United States v. Evans

UNITED STATES OF AMERICA v. CHARLES MALONE EVANS, Defendant.

No. 5:17-CR-39-FL-1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

December 20, 2018

MEMORANDUM AND RECOMMENDATION

This matter comes before the court on Defendant's Motion to Suppress Cell Phone Data. [DE-56]. The Government responded in opposition to Defendant's motion. [DE-67]. The undersigned held an evidentiary hearing on September 10, 2018, to further develop the record and allowed the parties to file supplemental briefing in order to respond to a case cited by the Government during the hearing. [DE-70, -73]. Defendant filed supplemental briefing in support of his motion, [DE-71], and the Government filed supplemental briefing in opposition, [DE-72]. Accordingly, this matter is ripe for review. For the reasons stated below, it is recommended that Defendant's motion to suppress be denied.

I. PROCEDURAL BACKGROUND

This case arises from an investigation into the February 2, 2015 death of Eric Darden ("Darden") from a heroin overdose. On February 8, 2017, a Grand Jury sitting in the Eastern District of North Carolina returned an indictment charging Defendant with two counts: (1) Distribution of a Quantity of Heroin, in violation of 21 U.S.C. § 841(a)(1); and (2) Distribution of a Quantity of Heroin, Resulting in Death or Serious Bodily Injury, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). Indictment [DE-1]. At the suppression hearing, Defendant did not present any evidence. The Government presented the testimony of Sergeant Gregory Pawluk¹ of the Apex Police Department. [DE-73].

II. STATEMENT OF THE FACTS

On February 1, 2015, Darden overdosed on heroin and was treated at a local hospital. Gov't's Resp. [DE-67] at 2. Darden checked himself out of the hospital and was transported home by family to recover. Id. The next day, on February 2, 2015, officers with the Apex Police Department responded to a reported overdose by Darden, who was later pronounced dead. Hr'g Tr. [DE-73] at 4:17-21. Law enforcement searched Darden's cell phone, which showed that Darden had communicated with William Mayhew ("Mayhew") on February 1, 2015, asking if Mayhew could obtain heroin for Darden. Id. at 4:22-5:3. In the last text message Darden sent to Mayhew, hours before the first overdose was reported, Darden informed Mayhew that he was outside Mayhew's residence. Gov't's Resp. [DE-67] at 2. Law enforcement later searched Mayhew's cell phone, which showed that Mayhew had communicated with someone referred to as "CJ." Hr'g Tr. [DE-73] at 5:14-18. During his interview, Mayhew stated that the heroin purchased that day and provided to Darden had come from Defendant, who he knew as "CJ." Id. 5:24-6:3.

On February 25, 2015, Detective Pawluk sought and obtained a search warrant for the telephone number associated with "CJ." Gov't's Resp., Ex. A [DE-67-1]. In the application for the search warrant, Detective Pawluk described the investigation that led law enforcement to believe "CJ" was the individual who sold heroin to Mayhew on February 1, 2015. Id. at 6-8. Thephone number associated with "CJ" was listed in the search warrant application. Id. at 8. Wake County Superior Court Judge Kendra D. Hill signed the search warrant seeking account holder information, incoming and outgoing phone call records, and text message records including all data sent and received (SMS, MMS, photographs, videos or any other retained data) for a period beginning at 0000 hours EST on January 1, 2015 through 2359 hours EST on February 25, 2015 for the telephone number associated with Defendant. Id. at 5-9. Pursuant to the search warrant, Detective Pawluk obtained records from Verizon Wireless indicating that Mayhew and Defendant had exchanged text messages regarding drug sales. Gov't's Resp. [DE-67] at 4.

On April 21, 2015, Detective Pawluk submitted an application for an order authorizing the following: (1) the installation of a pen register, trap and trace device, and direct connect/dispatch services; and (2) the release of "call detail, subscriber information, and cell site information, RTT, historical GPS, precision location information (GPS), E-911, Nelos, or Mobile Locator Service Information." Gov't's Resp., Ex. B [DE-67-2]. In the application for the order, Detective Pawluk described the investigation that led law enforcement to believe that Mayhew purchased heroin from "CJ," who used the phone number associated with Defendant. Id. at 1-8. Wake County Superior Court Judge James Hardin signed the order. Pursuant to the order, Detective Pawluk obtained records from Verizon Wireless that indicated Darden, Mayhew, and Defendant were in the same vicinity on the day of the heroin sale that allegedly led to Darden's death. Gov't's Resp. [DE-67] at 5.

