United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant's motion to
dismiss all counts in the indictment or, in the alternative,
to exclude all cell phone records and fruits of those
records. [DE 69]. The government has responded, defendant has
replied, and this matter is ripe for adjudication. For the
following reasons, defendant's motion is denied.
August 2, 2016, a federal grand jury indicted the defendant
on three counts: conspiracy to commit Hobbs Act robbery under
18 U.S.C. § 1951 (Count One); Hobbs Act robbery under 18
U.S.C. § 1951 (Count Two); and brandishing a firearm
during and in relation to a crime of violence under 18 U.S.C.
§ 924(c) (Count Three). On January 20, 2017, a federal
grand jury returned a superseding indictment against the
defendant for the same offenses.
15, 2017, defendant filed the instant motion to dismiss all
counts against him or, in the alternative, to exclude at
trial all cell phone records and fruits of those records
authorized by the pen orders obtained in this case, including
location mapping and call detail records. [DE 69]. Defendant,
pursuant to the Fourth, Fifth, and Sixth Amendments to the
United States Constitution; Brady v. Maryland, 373
U.S. 83 (1963) and its progeny; the Jencks Act, 18 U.S.C.
§ 3500; Fed. R. Crim. P. 16(a)(1)(E)(i); and Local
Criminal Rule 16.1(b)(7), argues that dismissal or exclusion
is warranted because the government has failed to produce
sworn affidavits made by investigating officers which were
made in support of applications for ex parte court orders
that authorized searches of cell phone location records.
Defendant argues that those applications contain statements
made by investigating officers which describe this case and
their early impressions. Defendant argues that those
applications may therefore contain exculpatory or impeachment
information and were therefore withheld in violation of
Brady or Giglio, or may contain information
relevant to preparing his defense warranting sanction under
Rule 16 of the Federal Rules of Criminal Procedure.
government responded by showing that it had produced original
sworn affidavits for all but two of the pen orders. [DE 71].
The original sworn and notarized affidavits made for the two
other pen orders have not been located, but the government
stated that it turned over the electronic documents used to
print those affidavits. The government argues that these
affidavits contain nothing material to defendant's case
because they are just applications for pen orders, '
while the actual evidence of cell phone location information
has already been turned over to defendant. According to the
government, each application basically states only that
defendant is a suspect for a certain robbery or a fugitive,
information of which defendant was already aware. The
government therefore argues that neither dismissal nor
exclusion is warranted, because defendant has not met his
burden shown that there is any exculpatory information
contained in those affidavits but has only argued that there
may be exculpatory information in those affidavits.
Additionally, the government stated that neither officer who
applied for the pen orders will testify at trial, and so the
affidavits cannot be used for impeachment purposes.
government has a duty to disclose, pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), exculpatory evidence that
is material to the defendant's guilt or punishment. It
also must disclose, pursuant to United States v.
Giglio, 405 U.S. 150 (1972), evidence that potentially
could be used to impeach a government witness at trial.
Brady extends to evidence known to police
investigators, whether or not known to prosecutors. See
Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976). To
prove a Brady violation, the defendant bears the
burden to show that (1) the government failed to disclose the
evidence, (2) the evidence is favorable, and (3) the evidence
is material to the defense. Strickler v. Greene, 527
U.S. 263, 296 (1999); United States v. King, 628
F.3d 693, 701-02 (4th Cir. 2011).
Jencks Act, 18 U.S.C. § 3500, "requires the
government to turn over any statement of a witness in its
possession once the witness has testified on direct
examination, provided the statement relates to the testimony
of the witness." United States v. Brothers Const.
Co. of Ohio, 219 F.3d 300, 316 (4th Cir. 2000). However,
and although early disclosures under the Jencks Act are
encouraged, a "district court may not require the
government to produce Jencks Act material relating to one of
its witnesses until after the witness has testified."
United States v. Lewis, 35 F.3d 148, 151 (4th Cir.
1994) (emphasis removed); see also United States v.
