United States v. Cannon
| Decision Date | 01 November 2012 |
| Docket Number | Criminal Action No. 6:11-cr-02302-JMC-1 |
| Parties | United States of America, Plaintiff, v. John Cannon, Defendant. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court on Defendant John Cannon's ("Cannon") Motion to Suppress Tangible and Derivative Evidence [Dkt. No. 145] and Supplemental Motion to Suppress Tangible and Derivative Evidence [Dkt. No. 248] pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure.1 The court held an evidentiary hearing on this matter on October 10, 2012. For the following reasons, the court denies Cannon's motions.
Cannon was indicted on November 15, 2011, by a Federal Grand Jury on one count of conspiracy to possess with the intent to distribute in excess of five (5) kilograms of cocaine and one count of participating in a conspiracy to launder the proceeds of drug sales. He was arrested on November 29, 2011, at his residence in Lithonia, Georgia. In connection with the investigation of this matter and Cannon's arrest, law enforcement obtained orders authorizing the collection of certain global positioning system ("GPS") data and several search and seizure warrants. Throughthese motions, Cannon seeks to establish that the orders and warrants suffered from various defects and that the seizure of evidence as a result of those orders and warrants violated his Constitutional rights.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. All warrants must "(1) be issued by a neutral and detached magistrate, (2) contain a particular description of the place to be searched, and the person or things to be seized, and (3) be based upon probable cause, supported by Oath or affirmation." United States v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994). A magistrate judge must examine the totality of the circumstances to determine whether probable cause exists and a warrant should be issued. Id. Accordingly, "[t]he task of the issuing magistrate [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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, 214 (1983). The magistrate judge must consider primarily "whether it is reasonable to believe that the items seized will be found in the place to be searched." United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). Finally, when reviewing the issuance of a warrant, the reviewing court gives strong deference to the issuing magistrate judge's determinations. See Clyburn, 24 F.3d at 617.
"Suppression of evidence . . . has always been [the court's] last resort, not [the court's] first impulse." Hudson v. Michigan, 547 U.S. 586, 591 (2006). Because the consequences of applying the rule are so dire, a defendant urging its application carries a heavy burden. See id. (quoting Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-65 (1998)). Suppressionshould be limited to cases in which its deterrent effect against law enforcement's misconduct outweighs the costs inherent in barring evidence that law enforcement expended great resources to obtain. See Scott, 524 U.S. at 357 (citing United States v. Leon, 468 U.S. 897, 907 (1984)).
Cannon requests that this court suppress all evidence and information derived from law enforcement personnel's collection of GPS data that Cannon contends was obtained without a valid court order. Specifically, Cannon alleges that the order is invalid because a phone number in the body of the order authorizing the release of the GPS data does not match the phone number for the GPS data actually provided. The government opposes Cannon's request for the suppression of the GPS information on the ground that Cannon has no standing to challenge the government's collection of the information because Cannon has no expectation of privacy in the information. The government alleges that the phone for which it sought the GPS information was issued to "Peter Smith" and Cannon was not listed as an authorized user. Therefore, the government asserts that Cannon has no legitimate expectation of privacy in the GPS information maintained in the phone records.
"Before a defendant may contest a search, he must establish a reasonable expectation of privacy in the place searched." United States v. Coleman, No. 3:10-cr-238, 2012 WL 3202957, at *2 (W.D.N.C. Aug. 6, 2012) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)). The United States Supreme Court recently confirmed that a reasonable expectation of privacy extends to a person with a possessory interest in a thing or place subject to a search. See United States v. Jones, 132 S. Ct. 945, 949 (2012).
Here, there is no dispute that Cannon is not listed as the owner or an authorized user of the phone. Therefore, Cannon may only have a privacy interest in the phone records if he has a possessory interest. At the hearing on these motions, Cannon began his argument by claiming that he had a possessory interest in the phone at issue. However, when pressed by the government and the court regarding whether Cannon was indeed stipulating that he actually possessed the phone during the relevant time period, Cannon indicated that he was not willing to so stipulate and actually argued that he did not possess the phone during the relevant time period. Because Cannon failed to establish that he had any interest in the phone, possessory or otherwise, he has no standing to challenge the order authorizing the release of the GPS information.
Additionally, to the extent that Cannon challenges the validity of the order authorizing the release of the GPS information solely on the basis of the reference to the wrong phone number in the text of the order, the court finds the challenge without merit. Mere typographical errors do not undermine a finding of probable cause and do not invalidate a warrant. See United States v. Thomas, No. 1:09CR360-1, 2009 WL 5215391, at *6 (M.D.N.C. Dec. 28, 2009). In this case, a review of the application for the order and supporting affidavit clearly make reference to the phone number for which information was collected. Additionally, the heading of the order references the correct phone number. The incorrect phone number appears only once in the text of the order. However, it is undisputed that the GPS information that the service provider actually provided to the government matched the correct phone number as captured in the application and heading of the order.
Cannon next requests the court suppress evidence obtained by the government in executing three search warrants for properties located in the State of Georgia. Cannon complains thatinformation from informants concerning drug activity that took place at various times from 1996 to 2010 are too remote in time to support probable cause in this case.
"The fourth amendment bars search warrants issued on less than probable cause, and there is no question that time is a crucial element of probable cause." United States v. McCall, 740 F.2d 1331, 1335 (4th Cir. 1984). Time is relevant because the court is fundamentally concerned with whether "the facts [as] alleged in the warrant furnish probable cause to believe, at the time the search was actually conducted, that evidence of criminal activity was located at the premises searched." Id. at 1336.
This question is not resolved by reference to pat formulas or simple rules. The vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit. Rather, we must look to all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized.
Id. (internal citations and quotation marks omitted).
Here, Cannon is indicted on drug and money laundering conspiracy charges spanning more than a decade. Special Agent Farid "Jay" Rajaee, a co-case agent in this matter working for the United States Drug Enforcement Administration ("DEA"), provided an affidavit supporting the warrants in this case that includes information concerning Cannon's alleged drug activities over approximately fifteen years. In the affidavit, Agent Rajaee discusses five sources of information who allegedly bought drugs from Cannon or learned of Cannon's alleged activities through mutual customers in the years 1996 through 2010. Specifically, the affidavit recites an occurrence recalled by the second source of information regarding a drug transaction purportedly involving Cannon in the spring of 2010. The affidavit further details alleged conversations between Cannon and a sourceof information concerning ongoing DEA investigations wherein Cannon purportedly asked the source to divert blame for the crimes away from him. In addition, the affidavit referenced calls that agents allegedly intercepted between Cannon and a co-conspirator that occurred in January 2011 in which agents contend they heard Cannon explain various methods to hide money should the co-conspirator go to prison.2 The affidavit also explains Cannon's financial status including information believed to demonstrate several hundred thousand dollars of unexplained wealth. Looking at the totality of the circumstances, including the nature of the crime for which Cannon has been indicted, the court finds that the information in the affidavit was not stale. Accordingly, Cannon has not stated a sufficient basis upon which this court may invalidate the warrants and suppress the evidence discovered as a result of the execution of those warrants.
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