United States v. Christian
| Decision Date | 24 May 2017 |
| Docket Number | 1:16-cr-207 (LMB) |
| Parties | UNITED STATES OF AMERICA v. BRENNAN CHRISTIAN, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
In his Motion to Suppress Evidence and for a Franks Hearing ("Motion to Suppress") [Dkt. No. 73], defendant, who is awaiting retrial for conspiracy to distribute drugs, has moved to suppress evidence obtained under two search warrants, one for location-information seized from his Samsung Galaxy phone and the other for the search of an apartment in Greensboro, North Carolina. Defendant maintains that the affidavits in support of both warrants failed to establish probable cause and intentionally or recklessly contained false statements and omitted facts that were material to the determination of probable cause, entitling him to a Franks hearing. For the reasons stated in open court and in this Memorandum Opinion, which expands on those reasons, the motion has been denied.1
In 2012, the Federal Bureau of Investigation ("FBI"), in a joint investigation with several other law enforcement agencies, began investigating a narcotics trafficking organization operating in Prince William County, Virginia. [Dkt. No. 2] ¶ 10. Based on evidence gathered bythe Prince William County Police Department ("PWCPD"), the investigation began by focusing on Tony Bowles ("Bowles"), who was "reported by multiple sources to be a substantial cocaine and crack dealer" in Northern Virginia. Id. The investigation revealed that Bowles had a large network of people through whom he distributed cocaine and crack. Id. ¶ 11. Bowies' primary source of supply was Johnnie Hill ("Hill"), who lived in Virginia. Id. ¶ 12. The investigation expanded into North Carolina when it was determined that Marciano Reza ("Reza"), a resident of North Carolina, was one of Hill's cocaine sources. Id. ¶ 13. The investigation of Reza led to defendant Brennan Christian ("Christian" or "defendant"), also a resident of North Carolina. As will be explained, Christian is also known as "Twin" and "Trey." [Dkt. No. 61] at 1.
During the course of the investigation, agents obtained court authorization pursuant to Title III to intercept the wire and electronic communications of eleven cell phones. Gov. Opp. at 2. The wiretap of Reza's phone (910-975-7648) revealed multiple drug related calls involving 786-459-1960 and on July 26, 2013 an order authorizing the interpretation of communications to and from that phone was obtained for a 30-day period (the tenth target phone or "TT #10"). Def. Ex. 1. According to the affidavit supporting that order, TT #10 was "believed to be used by an [as then] unidentified male who [was] known as 'Trey' and 'Twin.'" Id. ¶ 3. On August 27, 2013, law enforcement also sought and obtained an order authorizing the installation and use of a pen register and a trap and trace device, and the disclosure of stored wire and electronic transactional records for TT #10 for a period of 60 days. Def. Ex. 2.
The first search warrant at issue in defendant's Motion to Suppress includes authorization for the disclosure of location based services and disclosure of stored telecommunications records for 30 days for a different telephone number, 336-254-9858 ("the Samsung Galaxy"), whichagents identified as a telephone number Christian used to communicate with his probation officer. Def. Ex. 3.2 The warrant, which was issued on October 9, 2013, required the service provider to create and disclose records using so-called "Enhanced 911" tools, such as GPS fixes, triangulation and cell-site "pings." Id. ¶ 3; Pafford Aff., Def. Ex. 4 ¶ 65. For this reason, this warrant will herein be referred to as the Ping Warrant.
Under this kind of order, the provider will send a query to the subject phone. If the phone is powered on, the provider will be able to transmit the location information to the investigative agency either orally or in writing. Id. According to the supporting affidavit by FBI Special Federal Officer Joshua Pafford ("Pafford Affidavit"), one of the purposes of obtaining location data was to "assist law enforcement in . . . identifying the locations where [the suspects were] conducting drug trafficking-related activity." Id. ¶ 60.
