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United States v. Thorne

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

October 30, 2019




         This 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.


         On June 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.

         On 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[1] 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 suppression.

         Evidentiary 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.[2]

         On 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.[3]


         On 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).

         Responding 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).

         Approximately 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) 3:03-3:13).

         Once 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 Knudsen's iPhone.

         Additional facts pertinent to the instant motion will ...

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