United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Loretta C. Biggs United States District Judge
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
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:
FINDINGS OF FACT
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.
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
March 5, 2017, Sgt. Hampshire applied for a warrant to search
White's propertyat 7102 Destiny Jo Road, Pleasant Garden,
North Carolina. 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.)
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” 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.(ECF No. 15-1 at
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.)
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)).
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.
The Search Warrant
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.
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.
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.