United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is 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
40). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal
Rule of Criminal Procedure 59(b), United States Magistrate
Judge Robert B. Jones, Jr., entered memorandum and
recommendation (“M&R”), wherein it is
recommended that defendant's motion be denied. (DE 46).
Defendant timely objected to the M&R. The government did
not respond to defendant's objection, and the time to do
so has expired. In this posture, the issues raised are ripe
for ruling. For the following reasons, defendant's motion
OF THE CASE
January 10, 2018, defendant was indicted for possession of a
firearm and ammunition by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924. Defendant filed the
instant motion to suppress June 15, 2019, seeking suppression
of all evidence obtained from a search of defendant's
vehicle. In support, defendant argues the search warrant for
defendant's vehicle lacked probable cause, on grounds
that the attendant affidavit 1) failed to allege sufficient
temporal proximity between the allegations and the issuance
of the warrant and 2) did not establish the informant's
basis of knowledge. Alternatively, defendant requested a
Franks hearing to determine whether the search
warrant affiant intentionally omitted material information
from the search warrant affidavit. The government responded
in opposition. On July 29, 2019, the magistrate judge denied
defendant's request for a Franks hearing and set
the instant motion to suppress for hearing on August 16,
the hearing, the government offered testimony from Sergeant
A. M. Holmes (“Sergeant Holmes”) and Senior
Officer John Santana (“Officer Santana”), of the
Raleigh Police Department (“RPD”), and exhibits
including 1) a photograph of a door allegedly damaged by
defendant; 2) video footage allegedly showing defendant
threatening his girlfriend, Shauntae Harris
(“Harris”) with a gun; 3) a photograph showing
time stamp of the abovementioned video; 4) a photograph of
the front of defendant's vehicle; 5) a photograph of the
rear of defendant's vehicle; 6) the search warrant for
defendant's vehicle, accompanied by search warrant
affidavit; 7) defendant's car insurance policy and pay
stub; and 8) a photograph of the gun found in defendant's
vehicle. Although defendant did not testify, he presented a
pro se argument, against the advice of counsel, that the
video footage recorded by Harris constituted electronic
surveillance of him, in violation of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. §
2518 (“Section 2518”).
magistrate judge entered M&R August 27, 2019, finding: 1)
the search warrant was supported by probable cause; 2)
alternatively, the good faith exception applies; and 3)
Harris's video footage of defendant did not violate
Section 2518. Defendant filed written objection to the
magistrate judge's first two findings.
8, 2017, around 5:45 a.m., officers of the RPD responded to a
report that a male wearing a black and white jacket was
attempting to kick down the door of an apartment located at
3225 Calumet Drive in Raleigh, North Carolina. (Transcript of
Hearing (“Tr.”) (DE 47) 4:19-5:11). Sergeant
Holmes arrived on the scene and witnessed defendant, who
matched the description in the report, pushing on the bottom
of the apartment door, which was bent inwards approximately
12 inches. (Tr. 5:15-21; 7:2-11). In order to conduct an
investigation, Sergeant Holmes detained defendant, walked him
downstairs, and placed him in the custody of another officer,
who was in the parking lot of the apartment complex. (Tr.
Holmes discovered someone had locked the deadbolt from the
inside of the apartment, so he attempted to gain entry to
ensure the occupant was safe. (Tr. 10:1-14). After kicking
and manipulating the door for 20 to 30 minutes, Sergeant
Holmes, along with other RPD officers, entered the apartment.
(Tr. 10:15-11:10). While doing a protective sweep, Officer
Santana observed two 22-ounce beers and a television with
elevated volume but did not see any occupants. (Tr.
21:24-22:4). The officers kicked down a bedroom door and
found Harris asleep in the closet under blankets and pillows
next to a cup of alcohol. (Tr. 22:6-19; 11:13-18; 43:3-9).
Officer Santana described Harris as “waking up from a
really, hard, hard sleep, ” and he smelled alcohol on
her breath. (Tr. 22:20-24). Sergeant Holmes called Emergency
Medical Services (“EMS”), but Harris indicated
she did not require medical attention, as she had only
consumed two beers and a Benadryl, so Sergeant Holmes
canceled his EMS request. (Tr. 22:20-23:20; 11:20-12:5).
Santana directed Harris to the living room to conduct an
interview, and Harris followed him without assistance. (Tr.
23:3-10). Harris reported arguing with defendant around 2:00
a.m. and subsequently locking him out of the apartment. (Tr.
23:15-19). In response, Officer Santana asked Harris if
defendant had ever threatened her. (Tr. 24:8-9). Harris
indicated he threatened her several times and showed Officer
Santana a video on her cell phone of defendant threatening
her with a gun. (Tr. 24:11-19).
tried to email the video to Officer Santana; however, it was
too large to send, so Harris shortened the video. (Tr.
25:4-8). When Harris's attempt to send the shortened
video failed, Officer Santana recorded it using his own cell
phone. (Tr. 25:7-12). He asked Harris for the video's
time stamp, but when she shortened the video, a new time
stamp was generated, reflecting the date it was edited, not
the date it was recorded. (Tr. 25:18-14). So, instead Officer
Santana took picture of the time stamp on the original video,
which indicated the video was recorded on April 5, 2017, at
1:18 p.m. (Tr. 25:13-26:2; Government's Exhibit 3).
Santana asked Harris if she knew where defendant stored his
gun. (Tr. 29:12-14). Harris indicated that he kept it in the
trunk of his car but did not claim to have personally seen
the gun in defendant's trunk; rather, she suggested
defendant had informed her that is where he kept it. (Tr.
46:12-47:11). Harris indicated defendant's vehicle was
parked in the visitor's spot outside of her apartment and
pointed out the window to show Officer Santana the location
of defendant's car. (Tr. 29:18-19). The parking lot,
located approximately 15 to 20 feet from Harris's
apartment, was not full; however, there were quite a few cars
parked inside of it. (Tr. 9:6-9; Tr. 16:6-11).
also indicated that defendant was a felon, which Officer
Santana confirmed by searching the Raleigh Intelligence
Center (“RIC”) database. (Tr. 30:22-31:3).
Thereafter, Officer Santana arrested defendant, conducted a
search incident to arrest, and located a key to a Saturn in
defendant's right pocket. (Tr. 31:7-15). When Officer
Santana took custody of the key to the Saturn at the Wake
County Jail, defendant became very upset, indicating that he
owned the Saturn and wanted his key back. (Tr. 31:16-24).
approximately 12:00 p.m. on May 8, 2017, Officer Santana
obtained a search warrant by submitting the following
I, Senior Officer J.C. Santana have been with the Raleigh
Police Department for 11 years. I am currently assigned to
patrol the Southeast Raleigh area. I have been trained in all
areas of law enforcement through the Raleigh Police Academy,
and regularly scheduled in-service training. Through my
training and ...