Opinion
4:22-CR-49-FL
02-13-2024
UNITED STATES OF AMERICA v. ELGIN HART, Defendant.
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. 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.
The full list of documents includes: (1) detailed subscriber records/information to include but not limited to names, addresses, telephone numbers, email addresses, activation/deactivation dates, dates of service, and types of services utilized; (2) detailed information on purchase and/or payment to include but not limited to purchaser, credit card number or other means of payment, and location of purchase; (3) device and network identifiers to include but not limited to electronic serial number, International Mobile Equipment Identity, International Mobile Subscriber Identity, Mobile Subscriber Identifier, Mobile Equipment Identifier, Subscriber Permanent Identifier, Permanent Equipment Identifier, General Public Subscription Identifier, Mobile Identification Number, Mobile Dialed Number, Media Access Control addresses, Internet Protocol addresses and ports, and make/model of the device; (4) information pertaining to other devices "twinned" or otherwise linked to and/or paired with the device; (5) Home Location Register and Visitor Location Register records; (6) historical and prospective call details record with cell site information to include but not limited to telephone call records, VoLTE records, direct connect records, text message/SMS/MMS records, data records, as well as the corresponding cellular tower/site/sector/switch information for each transaction's origination, handover/handoff, and termination; (7) historical and pr9spective Data IP Session/Packet Data records (including Sprint Vision information), internet history, web browsing history; (8) historical and prospective Global Positioning System (GPS), geo-location service, triangulation, trilateration, timing advance, and Location Based Service data and information; (9) AT&T Mobile Locate Data; (I 0) AT&T Time on Tower Reports; (11) historical and prospectiveAT&TNELOS and LOCDBOR (Location Database of Record) Reports; (12) Sprint L-Site GPS data; (13) historical and prospective Sprint PCMD (Per Call Measurement Data) reports; (14) T-Mobile E-911 data; (15) historical and prospective T-Mobile TrueCall and/or Timing Advance reports; (16) Verizon PLU (Precision Location Updates) or LBS (Location Based Service) data; (17) historical and prospective Verizon RTT (Range to Tower/Real-Time Tool) reports; (18) historical and prospective U.S. Cellular TrueCall reports; and (19) any other relevant information pertaining to the target telephone.
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 as it travelled through the state. As a result, officers were waiting near the Kinston city limits when Hart approached, and a marked patrol car pulled behind Hart's vehicle when it passed by. While following Hart in the patrol car, the officer observed Hart's vehicle behaving evasively and weaving in and out of traffic; at one point, it was almost bumper to bumper with other cars. Based on the officer's training and experience, he identified the traffic violation of following too closely, as well as a window tint violation, and initiated a traffic stop.
During the traffic stop, officers instructed Hart to step out of the vehicle while a K-9 performed an open-air sniff. The K-9 indicated the presence of narcotics, and at this point, Hart fled the scene on foot, approaching a Chick-fil-a. Officers tasered Hart before he could enter the restaurant and placed him in the back of a patrol car. Afterwards, when officers searched the I vehicle, they discovered 705 grams of cocaine and 133 grams of MDMA pills in the glove box.
III. DISCUSSION
Hart appears to make three sets of arguments for suppressing the evidence seized from the October 21,2021 and June 30, 2022 traffic stops. Specifically, he suggests that both the October 5 and June 27 electronic surveillance orders are (1) unlawful under Title I of the Electronic Communications Privacy Act, (2) unlawful under Title II of the Electronic Communications Privacy Act, and (3) unconstitutional under the Fourth Amendment. This Recommendation addresses each claim in turn.
