United States v. Hart

1

UNITED STATES OF AMERICA v. ELGIN HART, Defendant.

No. 4:22-CR-49-FL

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

February 13, 2024

MEMORANDUM AND RECOMMENDATION

Robert B. Jones, United States Magistrate Judge

This matter comes before the court on Defendant Elgin Hart's (“Hart”) pro se motion to suppress. [DE-68]. The Government opposes the motion [DE-69]. For the following reasons, it is recommended that the motion to suppress be denied.

I. PROCEDURAL BACKGROUND

On August 23, 2022, a Grand Jury sitting in the Eastern District of North Carolina returned a five-count indictment charging Hart with three counts of knowingly and intentionally distributing a quantity of cocaine in violation of 21 U.S.C § 841(a)(1), and two counts of knowingly and intentionally possessing with the intent to distribute five hundred grams or more of cocaine in violation of 21 U.S.C § 841(a)(1). [DE-1]. A public defender was appointed for Hart on September 8, 2022 [DE-9], and on December 15, 2022, counsel filed a motion to suppress [DE-22]. Shortly thereafter, counsel withdrew from Hart's case [DE-27] and new counsel was appointed on January 9, 2023 [DE-28]. Counsel moved to withdraw the original motion to suppress, and the court granted the motion [DE-36], Hart's counsel then filed a new motion to suppress on April 14, 2023 [DE-40], but before the Government filed its response, Hart's counsel withdrew from the case [DE-50], New counsel was appointed on May 22, 2023, and the Government responded to Hart's motion to suppress on July 19,2023 [DE-57], Before the court could rule on the motion, however, Hart moved to remove his current counsel and proceed pro se, and the court granted the motion with the stipulation that Hart's former counsel act as standby counsel. [DE-61]. Hart then withdrew the previous motion to suppress [DE-61] and on October 5, 2023, filed the instant motion [DE-68]. Hart moves to suppress all evidence seized as a result of, or in reliance on, the electronic surveillance order issued by North Carolina Superior Court Judge Jeffrey Foster on October 5, 2021, and all evidence seized as a result of, or in reliance on, the electronic surveillance order issued by North Carolina Superior Court Judge Clinton Rowe on June 7, 2022. Id. Hart filed several exhibits with the motion, including the application and affidavit for an order authorizing electronic surveillance and the corresponding June 27, 2022 order authorizing electronic surveillance, Ex. 1; Facebook business records, the application and affidavit for an order authorizing electronic surveillance and the corresponding October 5, 2021 order authorizing electronic surveillance, Ex. 2; North Carolina State Bureau of Investigations records, Ex. 3; a search warrant inventory, Ex. 4; case supplemental reports, Ex. 5; Officer Jones' police report and a copy of Hart's citation, Ex. 6; a case identification report and call log records produced by AT&T, Ex. 7; and geolocation records produced by AT&T, Ex. 8.

II. STATEMENT OF FACTS

The facts of the instant case are as follows. On September 30, 2021, a cooperating source of information (“SOI”) working with the Kinston Police Department Narcotics Unit (“KPD”), made a controlled purchase of 4.9 grams of cocaine from Hart. Shortly after the September 30 encounter, on October 4, an SOI working with the KPD also purchased 4.2 grams of cocaine from Hart. At this point, knowing that at least the first sale's details had been arranged by phone, KPD Detective John Delaney (“Delaney”) applied for an electronic surveillance order from the North Carolina Superior Court. Specifically, Delaney sought authorization to install a pen register and trap and trace device on cellular phone (252) 382-5332, the number the SOI had used to contact Hart before the September 30 controlled purchase. Additionally, Delaney asked the court to authorize global-positioning system (“GPS”) and geolocation monitoring for the same phone, including use of a cell-site simulator to track prospective location data.

Delaney supported his request by mentioning both the recent controlled drug sales and Hart's Habitual Felon status in his affidavit to the court. Delaney's affidavit also explained that the investigation into Hart revealed that Hart travels to the Atlanta, Georgia area every 2-4 weeks, and that Atlanta is a known narcotics distribution center. The application notes that, because of these factors, the requested electronic surveillance would “allow law enforcement to identify other coconspirators, [] show the general geographic location of the target device before, during, or after the commission of a crime ... confirm[] or disprove[] alibis, statements, or observations...[and] aid law enforcement in tracking [] Hart's movements while law enforcement is actively investigating.”

