Opinion
7:20-CR-131-2FL
09-08-2021
UNITED STATES OF AMERICA v. TERRENCE DOMINICK MCINTYRE, Defendant.
MEMORANDUM &
RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendant's motion to suppress [DE #54], 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 #64], and the time for further filings has expired. On June 2, 2021, an evidentiary hearing regarding the instant motion was held at which the Government and Defendant, with counsel, appeared. The matter is ripe for decision.
STATEMENT OF THE CASE
On July 29, 2020, a federal grand jury returned an indictment charging Terrence Dominick McIntyre with distribution of a mixture and substance containing a quantity of heroin and fentanyl in violation of 21 U.S.C. § 841(a)(1) (Count 1); 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); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3); and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 5). (Indictment [DE #1].)
On March 30, 2021, Defendant moved to suppress all evidence obtained or derived from the execution of a search warrant at Wisteria Park Drive, Lot 128, Leland, North Carolina, on March 25, 2020. (Mot. Suppress [DE #54] at 1.) The substance of the motion is that the search warrant was based on an affidavit which contained the false and material statement that officers observed a handgun inside the Wisteria Park Drive residence, when it “was readily apparent to the officers” that the object was not, in fact, a firearm. (Id. at 4.) Without determining whether Defendant was entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the court held an evidentiary hearing to fully develop the record with regard to the issues raised in Defendant's motion. (Hr'g Tr. [DE #79] at 4, 6.)
STATEMENT OF THE FACTS
The facts stated herein are based on the search warrant at issue (Warrant [DE ##54-1, 64-1), the hearing testimony of Agent Steele Myers and Defendant, and exhibits admitted into evidence at the hearing (Hr'g Ex. List [DE #71]).
Both Defendant and the Government attached copies of the search warrant as exhibits to their briefs. (Mot. Suppress, Ex. 1 [DE #54-1]; Gov't Resp. [DE #64], Ex. 1 [DE #64-1].) Aside from orientation of the first two pages, there appears to be no discrepancy between the attachments, and neither party raised any objection as to the attached search warrants during the hearing.
Agent Steele Myers has worked at the Brunswick County Sheriff's Office in the vice/narcotics unit for approximately four years. He has approximately eight years' experience in law enforcement, having previously worked as a patrol officer for the Sanford, North Carolina, police department, and as an agent with the North Carolina Alcohol Law Enforcement (ALE) and the North Carolina State Bureau of Investigation (SBI). (Hr'g Tr. at 9-10, 14-19.)
Agent Myers is experienced with firearms. Over the course of his law enforcement career, Agent Myers has qualified for and carried several handguns (Glock 22 & 43, Sig Sauer 220 & 226) and long guns, including AR-style rifles and a shotgun. (Hr'g Tr. at 16-20.) As part of his law enforcement employment, he has used range time for practice and instruction. (Id.) He has also owned a variety of handguns, rifles, and shotguns. (Id. at 20.)
On March 25, 2020, Agent Myers was part of a team of agents executing warrants for Defendant's arrest at a trailer located at 125 Wisteria Park Drive, Lot 128, in Leland, North Carolina. (Hr'g Tr. at 10-12; Warrant at 6.) Earlier that day, police officers from the Wilmington, North Carolina, police department had observed Defendant driving a white 2020 Chevrolet Malibu with Georgia license tag number CLT-9457 and, knowing there to be outstanding arrest warrants for him, attempted to effect a traffic stop. (Warrant at 6.) Defendant led the Wilmington police officers on a short car chase, which did not result in Defendant's seizure at that time. (Id.) Wilmington police department officers continued their search for Defendant, including surveilling locations they believed him to frequent. (Id.) One such location was the Wisteria Park Drive trailer. (Id.) After observing Defendant seated in a white Chevrolet Malibu in front of Wisteria Park Drive, Lot 128, Wilmington police officers contacted the Brunswick County Sheriff's Office for assistance with effecting the outstanding arrest warrants. (Id. at 10; Warrant at 6.)
