United States v. Harper

• Decision Date: 25 January 2022
• Docket Number: 7:20-CR-131-1FL
• Parties: UNITED STATES OF AMERICA v. BRIAN JACKIE HARPER, Defendant.
• Court: U.S. District Court — Eastern District of North Carolina

UNITED STATES OF AMERICA v. BRIAN JACKIE HARPER, Defendant.

No. 7:20-CR-131-1FL

United States District Court, E.D. North Carolina, Southern Division

January 25, 2022

MEMORANDUM & RECOMMENDATION

KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE

This matter is before the court on Defendant's motion to suppress [DE #83], 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 #84], and the time for further filings has expired. The matter is ripe for decision.

STATEMENT OF THE CASE

On July 29, 2020, a federal grand jury returned an indictment charging Brian Jackie Harper with 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), and possession with the intent to distribute forty grams or more of a mixture and substance containing a detectable amount of heroin and fentanyl, and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 4). (Indictment [DE #1].)

On October 1, 2021, Defendant moved to suppress all evidence obtained or derived from the execution of state-court orders for disclosure of cell phone and GPS data and a state-court warrant to search Defendant's person and the residences and any vehicles located at 719 Melba Court and 4752 Seahawk Court in Wilmington, North Carolina. (Mot. Suppress [DE #83] at 1.) On October 15, 2021, the Government responded in opposition, arguing the searches and seizures complied with the Fourth Amendment. (Resp. Opp'n [DE #84].)

DISCUSSION

Defendant makes three arguments regarding the state-court orders for cell phone and GPS information: (i) these orders are not warrants and therefore evidence seized in connection with their execution is subject to suppression, (ii) these orders do not comply with North Carolina statutory requirements, and (iii) these orders are not supported by probable cause due to omission of material facts relating to the criminal informant (“CI”) by the affiant. (Mot. Suppress at 3-4.)

As to the search warrant, Defendant argues that it (i) violates certain statutory sections of North Carolina procedural law applying to search warrants and is therefore “facially invalid, ” (ii) is overbroad to the extent it authorized a search of “anywhere [law enforcement officers] believed [Defendant] to have been” and any automobile located in the curtilage of the two specified residences, (iii) is based on an affidavit that lacks probable cause due to staleness of certain information, and (iv) is based on the affiant's omission of material information about the CI. (Mot. Suppress at 4-6.)

Before analyzing Defendant's arguments, the undersigned summarizes these state-court orders and search warrant, which the Government has submitted as exhibits to its brief.

I. The Orders and Warrant

On March 2, 2020, North Carolina Superior Court Judge George F Jones (“Judge Jones”) issued an order authorizing use of a pen register and/or trap and trace device for a telephone number believed to be used by Defendant. (Resp. Opp'n, Ex. A [DE #84-1] (“PRTT Order”).) Detective B.D. Chisholm of the Wilmington, North Carolina, Police Department applied for this order, which Judge Jones issued pursuant to both federal and state statutory law. (PRTT Order at 6-7, 12 (referencing 18 U.S.C. §§ 2703(d), 3122-3127, and N.C. Gen. Stat. §§ 15A-260 through -264).)

On March 4, 2020, Judge Jones issued an order, upon application from Detective Chisholm, authorizing installation of a global positioning system (“GPS”) tracking device on a 2013 Lincoln MKZ automobile believed to have been used by Defendant in connection with drug trafficking. (Resp. Opp'n, Ex. C [DE #84-3] (“Lincoln GPS Order”).) Next, on March 9, 2020, again upon application from Detective Chisholm, Judge Jones issued an order authorizing installation of a GPS tracking device on a 2000 Ford F-150 vehicle believed to have been used by Defendant in connection with drug trafficking. (Resp. Opp'n, Ex. B [DE #84-2] (“Ford GPS Order”).) For ease of use, the undersigned will refer collectively to these as “the GPS Orders.”

On March 20, 2020, Detective Chisholm applied for, and Judge Jones issued, a warrant to search the following for evidence of drug trafficking: 719 Melba Court, Apt. I, Wilmington, NC; 4752 Seahawk Square, Apt. B8, Wilmington, NC; the Lincoln and Ford vehicles specified in the GPS Orders; any vehicle located within the curtilage of the Melba Court and Seahawk Square residences or within the dominion and control of persons located within said residences; and any outbuildings associated with said residences. (Resp. Opp'n, Ex. D [DE #84-4] (“Warrant”).) The return of service indicates that the warrant was issued around 9:00 a.m. on March 20, 2020, and executed later that morning around 10:44 a.m. (Warrant at 16.)

