Opinion
No. 4:19-CR-00009-FL-1
06-08-2020
United States of America, v. Maurice Montrell Greene, Defendant.
Memorandum & Recommendation
While conducting surveillance at Defendant Maurice Montrell Greene's residence at 287 Northwest Acres Drive, Amber Taylor, a Pitt County Deputy Sheriff saw a suspicious vehicle drive away from Greene's house. After observing a traffic violation, Taylor stopped the car. She knew the car's driver, Kashawn Lenzy, from a prior encounter when he swallowed drugs in front of a police officer. Lenzy called Greene to come pick him up, and when Greene arrived he had a large amount of cash on him. Lenzy's actions during the traffic stop led the deputy to believe that he had once again swallowed drugs. She also believed he got the drugs from Green at his house. Based on her belief that a drug transaction had just taken place and law enforcement's knowledge that Greene was involved in gang and drug activity, Taylor sought a search warrant of Greene's home at 287 Northwest Acres Drive. The search turned up evidence that led to the federal charges against Greene.
Greene now asks the court to suppress evidence uncovered during the search of his house. Mot. to Suppress, D.E. 173. He claims that the search warrant lacked probable cause and thus the search violated the Fourth Amendment, N.C. Gen. Stat. § 15A-972, and the North Carolina Constitution. Mem. in Supp. at 4, D.E. 174. The Government contends that the search warrant did not lack probable cause, and even if it did, the evidence should not be suppressed because of the good faith exception. Gov't Resp. at 4-5, D.E. 175.
After considering the parties' arguments, the undersigned recommends that the court deny Greene's motion because the search warrant did not lack probable cause, and even if it did, the good faith exception applies.
I. Background
During the afternoon of February 23, 2018, Pitt County Sheriff's Deputy Amber Taylor was patrolling the northside of Pitt County in an unmarked vehicle. Suppression Hr'g Tr. 25:17-23, 31:24-25, D.E. 217. Taylor drove to 287 Northwest Acres Drive—Greene's residence—to conduct surveillance on Greene. Id. at 25:24-26:4; D.E. 174-1 at 5. Law enforcement in Pitt County knew Greene was a leader of the Crips and was involved in drug trafficking. Tr. 8:12-17, 9:3-12. They considered Greene to be one of their five highest targets because of his status as a gang leader in Ayden, North Carolina. Id. 8:12-9:2.
Taylor had monitored Greene in person and through electronic monitoring when Greene was on state probation and living on N.C. 33 West. Id. at 11:8-11, 15:14-19, 15:24-16:8. She had studied Greene's movements and learned his daily habits. Id. 15:19-23, 18:21-23. He would travel to 287 Northwest Acres Drive in the morning, and then to addresses of possible family members and addresses known for drug trafficking. Id. 18:24-19:14, 20:16-22, 22:18-23:8, 23:21-24:2, 24:6-16. Greene never traveled to a legitimate employer during the workday. Id. at 25:6-16.
Taylor also knew that law enforcement had searched Greene's residence on N.C. 33 West and found large amounts of U.S. currency but no narcotics. Id. at 24:17-22. Based on her experience, Taylor believed that Greene was participating in drug trafficking and storing the currency and narcotics separately. Id. at 24:22-23. Taylor thought Greene was keeping narcotics at 287 Northwest Acres Drive. Id. at 24:23-25:5.
As Taylor drove by 287 Northwest Acres Drive—the sixth house on the left side of a dead-end street—Taylor saw Greene's white Jaguar parked in the driveway. Id. at 26:5-7, 27:13-16. She recognized the Jaguar because during a search of Greene's residence in 2016, officers had found $20,000 in that car. Id. at 12:1-11, 26:8-11. Taylor ran the Jaguar's license plate and learned it had multiple insurance and inspection violations and a pick-up plate notice, meaning the tags should be removed. Id. at 26:15-20; D.E. 174-1 at 5.
Once Taylor saw Greene's Jaguar, she returned to the entrance of Northwest Acres Drive. Tr. 27:22-25. She pulled her car against a fence in the parking lot of an abandoned night club on the corner to wait. Id. at 27:20-28:1. Taylor planned to prevent the Jaguar from leaving, but she didn't want anyone in the residence to see her. Id. 27:25-28:4.
After she parked, Taylor saw a blue Nissan parked at the grocery store across the street from the nightclub. Id. 28:17-19, 30:1-4; D.E. 174-1 at 5. A black male exited the Nissan, stopped and looked at Taylor, stood outside the Nissan, and reentered the car. Tr. 30:4-6; D.E. 174-1 at 5. He never entered the store. Tr. 30:7-8. The Nissan sat in the parking lot for about three minutes before pulling out and turning down Northwest Acres Drive. Id. at 30:6-9; D.E. 174-1 at 5.
