468 U.S. 897, 915 (1984)). Furthermore, there is a “presumption of validity” to search warrant applications, Franks, 438 U.S. at 171, so “‘[a]n accused is generally not entitled to challenge the veracity of a facially valid search warrant affidavit' by way of a motion to suppress,” United States v. Pulley, 987 F.3d 370, 376 (4th Cir. 2021) (quoting United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011)). In Franks v. Delaware, 438 U.S. 154 (1978), however, the Supreme Court “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 he makes a substantial preliminary showing that probable cause for the search was premised upon false statements in the affidavit. Pulley, 987 F.3d at 376 (quoting Allen, 631 F.3d at 171).
To be entitled to a Franks evidentiary hearing, the defendant must make a substantial preliminary showing that “(1) law enforcement made ‘a false statement'; (2) the false statement was made ‘knowingly and intentionally, or with reckless disregard for the truth'; and (3) the false statement was ‘necessary to the finding of probable cause.'” United States v. Moody, 931 F.3d 366, 370 (4th Cir. 2019) (quoting United States v. White, 850 F.3d 667, 673 (4th Cir. 2017)). It is not enough that the affidavit contains false statements, even if made with deliberate falsity or reckless disregard for the truth. Franks, 438 U.S. at 171; Allen, 631 F.3d at 171. The statements must also be of such import that when the statements are set aside, there is no probable cause for the warrant. Franks, 438 U.S. at 171; Allen, 631 F.3d at 171.
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). 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 United States v. Colkley, 899 F.2d 297, 30001 (4th Cir. 1992)).
“[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 the Franks prongs of intentionality and materiality. Haas, 986 F.3d at 474 . If he succeeds, “the search warrant [is] voided and the fruits of the search excluded.” Id. (quoting Franks, 438 U.S. at 156).
Importantly, “warrant affidavits are ‘normally drafted by nonlawyers in the midst and haste of a criminal investigation.'” Moody, 931 F.3d at 372 (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 magistrate [or] judge and nevertheless chose to run that risk.” Pulley, 987 F.3d at 377.
II. Defendant's Arguments & Analysis
A. Orchard Street Arrest and Searches
i. Drugs and Gun
In his motion to suppress evidence obtained on December 10, 2020, from a search of 727 Orchard Street, Defendant argues that deputies of the Cumberland County Sheriff's Office “searched illegally under the trailer of Eric Vasquez” where they recovered drugs and a gun. (Mot. Suppress Orchard St. Search [DE #29] at 1; Mot. In Limine [DE #85] at 1-2; Mot. Dismiss [DE #64] at 1-2.) Defendant expressly moves to suppress the drugs and gun seized from the residence at 727 Orchard Street. (Mot. Dismiss [DE #64] at 2; Mot. In Limine [DE #85] at 2.)
Defendant's motion to suppress the drugs and gun recovered from the Orchard Street residence should be denied because Defendant has failed to show that he had a reasonable expectation of privacy that was infringed by the search. See Rakas, 439 U.S. at 134; Gray, 491 F.3d at 144. Defendant repeatedly refers to the Orchard Street residence as being owned by or belonging to Eric Vasquez (Mot. Suppress Orchard St. Search [DE #29] at 2 (“trailer belonging exclusively to Eric Vasquez”); Mot. Dismiss [DE #64] at 1; Mot. In Limine [DE #85] at 1). He further disclaims any interest in the items seized, stating he had neither actual nor constructive possession of them. (Mot. Suppress Orchard St. Search [DE #29] at 2.) Defendant has failed to demonstrate he has a Fourth Amendment interest in property infringed by the search of 727 Orchard Street and is therefore without any right to challenge the search. See Castellanos, 716 F.3d at 832.
ii. Arrest and Search of Defendant's Person
Defendant also challenges the lawfulness of his arrest on December 10, 2020, outside the Orchard Street residence and the ensuing seizure of a cell phone and $40 cash from his person. (Mot. Suppress Orchard St. Search [DE #29] at 1 (“Defendant was arrested, searched without consent and placed in back of officer[']s vehicle in violation of his 4th Amendment constitutional rights.”); Mot. In Limine [DE #85] at 1 (“Def[endant] was searched without his consent in violation of his 4th Amendment constitutional rights and Deputy Sheriff Jamie McLeod seized a cell phone and $40 U.S. currency from [Defendant's] person.”).)
