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
104). This matter also comes before the court on
defendant's motion for probable cause hearing under
Franks v. Delaware, 438 U.S. 154 (1978). (DE 105).
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 motions be denied. (DE 125). Defendant timely
objected to the M&R. In this posture, the issues raised
are ripe for ruling. For the reasons that follow,
defendant's motions are denied.
OF THE CASE
26, 2018, defendant was indicted for conspiracy to possess
with intent to distribute 50 grams or more of a mixture
containing a detectable amount of methamphetamine; a quantity
of heroin; and a quantity of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and 846.
several extensions of time and one substitution of defense
counsel, defendant filed in the instant motion to suppress.
Defendant argues that the officers in this case lacked
reasonable suspicion to stop him, that the officers lacked
probable cause to arrest him, and that all evidence obtained
as a result of his allegedly unlawful arrest should be
suppressed as fruit of the poisonous tree. The government
responded in opposition, arguing the court should reject each
ground for suppression.
same day defendant filed his motion to suppress, he also
filed a motion for a Franks hearing to determine
whether a search warrant for his apartment was supported by
probable cause. Defendant asserts that the search warrant was
materially false and misleading because the officer seeking
the warrant did not discuss in his application other phone
calls made during his time in jail, and wrongly asserted
that, based on the officer's interpretation of
defendant's calls, defendant's conduct in certain
phone calls was persistent or urgent. In support of the
motion, defendant relies upon transcripts of the four calls
described by the officer in the search warrant. The
government responded in opposition, relying upon the
affidavit in support of the search warrant by officer Jamar
Neal (“Neal”) of the Irvington, New Jersey police
hearing was held before the magistrate judge on August 20,
2019. The court heard testimony from captain Kevin
McGlockland (“McGlockland”) of the Nash County
Sheriff's Office (“NCSO”), and Jason Bryant
(“Bryant”), who at times relevant to this
litigation was a sergeant with the NCSO. On September 19,
2019, the magistrate judge issued M&R, finding that
reasonable suspicion supported the officers'
investigatory stop in this case, that probable cause
supported defendant's arrest, and that defendant was not
entitled to a Franks hearing. Defendant objected to
each of the magistrate judge's findings.
Investigatory Stop and Arrest
around Fall 2017, the Tar River Regional Drug Task Force
investigated Cory Boose (“Boose”) for
distributing narcotics from his residence. (Transcript of
Hearing (“Tr.) (DE 124) 28:7-14, 29:4-15). After
observing cars arrive at the residence, stay for a brief
period, then leave, the officers concluded based on their
training and experience that Boose sold drugs in his home.
(Tr. 29:21-30:2). Later, a confidential informant also
informed officers that Boose obtained bricks of heroin from
two suppliers in New Jersey known as “Doob” and
“Fell.” (Tr. 30:20-31:7). Investigators were able
to identify and confirm with the confidential informant that
Fell was co-defendant Shamsuddine Green. (Tr. 31:3-17).
Shamsuddine Green agreed to sell the confidential informant
multiple bricks of heroin. (Tr. 32:9-11). He did not tell the
confidential informant exactly when he was coming, but
promised that he would come to Nashville, North Carolina.
(Tr. 32:14-17). Law enforcement began tracking co-defendant
Shamsuddine Green's cell phone location once co-defendant
Shamsuddine Green agreed to sell heroine to the confidential
informant. (Tr. 32:25-33:9, 34:17- 22). After spending
several days in New Jersey, the phone began moving south on
November 11, 2017, indicating to officers that co-defendant
Shamsuddine Green was travelling south to North Carolina.
(Tr. 33:2-12). Several officers, including McGlockland,
surveilled Interstate 95 in Virginia and North Carolina,
anticipating that co-defendant Shamsuddine Green would travel
there. (Tr. 33:13-18).
received notice when co-defendant Shamsuddine Green passed
cell phone towers. (Tr. 34:17-22). Because drug traffickers
often use different cars to move narcotics, McGlockland
looked out for co-defendant Shamsuddine Green's vehicle
and other suspicious vehicles. (Tr. 34:1-16). Immediately
after learning that co-defendant Shamsuddine Green's
phone pinged at a tower past him on the highway, McGlockland
got on Interstate 95 and began checking to see if any
vehicles were suspicious. (Tr. 35:4-15). Eventually,
McGlockland noticed a Ford Taurus with a New Jersey license
plate, which another officer informed him was registered to
Tiffany Howard (“Howard”), an associate of
co-defendant Shamsuddine Green. (Tr. 35:23- 36:9). The Taurus
got off Interstate 95 and headed toward 1381 East Old Spring
Hope Road in Nashville. (Tr. 36:13-21). McGlockland and
another officer, Captain Wilson, followed the Taurus until
around 1:15 a.m., then initiated a traffic stop on Washington
street in Nashville after observing traffic violations. (Tr.
occupants of the Taurus were Khadija Smith
(“Smith”), the driver; co-defendant Michael
Green, the passenger; and Smith's teenage daughter,
sitting in the back of the car. (Tr. 38:1-9). Wilson asked
Smith for her license and the vehicle's registration.