Taylor felt she had startled the man and thought he might be going to Greene's house. Tr. 30:9-11, 17-20. She waited half a minute before driving onto Northwest Acres Drive and confirming that the Nissan had pulled in Greene's driveway behind the Jaguar. Id. at 30:20-23; D.E. 174-1 at 5. She then backed her car into her original parking spot to avoid being seen by anyone leaving the residence. Tr. 32:15-18. She did not see the driver of the Nissan go inside 287 Northwest Acres Drive. Id. at 32:13-15.
About five minutes later, the Nissan drove back down Northwest Acres Drive and turned left onto Old River Road. Id. at 32:19-33:5; D.E. 174-1 at 5. Taylor pulled out and began following the Nissan. Tr. 33:6-7. After seeing the Nissan run off the road twice, Taylor conducted a traffic stop about two miles from Northwest Acres Drive. Id. at 33:8-22; D.E. 174-1 at 5-6. She called another deputy to respond to the scene. Tr. 36:8; D.E. 174-1 at 6.
As she approached the Nissan, Taylor recognized the driver as Kashawn Lenzy. Tr. 34:3-7; D.E. 174-1 at 6. Taylor knew him from a traffic stop in November 2017 during which he swallowed narcotics. Tr. 34:8-11; D.E. 174-1 at 6. Lenzy appeared nervous and apologized. Tr. 35:2-4; D.E. 174-1 at 6. Taylor asked where Lenzy was coming from, and Lenzy said he was coming from his cousin John's house. Tr. 35:5-8; D.E. 174-1 at 6. Lenzy could not provide his cousin's last name. Tr. 35:13-17; D.E. 174-1 at 6. Lenzy said that he had had been on Northwest Acres Drive visiting the third house on the right, which Taylor knew was not true. Tr. 35:8-12; D.E. 174-1 at 6.
Taylor asked Lenzy to step out of the Nissan. Tr. 35:21-23; D.E. 174-1 at 6. Lenzy began spitting often, which, in Taylor's experience, meant he likely swallowed something. Tr. 35:24-36:5; D.E. 174-1 at 6. Lenzy consented to a search of the Nissan and his person. D.E. 174-1 at 6. Neither Taylor nor the other deputy on scene found any narcotics. Tr. 36:6-12; D.E. 174-1 at 6.
Taylor ran Lenzy's license and learned that he was on active probation and his license was suspended. Tr. 36:13-21; D.E. 174-1 at 6. She gave Lenzy a verbal warning, told him he could not drive the Nissan away, and that someone needed to come pick him up. Tr. 36:22-37:1; D.E. 174-1 at 6. Lenzy used his cell phone to arrange a ride. Tr. 37:2-6.
Soon after, Taylor saw Greene's Jaguar driving past the traffic stop with someone in the passenger seat. Id. at 37:10-17; D.E. 174-1 at 6. Taylor got in her car and tried to catch up with Greene to stop the Jaguar based on the vehicle's violations. Tr. 37:18-21; D.E. 174-1 at 6. Instead, Greene made a U-turn and returned to the location of Lenzy's stop. Tr. 37:24-38:7.
While both Taylor and the second deputy had their blue lights on, neither officer pulled Greene over; he stopped on his own accord. Tr. 38:8-13. He backed into a driveway across from where the Nissan was stopped, and the other deputy pulled his vehicle over. Id. The passenger in Greene's car was his mother, who explained that she and Greene both lived on Northwest Acres Drive and were coming from their house. Id. at 39:5-9, 40:19-21; D.E. 174-1 at 6.
Greene said he did not know Lenzy, but that he drove by and had come back to give him a ride. Tr. 38:15-21; D.E. 174-1 at 6. Taylor asked Lenzy if Greene was his cousin John, and Lenzy confirmed that it was. Tr. 38:24-39:1; D.E. 174-1 at 6. The deputies searched Greene's person and found a large amount of cash but did not confiscate it. Tr. 38:22-23, 50:21-51:1; D.E. 174-1 at 6. Greene also consented to a search of his Jaguar, but officers did not find any narcotics. Tr. 39:10-14, 50:17-20; D.E. 174-1 at 6.
While searching the trunk of Greene's Jaguar, Taylor heard the loud squealing of tires. Tr. 39:15-18; D.E. 174-1 at 6. Lenzy had gotten back into the Nissan and ran it off the road trying to flee. Tr. 39:18-20; 51:6-8; D.E. 174-1 at 6. When Lenzy exited the wrecked Nissan, his demeanor had changed; he was drooling, could hardly walk, and had slurred speech and small pupils. Tr. 39:21-40:5; D.E. 174-1 at 6.