This aspect of Defendant's motion to suppress should be denied because the items were seized as a result of a search incident to Defendant's lawful arrest. The undisputed evidence before the court establishes that officers came to the Orchard Street location based on a 911 call from Kenya Vasquez reporting that someone was fighting with her brother, Eric Vasquez. (See Mot. Dismiss [DE #64] at 1; Mot. In Limine [DE #85] at 1; Gov't Resp. Opp'n Mot. Dismiss [DE #82] at 2 (stating that Kenya Vasquez called 911 and “advised that her brother had been shot at and that the suspect and his vehicle were still on scene.”); Gov't Resp. Opp'n Mot. Franks Hrgs. [DE #83] at 1.) Following Defendant's arrest, a warrant was obtained to search the cell phone seized from Defendant's person. The affidavit submitted in support of that warrant summarizes the events leading up to Defendant's arrest that day as follows:
• The Cumberland County Sheriff's Office received a 911 call at 10:07 p.m. in reference to a disturbance at 727 Orchard Street in which Kenya Vasquez reported that her brother was fighting with someone, that someone was shooting at her brother, and that the person fighting with her brother was a black male wearing a blue or black shirt;
• Officers arrived on scene at 10:12 p.m. and found Defendant, who was wearing a black shirt and jeans, near the front passenger door of a Buick sedan parked in the driveway at 727 Orchard Street;
• Officers found Eric Vasquez near the corner of the residence bleeding from his left hand and from a cut over his left eye;
• Eric Vasquez told officers that he was pistol-whipped by a black male wearing a black sweater; and
• Defendant told the officers he was defending himself.(Gov't Resp. Opp'n Mot. Franks, Cell Phone Search Warrant [DE #83-1] at 7-8.)
There are additional facts alleged in the affidavit that would support probable cause for the warrantless arrest of Defendant on December 10, 2020, but it is unclear from the affidavit and the Government's briefing when the officers learned these facts.
A review of Defendant's filings and attached exhibits does not undermine the facts summarized above. The only place in Defendant's filings where Defendant appears to allege facts to dispute the probable cause to support the warrantless arrest on December 10, 2020, is in his Motion for Franks Hearing [DE #54] regarding the search warrant issued for the cell phone seized from Defendant's person. In that motion, Defendant alleges that a witness who was on scene on December 10, 2020, a Pasha Brittany McLain, “in her interview on 12-10-2020 and 12-18-2020 told Deputy McLeod ‘Defendant was sitting in his car outside when the alleged victim who had been up for a couple days getting delirious and thinking people were watching him, punched defendant in the face through his driver side window,' and then defendant got out of vehicle and chased after alleged victim.” (Mot. Franks [DE #54] at 1-2.) To support this allegation, Defendant cites to “exh. B.” (Id. at 2.) No exhibit B is attached to this motion. There is, however, an attachment to Defendant's suppression motion regarding the Orchard Street search that Defendant has labeled as “exh. B.” (Mot. Suppress, Exh. B [DE #29-4].) This exhibit appears to be an excerpt from a state-court hearing transcript of testimony of Detective McLeod of the Cumberland County Sheriff's Office. (Id.) The undersigned has reviewed that exhibit and at no point is it apparent that Pasha Brittany McLain testified at the hearing. (Id.) At one point Detective McLeod testifies regarding statements that Pasha McLain made regarding the December 10, 2020, incident (and McLain's relationship with Defendant more generally), but nothing in this exhibit confirms or corroborates what Defendant alleges in his Franks motion [DE #54]. (See Mot. Suppress, Exh. B [DE #29-4] at 8-10.)
It is unclear whether Defendant wrote “15” or “18”. (Mot. Franks [DE #54] at 1.)