Hart's wiretap claims appear to refer to the earlier iteration of the ECPA, the Omnibus Crime Control and Safe Streets Act, and the corresponding wiretap section of that Act, Title III. To the extent possible, this Recommendation addresses these arguments using the current statutory framework.
i. Electronic Communications Privacy Act Claims
Before the Electronic Communications Privacy Act (“ECPA”) existed, the chief statutory protection for communications was the Omnibus Crime Control and Safe Streets Act of 1968 (the “Omnibus Act”), which regulated only the “aural acquisition of the contents of any wire or oral communication,” 18U.S.C. §2510(4) (1970). In re Zynga Privacy Litigation, 730F.3d 1098,1103 (9th Cir. 2014). In 1986, Congress enacted the ECPA to update statutory privacy protections that had failed to keep pace with the technological developments in the 17 years since the Omnibus Act was enacted. Id. (citing S. Rep. 99-541, at 1-3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3556-57). The ECPA focused on two types of computer services that were prominent in the late 1980s: electronic communications services (e.g., the transfer of electronic messages, like email, between computer users) and remote computing services (e.g., the provision of offsite computer storage or data processing). Id. As relevant here, Title I of ECPA amended the existing Omnibus Act and is now commonly referred to as the “Wiretap Act,” while Title II is termed the “Stored Communications Act.” Id. at 1104.
A. Wiretap Act Claims
The Wiretap Act provides, inter alia, that wire, oral and electronic communications intercepted in accordance with the proper procedures may be disclosed and used under certain circumstances. See 18 U.S.C. § 2517 (2023); U.S. v. Apple, 915 F.2d 899,904 (4th Cir. 1990).However, where such a communication is intercepted in violation of the statutory provisions, “no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, ... or other authority of the United States.” Id. § 2515; see Apple, 915 F.2d at 904. Moreover, “[a]ny aggrieved person in any trial, hearing, or proceeding ... may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter,” on grounds including that “the communication was unlawfully intercepted.” Id. § 2518(10)(a)(i); see Apple, 915 F.2d at 904. As used throughout the Wiretap Act, an “aggrieved person” is “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” Id. § 2510(11); see Apple, 915 F.2d at 904.
The relevant sections of the Apple opinion refer to Title III of the Omnibus Act; however, it is controlling precedent within the Fourth Circuit and still accurate today, notwithstanding minor revisions (noted as needed throughout) to account for the ECPA amendments. See U.S. v. White, 519 Fed.Appx. 797, 801 (4th Cir. 2013) (citing Apple to explain the § 3504 statutory framework for addressing wiretap claims); In re Grand Jury Investigation, 431 F.Supp.2d 584, 590 (E.D. Va. 2006) (“The Fourth Circuit's decision in Apple vividly illustrates the demanding nature of the showing a claimant must make under § 3504”); United States v. Nicka, 2013 WL 12187947, at *2 (D. Md. Oct. 15, 2013) (citing Apple to illustrate what is required for successful §3504 claim).
Under 18 U.S.C. § 3504(a)(1), an aggrieved person may, “in any trial, hearing, or other proceeding in or before any court” argue that “evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act.” Id. § 3504(a)(1). Section 3504(b) establishes the statute's link with the Wiretap Act, defining an “unlawful act” as “the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.” Id. § 3504(b); see Apple, 915 F.2d at 904. Furthermore, a “party aggrieved” under § 3504(a)(1) includes an “aggrieved person,” as defined in the Wiretap Act, and any person on whose premises the intercepted communications occurred. Apple, F.2d at 904-05.
To prevail on a Section 3504(a) claim, an aggrieved party must first demonstrate that his interests were affected. Id. at 905. This “standing” requirement is met when a definite “claim” is made by an “aggrieved party.” Id. In the Fourth Circuit, to make this prima facie showing and satisfy standing, a party's claim does not need to be more than a “mere assertion, provided that it is a positive statement that illegal surveillance has taken place.” Id; see United States v. Nicka, 2013 WL 12187947, at *2 (D. Md. Oct. 15,2013). However, the standard for showing that a party is “aggrieved” is more exacting, as the party must show that “he was a party to an intercepted communication, that the government's efforts were directed at him, or that the intercepted communications took place on his premises.” Id.', see also In re Grand Jury Investigation, 431 F.Supp.2d 584, 590 (E.D.Va. 2006). Unlike the showing required to make a claim of illegal electronic surveillance, the showing required to demonstrate that a party is “aggrieved” by the surveillance may not be based on a mere assertion; it must have at least a “colorable basis.” Id.
