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United States v. Robertson

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

December 2, 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 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.


         On July 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.

         After 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.

         The 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 department.

         Evidentiary 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.


         A. Investigatory Stop and Arrest

         In or 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).

         Co-defendant 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).

         McGlockland 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. 36:22-37:16).

         The 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).

         During 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. 41:18- 21).

         Within 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).

         At 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).

         Bryant 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 ...

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