Peterson, 524 F.2d 167, 175 (4th Cir. 1975)
("Jencks Act request is wholly inappropriate in a
pretrial motion for discovery").
Rule 16 of the Federal Rules of Criminal Procedure requires
the government to disclose to the defendant "books,
papers, documents, data, photographs, tangible objects,
buildings or places, or copies or portions of any of these
items, if the item is within the government's possession,
custody, or control and ... the item is material to preparing
the defense." Fed. R. Crim. P. 16(a)(1)(E)(i).
seeks materials related to applications the government made
for searches of cellular location records. Cellular records,
including subscriber records, are third-party business
records normally obtained by the government by issuing a
subpoena. United States v. Davis, 785 F.3d 498,
505-06 (11th Cir. 2015) (en banc); United States v.
Clenney, 631 F.3d 658, 666 (4th Cir. 2011). For cellular
records that also show a phone's location, however,
Congress has "raise[d] the bar from an ordinary subpoena
to one with additional privacy protections built in" by
"requiring a court order under § 2703(d)."
Davis, 785 F.3d at 505-06. To obtain these cellular
location records, the government needs to show "specific
and articulable facts" that "there are reasonable
grounds to believe that the" records "are relevant
and material to an ongoing criminal investigation." 18
U.S.C. § 2703(d). Any document meeting that showing is
sufficient; the statute does not require a notary's
signature or an officer's signature. See Id.
Once the government shows that requested cellular location
records are relevant and material to an ongoing
investigation, a state or federal court may order the
cellular company to produce the location records.
Id. Historical cellular location records are not
subject to suppression under the Fourth Amendment. United
States v. Graham, 824 F.3d 421, 427 (4th Cir. 2016) (en
defendant has received all cellular records that are evidence
in this case, the pen orders authorizing the government to
obtain those records, and the original and sworn affidavits
made in support of the government's applications for all
but two of those pen orders. The original affidavits made for
the other two orders have not been produced, but the
government did provide defendant with what it represents are
the electronic copies-word processor documents-of those
affidavits which were printed off and signed by the
argues that these electronic versions of the two remaining
requests are unacceptable because he cannot know "if the
sworn affidavits have been substantively altered or not"
and therefore he cannot know whether the original documents
contained exculpatory evidence, impeachment information, or
information material to his defense. [DE 69 at 7-9, 12- 15].
In support of his argument that the original affidavits are
likely to contain exculpatory evidence, impeachment
information, or information material to his defense,
defendant primarily relies upon alleged inconsistencies or
issues contained within the most recent pen register court
order from March 2017, arguing that the "inexplicable
March 13, 2017, order strongly suggests that these sworn
affidavits could meaningfully undermine the integrity of the
government's case against Mr. Privette." [DE 69 at
9]. That order stated that there is probable cause to believe
that "Antoine Privette is using the cellular phone
[described in the order] to further and facilitate the
crime(s) of Armed Robbery and/or maintain his status as a
fugitive from justice." [DE 71-8]. The order also found
probable cause that the search may "potentially lead law
enforcement to determine the whereabouts of Antoine
Privette." Id. In March 2017, however,
defendant had been in custody in county jails in Eastern
North Carolina for over two years, and so the order appears
to be mistaken as to defendant's actual custody status or
to have been based upon incorrect information. Defendant
argues that this is reason to believe that the original
affidavits for the other pen orders, which were
issued in February, 2015, may contain information that is
exculpatory, useful for impeachment, or relevant to his
there are mistakes in the March, 2017 order, it is important
to note that the Court and defendant are both in possession
of the original and sworn affidavit upon which that pen order
relied. The government produced this sworn and notarized
affidavit which contains Officer Turner's representations
to the issuing judge, and there does not appear to be any
inconsistencies or misrepresentations in that sworn affidavit
which raise concerns about the government's investigation
or the officer's credibility. Although the March, 2017
pen order (which the government requested in order to
retrieve four more days of cell phone location records from
February, 2015) contains errors, that does not by itself
impugn the ...