United States v. Glass

1

UNITED STATES OF AMERICA, v. JESSIE LEROY GLASS JR, Defendant.

CRIMINAL ACTION No. 5:21-CR-00060-KDB-DSC

United States District Court, W.D. North Carolina, Statesville Division

April 7, 2023

ORDER

Kenneth D. Bell United States District Judge

THIS MATTER IS BEFORE THE COURT on Defendant's Motion to Suppress, which the United States opposes. (Doc. No. 43 47, 56, 59). The Court has reviewed the Motion, the parties' briefs and exhibits, other relevant pleadings of record, and counsel's oral arguments on January 12, 2023 and February 7, 2023.^[1] For the reasons discussed below, the Court will deny the Motion.

I. FACTUAL BACKGROUND

In early 2020, April Glass reported to the Iredell County Sheriff's Office (ICSO) that she saw child pornography on her husband Defendant Jessie Leroy Glass, Jr.'s cell phone. See Doc. No. 43-1 at 4. Detective Jason Lowrance initiated an investigation by writing a report and attempting to talk with Ms. Glass, who had moved from North Carolina to Virginia. See Doc. No. 55, p. 65. Det. Lowrance had trouble contacting Ms. Glass. He did not speak with her until about a month after he received the tip. Id. During that month, Det. Lowrance ran Defendant's name in LINX (Law Enforcement Information Exchange) and discovered that there were “previous incident[s] ¶ 2012 and 2016,” and that Agent Heather Brown with the Virginia State Police had investigated the later incident. Id. Det. Lowrance spoke with Agent Brown about the 2016 investigation, and she shared her case file with him. Id. at 66-69. Agent Brown revealed that she investigated the Defendant based on a tip from his mother-in-law, Sandra Cox. See Doc. No. 55 at 5. Ms. Cox's information came from her daughter, April Glass. Ms. Glass claimed to have found images of child pornography on the Defendant's cell phone, which she took pictures of and texted to her mother. Cox, who lived in Virginia, reported the child pornography to police there, and both she and Ms. Glass talked with Agent Brown. Id. at 68. Although Agent Brown found Ms. Glass credible, the alleged crime had not been committed in Virginia. Agent Brown therefore contacted North Carolina authorities to take the case, but they did not pursue it. Id. at 20.

Det. Lowrance also contacted the agent who investigated the Defendant in 2012. See Doc. No. 55 at 72. Det. Lowrance testified that she told him Defendant had been “charged with some hands-on offenses, I believe, and also some CP.” Id. at 72. Det. Lowrance sought the police reports from the 2012 incident but failed to obtain them. Id. Even so, he learned from an NCIC (National Crime Information Center) report that in 2012, Defendant had been charged with two counts of sodomy of a victim under 13 years old and that one charge had been “nolle pros'd” and the other dismissed. Id. at 80, 112-114, 117-118, 143.

Along with the 2012 and 2016 investigations, Det. Lowrance knew that in 2017 the ICSO investigated Defendant based on a tip from Ms. Glass that there was, among other things, child pornography on tablets at his house. Id. at 84, 129. Law enforcement obtained a warrant to search the Defendant's tablet. Id. Det. Lowrance personally participated in the 2017 investigation by assisting with the warrant affidavit and performing the “dump” or “recover[ing] the data” from the tablet. Id. at 84-85. However, law enforcement only located lawful pornography and no child pornography. Id. at 129. Thus, the police returned the tablet to Glass and “clos[ed] the case as unfounded.” Id. at 51.

As part of his investigation, Det. Lowrance ran Ms. Glass's name through CJ Leads, a database that contains North Carolina DMV and criminal history information, and learned that she had a pending misdemeanor larceny charge. Id. at 69. Det. Lowrance likewise entered Ms. Glass' name in the ICSO's internal records database and did not find anything. Id. at 71, 101-105. He also learned that Ms. Glass had been stopped for another larceny investigation, but he did not check to see if she had been charged. Id. at 107.