(Tr. 38:14-18). Smith produced her license, while
co-defendant Michael Green searched unsuccessfully for the
registration. (Tr. 38:14-18). Co-defendant Michael Green told
McGlockland that co-defendant Shamsuddine Green and Howard
owned the Taurus. (Tr. 38:19-23). Immediately after that,
without being asked, co-defendant Michael Green called
someone on his cell phone, told the person he had been pulled
over, and asked where he could find the car's
registration. (Tr. 38:25- 39:12). McGlockland asked
co-defendant Michael Green who he called, and he responded
with a name that sounded like “Quan.” (M&R
(DE 124) at 4 n.3; see Tr. 39:1-2). McGlockland knew
that the car was not registered to someone by that name,
giving him reason to believe co-defendant Michael Green was
tipping the person on the phone off that they had been
stopped. (Tr. 39:3-19).
the traffic stop, McGlockland learned that co-defendant
Shamsuddine Green's phone was not pinging from the
location where the Taurus was stopped. (Tr. 40:15-21).
McGlockland asked co-defendant Michael Green if he knew where
co-defendant Shamsuddine Green was, and co-defendant Michael
Green responded that he was in New Jersey. (Tr. 40:3-8).
Co-defendant Michael Green also related that he was headed to
meet his friend Cory at 1381 East Old Spring Hope Road. (Tr.
40:22-41:3; see Tr. 41:3-17). However, Smith told
McGlockland they were headed to an address in Nashville,
known by co-defendant Michael Green, to meet co-defendant
Shamsuddine Green. (Tr. 40:9-14). Based on this information,
McGlockland believed that there was more than one vehicle
involved in transporting heroin to North Carolina. (Tr.
five to six minutes after the initial stop, a K-9 unit
reported to the traffic stop. (Tr. 42:13-15). The K-9 alerted
to the Taurus's passenger-side front door and the glove
compartment. (Tr. 42:16-24). Almost immediately after the K-9
alert, Bryant told McGlockland that the confidential
informant reported co-defendant Shamsuddine Green was at
Boose's house. (Tr. 43:3-13, 58:19-24). Bryant and a few
other officers left the traffic stop to go to Boose's
residence. (Tr. 44:10-13). In the meantime, McGlockland
searched around the dashboard in the glove box area of the
vehicle, eventually noticing that a new welding had been
placed underneath the dashboard. (Tr. 44:14-20). McGlockland
determined this was consistent with installing a hidden
compartment in the dashboard. (Tr. 44:19-20). Officer Phil
Lewis (“Lewis”), who was assisting McGlockland,
located a crack in the dashboard, through which the officers
could see a brick wrapped up in magazine covers and newspaper
along with individual baggies tied up with rubber bands. (Tr.
44:21-45:2, 51:2-13). The packaging was consistent with the
way heroin was typically packaged. (Tr. 51:2-13). McGlockland
immediately alerted Bryant that they had located what
appeared to be narcotics in the vehicle. (Tr. 45:7-13).
about 1:20 p.m., Bryant arrived at Boose's residence with
five other officers. (Tr. 59:11-23). The house was completely
dark and it appeared that no one was home. (Tr. 59:13- 17).
Once Bryant was about halfway down the driveway, he noticed a
pewter-color Chrysler minivan with Pennsylvania tags. (Tr.
60:14-17). Bryant and the other officers approached the van,
and saw three males inside of the vehicle. (Tr. 60:19-20).
Bryant eventually learned that defendant was in the
driver's seat, Rachine Green was in the passenger seat,
and co-defendant Shamsuddine Green was in the back of the
car. (Tr. 60:21-61:4). The minivan was a rental car, which in
Bryant's training and experience were commonly used by
drug traffickers to transport drugs. (Tr. 62:17-24,
62:25-63:8). No. one could produce a rental agreement for the
minivan. (Tr. 65:1-3).
explained to the occupants he was conducting a narcotics
investigation and asked them for their identification. (Tr.
64:9-21). By that time, Bryant knew that McGlockland had
discovered what appeared to be contraband in the Taurus. (Tr.
64:22-25). No. more than six minutes after approaching the
vehicle, Bryant asked the occupants of the minivan to exit
the vehicle. (Tr. 65:4-10, 65:20-23). Bryant explained that
defendant, Rachine Green, and co-defendant Shamsuddine Green
were going to be detained until they could figure out ...