United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
matter comes before the court on respondents' motion for
summary judgment (DE 6). The issues raised have been fully
briefed and are ripe for adjudication. For the following
reasons, the court grants respondents' motion.
February 6, 2014, petitioner was convicted, following a jury
trial in Wake County Superior Court, of trafficking heroin by
possession, trafficking heroin by sale, trafficking heroin by
transportation, conspiracy to traffic heroin, and maintaining
a dwelling place for sale of a controlled substance.
State v. Perry, 243 N.C.App. 156, 157, 776 S.E.2d
528, 530 (2015). The superior court sentenced petitioner to
689-872 months imprisonment. (Pet. 1).
appealed, and, on September 15, 2015, the North Carolina
Court of Appeals (“NCCOA”) found no error in
petitioner's conviction or sentence. Perry, 243
N.C.App. at 178, 776 S.E.2d at 542. The North Carolina
Supreme Court (“NCSC”) dismissed petitioner's
notice of appeal (“NOA”) and petition for
discretionary review (“PDR”) on January 28, 2016.
State v. Perry, 368 N.C. 683, 781 S.E.2d 622 (2016).
Petitioner was represented at trial by Mr. Jeffrey M. Cutler
and on appeal by Mr. W. Michael Spivey. (Pet. 13).
did not file any state post-conviction motions. (Id.
at 9). On March 30, 2017, petitioner filed the instant
counseled petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 asserting the following grounds for
relief: (1) the NCCOA's determination that the Cell Phone
Site Location Information (“CSLI”) obtained by
the Raleigh Police Department (“RPD”) was
“historical” rather than “real-time”
was unreasonable in light of the evidence presented; (2)
real-time tracking of a suspect's cell phone requires
probable cause, which was not obtained in this case; (3) all
of the evidence against petitioner must be excluded as the
fruit of the poisonous tree; and (4) the NCCOA's
application of the good-faith exception to the exclusionary
rule was unreasonable in light of the evidence presented.
March 15, 2017, respondent filed a motion for summary
judgment, arguing that petitioner's claims fail on the
merits. As part of this motion, respondent filed an appendix
consisting of the following exhibits: (1) the record on
appeal; (2) petitioner's appellate brief to the NCCOA;
(3) an amicus brief filed in the NCCOA by the American Civil
Liberties Union; (4) the State's brief filed in the
NCCOA; (5) Petitioner's reply brief filed in the NCCOA;
(6) petitioner's NOA and PDR filed in the NCSC; (7) the
State's response to the NOA and PDR filed in the NCSC;
and (8) the trial transcript. Petitioner responded to the
summary judgment motion, and respondent filed a reply.
OF THE FACTS
facts as summarized by the North Carolina Court of Appeals
are as follows:
The State's evidence tended to show that on 10 December
2012, Raleigh Police Department detective M.K. Mitchell
(“Detective Mitchell”) arrested Kenneth
Holderfield (“Holderfield”) for possession of
marijuana. Holderfield provided Detective Mitchell with the
telephone number of his drug supplier, whom Holderfield
referred to as “Sincere.” Holderfield also called
the number and placed the call on the speaker while in the
presence of Detective Mitchell. Detective Mitchell testified
he heard Sincere state “he was in Charlotte and would
be coming to Raleigh tomorrow.” Detective Mitchell also
testified Holderfield asked Sincere if he would “front
[Holderfield] eight grams.” Sincere replied,
“We'll talk about it when I get to Raleigh
The following day, Detective Mitchell submitted a sworn
application for a phone records production order to access
records associated with the telephone number provided by
Holderfield, pursuant to 18 U.S.C. § 2703(d) and N.C.
Gen.Stat. §§ 15A-261, 15A-262, and 15A-263, to the
Wake County Superior Court. The application sought complete
account and billing information, and complete call detail
records “with cell site information including latitude,
longitude, sector azimuth and orientation information for the
target telephone number(s)” for the period from 13
November 2012 through 12 December 2012. Detective
Mitchell's application also requested “precision
location/GPS, E911 locate or Mobile Locate Service if
applicable from December 11, 2012 through December 12, 2012.
Detective Mitchell's duly sworn statement stated:
The Raleigh Police Department is conducting an investigation
of a Drug Trafficking case that occurred in Raleigh. There is
probable cause to believe that records for [Defendant's
telephone number] constitute evidence of a crime and/or the
identity of a person participating in this crime, to wit:
This cellular telephone number was obtained from a
cooperating defendant who was arrested as a result of drug
trafficking. The possessor of the phone ... is being
investigated as a major drug trafficker in the Raleigh area.
This information has been corroborated by this Detective. It
is believed that information received in the records
requested in this court order will be crucial in the
progression of this investigation.
Superior Court Judge Lucy N. Inman signed the order and
Detective Mitchell submitted it to AT & T, the cellular
phone service provider and holder of the account associated
with the phone number. AT & T provided the records of the
location of the cell phone tower “hits” or
“pings” whenever a call was made to or from the
cell phone. AT & T sent emails of the longitude and
latitude coordinates of these historical cell tower
“hits” to Detective Mitchell every fifteen
minutes. Detective Mitchell testified an approximately five-
to seven-minute delay occurred between the time the phone
“pinged” a cell phone tower and the time AT &
T received and calculated the location and sent the latitude
and longitude coordinates to him.
After receiving the emails of the records from AT & T,
Detective Mitchell entered the coordinates into a Google Maps
search engine to determine the physical location of the last
tower “pinged” from Defendant's phone.
Detective Mitchell testified “the hits can range from
... [a] five or seven meter hit to a couple hundred meter
hit, ” which alerts law enforcement to the general area
of the phone's last “pinged” location.
On 11 December 2012, at approximately 4:00 p.m., Detective
Mitchell received a record of a “hit” from one of
AT & T's cell towers, which placed the phone within a
few meters of the Red Roof Inn, located on South Saunders
Street, near Interstate 40 in Raleigh, North Carolina.
Detective Mitchell and other law enforcement officers from
the Criminal Drug Enterprise Unit of the Raleigh Police
Department began conducting surveillance from unmarked
vehicles stationed around the Red Roof Inn. Detective
Mitchell testified he received a record, which allowed him to
further “pinpoint” the phone's location
“down to a certain amount of rooms” in the hotel.
Lieutenant Norris Quick (“Lieutenant Quick”)
received confirmation from the hotel's front desk clerk
that “someone had just checked into” one of the
rooms located within the block of rooms Detective Mitchell
had identified. The front desk clerk gave ...