United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter comes before the court on defendant's motion to
suppress certain evidence allegedly obtained in violation of
the Fourth Amendment to the United States Constitution. (DE
33, 36). Pursuant to 28 U.S.C. § 636(b)(1)(B) and
Federal Rule of Criminal Procedure 59(b), United States
Magistrate Judge Robert T. Numbers, Jr., entered memorandum
and recommendation (“M&R”), wherein it is
recommended that defendant's motion be denied. (DE 60).
Defendant timely objected to the M&R. In this posture,
the issues raised are ripe for ruling. For the reasons that
follow, defendant's motion to suppress is denied.
OF THE CASE
13, 2018, defendant was indicted for possession with intent
to distribute 500 grams or more of cocaine and a quantity of
cocaine base, in violation of 21 U.S.C. § 841(a)(1);
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A); and
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924.
December 26, 2018, defendant filed the instant motion to
suppress. Approximately one week later, defendant filed an
amendment to his motion to suppress. Defendant initially
advanced four arguments in favor of suppression: 1) that his
consent to search his home was not voluntary, 2) that, if he
did consent, he withdrew that consent prior to discovery of
any incriminating evidence, 3) he was unconstitutionally
interrogated while in custody prior to being advised of his
Miranda rights, and 4) the search warrant procured
by the police to search defendant's residence was not
supported by a sworn affidavit. The government responded in
opposition, arguing the court should reject each ground for
hearing was held before the magistrate judge on July 1, 2019.
At hearing, defendant abandoned his claim that the search
warrant procured by the police to search defendant's
residence was not supported by an officer's affidavit,
choosing to advance only his first three arguments for
suppression. (Transcript of Hearing (“Tr.”) (DE
59) 6:1-10). The court heard testimony from officers Joshua
Thiele (“Thiele”), Jeremy Wendt
(“Wendt”), and Sergeant Timothy Hathaway
(“Hathaway”). Defendant presented exhibits,
including the incident report describing events from the day
in question, satellite photographs of defendant's
residence, the search warrant obtained for defendant's
home, and two declarations concerning the accuracy of
Apple's “Find My iPhone” application. The
government presented Hathaway's body camera footage from
the date of the incident in question.
August 23, 2019, the magistrate judge issued M&R, finding
that defendant voluntarily consented to the search of his
home by Hathaway and Wendt, defendant never revoked his
consent to the search, and that defendant never was subjected
to custodial interrogation. Defendant raises numerous
objections to the magistrate judge's finding that he
voluntarily consented to a search of his house.
December 27, 2017, the Rocky Mount Police Department received
a call from Cindy Knudsen (“Knudsen”), who
believed that her iPhone had been stolen. (Tr. 8:8-9:3;
Incident Report (Def. Ex. 1) at 1). Thiele met Knudsen at a
local Chick-fil-A restaurant. (Tr. 8:14-18). Knudsen told
Thiele that she believed she had lost her phone between the
Chick-fil-A and a nearby Walmart store. (Tr. 8:16-18).
Knudsen's niece, who was also present, used an
application on her iPhone called “Find My iPhone”
to track the missing phone. (Tr. 8:20-3, 9:17-21). The niece
showed Thiele a map with a red pin and the address 1621
Cherry Street, which was in a different part of town.
(See Tr. 7:18-21, 10:14-22, 24:10-22, 55:6-9).
Thiele advised Wendt, an officer patrolling in the area of
1621 Cherry Street that, based upon the information from the
Find My iPhone application, he suspected somebody took
Knudsen's iPhone to that address. (See Tr.
11:14-25, 15:3-17). Thiele, along with Wendt and Hathaway,
each testified that they or other officers they knew had
previously used the Find My iPhone application to locate
stolen phones and found it reliably tracked the location of
those phones. (See Tr. 9:24-10:7, 55:23-56:25,
73:19- 74:13, 94:10-14).
to Thiele's call, Wendt traveled to 1621 Cherry Street to
investigate. (Tr. 55:6-22, 57:1-10). Wendt initially knocked
on the door facing Beckman Street, which appeared to be the
front door of the residence, but no one answered. (Tr.
57:6-10). As Wendt started to walk back to his vehicle,
defendant stepped out from a door on the Cherry Street side
of the house. (Tr. 57:11-58:4). Wendt told defendant that he
was investigating a stolen iPhone and that the phone was
pinging to his address. (Tr. 58:10-15). Defendant denied
knowing about the phone. (Tr. 58:17-21). With defendant's
permission, Wendt searched defendant's yard but was
unable to find Knudsen's iPhone. (Tr. 58:21-60:21). While
Wendt was searching the yard, he noticed a female exit the
residence. (Tr. 60:1-4). Not knowing how many individuals
might be in the home, Wendt called for another officer.
(See Tr. 59:1-4, 81:18-82:16).
15 to 20 minutes after Wendt first arrived at 1621 Cherry
Street, Hathaway arrived. (Tr. 60:21-23, 80:18-20). The two
officers approached defendant, who told them that he had been
home all day with a female friend and did not know anything
about the missing iPhone. (Body Camera Footage (Gov. Ex. 1)
0:34-1:15). After some back and forth, Hathaway told
defendant “we got enough to do a search warrant,
” he asked defendant for permission to search the home,
and he said “otherwise we're going to have to do a
search warrant.” (Tr. 92:18-21; Body Camera Footage
(Gov. Ex. 1) 2:07-2:20). Defendant continued to deny that the
iPhone was in his house, and Hathaway reiterated they needed
to search based upon the Find My iPhone result. (Body Camera
Footage (Gov. Ex. 1) 2:20-3:11). Hathaway explained that he
was not interested in anything else that he may have in the
house. (Body Camera Footage (Gov. Ex. 1) 3:01-3:02). After
again denying that he knew anything about the phone,
defendant told Hathaway and Wendt that they could come in and
look for the iPhone. (Body Camera Footage (Gov. Ex. 1)
inside the house, Hathaway used his department issued cell
phone to call Knudsen's iPhone, and used his flashlight
to look around a darkened room for the iPhone. (Tr.
99:23-100:9; see Body Camera Footage (Gov. Ex. 1)
4:00-4:20). While looking around the room for the iPhone,
Hathaway noticed digital scales and white powdery substance,
which in his experience and training indicated the sale or
packaging of narcotics. (Tr. 100:21-101:5). Following this
discovery, Hathaway asked defendant if he had anything else
besides the scales. (Tr. 105:6-8, Body Camera Footage (Gov.
Ex. 1) 5:52-6:00). After further questioning, defendant
admitted to other contraband. (See Tr. 109:5-9,
110:4-6, 110:15-17; Body Camera Footage (Gov. Ex. 1) 6:18-23,
7:25-8:25, 10:25-10:40, 11:00-11:08). Thereafter, the
officers obtained a search warrant, searched the house, and
found almost 650 grams of cocaine. (See Search
Warrant (Def. Ex. 3)). The officers did not locate
facts pertinent to the instant motion will ...