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United States v. Covington

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

December 12, 2019

UNITED STATES OF AMERICA
v.
BRANDON J. COVINGTON Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This 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 is denied.

         STATEMENT OF THE CASE

         On 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, 2019.

         During 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”).

         The 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.

         STATEMENT OF FACTS

         A. Search Warrant

         On May 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. 8:20-9:11).

         Sergeant 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).

         Officer 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).

         Harris 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).

         Officer 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).

         Harris 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).

         At approximately 12:00 p.m. on May 8, 2017, Officer Santana obtained a search warrant by submitting the following affidavit:

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 ...

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