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United States v. Davis

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

November 16, 2012


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For Mark Anthony Davis, Defendant: Elisa Cyre Salmon, LEAD ATTORNEY, Salmon & Gilmore, LLP, Lillington, NC.

For Lawanda Joyce Ragland, Defendant: Leza Lee Driscoll, LEAD ATTORNEY, Raleigh, NC.

For USA, Plaintiff: Gaston Williams, LEAD ATTORNEY, U.S. Attorney's Office, Raleigh, NC.


Robert B. Jones, Jr., United States Magistrate Judge.

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This matter is before the court on the Joint Motion to Suppress [DE-36] filed by Defendants Mark Davis and Lawanda Ragland (" Defendants" ). The motion was referred to this court and is considered here as a recommendation to the District Court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). The government has responded [DE-44] to the motion and the court held a hearing to further develop the record. The parties have subsequently submitted post-hearing briefing. Accordingly, the motion is ripe for review. For the reasons stated below, it is the recommendation of this court that Defendants' motion be denied in part, allowed in part.


On January 18, 2012, a Grand Jury sitting in the Eastern District of North Carolina returned a fourteen-count indictment against Defendants Davis and Ragland. [DE-10]. Defendants were charged with conspiracy in violation of 18 U.S.C. § 371 (Count 1), access device fraud in violation of 18 U.S.C. § § 1029(a)(3) & 2 (Count 2), aggravated identity theft and aiding and abetting in violation of 18 U.S.C. § § 1028A & 2 (Count 3), and possession of stolen mail in violation of 18 U.S.C. § § 1708 & 2 (Counts 4-14). Defendants' arraignment in this matter has been held in abeyance pending a ruling on Defendants' motion to suppress and for a Franks hearing. [DE-42].

According to Defendants' motion and supporting memorandum, the indictment arose out of the execution of a search warrant at 217 Sarah Lane, located in Vance County, North Carolina by officers of the Henderson Police Department (" HPD" ). Defs.' Joint Mot. to Suppress &

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for a Franks Hr'g (" Defs.' Mot." ) ¶ 2 [DE-36]; Defs.' Mem. of Law in Supp. of Mot. to Suppress & for a Franks Hr'g (" Defs.' Mem." ) at 1 [DE-37]. The search warrant purported to seek the recovery of property rented from Crusader Rent-to-Own (" Crusader" ) located in Henderson, North Carolina. Defs.' Mot. ¶ 2; Defs.' Mem. at 5-8. Defendants contend the search warrant application is " rife with false statements and misleading omissions, which are indispensable to the finding of probable cause." Defs.' Mot. ¶ 5. Defendants contend that suppression of the evidence is required in accordance with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Id. ¶ 6. Alternatively, Defendants contend that if the search warrant survives a Franks inquiry, suppression of the evidence is nonetheless required based on numerous Fourth Amendment violations present in the warrant and its execution. Defs.' Mot. ¶ 7; Joint Mem. of Law in Supp. of Suppression of Evid. (" Defs.' Supp. Mem." ) [DE-87]. Defendants have moved further to suppress all evidence seized pursuant to a federal search warrant issued December 18, 2009 on the grounds that the federal search warrant relies entirely on false information from the HPD and evidence illegally obtained during the search of 217 Sarah Lane. Defs.' Mot. ¶ 9. [1]

On May 15, 2012, the government responded to Defendants' motion and did not oppose Defendants' request for a Franks hearing. United States's Resp. to Defs.' Mot. (" Gov't's Resp." ) [DE-44]. Accordingly, Defendants' motion for a Franks hearing was allowed [DE-49] and on June 27, 2012, this court held a Franks /Suppression hearing. [DE-68]. At the hearing, Defendants presented the testimony of Lee Harrell and Michael D. Waters and the government presented the testimony of John H. Zollicoffer, Jr., Sergeant Durwood Campbell of the Vance County Sheriff's Office and Lieutenants Steven Vaughn and Christopher Ball of the HPD. [DE-76].

