United States District Court, E.D. North Carolina, Western Division
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.
LOUISE W. FLANAGAN, United States 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.
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 Sheriff's 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.
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 & Acc. 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).
1. 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.
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 ...