United States v. Davis, 5:12–CR–15–FL.

• Decision Date: 12 April 2013
• Docket Number: No. 5:12–CR–15–FL.,5:12–CR–15–FL.
• Citation: 939 F.Supp.2d 535
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. Mark DAVIS and LaWanda Ragland, Defendants.

939 F.Supp.2d 535

UNITED STATES of America, Plaintiff,

v.Mark DAVIS and LaWanda Ragland, Defendants.

No. 5:12–CR–15–FL.

United States District Court,

E.D. North Carolina,

Western Division.

April 12, 2013.

Gaston Williams, U.S. Attorney's Office, Raleigh, NC, for Plaintiff.

Elisa J. Cyre, Attorney at Law, Lillington, NC, Leza Lee Driscoll, Raleigh, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on defendants' motion to suppress (DE 36). Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Judge Robert B. Jones, Jr. entered memorandum and recommendation (“M & R”) wherein he recommends that the court grant in part and deny in part defendants' motion to suppress. Defendants timely filed objections to the M & R, and the government did not respond in the time allotted. In this posture, issues raised are ripe for ruling. For the following reasons, the court ADOPTS the recommendations of the magistrate judge in large part and GRANTS in part and DENIES in part defendants' motion to suppress.

BACKGROUND

Defendants Mark Davis (“Davis”) and LaWanda Ragland (“Ragland”) were indicted on January 19, 2012, with conspiracy to commit access device fraud and to possess stolen mail, in violation of 18 U.S.C. § 371; access device fraud, in violation of 18 U.S.C. §§ 1029(a)(3) and 2; aggravated identity theft and aiding and abetting, in violation of 18 U.S.C. §§ 1028A and 2; and eleven (11) counts of possession of stolen mail, in violation of 18 U.S.C. §§ 1708 and 2. On April 27, 2012, defendants filed the instant motion, seeking to suppress all evidence resulting from a May 14, 2008, search of defendants' residence at 217 Sarah Lane, in Vance County, North Carolina. Police conducted the search after learning from Lee Harrell (“Harrell”), then manager of what was a Crusader Rent to Own store (“Crusader”), that Robert Hicks, a non-party, had moved goods he rented from Crusader—namely a washer and dryer—to 217 Sarah Lane in violation of his rental agreement. Based upon what they maintain they were told by Harrell in the course of their conversation with him, police were looking for evidence of possession of stolen goods and evidence of obtaining property by false pretenses.

The magistrate judge conducted a Franks and general suppression hearing on June 27, 2012. At hearing the government presented the testimony of Henderson City Attorney John H. Zollicoffer, Jr., Sergeant Durwood Campbell (“Campbell”) of the Vance County Sheriffs Department (“VCSD”), and Lieutenants Steven Vaughn (“Vaughn”) and Christopher Ball (“Ball”) of the Henderson Police Department (“HPD”). Defendants presented the testimony Harrell, and of Michael D. Waters (“Waters”), who served as defendant Davis's attorney in state court. The parties filed supplemental memoranda after the hearing which were considered as outlined in the M & R. The court adopts and incorporates herein the statement of facts contained in the M & R, including the summary of testimony given at hearing.

COURT'S DISCUSSION

A. Standard of Review

The district court reviews de novo those portions of a magistrate judge's M & R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and timely filed objection, the court reviews only for “clear error,” and need not give any explanation for adopting the M & R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

B. Analysis1. Franks and the Warrant Affidavit

Defendants argue that suppression of evidence seized from the search of 217 Sarah Lane is necessary under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks the Supreme Court provided that if a defendant “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... the allegedly false statement is necessary to the finding of probable cause,” he is entitled to a hearing on the matter. Id. at 155–56, 98 S.Ct. 2674.

In the event that at that hearing the allegation of 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, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 156, 98 S.Ct. 2674.