When § 3504's standing requirements are met, the government must then “affirm or deny” the occurrence of the alleged unlawful act. 18 U.S.C. § 3504(a)(1) (2023). However, in the instant case, § 3504's standing requirements have not been satisfied, so the inquiry stops here. As explicated supra, § 3504(b) defines an unlawful act in part by reference to § 2510(5). Id. § 3504(b). The referenced section of the Wiretap Act, meanwhile, defines a covered “electronic, mechanical, or other device” as “any device or apparatus which can be used to intercept a wire, oral, or electronic communication.” Id. § 2510(5). The Act further defines “interception” as the “acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. at (4). It also clarifies that “contents, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of the conversation.” Id. at (8).
In this case, the KPD obtained two court orders, each authorizing installation and monitoring of a pen register and/or trap and trace device on Hart's cellular telephone, as well as receipt of historical and prospective information regarding Hart's location and use of his cellular phone. Neither order allowed law enforcement to review the content of any communication Hart made via his cellular phone, whether prospective or historical-and in fact, this was expressly' prohibited. Instead, the orders authorized actions targeted at gleaning the technical details surrounding the use of Hart's cellular device-details regarding the fact of, not the content of, Hart's communications. The importance of this distinction has been recognized by other circuits, and this reading more closely aligns with the aims of the ECPA generally. See In re Zynga Privacy Litigation, 750 F.3d 1098, 1105-09 (9th Cir. 2014) (holding that under the ECPA, “the term ‘contents' refers to the intended message conveyed by the communication, and does not include record information regarding the characteristics of the message that is generated in the course of the communication”). Moreover, this conclusion is further cemented by the mere existence of Title III of the ECPA, which specifically regulates the use of pen registers and trap and trace devices. See § § 3121 -3127. If the Wiretap Act was meant to address pen registers and trap and trace devices, Title III would be completely unnecessary. Accordingly, the Wiretap Act is inapplicable in Hart's case, and so is suppression on § 3504 grounds.
See supra n. 1.
See Def.'s Mot. [DE-68], Ex. 1, p. 5: “Furthermore, this order does NOT authorize the interception of content of any telephone calls, text messages, or internet data produced by the target cellular device or any other third-party device.”
The Wiretap Act sets forth in detail procedures for issuing orders to allow the interception of wire, oral, or electronic communications. To obtain a wiretap order pursuant to the Act, “the government must submit an application authorized by an appropriately designated high-level Justice Department official to a judge of competent jurisdiction and state the applicant's authority to make such an application.” United States v. Brunson, 968 F.3d 325, 330 (4th Cir. 2020); see 18 U.S.C. §§ 2516(1), 2518(1). After reviewing the application, the judge must make certain findings to justify issuing the requested order. Id. (citing § 2518(3) (authorizing entry of an ex parte wiretap order if judge determines, inter alia, there is probable cause that an individual is committing, has committed, or is about to commit an offense and that normal investigative procedures will be unavailing or dangerous)). If these requirements are met, the judge may issue an order authorizing the interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting. Id.
The court acknowledges that Hart's motion includes an argument regarding “authorization” under “18 U.S.C. § 2516(2), Id. Sec. 2510(9)(b),NCGS 15A-291(a), Id. Sec. 15A-291(b), Id. Sec. 15(a)-292(a) and the Fourth Amendment.” However, the court also notes that Hart's argument is solely composed of statutory language and does not include any factual details specific to the instant case. As such, the court is unable to discuss these claims more in depth. In any event, the J conclusion made in the previous section applies here as well, as § 2516 is included within the Wiretap Act. Suppression is therefore not warranted on this basis.
B. Stored Communications Act Claim
The Stored Communications Act (“SCA”) was enacted to protect every individual's legitimate interest in the confidentiality of communications kept in electronic storage at a i communications facility. Hately v. Watts, 917 F.3d 770,783 (4th Cir. 2019) (citing Theofel v. Farey-Jones, 359 F.3d 1066, 1072 (9th Cir. 2004)). The SCA safeguards this interest in three main ways. First, the Act limits the knowing disclosure of “electronic communications” by “electronic communication services” and “remote computing services.” Id., see 18 U.S.C. § 2702(a) (2023). Second, the statute outlines and limits the government's power to compel disclosure of electronic communications. Id.', see id. § 2703. Third, the SCA protects electronic communications from unauthorized access by third parties. Id., see § 2701.