Taylor believed Lenzy had ingested a large amount of drugs and that they were starting to affect him. Tr. 40:6-9, 41:1-2. He was sweating and his heart rate was high, which suggested cocaine usage. Id. at 41:6-10. She was concerned his heart may explode if he had indeed ingested cocaine, so she called EMS. Id. at 41:1-3; D.E. 174-1 at 6. Based on the timing of the vehicle stop of the Nissan, Lenzy's history of swallowing drugs, and Lenzy's change in demeanor, Taylor believed he had swallowed narcotics that he bought from Greene. Tr. 41:11-15; D.E. 174-1 at 6. Taylor thought Lenzy got the drugs from Greene because Greene was a known drug trafficker, Lenzy had just visited 287 Northwest Acres Drive, Lenzy swallowed drugs after Taylor pulled him over, and Greene showed up at the traffic stop to give Lenzy a ride. Tr. 41:21-42:3.
When EMS arrived, they determined Lenzy's heart rate was too high and transported him to the hospital. Id. at 42:4-9; D.E. 174-1 at 6. Greene told Lenzy he would go to the hospital and wait on him. Tr. 42:10-12.
Later that day, Taylor drafted a search warrant to search 287 Northwest Acres Drive based on her observations. Id. at 42:13-18; D.E. 174-1. She included no events that occurred after EMS took Lenzy to the hospital. Tr. 51:16-23. She presented the search warrant to a Superior Court judge in Pitt County who signed it. Id. at 42:19-25. Law enforcement then searched 287 Northwest Acres Drive and located 927 grams of cocaine in brown paper wrapping in a child's bedroom floor vent, a bag of clear powder cocaine weighing 8.3 grams, a 12-gauge shotgun, a Mossberg shotgun, five 12-gauge shotgun shells, two digital scales, and a cell phone. Id. at 43:1-11.
Taylor later submitted a search warrant for Lenzy's health records and discovered he had ingested seven grams of cocaine. Id. at 53:10-15.
In February 2019, a federal grand jury indicted Greene for conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine. D.E. 1.
II. Discussion
The Fourth Amendment ensures 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. It provides that "no Warrants shall 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." Id.
Greene contends that law enforcement's search of his residence at 287 Northwest Acres Drive residence violated the Fourth Amendment, N.C. Gen. Stat. § 15A-972, and the North Carolina Constitution. He argues the search warrant lacked probable cause because it failed to sufficiently connect his residence with any illegal drug activity attributed to him. The Government maintains the search warrant described a sufficient nexus between Greene's residence and the possibility of finding evidence of drug trafficking there. It alternatively contends that evidence uncovered by the search should not be suppressed because Taylor was not dishonest or reckless in preparing the affidavit and deputies conducting the search had a reasonable belief that probable cause existed.
Sections 19 and 20 of Article I of the North Carolina Constitution protect North Carolina citizens from deprivations of life, liberty, or property, and prohibit the granting of general warrants. N.C. Const. art. I, §§ 19 & 20. And N.C. Gen. Stat. § 15A-972 allows an aggrieved defendant to move to suppress evidence "[w]hen an indictment has been returned or an information has been filed in superior court, or a defendant has been bound over for trial in superior court[.]" A federal grand jury indicted Greene, so N.C. Gen. Stat. § 15A-972 does not apply. And the Fourth Circuit has held that "the Fourth Amendment provides the only proper standard for determining whether evidence seized by state officials pursuant to a state warrant is admissible in federal court." United States v. Clyburn, 24 F.3d 613, 616-17 (4th Cir. 1994). Thus, Greene cannot argue for suppression of evidence in federal court based on an alleged violation of the North Carolina constitution. See id. (rejecting the argument that evidence should be excluded in a federal proceeding if it was obtained in violation of a state constitution).
The undersigned addresses Greene's claims below, but ultimately finds there is no basis to suppress the evidence against Greene.
A. Probable Cause to Search
Probable cause "'exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found' in a particular place.'" United States v. Doyle, 650 F.3d 460, 471 (4th Cir. 2011) (quoting Ornelas v. United States, 517 U.S. 590, 696 (1996)). Probable cause is "'not a high bar,'" United States v. Bosyk, 933 F.3d 319, 325 (4th Cir. 2019) (quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 585 (2018)), and "do[es] not require officials to possess an airtight case before taking action," Taylor v. Farmer, 13 F.3d 117, 121 (4th Cir. 1993).
