United States v. Thorne, Criminal Action No. 18-389 (BAH)

CourtUnited States District Courts. United States District Court (Columbia)
Citation548 F.Supp.3d 70
Docket NumberCriminal Action No. 18-389 (BAH)
Parties UNITED STATES of America v. Linwood Douglas THORNE, Defendant.
Decision Date30 June 2021

[548 F.Supp.3d 79]

Gregory Paul Rosen, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Kira Anne West, Law Offices of Kira Anne West, Washington, DC, for Defendant.


BERYL A. HOWELL, Chief Judge

Table of Contents
B. Defendant's Motion to Suppress Fruits of Law Enforcement Use of Cell-Site Simulator...113
1. Description of Investigative Techniques Related to Cell Phone Location...113
a. Cell-Site Simulators...113
b. GPS "Pinging"...115
2. Venue Under Rule 41...116
a. Applicable Legal Standard...116
i. Principles Guiding Interpretation of Rule 41...117
ii. Plain-Text Reading of Rule 41(b)(2) Produces Absurd Results...119
iii. Constitutional Policies and Precedent Favor a Flexible Reading of Rule 41...122
iv. Rule 41(b)(2) Is Best Read to Impose a "Reason to Believe Standard"...124
b. Law Enforcement Had "Reason to Believe" Defendant and His 202 Cell Phone Were in the District of Columbia...127
c. Good-Faith Exception...129
i. Applicable Legal Standard...130
ii. Law Enforcement Reasonably Relied on the Cell-Site Simulator Warrant in Good Faith...130
3. Franks Hearing Not Warranted...133

The defendant, Linwood Douglas Thorne, is charged in six counts with multiple firearms and narcotics offenses, including possession with intent to distribute one kilogram or more of heroin and detectable amounts of fentanyl and marijuana, and conspiracy to distribute those illegal drugs, in violation of 18 U.S.C. §§ 924(c)(1) and 922(g)(1) and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 841(b)(1)(C), 841(b)(1)(D), and 846. See Superseding Indictment (Oct. 23, 2019) at 1–4, ECF No. 28. In advance of the trial scheduled to begin on October 4, 2021, see Min. Order (Oct. 1, 2020), defendant has moved to suppress the fruits of, first, two search warrants, which were issued for his Washington, D.C. residence and Dou Perfect, defendant's Clinton, Maryland auto-repair business, during law enforcement's investigation of his alleged criminal activities and, second, a cell-site simulator warrant, which was obtained to assist a fugitive apprehension investigation leading to his arrest. In these three pending suppression motions, he alleges a myriad of Fourth Amendment violations that, in his view, render the challenged warrants invalid and the evidence obtained pursuant to them inadmissible. See Def.’s Renewed Mot. Suppress Evid. Recovered During Search of Foote St. Address ("Def.’s Foote St. Mot."), ECF No. 120; Def.’s Renewed Mot. Suppress Evid. Recovered During Search of Barbara Lane Location ("Def.’s Barbara Lane Mot."), ECF No. 121; Def.’s Mot. Suppress Fruits Law Enforcement Use of Cell-Site Simulator ("Def.’s Cell-Site Mot."), ECF No. 122. Defendant also challenges the seizure incident to his arrest of three cell phones that were not on his person, and seeks to suppress any evidence recovered from the

[548 F.Supp.3d 81]

phones as well as the phones themselves. Def.’s Mot. Suppress Cell Phones at Arrest Location ("Def.’s Cell Phones Mot."), ECF No. 123.

A hearing on the pending motions to suppress was held on June 22, 2021. See Min. Entry (June 22, 2021); Rough Tr. of Mots. Hr'g (June 22, 2021) ("Hr'g Tr. (Rough)").1 For the reasons explained below, defendant's motions to suppress the evidence recovered from his Washington, D.C. home and Dou Perfect; the fruits of law enforcement's use of a cell-site simulator to locate and ultimately apprehend him; and the cell phones seized incident to his arrest are denied.2


Background on the pending charges against defendant, law enforcement's investigation of his alleged narcotics-trafficking activities, and his eventual apprehension are set out below to inform the analysis of defendant's motions to suppress, followed by review of the procedural history of this case to date.