III. DISCUSSION

Defendant moves to suppress all cell phone information and data obtained pursuant to both the February search warrant and the April order, arguing the data was seized as the result of an unlawful search in violation of the Fourth Amendment to the United States Constitution and theSupreme Court's decision in Carpenter v. United States, — U.S. —, 138 S. Ct. 2206 (2018). Def.'s Mot. [DE-56] at 1.

A. The data obtained pursuant to the February 25, 2015 search warrant

Although Defendant moves to suppress "cell phone information and data obtained by an insufficient search warrant signed on February 25, 2015," he makes no arguments that the February search warrant is invalid or that the data was produced in an unconstitutional search. Def.'s Mot. [DE-56] at 1. Rather, Defendant only argues that location data obtained pursuant to the April order ought to be suppressed and references the February search warrant to demonstrate that it did not authorize production of location data, so it cannot justify the constitutionality of the April search. Id. at 4.

The February search warrant never purported to seek location data—the type of information protected by the Court in Carpenter—but rather sought substantive data such as call logs and text message content. See 138 S. Ct. at 2219 (differentiating between the lesser expectations of privacy involving pen registers and telephone call logs with the invasive nature of location information). Therefore, the ruling in Carpenter does not apply to the February search warrant. Id. Instead, the issue is whether the warrant was sufficient to authorize production of phone call records, text message records, photographs, videos, and any other substantive, non-location information obtained pursuant to the warrant.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. The Supreme Court has interpreted the Fourth Amendment to establish only three requirements for search warrants: (1) they must be issued by neutral, disinterested magistrates; (2) they must be supported by probable cause; and (3) they mustparticularly describe the place to be searched and the things to be seized. United States v. Dalia, 441 U.S. 238, 255 (1979) (citations omitted). The February search warrant is facially sufficient. First, the warrant was issued by a detached, neutral North Carolina Superior Court judge. Next, the application contained a sufficient factual basis to support a finding of probable cause where it detailed Darden's overdose, text messages between Darden and Mahew regarding the purchase of heroin, and evidence from Mahew's telephone indicating he purchased drugs from Defendant leading up to the heroin sale to Darden. Gov't's Resp., Ex. A [DE-67-1] at 13-14. Finally, the warrant described with particularity the contents to be seized, i.e., account holder information, call records, and text messages between January 1, 2015 and February 25, 2015 for the specified phone number. Id. at 11. Accordingly, because the February search warrant meets the Fourth Amendment requirements, it is recommended that Defendant's motion to suppress the substantive cell phone information obtained pursuant to the February search warrant be denied.

B. The location data obtained pursuant to the April 21, 2015 order

Defendant argues that the April order is not a warrant in form or substance, so the search of his cell phone location data was unconstitutional. Def.'s Mot. [DE-56] at 5. In supplemental briefing, Defendant further argues that the judge lacked authority to issue the April order, and the April order cannot act as a search warrant under state of federal law. Def.'s Mem. [DE-71] at 3-9. The Government contends that the April order is the functional equivalent of a warrant, so it does not offend the Fourth Amendment or, alternatively, that the good faith exception to the exclusionary rule applies. Gov't's Resp. [DE-67] at 8-15; Gov't's Suppl. Resp. [DE-72] at 4-10.

1. The state court judge had authority to issue order to disclose cell site location information ("CSLI")

Defendant argues for the first time in his supplemental briefing that the North CarolinaSuperior Court judge who signed the April order lacked authority to order a telecommunications company to disclose CSLI because North Carolina state law does not permit a judge to issue an order requiring such information be disclosed to the government. Def.'s Mem. [DE-71] at 3-5.

The April order authorized the installation and use of a pen register and trap and trace device and the release of CSLI and other subscriber information pursuant to 18 U.S.C. § 2703(d), the Stored Communications Act, and N.C. Gen. Stat. §§ 15A-262 and 15A-263. Gov't's Resp., Ex. B [DE-67-2]. The Stored Communications Act ("SCA") authorizes the collection of CSLI. 18 U.S.C. § 2703(c); see Carpenter, 138 S. Ct. at 2212 ("[The SCA] permits the Government to compel the disclosure of certain telecommunications records when it 'offers specific and articulable facts showing that there are reasonable grounds to believe'...