When Det. Lowrance spoke with Ms. Glass for the first time on January 22, 2020, on the phone, she confirmed that she had seen child pornography on Defendant's phone. Id. 65-69. Det. Lowrance further asked Agent Brown to interview Ms. Glass in person in Virginia so that she could “pick up on.body language,” and “do follow up questions,” and because Agent Brown “had a rapport” with her. Id. During this interview, Agent Brown asked Ms. Glass to provide details about the images she had seen on the cell phone. Doc. No 43-1 at 4-5. Ms. Glass claimed to have seen at least 50 images and stated that the Defendant had a Samsung Galaxy S9 cell phone, and two laptops, although one was shared with his father. Id. at 5. Agent Brown testified that she found Ms. Glass credible. Id. at 21.

Based on his investigation, on February 10, 2020, Det. Lowrance sought a search warrant for the Defendant's residence. Doc. No. 43-1 at 5. His search warrant affidavit stated:

• April Glass filed a report with the ICSO on January 2, 2020, stating she had seen child pornography images on Jessie Glass Jr.'s cell in December 2019.

• The report said that Jessie Glass Jr. lived [...] in Statesville and that Glass Jr. kept the images in his Google Photos trash bin and included Glass Jr.'s email account and the password.

• April Glass left [the area] around the end of December.

• Det. Lowrance learned that the Defendant had been investigated in Virginia for similar reports in 2012 and 2016.

• On January 22, 2020, Det. Lowrance spoke with April Glass, who said that she was looking through Glass Jr.'s cell phone around the end of December 2019 and she found several images and videos of child pornography depicting juveniles around 10 years old or younger who were nude or were engaged in sex acts.

• Det. Lowrance spoke with Virginia State Police Agent Heather Brown concerning her investigation of Glass Jr. in 2016 for possessing child pornography. Agent Brown agreed to interview April Glass in Virginia.

• On January 28, 2020, Agent Brown spoke with April Glass in person. Glass reiterated that she last saw child pornography images on Glass Jr's phone at the end of December 2019, and Glass provided these descriptions of the images:

o An image of a child 18 months old or younger. There was a bag over the child's head, and it looked like someone was touching the genital area.

o Photos of girls and boys described as 10 years-old or younger and the children were made to take their pants down.

o A photo depicting the completely nude vagina of a prepubescent girl o A video of an adult male making a prepubescent female appearing to be 8 or 9 years old put his penis in her vagina. They were on a bed. o A photo of an infant child and an adult male forcing his penis in the infant's mouth. They were on a bed.

o Several photos of a prepubescent child naked.

o A photo of a family. All family members were naked. The children were described as having “barely hit puberty.”

See Doc. No. 43-1. Law enforcement obtained a search warrant from a North Carolina Superior Court Judge and executed it on February 11, 2020, seizing various electronic devices, including an LG cellphone. Id.

The Defendant was not present during the search of his home and therefore law enforcement went to his workplace to speak with him. See Doc. No. 43-2. Det. Aponik and Agent Pavlovic contend that the Defendant voluntarily turned over his Samsung cellphone to be searched. Id. The Defendant contends that he was not read his Miranda rights or informed that there was no search warrant for his cellphone. Det. Lowrance then applied for, and received, a second search warrant to search the Defendant's Samsung cellphone. This search warrant relied on the same probable cause affidavit used to obtain the search warrant for the Defendant's house and information about law enforcement's visit to the Defendant's workplace. Id. Ultimately, Forensic Analyst Kelly Matthewman recovered thumbnail and cache drive data allegedly containing child pornography on both the LG cellphone seized from the Defendant's home and a black Samsung cellphone surrendered by him.

On August 17, 2021, a grand jury returned an indictment against the Defendant, charging three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1); and one count of possessing with intent to view child pornography that involved a prepubescent minor and a minor who had not attained 12 years old, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). See Doc. No. 3. The Defendant has now moved to suppress all evidence seized during the execution of the two search warrants, arguing that his rights were violated under the Fourth Amendment and Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). (Doc. No. 43).

II. LEGAL STANDARD

The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, safeguards the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures” and requires that no warrant issue "but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." U.S. CONST. amend IV; see also Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684, 86 Ohio Law Abs. 513 (1961). A search is reasonable if supported by a valid search warrant. For a search warrant to be valid it must be supported by probable cause. See Illinois v. Gates, 462 U.S. 213, 283, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983). Probable cause is "a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238.

"An accused is...