The facts known to officers when they encountered Defendant at 727 Orchard Street on December 10, 2020, satisfy the standard to effect a warrantless arrest of Defendant for assault. A person whose identity was known called 911 and reported a disturbance involving her brother and a black male wearing a black shirt at 727 Orchard Street. She stated her brother had been shot at and the suspect and his vehicle were still there. Approximately five minutes later, officers arrived on scene and encountered Defendant, who matched the suspect's description, in the driveway. Officers found Eric Vasquez at the residence bleeding profusely. Vasquez reported he had been pistol-whipped by a black male wearing a black sweater, thus further corroborating the 911 caller's statement. Such information is sufficient to warrant an officer of reasonable caution to believe that Defendant had committed an assault just minutes before officers had arrived at 727 Orchard Street. See Gray, 137 F.3d at 769; United States v. Gondres-Medrano, 3 F.4th 708, 715-16 (4th Cir. 2021) (discussing evaluation of tipster reliability in the context of probable cause and holding that “corroboration can confirm the reliability of an informant who is known (rather than anonymous) but whose credibility is unknown to the officer”). Based upon the undisputed facts, Defendant is unable to show that his arrest was unlawful. The cell phone and currency having been seized incident to that arrest, their seizure did not violate Defendant's Fourth Amendment rights. See Davis, 564 U.S. at 232; Chen, 811 F.Supp.2d at 1203-04.
Under North Carolina law, simple assault is “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence to do some immediate physical injury to the person of another . . . sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” State v. Roberts, 270 N.C. 655, 658 (1967) (quotations and citations omitted); see also N.C. Gen. Stat. § 14-33(a).
B. Newark Avenue Search
Defendant also seeks to suppress the fruits of the search of his residence at 1622 Newark Avenue on December 21, 2020. Defendant contends that officers (i) arrested Defendant in front of the home without a warrant and without exigent circumstances (Mot. Suppress Newark Ave. Search [DE #30] at 1); (ii) illegally entered the home without consent or a search warrant (id.); (iii) obtained a search warrant based upon false statements that the arresting officers “could detect a strong odor of marijuana coming from inside of the home” (id. at 2) and observed Defendant attempt to flee through the rear door and then retreat inside and attempt to shut the rear door (Mot. Franks [DE #53] at 1); and (iv) searched the home pursuant to the unlawfully procured search warrant (Mot. Suppress Newark Ave. Search [DE #30] at 2). To support his suppression motion and Franks motion, Defendant has attached transcripts from a state-court hearing in which Detective Herrera testified regarding the Newark Avenue arrest and search. (Mot. Suppress, Herrera Testimony Tr. [DE #30-2].)
In addition to its briefing in opposition, the Government has submitted copies of (i) an arrest warrant issued on December 21, 2020, charging Defendant with First-Degree Burglary and Assault with a Deadly Weapon Inflicting Serious Injury, in violation of N.C. Gen Stat. § 14-51 (burglary) and § 14-32(B) (assault), and (ii) the search warrant issued on December 21, 2020, for 1622 Newark Avenue and the supporting affidavit. (Gov't Resp. Opp'n Arrest Warrant [DE #52-1] & Newark Ave. Search Warrant [DE #52-2].) Defendant does not refute this evidence.
Defendant's motions should be denied because (1) officers had a valid warrant to arrest Defendant for two state felony offenses, (2) officers conducted a lawful protective sweep of the Newark Avenue residence immediately after arresting Defendant and before applying for a search warrant, and (3) Defendant's allegations of the false statements in the search warrant application do not meet the heavy burden required under Franks.
Defendant's claim that officers conducted a warrantless arrest of him is conclusively rebutted by the arrest warrant the Government has provided. (Compare Mot. Suppress Newark Ave. Search [DE #30] with Arrest Warrant [DE #52-1].) The arrest warrant not only directs that Defendant be arrested for two felonies; it also charges Defendant with having assaulted an individual with a handgun causing serious injury. (Arrest Warrant.) Moreover, as the state-court hearing transcript supplied by Defendant shows, the arresting officers were part of the Fayetteville Police Department's Violent Criminal Apprehension Team and knew that Defendant was on electronic monitoring at the residence located at 1622 Newark Avenue before they arrived. (Mot. Suppress, Herrera Testimony Tr. [DE #30-2] at 1, 3.)