In deciding if there is probable cause to issue a search warrant, "the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched." United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6 (1978)); see also Illinois v. Gates, 462 U.S. 213, 238 (1983) (adopting a totality of the circumstances analysis in making probable cause determinations). "[T]he nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence." United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). "A sufficient nexus can exist between a defendant's criminal conduct and his residence even when the affidavit supporting the warrant contains no factual assertions directly linking the items sought to the defendant's residence." United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (internal quotation omitted).
When issuing a warrant, a judicial official "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. In reviewing the issuance of a warrant, courts give "[g]reat deference . . . to . . . a magistrate's assessment of the facts when making a determination of probable cause." United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992). The determinative question is not whether the reviewing judge believes that there was probable cause to issue the warrant, but "whether the magistrate had a substantial basis for his conclusion that probable cause existed." Id.
Here, the affidavit in support of the search warrant application established probable cause and connected Greene's residence with the likelihood that evidence of drug trafficking would be found there. The affidavit stated that Greene frequented 287 Northwest Acres Drive while on state probation and that his mother said she and Greene lived there. Officers knew Greene had gang affiliations and a history of selling narcotics and engaging in drug activity.
Lenzy's actions as detailed in the affidavit suggested a drug transaction occurred inside 287 Northwest Acres Drive. Taylor saw Lenzy visit the residence for no longer than five minutes. After leaving the house, Lenzy ran off the road twice before Taylor conducted a stop. Taylor recognized Lenzy as someone who had swallowed narcotics in front of law enforcement in the past. Lenzy told Taylor he had visited the third house on the right side of the street when Taylor had seen his Nissan parked behind Greene's Jaguar at 287 Northwest Acres Drive, located on the left side of the road. Lenzy claimed to have been visiting his cousin John but could not recall John's last name. Lenzy and Greene gave officers conflicting information. When Lenzy arrived, he said Greene was his cousin, but Greene said he did not know Lenzy. Yet it was apparent Lenzy had called Greene for a ride. And officers found a large amount of cash on Greene's person.
Lenzy's changes in demeanor also suggested that he had recently ingested narcotics. He was continually spitting and appeared nervous. Lenzy tried to flee the scene before crashing his vehicle. When he got out of the car, he was drooling, sweating, could hardly speak, could barely walk on his own, and had small pupils. The deputies called EMS, who had to take Lenzy to the hospital.
Taylor's knowledge of Greene's criminal history, her training and experience, her observation of behavior consistent with a drug deal, that Greene lived at 287 Northwest Acres Drive, the conflicting accounts provided by Lenzy and Greene, and the change in Lenzy's demeanor making it likely that he had recently ingested narcotics provided substantial basis to support the issuing judge's determination of probable cause. The affidavit provided probable cause that Greene was engaged in the distribution of narcotics and that evidence of Greene's illegal activities would be found inside his residence at 287 Northwest Acres Drive. See Grossman, 400 F.3d at 218 ("Under these circumstances, it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key."). Thus, Greene's motion to suppress should be denied.
B. Good Faith Exception
Under the exclusionary rule, "'evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.'" United States v. Kimble, 855 F.3d 604, 610 (4th Cir. 2017) (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). There is a good faith exception to this rule, under which "evidence obtained by an officer who acts in objectively reasonable reliance on a search warrant will not be suppressed, even if the warrant is later deemed invalid." United States v. Thomas, 908 F.3d 68, 72 (4th Cir. 2018) (citing United States v. Leon, 468 U.S. 897, 922 (1984)).
A law enforcement officer's reliance on an issued warrant "will be deemed objectively reasonable" except in four circumstances. Id.; United States v. Wellman, 663 F.3d 224, 228-29 (4th Cir. 2011). First, the good faith exception does not apply when a warrant application reflects "knowing or reckless falsity." Wellman, 663 F.3d at 228. Second, when the issuing judicial officer "wholly abandon[s] his role as a neutral and detached decision maker and serve[s] merely as a rubber stamp for the police[,]" there is no good faith exception. Id. at 228-29. Next, when the affidavit supporting the warrant "[i]s so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," the exception does not apply. Id. at 229. And finally, there is no good faith exception when the warrant is "so facially deficient that the executing officers could not reasonably have presumed that the warrant was valid." Id.
Even if the search warrant for 287 Northwest Acres Drive lacked probable cause, evidence obtained from law enforcement's search should not be suppressed because the good faith exception applies. The warrant was not so lacking in probable cause that officers could not have reasonably relied on it. And there is no evidence that Taylor based her affidavit on knowing or reckless falsity, that the issuing judge acted as a rubber stamp for law enforcement, or that the warrant was so facially deficient that officers could not have reasonably presumed it was valid.
Thus, even if the warrant lacked probable cause, the evidence obtained from the search should not be suppressed under the good faith exception.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Greene's motion to suppress. D.E. 173.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: June 8, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge