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United States v. Benanti

United States District Court, E.D. Tennessee

December 5, 2016




         This criminal matter is before the Court for consideration of the Report and Recommendation entered by United States Magistrate Judge C. Clifford Shirley, Jr. (“R&R”) on October 7, 2016 [Doc. 65]. The R&R addresses the defendant's Motion to Suppress Evidence Obtained at 380 Allison Drive (“Southern Comfort”) [Doc. 33] and the defendant's Omnibus Motion to Suppress All Subsequent Search Warrants [Doc. 34]. The government responded to the motions [Doc. 46], and Magistrate Judge Shirley held a hearing on the motions, along with other motions pending before the Court, on June 2, 2016 [Doc. 48]. Magistrate Judge Shirley then issued the R&R, recommending that the Court deny the defendant's Motion to Suppress Evidence Obtained at 380 Allison Drive [Doc. 33] and that the Court deny the defendant's Omnibus Motion to Suppress All Subsequent Search Warrants [Doc. 34] as moot.[1] The defendant has filed objections to the R&R [Doc. 76], the government responded to those objections [Doc. 81], and the defendant replied [Doc. 86]. For the reasons that follow, the Court will overrule the defendant's objections and accept the R&R. Thus, the defendant's Motion to Suppress Evidence Obtained at 380 Allison Drive (“Southern Comfort”) [Doc. 33] will be denied and the defendant's Omnibus Motion to Suppress All Subsequent Search Warrants [Doc. 34] will be denied as moot.

         I. Background[2]

         On the morning of April 28, 2015, two armed, white males and a masked white female invaded the home of an executive with the Y-12 Federal Credit Union (“the Credit Union”), his wife, and their adult son, in Knoxville, Tennessee [Doc. 76-1 ¶ 5].[3] The perpetrators took the wife's phone and told the executive to keep his phone in his shirt pocket, while continuously connected to his wife's phone, so that they could monitor his movements [Id. ¶ 8]. The perpetrators then instructed the executive to drive to the Credit Union and obtain a large amount of money [Id. ¶ 6]. The executive complied [Id.].

         Once at the Credit Union, however, the executive wrote a note to employees, telling them what had occurred [Id. ¶ 9]. One of the employees subsequently called the police [Id.]. The executive took a large amount of money from the vault, returned to his car, and was soon after approached by responding police officers [Id. ¶ 10]. He told the perpetrators over his wife's phone that the police were approaching him and asked for further instruction [Id. ¶ 11].

         While the executive traveled to the Credit Union, the perpetrators had bound and blindfolded his wife and son and driven them around in the family's car, a 2015 Lexus [Id. ¶ 7]. After receiving the executive's warning that police had arrived at the Credit Union, the perpetrators aborted the plan, disconnected the phone call, threw the wife's phone out of the car, and abandoned the executive's family in a parking lot [Id. ¶ 12]. They then fled in the victims' car and were not identified or apprehended [Id.]. The victims' Lexus was later found abandoned and burned [Id.].

         Several months later, on the morning of July 7, 2015, a similar crime was perpetrated on a second local bank executive and his family [Id. ¶ 13]. Two white males, similar in description to the prior robbery, forced their way into another Knoxville home, carrying firearms and a crowbar [Id. ¶ 14]. This home was occupied by a SmartBank executive, his wife, and their infant son [Id.]. The family barricaded themselves in a bathroom, but the intruders pried their way into the bathroom [Id.]. The invaders told the executive that he was going to help them rob SmartBank [Id. ¶ 15]. They instructed the executive to put on a shirt with a pocket and ordered the wife, along with the infant, to go into the garage, where the wife observed an unknown assault rifle in her son's stroller [Id.].

         The invaders then blindfolded the executive, put a belly-belt around his waist, and secured his wrists with handcuffs through the belt [Id. ¶ 16]. They ordered the wife to place the infant in the family's car, a Mazda 6, and then they blindfolded her [Id.]. The perpetrators ordered all three family members to sit in the backseat and told them that failure to follow instructions could lead to the family's death [Id.]. While in the car, the wife heard one of the perpetrators utilize a GPS device [Id. ¶ 17].