Aside from the allegations of false statements mentioned above, Defendant makes no other objections to information contained in the search warrant affidavit provided by Detective Herrera. (See Mot. Franks [DE #53] at 1.) According to Detective Herrera, the arresting officers (i) surrounded the Newark Avenue house to effect the arrest of Defendant pursuant to the arrest warrant, (ii) smelled a strong odor of marijuana coming from the house after they had surrounded it, (iii) observed the rear door of the residence open and then close, (iv) observed exit through the rear door a black female who was detained and reported that there were two additional people inside the house, (v) issued verbal commands for the people in the house to exit, (vi) detained Defendant and another woman at the front door without incident, and (vii) smelled a strong odor of marijuana at the front door. (Newark Ave. Search Warrant [DE #52-2] at 4.) Then the arresting officers “cleared the home of any further human threats pending a seize and freeze,” at which time they observed numerous firearms in plain view. (Id. at 4.) Detective Herrera's state-court testimony indicates that officers also observed small amounts of marijuana in the home, which were not enough to be smelled “through the neighborhood . . . but through the house.” (Herrera Testimony Tr. [DE #30-2] at 4, 9.) When taken together, these facts are similar to those recently analyzed by the Fourth Circuit in Everett and are sufficient to justify the officers' protective sweep of the house.
Detective Herrera later testified that they could smell marijuana “[p]robably within 10 feet of the residence.” (Mot. Suppress, Herrera Testimony Tr. [DE #30-2] at 6.)
In Everett, the Fourth Circuit held that a protective sweep of a home was justified when officers went to a residence to effect a warranted arrest of a defendant for drug and firearm offenses, knocked on the door, arrested the defendant inside of the residence without incident, and were then surprisingly confronted by the defendant's wife who advised that another adult, two children, and a dog were upstairs in the residence. Everett, ___F.4th at___, 2024 WL 236514, at *3.
Here, the officers who went to the Newark Avenue house to arrest Defendant were aware that Defendant was already on electronic monitoring and that Defendant was being arrested for felony offenses which involved the allegation of firearm usage in an assault that resulted in serious injury to another individual. When they arrived on scene, they smelled marijuana coming from the house. They then observed someone open and close the back door and a woman attempt to flee. Upon being detained by officers, the woman reported that there were two other people in the house. Officers then detained Defendant and another person at the front door. The totality of these facts would have warranted a reasonably prudent officer in believing that the Newark Avenue house may have contained another person posing a danger to the officers on scene. See Everett, ___F.4th at___, 2024 WL 236514, at *8. Thus, the small amounts of marijuana and firearms the officers observed in plain view during the protective sweep properly informed the search warrant application.
These facts alone would probably have been sufficient to establish probable cause for a search warrant. See Everett, F.4th at, 2024 WL 236514, at *9 (noting that the officers “had ample probable cause and could readily have secured a search warrant for the [ ] Residence earlier”); United States v. Jones, 952 F.3d 153, 158-60 (4th Cir. 2020) (odor of marijuana at front door of home justified search warrant).
Furthermore, Defendant's allegations of false statements regarding the marijuana and his alleged attempt to flee are not sufficient to warrant a Franks hearing. First, Defendant mischaracterizes Detective Herrera's state-court testimony about the marijuana-Detective Herrera did not say that “the residual amounts of marijuana recovered were not enough to detect an odor from the outside” (Mot. Franks [DE #53] at 1.) Rather, Detective Herrera's testimony, which is consistent with the search warrant affidavit, is that the odor was not strong enough to carry “through the neighborhood, because that is a very big neighborhood, but through the house, yes.” (Herrera Testimony Tr. [DE #30-2] at 9.) Thus, Defendant's offer of proof about the strong odor of marijuana being detected from the property fails to show a falsehood. See Moody, 931 F.3d at 370 (defendant “cannot rely on a purely subjective disagreement with how the affidavit characterizes the facts” and must offer “evidence showing that the statements at issue are objectively false”).