North Carolina Superior Court Judge Jeffrey Foster granted Delaney's request on October 5, and issued an order allowing the requested electronic surveillance of Hart's cellular phone. The order was not geographically limited in scope and applied to incoming calls, outgoing calls, and location data from within the previous 30 days, as well as within 30 days of issuance. It also identified certain information and records that law enforcement could request from Hart's cellular provider, like subscriber records, subject to the same 30-day limitation.^[1] Notably, the order specifically stated that it did not authorize the interception of the content of any telephone calls, text messages, or internet data produced by the target cellular device.

Law enforcement began GPS and geolocation monitoring on Hart's cellular phone around October 7, 2021. A week later, on October 14, the North Carolina State Bureau of Investigations (“SBI”), working with the KPD, arranged another controlled purchase between Hart and an SOI, this time for 1.5 ounces of cocaine. Then, on October 19, using data obtained as a result of the October 5 order, law enforcement observed that, at around 8 p.m., Hart had travelled from the Kinston area to Lithonia, Georgia, which is located on the outskirts of Atlanta. Data indicated that Hart arrived in Lithonia at around 2 a.m. on October 20, and began his trip back to North Carolina at around 8 or 8:30 p.m. that same day.

Law enforcement planned to stop Hart in Kinston, North Carolina, after noticing that he returned to North Carolina around midnight on October 21. However, Hart travelled a different route back to North Carolina than the one he had used to go to Georgia. As a result, at approximately 2 a.m. on October 21, KPD contacted officers from the Greenville Police Department ("GPD") and instructed them to perform a traffic stop on Hart, who was driving through the area. The GPD officers were given the vehicle's model and license plate number, and after visually observing the brown Cadillac on the highway, they noticed that it was driving around 80 miles per hour in a 70-mile zone. Radar confirmed that the Cadillac was travelling 77 miles per hour, and Hart was stopped for speeding. At some point during the stop, a K-9 officer was dispatched to the scene, and the K-9 performed an open-air sniff of the car and indicated the odor of narcotics. Officers then searched the vehicle's trunk and located one kilogram of cocaine and two pounds of marijuana. Following the search, officers also seized the cellular phone that was the basis of the October 5 court order, and arrested Hart.

In November 2021, Hart posted bond. Several months later, between April 1, 2022 and June 20, 2022, the KPD, through its SOIs, made three controlled purchases of narcotics from one Joseph Wilson. Importantly, during the investigation into Wilson, Delaney had identified a new phone number for Hart: (252) 521-3122. Using telephone toll analysis, Delaney determined that Wilson's and Hart's phones had been in communication. Based off this information, Delaney used the License Plate Reader system to find that a 2007 Mercedes registered to Hart was again travelling to the Atlanta, Georgia area with some regularity.

Delaney applied for another court order authorizing the same kind of electronic surveillance as the October 5 order, with the only real difference being Hart's new cellular phone. The affidavit incorporated all the content provided in the application for the October 5 order, with additional details regarding Hart's activities following October 7, 2021 (e.g., the traffic stop and his correspondence with Joseph Wilson). North Carolina Superior Court Judge Clinton Rowe granted the application on June 27, 2022, authorizing the installation and monitoring of a pen register and/or trap and trace device, as well as GPS and geo location monitoring for cellular phone (252) 521-3122. Like the previous order, the June 27 order was not geographically limited, however it applied to incoming calls, outgoing calls, and location data from within 60 days prior (as opposed to 30 days prior) to the order's issuance, as well as within 60 days after issuance. The order also requested the same types of documents and information as the October 5 order (e.g., detailed subscriber records). And importantly, it contained the same disclaimer regarding the contents of the targeted device's communications.

Pursuant to the June 27 order, Delaney received both historical and prospective records for Hart's phone, including location data. Additionally, Delaney used the License Plate Reader system to find that Hart had travelled to Georgia on at least two occasions between May 2022 and June 27, 2022. Shortly thereafter, on June 30, the KPD and SBI learned that Hart was, once again, in Georgia. Law enforcement observed Hart reenter North Carolina and followed the car visually and electronically...