A group of vice/narcotics officers from the Brunswick County Sheriff's Office orchestrated the arrest of Defendant on the outstanding arrest warrants. (Hr'g Tr. at 10-12, 21.) In doing so, they called out for the occupants of the trailer to exit, which they did. (Hr'g Tr. at 11-12.) Defendant was inside the trailer, and he exited without incident. (Id.) Officers took Defendant into custody, placing him in handcuffs. (Id.) Officers then conducted a protective sweep of the trailer. (Hr'g Tr. at 12, 21; Warrant at 6-7.)
After some period of time, Defendant asked officers for a jacket because he was cold outside. (Hr'g Tr. at 12, 22, 45.) Agent Myers and Agent Gavin Dale, also of the Brunswick County Sheriff's Office, escorted Defendant, who remained handcuffed, back into the trailer to retrieve a jacket. (Id. at 12-13, 22-23, 45.) Defendant told the agents that his jacket was in a back bedroom, and he led the agents to this room. (Id. at 12-13, 22-23, 33-34.) This bedroom is not large and consisted of a bed, a closet to the left of the bed, and a small set of black plastic drawers to the right of the bed akin to a nightstand or small table. (Id. at 12-13, 23-24, 34-35, 40-41; Gov't Hr'g Ex. 1.) Initially, the agents and Defendant looked in the closet for the jacket, but it was not there. (Hr'g Tr. at 24.) The jacket was located on the bed, in a pile of clothes near the bed, or on the plastic drawers. (Id. at 24, 45.)
While the three were in the bedroom looking for the jacket, Agent Myers saw a black object that appeared to be a handgun resting on top of the black plastic drawers. (Hr'g Tr. at 34-37; Gov't Hr'g Exs. 1-4.) The object was sandwiched between a black Sony PlayStation controller, a container of baby powder, and some McDonald's drink cups. (Hr'g Tr. at 34-37; Gov't Hr'g Exs. 1-4.) The surface of the plastic drawers was cluttered with other items. (Gov't Hr'g Exs. 1-3.) Agent Myers looked at Agent Dale, who nodded his head, which Agent Myers interpreted as a sign Agent Dale had also observed the weapon. (Hr'g Tr. at 13, 39.) Based on his vantage point and the other items on the plastic drawers, Agent Myers did not see the buttend of the weapon, which contains a small, black disc protrusion for a spring-loaded mechanism. (Id. at 38; see Def. Hr'g Ex. 1; Gov't Hr'g Exs. 1-4.)
There is some discrepancy about where Agent Myers was standing when he observed the weapon on the plastic drawers. Agent Myers testified he was standing on the opposite side of the room, approximately ten to fifteen feet away from the plastic drawers. (Hr'g Tr. 35-37, 40-41.) Defendant testified that Agent Myers and Agent Dale were standing immediately adjacent to him at the plastic drawers. (Id. at 45.) Nevertheless, it is undisputed that the black weapon was located on the surface of a cluttered set of black plastic drawers, sandwiched between a black PlayStation controller, a container of baby powder, and some McDonald's cups. (Gov't Hr'g Ex. 4.) Thus, the undersigned credits Agent Myers' testimony that he did not see the springloaded disc mechanism protruding from the butt-end of the weapon.
Upon observing the weapon, Agents Myers and Dale did not touch it or say anything to Defendant about it. (Hr'g Tr. at 13, 27-28, 38-39.) Instead, they retrieved Defendant's jacket, backed out of the room with Defendant, and exited the trailer. (Id. at 13, 27.) Agent Myers testified they followed standard protocol of the Brunswick County Sheriff's Office by reporting their observations to their fellow officers so a search warrant could be obtained. (Id. at 27, 38.)
Agent Myers told another Brunswick County agent, Lora McCachren, that he and Agent Dale saw what they believed was a handgun on the set of drawers. (Hr'g Tr. at 13-14, 39.) Agent McCachren then drafted and submitted an application for a search warrant. In the supporting affidavit, Agent McCachren stated that “McIntyre told agents which room was his and, upon agents entering the room and retrieving the jacket that McIntyre asked for, agents observed a black handgun on top of a set of drawers.” (Hr'g Tr. at 13, 27-28, 38-39; Warrant at 7.) Agent Myers remained outside the trailer with other officers and secured the scene while they waited for a search warrant. (Hr'g Tr. at 13, 27-29, 39.) A state magistrate approved the warrant application, and Brunswick County agents on scene executed the search warrant, resulting in the seizure of the weapon from the bedroom, several other firearms, and drug paraphernalia. (Id. at 29, 39; Warrant at 1.) Upon closer inspection, agents realized the weapon from the bedroom was not a firearm but an air pistol. (Hr'g Tr. at 29-30, 39.)