As to the statement about Defendant attempting to flee out the back door, Defendant cannot show that this statement, even if false, was necessary to the finding of probable cause. See Moody, 931 F.3d at 370. If that statement were excised from Detective Herrera's affidavit, there would still have been sufficient facts for the state magistrate to make a finding as to probable cause: the officers were lawfully present to effect a warranted arrest of Defendant for felony offenses, including an assault involving a handgun, the officers smelled marijuana emitting from the residence, and the officers observed small amounts of marijuana and firearms in plain view during a lawful protective sweep. (Newark Ave. Search Warrant [DE #52-2] at 4.) Moreover, Detective Herrera summarized Defendant's criminal history, which included drug trafficking, human trafficking, and fleeing to elude arrest offenses. (Id.) See United States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (noting that a defendant's criminal history can inform a probable cause finding for a search warrant). These are sufficient facts to establish probable cause for the search warrant. Accordingly, Defendant has failed to carry his “heavy” burden to justify a Franks hearing. See United States v. Tate, 524 F.3d 449, 454 (4th Cir. 2008).
C. Cell Phone Search Warrant
Defendant also seeks a Franks hearing in regards to a search warrant applied for by Detective McLeod and issued by North Carolina Superior Court Judge Mary Ann Tally on December 30, 2020, for the cell phone that was seized from Defendant's person during his arrest at 727 Orchard Street on December 10, 2020. (See Mot. Franks Cell Phone [DE #54].) Defendant premises this Franks motion on alleged omissions in the affidavit (id.), so he must meet an even higher standard to justify an evidentiary hearing. See Clenney, 631 F.3d at 664; Haas, 986 F.3d at 474. For the reasons explained below, Defendant fails to meet that standard.
The Government has submitted this search warrant and the supporting affidavit. (Gov't Resp. Opp'n Mot. Franks, Cell Phone Search Warrant [DE #83-1].)
As a preliminary matter, Defendant cites to several exhibits (A, B, C, and D) in his motion. Defendant states the exhibits are filed separately. (Mot. Suppress Franks Cell Phone [DE #54] at 2.) Before filing this Franks motion on November 27, 2023, Defendant filed two motions (discussed above) which contain attachments marked as exhibits A [DE ##29-2, 64-1] and B [DE #29-4]. After filing this Franks motion on November 27, 2023, Defendant filed a motion to dismiss on grounds of prosecutorial misconduct [DE #77], which contains attachments marked as exhibits A [DE #77-1], B [DE #77-2], C [DE #77-3], D [DE #77-4], E [DE #77-5], and F [DE#77-5]. Out of an abundance of caution and given Plaintiff's pro se status, the undersigned evaluates Plaintiff's Franks motion regarding the cell phone warrant with reference to all filed exhibits that correspond to the references in the Franks motion.
Defendant alleges five specific omissions, delineated “a” through “e,” which he claims Deputy McLeod omitted from her affidavit and which “diminished the alleged victim [']s credibility.” (Mot. Franks Cell Phone [DE #54] at 1-2.) The undersigned evaluates each in turn.
First, Defendant alleges that “subsection 20 in affiant's application states ‘Defendant follow [sic] alleged victim inside the residence after giving permission not to enter, a verbal argument ensued, defendant during argument struck alleged victim multiple times with a handgun.'” (Mot. Franks Cell Phone [DE #54] at 1.) Defendant cites to “exh. A.” (Id.) Defendant does not explain what material facts were omitted by Detective McLeod in subsection 20 of her affidavit, though. So this allegation, standing alone, cannot meet Defendant's burden to justify a Franks hearing.
Second, Defendant alleges some type of material omission involving Pasha Brittany McLain. (Mot. Franks Cell Phone [DE #54] at 1-2.) Defendant cites to “exh. B.” (Mot. Franks Cell Phone [DE #54] at 2.) The two exhibits filed by Defendant and marked as exhibit B are (i) a transcript excerpt from a state-court hearing where Detective McLeod testified [DE #29-4] and (ii) an excerpt from an investigation report from the Orchard Street arrest by an Officer K. Hamlett of the Cumberland County Sheriff's Office [DE #77-2]. Nothing in this referenced portion of Detective McLeod's testimony confirms or corroborates what Defendant alleges in his Franks motion about Pasha McLain. (See Mot. Suppress, Exh. B [DE #29-4] at 8-10.) Similarly, nothing in Officer Hamlett's investigation report excerpt confirms or corroborates what Defendant alleges in his Franks motion about Pasha McLain. (Mot. Dismiss. Pros. Misconduct, Exh. B [DE #77-2].) Accordingly, this alleged omission does not meet Defendant's burden to justify a Franks hearing.