Following the hearing, the government submitted additional briefing. See United States's Supp. Resp. in Opp'n to Defs.' Mot. to Suppress (" Gov't's Supp. Resp." ) [DE-71, 73]. Defendants moved alternatively to strike the government's supplemental briefing or to be permitted to submit additional briefing of their own. [DE-72]. The court permitted Defendants additional time to submit their own post-hearing briefing and Defendants have filed a timely supplemental brief. See Defs.' Supp. Mem. [DE-87].


The Search Warrant Authorizing the Search of 217 Sarah Lane

The search warrant was issued in the Matter of Robert Hicks Jr., 217 Sarah Lane Henderson, North Carolina on May 14, 2008 at 11:52 a.m by North Carolina Magistrate Terry. Def. Hr'g. Ex. F; Gov't Hr'g. Exs. 27-34. Detective CD Ball, now Lieutenant Ball (" Ball" ), of the HPD provided a sworn affidavit in support of the application for the search warrant.

In relevant part, the search warrant affidavit provides the following information from Ball:

Section 2 Person or Property to be Seized..latent prints; Crosley Washer (SN: XC74310646); Crosley Dryer (SN: XD74311353); documentation related to the control of 217 Sarah Lane; documents

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related to fraudulent activities; photographs; any other stolen property; any and all evidence that may relate to the possession of stolen property from Crusader Rent to Own, 120 Raleigh Rd Henderson, NC, which constitutes evidence of the crime of Possession of Stolen Property and Obtain Property by False Pretense, which in violation of N.C.G.S. 14-71.1 and N.C.G.S. 14-100, and the identity of the person, or persons, participating in this crime, or crimes. This property or evidence will be located at ...

Section 3 Location to be Searched


...217 Sarah Lane Henderson, North Carolina and its curtilage. Residence will be the last double-wide trailer on the left. Double-wide will be white in color. A green Mercedes, a silver car, and a Tahoe will be in the yard. A pit-bull will also be in the yard.

Section 4 Facts to Establish Probable Cause

The applicant swears to the following facts to establish probable cause for the issuance of a search warrant:
On 05/14/08, Manager Lee Harrell with Crusader, stated that he has been to 217 Sarah Lane on 05/13/08 and has located the Crosley Washer (SN:XC74310646) and Crosley Dryer (SN:XD74311353) that was rented from his store. He stated that he looked at the serial numbers on the items and verified them to be from his store.
On 5/14/08, Manager Lee Harrell, stated that a Robert Hicks of 2073 Julia Ave had obtained the property. Manager stated that he checked the listed employer, 1001 Home Improvement of 455 Brookwood Lane, to be a fraudulent business [sic]. Manager stated the location listed was a trailer park. He stated that he further determined that the location of 2073 Julia Ave where the property was delivered was not Mr. Robert Hicks residence. Manager stated that he followed up on the references listed on the application and located the washer and dryer at 217 Sarah Lane. Application lists Wanda Ragland as being the resident.
Manager also stated that Mr. Hicks has obtained property from other rental businesses in the Henderson area.
05/14/08, Manager stated that while checking inside 217 Sarah Lane for the washer and dryer he observed nine big screen televisions, four Xbox 360s, and two computers in every room. Manager stated based on his experiences he believed the items to be stolen.

Section 5 Closing Statement

Based on the fact the stolen items from Crusader's was seen by the manager on 05/13/08 inside the residence of 217 Sarah Lane, and the serial numbers were verified by the manager to be from the store, I believe the items listed in this application will be located at 217 Sarah Lane.
Based on the fact that the washer and dryer were obtained by fraudulently [sic] means I believe other items from different business [sic] may have been obtained in the same manner. Based on my training and experience I believe the other items that the manager saw inside the residence to be stolen or fraudulently obtained.
Based on my training and experience where stolen items are located numerous other stolen items are also located.
Based on the fact that numerous persons were listed on the application for the rental of the washer and dryer, I believe other individuals are involved along with Robert Hicks. I believe that information identifying these individuals or other fraudulent documentation will be located at 217 Sarah Lane.

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Based on my training, knowledge, and experience, along with the above facts, I believe, I will find the items listed in this application, and that they will be located at the place, or places specified above. I request the court issue a ...

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