Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. Hooks

United States District Court, E.D. North Carolina, Western Division

March 20, 2018

PAUL PERRY, Petitioner,
ERIK A. HOOKS and FELIX TAYLOR, Respondents.


          LOUISE W. FLANAGAN, United States District Judge

         The 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.


         On 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).

         Petitioner 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).

         Petitioner 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.

         On 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.


         The facts as summarized by the North Carolina Court of Appeals are as follows:

         A. State's Evidence

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 tomorrow.”
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.