Third, Defendant alleges that Detective McLeod omitted that Defendant was bleeding from his arm on December 10, 2020, and was observed to have numerous dreadlocks pulled out from the altercation. (Mot. Franks Cell Phone [DE #54] at 2.) Defendant fails to offer evidence in support. (Id.) He has thus failed to carry his burden. See Chandia, 514 F.3d at 373. Moreover, even assuming these alleged omissions are true, Defendant has not shown that they undermine the probable cause finding by Judge Tally. (See Cell Phone Search Warrant [DE #83-1] at 7-10.)
Fourth, Defendant alleges that Detective McLeod “failed to include how when the alleged victim [Eric Vasquez] was transported to the hospital Sgt. Andrews field tested a quantity of narcotics that the attending nurse Evan Thorne retrieved out of the alleged victim[']s pocket, which tested positive for fentanyl and methamphetamine.” (Mot. Franks Cell Phone [DE #54] at 2.) Defendant cites to “exh. C” in support. (Id.) The only attachment filed by Defendant marked as “exh. C” appears to be a transcript excerpt from the testimony of a Bryan Thompkins, which Defendant attached to his motion to dismiss for prosecutorial misconduct. (Mot. Dismiss Pros. Misconduct, Exh. C [DE #77-3].) This transcript excerpt concerns testimony about drugs seized during the Orchard Street incident, but it contains no information about a Sgt. Andrews or about narcotics seized by a nurse from the person of Eric Vasquez. (Id.) Indeed, the transcript excerpt indicates that substances which field tested positive for methamphetamine, cocaine, and fentanyl were found near the back tire of Defendant's car at the time of Defendant's arrest at 727 Orchard Street on December 10, 2020. (Id.) Moreover, assuming for the sake of argument that Defendant had provided some evidence to suggest that drugs were seized from Eric Vasquez at the hospital and Detective McLeod omitted that information from the cell phone search warrant affidavit, that would not undermine the probable cause finding by Judge Tally. (See Cell Phone Search Warrant [DE #83-1] at 7-10; Gov't Resp. Opp'n Mot. Franks [DE #83] at 11-12.) Accordingly, this alleged omission cannot meet Defendant's burden to justify a Franks hearing.
Fifth, Defendant alleges that Detective McLeod omitted a statement made by Eric Vasquez nearly a year later, on November 19, 2021, in which Vasquez admitted lying to Detective McLeod as to who started the December 10, 2020, altercation between Defendant and Vasquez. (Mot. Franks Cell Phone [DE #54] at 2.) It is logically impossible for Detective McLeod to have omitted from her December 2020 affidavit information learned in November 2021. See Pulley, 987 F.3d at 377 (Franks intentionality prong requires actual knowledge of omitted information). Accordingly, this alleged omission cannot meet Defendant's burden to justify a Franks hearing.
D. Summary
In sum, Defendant challenges the legality of (A) a warrantless arrest, search incident to arrest, and warrantless search of 727 Orchard Street on December 10, 2020; (B) a protective sweep and subsequent warranted search of 1622 Newark Avenue on December 20, 2020; and (C) a cell phone search warrant issued on December 30, 2020.
Defendant's challenge to the December 10, 2020, Orchard Street arrest and searches should be denied. Officers had probable cause to effect a warrantless arrest of Defendant, and the search of his person incident to arrest was lawful. Moreover, Defendant is not able to challenge the search of Eric Vasquez's trailer and the seizure of property therefrom as he has no Fourth Amendment interest in the property.
Defendant's challenge to the December 20, 2020, Newark Avenue searches should also be denied. Officers conducted a lawful protective sweep of the residence and subsequently obtained a valid search warrant to search the residence.
Defendant's challenge to the December 30, 2020, cell phone search warrant should be denied because Defendant has failed to carry his burden under Franks to show that the alleged omissions were misleading or that any omissions would have defeated the probable cause finding.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's motions to suppress [DE ##29, 30], motion to dismiss [DE #64], motion in limine [DE #85], and motions for hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), [DE ##53, 54] be DENIED.
IT IS DIRECTED that a copy of this Memorandum & Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until March 4, 2024, to file written objections to the 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 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. May 2023).
A party that does not file written objections to the 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).