On October 15, 2013, approximately one week after the Ping Warrant was authorized, seventeen defendants, including Bowles and Hill, were charged in a criminal complaint in this district court with conspiracy to distribute 500 grams or more of cocaine and 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). See Case No. 1:13-mj-611. In a separate complaint, five other defendants, including Reza and Christian, were charged with conspiracy to distribute five kilograms or more of cocaine. See Case No. 1:13-mj-612. Arrest warrants were executed in a coordinated and simultaneous fashion on October 17, 2013. Gov. Opp. at 20. All of the charged persons except Christian were arrested. Id. at 2. Officers attempted to arrest Christian at 1101 Anderson Place in High Point North Carolina, the address he had onrecord with his probation officer, but were unsuccessful, id. at 21, and Christian remained at large until May 2016, id. at 2.3
On October 18, 2013, one day after the initial arrests were made, agents obtained a warrant for another location where they believe Christian stayed, 7027 West Friendly Avenue, Apartment B, Greensboro, North Carolina ("the Apartment B warrant"). Def. Ex. 24. The supporting affidavit by FBI Special Agent Norman Kuylen ("Kuylen Affidavit") represented that "[l]aw enforcement ha[d] determined that [Christian] reside[d]" at that address based on location data obtained from the Ping Warrant, as well as from physical surveillance, statements from the apartment manager, and statements from the resident of a nearby unit, which agents believed established probable cause that the defendant resided in Apartment B. Kuylen Aff., Def. Ex. 25. ¶¶ 10-12, 14. The affidavit also represented that "there [was] probable cause to believe that the individual exercising control over the target location is actively involved in a conspiracy to distribute cocaine and that he has discussed explicitly, or other evidence has established, that within his residence he maintains items related to his involvement in the conspiracy." Id. ¶ 15. Although agents did not find Christian in Apartment B, they recovered several phones, including TT # 10, which is among the objects defendant wants to suppress. Gov. Opp. at 2.
The moving party has the burden to prove that suppression is proper. United States v. Simmons, 107 F. Supp. 2d 703, 705 (E.D. Va. 2000). "Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove the admissibility of thechallenged evidence by a preponderance of the evidence." United States v. Gualtero, 62 F. Supp. 3d 479, 482 (E.D. Va. 2014). The moving party's burden is proof by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 178 n.14 (1974). "In the course of deciding a motion to suppress, the district court may make findings of fact, as well as rulings of law." United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005).
A court reviewing a magistrate judge's decision to authorize a search warrant is to "accord great deference to the magistrate's assessment of the facts presented to him," United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990), and looks to whether there was a "substantial basis for . . . conclud[ing]" that probable cause existed, Jones v. United States, 362 U.S. 257, 271 (1960). In addition, "The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate," not on after-acquired evidence. Maryland v. Garrison, 480 U.S. 79, 86 (1987).
"The Fourth Amendment requires that warrants (1) be issued by a neutral and detached magistrate, (2) be based upon probable cause supported by oath, and (3) contain a particular description of the place to be searched and things to be seized." United States v. Clutchette, 24 F.3d 577, 579 (4th Cir. 1994). Probable cause to search is "a fair probability that contraband or evidence of a crime will be found." Illinois v. Gates, 462 U.S. 213, 238 (1983). It is "a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules," id. at 232, and thus requires a "totality-of-the-circumstances analysis," id. at 238. A magistrate judge reviewing a warrant application forprobable cause makes "a practical, common-sense decision . . . , given all the circumstances set forth in the affidavit before him." Id. An affidavit submitted in support of a search warrant application is presumed valid. Franks v. Delaware, 438 U.S. 154, 171 (1978).
"The particularity requirement is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the items leaves nothing to the discretion of the officer executing the warrant." United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010). The Framers included the particularity requirement to end the practice of issuing general warrants, which is to say "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). Nevertheless, a warrant does not impose a "constitutional strait jacket" on law enforcement officers. United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988) (internal quotation marks omitted). In this vein, "[c]ourts must refrain from interpreting warrant terms in a 'hypertechnical' manner, and should instead employ a 'commonsense and realistic' approach." United States v. Dargan, 738 F.3d 643,...
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