Importantly, the definitions outlined in § 2510 (the Wiretap Act) apply throughout the SCA as well. This means that §2703(a) “contents of wire or electronic communications in electronic storage”) and §2703(b) “contents of wire or electronic communications in a remote computing service”) are irrelevant in the instant case, even though Hart appears to contend otherwise. §2703(a) (emphasis added); §2703(b) (emphasis added); see supra § 111(A)(1). Section 2703(c), meanwhile, pertains to records concerning electronic communication services or remote computing services. § 2703(c) (emphasis added). Given the “records” specification, then, §2703(c) certainly applies to Hart's cellular telephone records, which the Government obtained from his cellular provider via court order on two separate occasions.
With the statutory background and language in mind, the court notes that Hart argues that “disclosure [of information covered by the SCA] may be required only pursuant to a warrant issued using the procedures described in Federal Rules of Criminal Procedures or in the case of a State court, issued using State warrant procedures by a court of competent jurisdiction with a notice.” However, § 2703(c) clarifies that a governmental entity need not obtain a warrant to access these; records. In fact, §2703(c)(1)(B) dictates that the government may require disclosure of such documents by obtaining a court order, so long as that order meets the requirements articulated in §2703(d). §2703(c)(1)(B). Hart does not challenge either the October 5 or June 27 order under § 2703(d), though. Instead, the motion to suppress simply emphasizes that the KPD never obtained a warrant, adds that “NCGS 15 A-298 authorizes administrative subpoena pursuant with the NCSBI director or designee,” and concludes with a paragraph on “good faith” that also does not prove that an SCA violation occurred. No grounds for suppression exist on these assertions alone.
C. Fourth Amendment Claims
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Carpenter v. United. States, 138 S.Ct. 2206,2213 (2018). The Amendment exists “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Id. (quoting Camara v. Mun. Ct. of & Cnty. of San Francisco, 387 U.S. 523, 528 (1967)). While the Amendment historically protected property rights, in recent years, the Supreme Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Id. (quoting Soldal v. Cook Cnty., 506 U.S. 56, 64 (1992)). For example, in Katz v. United States, 389 U.S. 347, 351 (1967), the Court found that “the Fourth Amendment seeks to protect people, not places,” and in doing so, expanded the Amendment to protect certain privacy expectations. Id. Thus, when a person seeks to keep something private, and his expectation of privacy is “one society is prepared to recognize as reasonable,” governmental intrusion into that private space generally qualifies as a search and requires a warrant supported by probable cause. Id. (quoting Smith v. Maryland, 442 U.S. 735,741 (1979)).
This general rule has persisted in the modem era, even in the face of technological evolution. See Kyllo v. United States, 533 U.S. 27 (2001) (holding that use of thermal imager to detect heat radiating from inside defendant's home was a search); Riley v. California, 573 U.S. 373 (2014) (finding police officers generally must obtain warrant before searching contents of a phone). Most recently, in 2018, the Court decided Carpenter v. United States, 138 S.Ct. 2206, 2213 (2018). In Carpenter, the Court held that given the unique nature of cell phone location records, “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information].” Carpenter, 128 S.Ct. at 2217. Consequently, any historical location information obtained by the government via an individual's wireless carrier is the product of a search, and typically lawful only if authorized by a warrant supported by probable cause or else justified by an exception to the warrant requirement. Id. at 2221.
1. “Disclosure and Use”
Hart's motion to suppress asserts that “[e]lectronic interception of communications is a form of search and seizure subject to the Fourth Amendment. Unless a party to the conversation consents, the Amendment only permits interceptions with prior judicial approval to gather information about a specific crime for a limited time from a particular place.” The motion goes on to add that “[s]everal provisions of Title III [the Wiretap Act] directly implement these restrictions.” As a preliminary matter, much of the court's discussion supra has already addressed these claims: the Wiretap Act is inappropriate as applied to the instant case, and Hart's motion has not successfully asserted that an SCA violation occurred. See supra §§ A & B. Inasmuch as Hart argues that the use of a pen register, trap and trace device, or geolocation data is per se unconstitutional, though, the court briefly refers to Smith v. Maryland, 442 U.S. 735, 741 (1979) and Carpenter v. United States, 138 S.Ct. 2206, 2213 (2018).
