United States v. Oliver

1

UNITED STATES OF AMERICA v. KAYAKENEE KESHONICA OLIVER, Defendant.

No. 4:22-CR-61-FL

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

February 14, 2024

MEMORANDUM AND RECOMMENDATION

Robert B. Jones, Jr. United States Magistrate Judge

This matter comes before the court on Defendant Kayakenee Oliver's (“Oliver”) motion to suppress. [DE-157]. The Government opposes the motion [DE-170], For the following reasons, it is recommended that the motion to suppress be denied.

I. PROCEDURAL BACKGROUND

On September 28, 2022, a Grand Jury sitting in the Eastern District of North Carolina returned a seven-count indictment naming Oliver and three other individuals. [DE-1], The indictment charges Oliver with knowingly and intentionally conspiring to distribute and possess with the intent to distribute cocaine, fentanyl and methamphetamine in violation of 21 U.S.C. § 841(a)(1); and knowingly and intentionally possessing with the intent to distribute fifty grams or more of methamphetamine, forty grams or more of a mixture and substance containing a detectable amount of fentanyl, and a quantity of cocaine in violation of 21 U.S.C § 841(a)(1) and 18 U.S.C. § 2. Id. A public defender was appointed for Oliver on October 14, 2022 [DE-32], and on October 26, 2023, counsel filed the instant motion to suppress [DE-157]. The Government responded in opposition on December 14, 2023. [DE-170]. In the suppression motion Oliver argues that her Fourth Amendment rights were violated when law enforcement performed a warrantless search of a safe found in a storage shed on her property. The motion also asserts that neither the good faith exception to the exclusionary rule nor the principle of inevitable discovery applies. Oliver moves to suppress all evidence seized as a result of the search of the safe or any other unlawful search, namely quantities of methamphetamine fentanyl, cocaine, two firearms, and a digital scale.

IL STATEMENT OF FACTS

The undisputed facts taken from the parties' briefs and Detective Nate Edwards's application for search warrant are as follows.^[1] On February 1, 2022, Detective Edwards from the Craven County Sherriff's Office charged Oliver's co-defendant and brother, Xzavier Morris, with trafficking in controlled substances and placed him in the Craven County Jail. At this point, Detective Edwards began monitoring Morris's jail calls. Over the next two days Morris made several phone calls to Oliver and Morris's girlfriend, Kimberly Smith, who is also a co-defendant in this case. During one of the initial calls, Morris requested that Oliver immediately retrieve a safe and move it to another location. Detective Edwards surmised that the safe contained controlled substances because Morris was attempting to raise money to post bond by instructing Smith and Oliver to divide, weigh, and sell items in the safe.

On February 2,2022, Detective Edwards obtained a search warrant for a cellular telephone that was seized from Morris during his arrest. A review of the phone's contents revealed communications between Morris and several drug customers regarding the sale of controlled substances. That same day Detective Edwards intercepted multiple jail calls between Oliver and Morris. In one conversation, Oliver suggested to Morris that an individual called “Scoop” (Theophus White, a co-defendant in this action) could move some of the items in the safe. Then, in a later conversation, Oliver informed Morris that she had spoken to White, and he had agreed to bring money to Oliver and move the items in the safe. With this information in mind, law enforcement located White and followed him to a residence located at 317 Miller Boulevard in Havelock, North Carolina.

After law enforcement placed White at 317 Miller Boulevard, Morris made another jail call to Oliver and Smith. In that conversation, Oliver and Smith advised Morris that White had just left without the drugs, as they had not finished weighing them. At this point, Detective Edwards crossreferenced 317 Miller Boulevard with law enforcement databases as well as the communications extracted from Morris's cell phone. He discovered that Oliver and Morris's mother owned 317 Miller Boulevard, and that Morris frequently used the residence for narcotics sales. Based on this information and that gleaned from the investigation, Detective Edwards sought a search warrant for the residence located at 317 Miller Boulevard.