A. Investigation and Apprehension of Defendant

As set out in a prior decision resolving the parties’ motions regarding evidence proffered by the government under Federal Rules of Evidence 404(b) and 609, see United States v. Thorne ("Thorne I" ), Crim. A. No. 18-389 (BAH), 2020 WL 122985, at *2–3 (D.D.C. Jan. 10, 2020), and the affidavits submitted in support of law enforcement's applications to search defendant's Washington, D.C. residence and Clinton, Maryland auto-repair business, see Gov't’s Omnibus Opp'n Def.’s Second Mots. Suppress Evid. Obtained Pursuant to Search Warrants ("Gov't’s Opp'n"), Ex. B, Foote St. Search Warrant ("Foote St.

[548 F.Supp.3d 82]

Warrant"), Aff. of Special Agent Richard A. Migliara Supp. Appl. Search Warrant ("Migliara Aff."), ECF No. 124-2; id. , Ex. H, Barbara Lane Search Warrant ("Barbara Lane Warrant"), Aff. of Special Agent Kevin T. Smith Supp. Search Warrant ("Smith Aff."), ECF No. 124-8, the events that led to law enforcement's identification of defendant as the supplier of heroin to an individual known as Suspect-1, who made four separate sales of guns and illegal narcotics to an undercover agent ("UC") in August and November 2018, are as follows.3

1. August 2018 Undercover Transactions

In July 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), the Federal Bureau of Investigation ("FBI"), and the D.C. Metropolitan Police Department ("MPD") "began investigating [Suspect-1] for possible criminal offenses involving the illegal sale of firearms and narcotics." Migliara Aff. ¶ 8; Smith Aff. ¶ 6. Over the course of that investigation, between August and November 2018, the UC engaged in four controlled purchases of guns and drugs with Suspect-1, as the Migliara and Smith Affidavits describe in detail and is summarized here. "Suspect-1 made his first two sales, of guns, ammunition, and marijuana, to the UC in August." Thorne I , 2020 WL 122985, at *2. At the first buy, on August 6, 2018, the UC paid Suspect-1 $3,000 for "half a kilogram of ... marijuana[ ], one unloaded Mack 11 9 mm handgun, one extended magazine, and one regular magazine." Migliara Aff. ¶ 9; see also Smith Aff. ¶ 8. At the second buy, on August 20, 2018, the UC paid Suspect-1 $7,600 for two pounds of marijuana, various ammunition, a silencer, a Sig Sauer pistol with an extended magazine, a Draco AK-47 pistol with a magazine, and one AR-15 rifle with multiple magazines. Migliara Aff. ¶ 10. All of this contraband was brought to the transaction in "a big black duffle bag." Id. ; see also Smith Aff. ¶ 10.

Soon after this second transaction, the undercover agent's conversations with Suspect-1 "shifted from the purchase of marijuana and firearms to the purchases of heroin and firearms." Migliara Aff. ¶ 11; see also Smith Aff. ¶ 11. Over the course of these exchanges, "Suspect-1 ... told the UC that he had a heroin supplier willing to sell kilogram-quantities of heroin." Thorne I , 2020 WL 122985, at *2 ; see also Migliara Aff. ¶ 11; Smith Aff. ¶ 11. "[O]n September 24, 2018, Suspect-1 told the UC that he believed his supplier to be a millionaire who owned a mechanic shop, an auto-body shop, and a small car dealership." Thorne I , 2020 WL 122985, at *2 (internal quotation marks and citation omitted); see also Migliara Aff. ¶ 22; Smith Aff. ¶ 15. "During conversations in October 2018, Suspect-1 discussed the terms of a heroin transaction with the UC, referring to his heroin supplier as ‘OG,’ ‘Doug’ or ‘Uncle D.’ " Thorne I , 2020 WL 122985, at *2 (citation omitted); see also Migliara Aff. ¶ 12; Smith Aff. ¶ 12. "On October 18, 2018, Suspect-1 informed the UC that he had been unable to speak to OG because OG went on vacation with his significant other to Cancun, Mexico for a week." Thorne I , 2020 WL 122985, at *2 (internal quotation marks and citation omitted); see Migliara Aff. ¶ 24; Smith Aff. ¶ 27. "Law enforcement subsequently confirmed, consistent with Suspect-1's statement, that the defendant had traveled to Mexico," returning to the Washington, D.C. area on or

[548 F.Supp.3d 83]

about October 16, 2018. Thorne I , 2020 WL 122985, at *2 ; see Migliara Aff. ¶ 24; Smith Aff. ¶ 27.

2. November 2018 Undercover Transactions

"In November 2018, according to the government, the UC completed two controlled purchases of heroin supplied by the defendant." Thorne I , 2020 WL 122985, at *2. At the third transaction, on November 1, 2018, Suspect-1...

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