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United States v. White

United States District Court, M.D. North Carolina

June 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM ZACHARY WHITE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Loretta C. Biggs United States District Judge

         Defendant William Zachary White (“White”) is charged in a two-count Indictment with possession of an unregistered short-barreled rifle in violation of 26 U.S.C. §§ 5861(d), 5871, and possession of three unregistered firearm silencers in violation of 26 U.S.C. §§ 5861(d), 5871. On May 15, 2017, White filed Defendant's Motion to Suppress Evidence, (ECF No. 14), and on June 8, 2017, the motion came on for hearing before the Court. White seeks to suppress the rifle and silencers that were seized from his home on grounds the seizure was in violation of the Fourth Amendment to the United States Constitution. Because the Government failed to establish by a preponderance of the evidence that the plain-view exception to the warrant requirement is applicable to the search and seizure of the rifle and silencers, White's motion to suppress is granted.

         “In deciding a motion to suppress, the district court is empowered to make findings of fact, and conclusions of law.” United States v. Adkinson, 191 F.Supp.3d 565, 568 (E.D. Va. 2016) (citing United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005)). At the June 8 hearing, the Government called Sergeant Lynwood Hampshire (“Sgt. Hampshire”) and Special Agent Cummings (“S.A. Cummings”) as its witnesses, and White called Anita Holder as his sole witness. Based on the evidence presented, the Court makes the following:

         I. FINDINGS OF FACT

         On or about August 22, 2016, Sgt. Hampshire, a 17-year veteran of the Reidsville Police Department, commenced an investigation regarding nine John Deere tractors that were stolen from Scott's Tractor in Rockingham County on August 21, 2016. About a month and a half later, on October 3, 2016, Sgt. Hampshire was notified that one of the stolen tractors was recovered in Durham County, North Carolina. The officer learned that the recovered tractor had been sold by White to David and Denise Terry of Durham on September 19, 2016. The Terrys, after purchasing the tractor, became suspicious that the tractor may have been stolen and contacted the Durham Police Department. At some point after November 2, 2016, Sgt. Hampshire interviewed the Terrys and obtained copies of texts between them and White. White's texts to the Terrys included a Vehicle Identification Number (“VIN”) belonging to the lawn mower the Terrys purchased from White. The Terrys later located a different VIN on the tractor, which Sgt. Hampshire discovered matched the VIN of the lawn mower stolen from Scott's Tractor.

         On November 9, 2016, at the request of Sgt. Hampshire, White voluntarily went to the Reidsville Police Department for an interview. Present at the interview along with White and Sgt. Hampshire was Officer Denny from the State Bureau of Investigation (“SBI). A limited portion of a recording of the November 9, 2016 interview was played at the hearing and received into evidence. According to Sgt. Hampshire, during the interview, White stated, among other things, that he purchased the John Deere tractor from a gentleman in the parking lot of Sedgefield Lawn & Garden approximately two weeks before listing it for sale on Craigslist. On November 10, 2016, Sgt. Hampshire went to Sedgefield Lawn & Garden to investigate the statements made by White that he purchased the lawn mower in the parking lot of that establishment. Sgt. Hampshire concluded that the vehicle White described out of which he purchased the lawn mower would have impeded the parking lot of Sedgefield Lawn & Garden and further concluded that the establishment would not have allowed it to be there.

         On March 5, 2017, Sgt. Hampshire applied for a warrant to search White's property[1]at 7102 Destiny Jo Road, Pleasant Garden, North Carolina.[2] The warrant was issued by a state court judge the same day. The state warrant sought evidence of the following state crimes: (1) obtaining property by false pretense in violation of N.C. Gen. Stat. § 14-100; (2) felony possession of stolen property in violation of N.C. Gen. Stat. § 14-71.1; and (3) alteration, destruction or removal of permanent identification marks from personal property in violation of N.C. Gen. Stat. § 14-160.1. (ECF No. 15-1 at 4, 12.)

         The day following the issuance of the warrant, officers went to White's home at 7102 Destiny Jo Road to conduct the search. S.A. Cummings, a 15-year veteran of the SBI, testified he was present at the search and his duties that day were to document the crime scene in photographs, sketches, and in words to include in a report later. S.A. Cummings was directed to the master bedroom where Detective Ken Mitchell was already searching. When he walked into the bedroom, S.A. Cummings observed several firearms and other items that Detective Mitchell had found in different locations and spread onto the bed. S.A. Cummings observed two rifles that contained a collapsible stock, with one of the rifles having a longer barrel than the other. Comparing the two rifles, S.A. Cummings concluded one of the firearms was a short-barreled rifle. He further observed two modified “Maglite suppressors”[3] in an open gun case on the bed, and a third one in an open pocket of a gun bag. The suppressors had standard end caps that appeared to have been drilled out. S.A. Cummings seized the rifle and suppressors after viewing them. The day after the search law enforcement checked the national firearms registry and learned that White had not registered the rifle and silencers.[4](ECF No. 15-1 at 41.)

         On March 27, 2017, the Grand Jury returned an Indictment charging White in this Court with possession of an unregistered short-barreled rifle in violation of 26 U.S.C. §§ 5861(d), 5871, and possession of three unregistered firearm silencers in violation of 26 U.S.C. §§ 5861(d), 5871. (ECF No. 9.)

         II. DISCUSSION

         In deciding a motion to suppress, the defendant bears the burden of proving that suppression is proper. Adkinson, 191 F.Supp.3d at 568 (citing United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981)). “Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove the admissibility of the challenged evidence by a preponderance of the evidence.” United States v. Gualtero, 62 F.Supp.3d 479, 482 (E.D. Va. 2014) (quoting United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)).

         White advances several arguments in support of his motion to suppress the rifle and silencers found in his home. He first challenges the validity of the search warrant, contending (a) the search and seizure were without probable cause because Sgt. Hampshire's warrant affidavit relies on stale information; (b) the warrant fails the particularity requirement because it is an impermissible general warrant; and (c) the affidavit in support of the warrant application includes a material misrepresentation or omission, requiring a Frank's hearing. Second, White contends that even if the warrant were valid, seizure of the rifle and suppressors were not authorized because the registration status of these items was not something immediately apparent to law enforcement under the plain-view doctrine.

         A. The Search Warrant

         The Court first examines White's arguments that the search warrant was not based on probable cause because the evidence outlined in the application for the search warrant was stale and that the warrant was an impermissible general warrant in that it lacked the specificity required.

         “The Fourth Amendment requires that warrants (1) be issued by a neutral and detached magistrate, (2) be based upon probable cause supported by oath, and (3) contain a particular description of the place to be searched and things to be seized.” United States v. Cluthchette, 24 F.3d 577, 579 (4th Cir. 1994). Evidence obtained in violation of these requirements is subject to exclusion at trial. Id. In this case, White does not contest that the warrant was issued by a neutral and detached judge. White does, however, contest whether the second and third elements have been satisfied.

         Probable cause exists where, considering the totality of the circumstances, a person of reasonable prudence would believe that contraband or evidence of a crime will be found. United States v. Allen, 631 F.3d 164, 172 (4th Cir. 2011). “[T]he determination of probable cause by the magistrate who issued the warrant is entitled to ‘great deference.'” United States v. Randolph, 261 F.App'x 622, 625 (4th Cir. 2008) (unpublished) (quoting United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990)). The reviewing court must only determine “whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.” Massachusetts v. Upton, 466 U.S. 727, 728 (1984) (per curiam). In making this determination, the reviewing court must consider “only the information presented to the magistrate who issued the warrant.” United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996).

         1. ...


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