In Smith, the Court found that individuals have no reasonable expectation of privacy in the numbers that they dial, and consequently, installing a pen register and devices like it is not a search requiring a warrant. Smith, 442 U.S. at 746. Later, as mentioned above, in Carpenter, the Court held that procuring historical cell-site location information (“CSLI”) is a search requiring a warrant based on probable cause, or an exception to the warrant requirement. Carpenter, 128 S.Ct. at 2221. As is clear from Smith, then, the mere existence of a pen register and/or trap and trace device in this case does not raise Fourth Amendment concerns. In reviewing the Carpenter standard, though, the analysis depends largely on whether probable cause exists. However, the instant motion does not argue whether probable cause existed in this case or assert that the KPD should have obtained a warrant instead of a court order to access Hart's cellular data. Nor does the motion assert that a valid exception to the warrant requirement did not exist.
To the extent that Hart argues that suppression is appropriate because his CSLI was produced in response to a court order and not a warrant, though, the court briefly responds. This court has held that a North Carolina Superior Court judge has the authority to issue an order for the disclosure of CSLI and other data under the SCA, which the October 5 and June 27 orders both cite. United States v. Evans, No. 5:17-CR-39-FL-1, 2018 WL 7051095, at *3 (E.D. N.C. Dec. 20, 2018) (collecting cases), report and recommendation adopted, 2019 WL 238033 (E.D. N.C. Jan. 16, 2019). Moreover, under federal law, even where technical violations of procedure occur, suppression of the evidence is only appropriate where the violation is unconstitutional, intentional, or the defendant is prejudiced. United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000); see also United States v. Knowles, 207 F.Supp.3d 585 (D.S.C. 2016) (holding that search warrant issued in the Eastern District of Virginia for property located in the District of South Carolina violated Rule 41, but suppression was unwarranted because “the ministerial violation of Rule 41... does not justify the exclusion of evidence seized on probable cause and with advance judicial approval”). Thus, standing alone, the fact that law enforcement obtained CSLI via court order does not render the evidence unconstitutionally obtained, particularly where no probable cause challenge has been raised.
2. “Prior Judicial Authorization”
Hart's motion to suppress also argues that “[t]he Government point to the application and order authorizing GPS and geo-location monitoring pursuant to NCGS §§ 15A-260-264...which does not comply with the statute. There is no mention of GPS and geo-location.” The motion advances this argument by asserting that both the Wiretap Act and SCA were violated in this case, which the court does not explore further here given the discussion of each statute above. See supra §§ A & B. However, to the extent that Hart claims that the October 5 and June 27 orders were unconstitutional because N.C. G.S. §§ 15A-260-264 does not specifically address GPS and geolocation tracking, the court briefly responds.
Notably, while both orders cite to the North Carolina General Statutes for authority, they also cite to the SCA. The SCA, meanwhile, allows a state court to issue an order under § 2703 if it is not prohibited by state law. § 2703(d). Hart does not cite a specific prohibition within the code, and the court is unaware of one. Moreover, as discussed supra, in Evans, this court held that a North Carolina Superior Court judge has the authority to issue electronic surveillance orders under the SCA, provided that the order is the functional equivalent of a search warrant. Evans, 2018 WL 7051095, at *3. (finding that the SCA “does not require a grant of authority under state law but rather allows a state court to issue an order under § 2703 unless prohibited by state law”).
This court's decision is further cemented by the fact that, in the wake of Carpenter, the North Carolina Court of Appeals has denied motions to suppress evidence collected from § 2703(d) orders signed by a state superior court judge when the order was supported by probable cause and met the requirements for a warrant. See State v. Gore, 272 N.C.App. 98, 104 (2020). Existing < precedent suggests that electronic surveillance orders like those used to obtain CSLI in this case are recognized as valid under state law, and by extension, valid under the SCA. See id. In the absence of an argument from Hart regarding probable cause or the warrant requirements, the court does not find suppression to be an appropriate remedy simply because law enforcement elected to request a court order versus a warrant.
IV. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Defendant's motion to suppress [DE-68] be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until November 14, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1). Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 31st day of October, 2023.