II. Analysis

A. Orders

Plaintiff contends that evidence obtained pursuant to the PRTT Order and GPS Orders should be suppressed (and not considered in the probable cause analysis in the search warrant application) because it was not obtained pursuant to a warrant. (Mot. Suppress at 3.) Plaintiff further argues (i) the PRTT Order and GPS Orders “do not comply with the statutory procedural requirements set forth in Article 11 of the North Carolina General Statutes”; (ii) do not meet the constitutional requirements for search warrants; and (iii) “do not set forth reliable probable cause based on the omission of facts related to the CI and the lack of reliability of the CI beyond the affiant's statement.” (Mot. Suppress at 3-4.) These arguments should be rejected for the following reasons.

i. Form and Statutory Violation Arguments

It is immaterial whether the PRTT Order and GPS Orders are styled as “orders” rather than “warrants.” United States v. Wilford, 961 F.Supp.2d 740, 773 (D. Md. 2013) (citing Dalia v. United States, 441 U.S. 238, 256-59 (1979)) (noting that the Title III wiretap order at issue in Dalia was deemed by the Supreme Court to be “a warrant issued in full compliance” with the Fourth Amendment's warrant requirement). What matters is whether the PRTT Order and GPS Orders complied with the following substantive requirements set forth by the Supreme Court:

First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. Finally, “warrants must particularly describe the ‘things to be seized, '” as well as the place to be searched.

Dalia, 441 U.S. at 255 (citations omitted). To whatever extent Plaintiff argues that the evidence obtained pursuant to the PRTT Order and GPS Orders should be suppressed because those were “orders” and not “warrants, ” that argument should be rejected. See Dalia, 441 U.S. at 256-59; Wilford, 961 F.Supp.2d at 773.^[1]

Defendant's argument that the PRTT Order and GPS Orders do not comply with North Carolina statutory requirements should also be rejected. Although not specified by Defendant, he presumably intends to reference Article 11 of Chapter 15A of the North Carolina General Statutes. See N.C. Gen. Stat. §15A-241 through -259 (North Carolina's Criminal Procedure Act sections applying to search warrants).^[2] Plaintiff fails to explain how the PRTT Order and GPS Orders do not comply with North Carolina's procedural requirements, aside from the probable cause related requirements that are relevant to Plaintiff's other arguments. (See Mot. Suppress at 2-4.) Furthermore, ‘‘there is no exclusionary rule generally applicable to statutory violations, ” and “[f]ederal not state law ‘governs the admissibility of evidence obtained by state officers but ultimately used in a federal prosecution.'” United States v. Clenney, 631 F.3d 658, 667 (4th Cir. 2011) (first quoting United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006); and then quoting United States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994)); see also California v. Greenwood, 486 U.S. 35, 43 (1988) (“We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.”); Virginia v. Moore, 553 U.S. 164, 171-73 (2008) (reaffirming line of precedent holding that “when States go above the Fourth Amendment minimum, the Constitution's protections concerning search and seizure remain the same”). For these reasons, Defendant has failed to put forth any plausible basis for suppressing evidence on the ground that the PRTT Order and GPS Orders failed to comply with state procedural laws. ii. Franks Argument

At its core, Defendant's argument about the PRTT Order and GPS Orders concerns information omitted from the supporting affidavits regarding the CI. Specifically, Defendant contends Detective Chisholm omitted three categories or pieces of information related to the CI: (1) the controlled buy during the week of February 29, 2020, mentioned in paragraph 3 of the supporting affidavit was unsuccessful (i.e. no transfer of drugs occurred), (2) facts regarding the CI's criminal history, pending sentencing, pending felony charges, and “charges that Wilmington Police Department were holding to serve” on the CI, and (3) facts to support Chisholm's statement in the affidavits that the CI was a reliable informant. (Mot. Suppress at 1-3.)

Defendant proffers no evidence as to his allegations regarding the CI's history and pending charges, nor does he identify any information the inclusion of which would have called into...