Hearing, as noted, was held before the magistrate judge. Defendants object to the resulting recommended finding that they have shown neither that Ball knowingly and intentionally, or with reckless disregard for the truth, made false statements in the search warrant affidavit, nor that he intentionally omitted facts from the search warrant affidavit so as to mislead the magistrate into issuing the search warrant, or omitted them with reckless disregard. Defendants, relying on testimony by Harrell and Waters as well as Harrell's sworn affidavit, argue that false statements and material omissions were made, contending that (1) Harrell informed Ball that he had already repossessed the washer and dryer, (2) Harrell did not report seeing “nine big screen televisions, four Xbox 360s, and two computers in every room” (3) Harrell did not tell officers he believed stolen property was located in 217 Sarah Lane, and (4) Ball omitted from the affidavit that Harrell had obtained permission to enter 217 Sarah Lane and retrieve the washer and dryer.

Because of the conflicting testimony of government and defense witnesses, determination of this issue turns on the credibility of witnesses called to testify at the Franks hearing. “[R]eview of factual findings under the clearly-erroneous standard—with its deference to the trier of fact—is the rule, not the exception.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The Supreme Court went on to hold that

“[w]hen findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.”

Id.; see also Beatty v. Chesapeake Center, Inc., 818 F.2d 318, 321 (4th Cir.1987) (“The unique opportunity to observe the demeanor of witnesses requires that the trier of fact's credibility determinations be accorded great deference.”). As was noted above, the district court reviews de novo those portions of a magistrate judge's M & R to which specific objections are filed. 28 U.S.C. § 636(b). While a “ de novo determination is not necessarily the same as a de novo hearing ... even as to those findings based on the magistrate's judgment as to the credibility of the witnesses before him,” Proctor v. State Government of North Carolina, 830 F.2d 514, 518 n. 2 (4th Cir.1987), “it is unlikely that a district judge would reject a magistrate's proposed findings on credibility when those findings are dispositive and substitute the judge's own appraisal.” United States v. Raddatz, 447 U.S. 667, 681 n. 7, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

The court has conducted a thorough de novo review of the record including defendant's motion to suppress, the transcripts of the hearing before the magistrate judge, the M & R, and defendants' objections thereto, and of the governing law. The court finds credible the version of the events leading up to and surrounding the May 14, 2008, search of 217 Sarah Lane related by Lieutenants Ball and Vaughn, and Sergeant Campbell. Campbelltestified that on 2:00 p.m., May 13, 2008, Harrell requested that Campbell accompany him to 217 Sarah Lane while Harrell looked for some missing property. Tr. Suppression Hr'g. 34:21–24. The two went to that address, spoke to a man there who informed there was a washer and dryer in the house, and Harrell went inside to look but Campbell did not go inside. Id. at 42:14–21. Campbell's May 13, 2008, escort of Harrell was documented by a VCSD call-detail report. Id. at 37:9–38:20.

Vaughn's testimony is that at around 7:00 p.m. on May 13, 2008, he responded to the Crusader where Harrell requested his help in retrieving the washer and dryer from 217 Sarah Lane. Id. at 45:6–21. Harrell informed Vaughn that he had seen an excessive amount of electronics there which he believed were stolen. Id. at 48:1–10. Vaughn passed this information on to other officers in the Henderson Police Department the next morning, May 14, 2008. Id., at 49:1–21.

Finally, Ball testified that after Vaughn's report, he went to Crusader to speak with Harrell. Id. at 63:16–19. Harrell told Ball that he was missing two televisions, a washer, and a dryer, and that he had gone out the previous day and verified that the washer and dryer were at 217 Sarah Lane by their serial numbers. Id. at 64:20–24. He also told Ball he thought other stolen property was located on the premises, and that he had seen nine televisions, four Xboxes, and two computers there. Id. at 65:6–11. Ball then obtained a search warrant, assembled a search team, and went to 217 Sarah Lane, and upon arrival found that Harrell had come, repossessed the washer and dryer, and left, five minutes prior. Id. at 86:14–22.

In contrast to the consistent and straightforward testimony...