DISCUSSION
There is a “presumption of validity” with respect to search warrant applications. Franks v. Delaware, 438 U.S. 154, 171 (1978). Franks “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 there is 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). The burden is a heavy one, requiring a defendant to produce evidence “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)).
“Under Franks, a defendant is entitled to suppression of evidence seized if, during the evidentiary hearing, ‘perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause.'” United States v. Pulley, 987 F.3d 370, 376 (4th Cir. 2021) (quoting Franks, 438 U.S. at 156). “Franks thus has two distinct prongs, ‘requir[ing] proof of both intentionality and materiality.'” Pulley, 987 F.3d at 376 (alteration in original) (quoting United States v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016)).
To establish intentionality, a defendant “must offer proof by a preponderance of intentional or reckless falsehood.” Pulley, 987 F.3d at 377. 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. “Mere imprecision does not, by itself, show falsity.” Id. And “[a]llegations of negligence or innocent mistake are insufficient.” Pulley, 987 F.3d at 377 (quoting Franks, 438 U.S. at 171). Instead, a defendant must show that the “affiant must have been 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.
Assuming Defendant has met his heavy burden to justify entitlement to a Franks hearing, he has failed to show by a preponderance of the evidence that the officer-affiant intentionally falsified any fact or acted with reckless disregard for the truth. Here, the agents escorted Defendant back into a trailer to get a jacket. During that brief time, they saw what appeared to be a black handgun on a bedside table. Based on the testimony received and the photographs of the scene, the court credits Agent Myers' testimony that he did not know the weapon was a spring-loaded air pistol and not a firearm. The air pistol was the same color as the set of drawers, and it was nestled amongst a clutter of personal items. Moreover, the butt-end of the air pistol-which defense counsel flagged as the distinctive characteristic of the handgun that should have alerted Agent Myers to its true nature (Hr'g Tr. at 26)-was immediately adjacent to a black PlayStation controller. It was entirely reasonable for the agents not to manipulate the weapon when they saw it, as they were escorting an arrestee (who had earlier that day evaded officers in a car chase) into a residence for the very brief purpose of obtaining a jacket. (See Hr'g Tr. at 27-28 (Agent Myers explaining why, in addition to office protocol, he and Agent Dale decided not to seize or manipulate the air pistol).) While there was no specific testimony about how long the agents and Defendant were in the bedroom, it was not of such a duration that the agents, based upon their visual inspection, formed a belief that the weapon was not a firearm.
Defendant's argument that the true nature of the air pistol should have been readily apparent to Agent Myers does not rise to the level of recklessness and is further undermined by (i) the appearance of the air pistol-the only characteristic visually distinguishing the air pistol from a firearm being a small, black disc protruding from its butt-end, and (ii) the air pistol being surrounded by other items which partially obscured it, including a video game controller and plastic set of drawers both of which were black plastic.
Moreover, the statement in the affidavit that “agents observed a black handgun on top of a set of drawers” could be more accurately characterized as “mere imprecision” on the part of the nonlawyer affiant, who was, in fact, in the “midst and haste of a criminal investigation, ” Moody, 931 F.3d at 372. Had Agent McCachren instead written “agents observed what they believed was a handgun on top of a set of drawers, ” Defendant would be without any basis to assert a Franks violation.
Defendant has failed to show by a preponderance of the evidence that the affidavit supporting the search warrant at issue included false statements made intentionally or with reckless disregard for the truth. Accordingly, it is recommended that Defendant's motion to suppress be denied.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's Motion to Suppress [DE #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 September 22, 2021, 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 & 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. Dec. 2019).
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 & Recommendation. See United States v. Jones, 658 Fed.Appx. 188, 189 (4th Cir. 2016).