A Craven County Superior Court Judge issued the search warrant at 11:59 p.m. on February 2, 2022. The warrant states that “there is probable cause to believe that the property and person described in the application on the reverse side and related to the commission of a crime is located as described in the application.” Gov't's Resp. Ex. 1 [DE-170-1] at 1. Additionally, the search warrant mandates law enforcement to “search the premises, vehicle, person and other place or item described in the application for the property and person in question. If the property and/or person are found, make the seizure and keep the property subject to Court Order and process the person according to law.” Id.

The application referenced in the search warrant was prepared by Detective Edwards. It is a multi-page document containing a statement of probable cause, an attachment labelled “items to be seized,” and an attachment entitled “premises, persons, and vehicles to be searched.” Id. at 210. The list of items the application identifies as subject to seizure is broad, but as relevant here, it includes controlled substances, items of drug paraphernalia, and weapons. Id. at 8. The application describes the premises to be searched as a “yellow, vinyl siding house with a black shingled roof.” Id. at 9. Notably, though, the application adds that “[a]ny vehicle on the property” is subject to search as well. Id. at 10. It also includes two photographs: one of the street view of 317 Miller Boulevard, and one of a satellite map pinpointing the property. Id. at 9-10.

Law enforcement executed the search warrant shortly after midnight on February 3, 2023. Officers entered the residence, read the warrant aloud, and asked Oliver to step outside. Detective Edwards then advised Oliver of her Miranda rights and explained that he had listened to the jail calls. The detective also asked Oliver where the drugs were located, and she responded that the drugs were in “the bam,” which investigators deduced was a white storage shed in the backyard area of the residence. Inside the shed, they found a safe underneath an air mattress. When officers opened the safe, they found that it contained methamphetamine, fentanyl, cocaine, two firearms, and a digital scale. Oliver now moves to suppress these items.

III. DISCUSSION

Oliver makes several arguments for suppressing the evidence seized during the February 3, 2023 search of 317 Miller Boulevard. Specifically, she asserts that (1) the search warrant for 317 Miller Boulevard does not mention the shed, thus law enforcement had no basis to search it; (2) the search warrant for 317 Miller Boulevard does not list the safe as an item to be seized, thus law enforcement had no basis to search it; (3) there is no indication that anyone consented to the 4 search of the shed or safe; (3) the good faith exception to the exclusionary rule does not apply in this case; and (4) the principle of inevitable discovery should not apply. This Recommendation addresses each claim in turn.

A. The court may properly consider both the search warrant and the search warrant application in its particularity assessment.

The Fourth Amendment provides that search warrants will not issue unless they particularly describe the place to be searched and the persons or things to be seized. United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010). As a general rule, a supporting affidavit or document may be read together with (and considered a part of) a warrant that otherwise lacks sufficient particularity “if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” Hurwitz, 459 F.3d at 471 (quoting Groh v. Ramirez, 540 U.S. 551, 55758 (2004)). In the Fourth Circuit, however, it is sufficient either for the warrant to incorporate the supporting document by reference or for the supporting document to be attached to the warrant itself. Id. (citing United States v. Washington, 852 F.2d 803, 805 (4th Cir. 1988)); see United States v. Breeden, 2021 WL 3085317, at *6 (E.D. N.C. Jul. 21, 2021).

In the instant case, the search warrant states that “there is probable cause to believe the property and person described in the application on the reverse side [of the warrant] and related to the commission of a crime is located as described in the application.” Gov't, 's Resp. Ex. 1 [DE-170-1] at 1. Further, the warrant instructs law enforcement to “search the premises, vehicle, person and other place or item described in the application for the property and the person in question.” Id. The words of incorporation used are not overly precise, but such specificity is not required. See Hurwitz, 459 F.3d at 471-72. Even one cross-reference to the application would be sufficient to incorporate the document into the warrant, and here, there are multiple. See id. (finding that a search warrant satisfied the particularity requirement where “See Attachment” was entered into the space on the warrant reserved for a description of items to be seized); United States v. Strange, 2021 WL 3193179, at *2, 7-8 (E.D. N.C. Jul. 28, 2021) (finding that a search warrant satisfied the particularity requirement where it authorized law enforcement to search anyone present on the property “that may possess the evidence sought within [the] affidavit”).

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