United States v. Harper
| Decision Date | 10 March 2023 |
| 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 |
MEMORANDUM & RECOMMENDATION
This matter is before the court on Defendant's renewed motion to suppress [DE #132], 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 #136], and Defendant has replied [DE #138]. The time for further filings has expired. The matter is ripe for decision.
On July 29, 2020, a federal grand jury returned an indictment charging Brian Jackie Harper with (i) 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 (ii) possession with 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 global positioning system (“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].) On January 25, 2022, the undersigned issued a Memorandum & Recommendation (“M&R”) recommending that the motion to suppress be denied without a hearing. United States v. Harper, No. 7:20-CR-131-1FL, 2022 WL 1600014 (E.D. N.C. Jan. 25, 2022). On April 18, 2022, the court overruled Defendant's objections to the M&R and denied Defendant's motion. United States v. Harper, No. 7:20-CR-131-1FL, 2022 WL 1138032 (E.D. N.C. Apr. 18, 2022).
On October 19, 2022, the grand jury returned a two-count superseding indictment charging Defendant with (i) distribution of a quantity of cocaine and aiding and abetting (Count One); and (ii) possession with intent to distribute a quantity of heroin, 40 grams or more of a mixture and substance containing fentanyl, and a quantity of cocaine (Count Two). (Superseding Indictment [DE #115].) The court re-set Defendant's arraignment to March 13, 2023, and re-opened the pretrial motions deadline, with such motions being due by January 6, 2023. (Order dated Oct. 25, 2022 [DE #120].)
On January 6, 2023, Defendant renewed his motion to suppress. (Renewed Mot. Suppress [DE #132].) As in his earlier motion, Defendant seeks to suppress all evidence obtained or derived from the execution of the state-court orders for disclosure of cell phone and GPS data and the state-court search 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. (Id. at 1.) Defendant also requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). (Id. at 12.) On January 10, 2023, the Government responded in opposition, arguing the searches and seizures complied with the Fourth Amendment and that the reasoning set forth in the court's adjudication of Defendant's earlier motion continues to apply. (Resp. Opp'n Renewed Mot. Suppress [DE #136] at 1-2.) Defendant replied (Def. Reply [DE #138]), and the matter is ripe for ruling.
Defendant has renewed his previously adjudicated motion for a Franks hearing and motion to suppress and has included additional factual information[1] in the instant motion. Defendant has also supplemented his arguments. The undersigned will summarize the state-court orders and warrant, as well as Defendant's arguments, prior to addressing the merits of Defendant's motion.
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. (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 7-8 (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 GPS tracking device on a 2013 Lincoln MKZ automobile believed to have been used by Defendant in connection with drug trafficking. (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. (Ford GPS Order.)
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. (Warrant.)
Defendant makes three broad arguments regarding the PRTT and GPS Orders: (i) the PRTT Order violates Carpenter v. United States, 138 S.Ct. 2206 (2018), because it was issued pursuant to a state statute that did not require probable cause to obtain historical cell phone location data, and the GPS Orders violate United States v. Jones, 565 U.S. 400 (2012) (), because the GPS Orders were not supported by probable cause (Renewed Mot. Suppress at 5); (ii) a Franks hearing is required because Detective Chisholm made false statements and recklessly omitted material information regarding the confidential informant in the supporting affidavit, which were intended to and did mislead Judge Jones (id. at 78); and (iii) the supporting affidavits do not “provide an adequate basis to establish probable cause” such that the PRTT Order and GPS Orders would comply with the Fourth Amendment's warrant requirement (id. at 5-6).
As to his Franks argument, Defendant first alleges that the following statement from Detective Chisholm (which occurs in each supporting affidavit) is false and was made with the intent to mislead Judge Jones:
The week of February 29, 2020 Detectives with the Wilmington Police Department conducted a controlled drug buy operation. The Wilmington Police Department used a confidential information to make a controlled purchase of crack cocaine from HARPER.
(Renewed Mot. Suppress at 7;[2] PRTT Order at 2; Ford GPS Order at 2; Lincoln GPS Order at 2.) Defendant contends this statement is false because the confidential informant did not buy drugs from Defendant during this controlled buy operation. (Renewed Mot. Suppress at 7 (citing 2/28/2020 WPD Report and Warrant at 8).) Defendant argues that this allegedly false statement is crucial to the probable cause determination because it tends to corroborate the confidential informant's information and, conversely, that the confidential informant's inability to purchase drugs from Defendant during the controlled buy operation undermines the confidential informant's credibility. (Renewed Mot. Suppress at 7.)
Second, Defendant contends the following factual statements in the supporting affidavits are also false:
(Renewed Mot. Suppress at 7.) Defendant contends the foregoing statements are false because they are not included in WPD notes from interviews with the confidential informant and there is nothing explaining how Detective Chisholm corroborated the information obtained from the confidential informant before submitting the affidavits. (Id. ( cross-reference to WPD Interview Notes).)
Third, Defendant contends that Detective Chisholm recklessly omitted material information in the supporting affidavits regarding the confidential informant's criminal history, pending sentencing, pending criminal charges, and unserved warrants. (Renewed Mot. Suppress at 8.)
Defendant makes three broad arguments regarding the search warrant: (i) the warrant is overbroad to the extent it “uses generalized information to allow [the] government to search anywhere they believed Harper to have been at any given time and any person on the property” and “permits the search of any other vehicle as may be located with[in] the curtilage of the residences to be search[ed]” (Renewed Mot. Suppress at 9-10 ()); (ii) the...
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