         The perpetrators, now donning old man masks, proceeded to park the car behind the SmartBank and removed the executive's blindfold [Id. ¶ 18]. They told the executive to initiate a call between his phone-which was placed in his shirt pocket-and his wife's phone-which was in the perpetrators' possession [Id.]. They informed the executive that they would be monitoring his actions via the phone call, and they threatened to hurt his wife and son if he terminated the call or told anyone to call the police [Id.]. The perpetrators then gave the executive an empty bag in which to place the money from the vault [Id. ¶ 19].

         The executive did as he was instructed-placing $195, 000 into the bag and then exiting the bank [Id.]. The executive handed the bag over to the perpetrators, who told him that his family would not be harmed, but would still not be released, if he cooperated [Id.]. The perpetrators sped away after receiving the money, with the wife and son still in the car, while leaving the executive behind in the parking lot [Id.]. During the drive, the wife heard the two men talking to another person who was not in the car [Id. ¶ 20].

         The perpetrators then drove to a densely wooded area and told the wife to remain in the car for approximately ten minutes, at which point she could exit and find her keys on the ground [Id. ¶ 21]. After the perpetrators got out of the car, the wife heard them enter another vehicle [Id.]. Several minutes later, the wife found her keys and drove to find help [Id.].

         When the Federal Bureau of Investigation (“FBI”) later investigated this event, they spoke to the SmartBank executive's neighbor, who stated that he saw a strange car outside the family's home on the evening of July 1, 2015 [Id. ¶ 22]. He said that there were two men and a woman sitting inside the car [Id.].

         On September 3, 2015, the North Carolina State Highway Patrol (“NCSHP”) engaged in a vehicle chase with a car later determined to have been stolen from New Hampshire [Id. ¶ 23].[4] The two white males driving the vehicle-who FBI agents suspected were involved in the previous bank robberies-fled and were pursued on foot until the officers believed that proceeding would be dangerous [Id. ¶¶ 23-24]. The men consequently escaped [Id. ¶ 23].

         Agents then found a GPS device in the abandoned vehicle, and a track on the GPS was to the address of 124 Rebel Ridge Road, Canton, North Carolina, which is managed by Premier Vacation Rentals (“PVR”) [Id. ¶ 24]. A PVR employee informed agents that two white men in their 30s-who had been renting cabins with PVR since June 19, 2015-had rented the cabin at that address from July 27, 2015, through October 25, 2015 [Id.]. They then extended their stay at 124 Rebel Ridge to November 15, 2015 [Id.]. The two men began renting another PVR property at 380 Allison Drive, Maggie Valley, North Carolina, called “Southern Comfort, ” on November 16 [Id.].

         The FBI subsequently obtained consent to search the property at 124 Rebel Ridge and processed the scene for trace evidence on November 19, 2015 [Id. ¶ 25]. FBI agents informed the local sheriff's office of their ongoing investigation, and the sheriff's office agreed to conduct physical surveillance of Southern Comfort in order to determine if there were new vehicles arriving or whether there was probable cause to make an arrest of the suspects [Id.].

         On November 24, 2015, officers conducting surveillance at Southern Comfort observed a Toyota Highlander with a South Carolina license tag leave the property, driven by a white male [Id. ¶ 26]. They continued monitoring that vehicle as it drove to a gas station and until it returned to Southern Comfort [Id.]. A registration check of the Highlander tag returned to a GMC Yukon [Id.].

         The next day, officers observed a Nissan Pathfinder, occupied by two white males, leaving Southern Comfort [Id. ¶ 27]. They determined that the vehicle had stolen license tags from Maryland, and they later discovered that the vehicle was also stolen from Maryland [Id. ¶¶ 27, 28]. NCSHP officers were notified, a traffic stop of the vehicle was attempted, and a chase ensued [Id. ¶ 27]. The driver eventually stopped, the passenger door opened, and a white male, later identified as the defendant, exited the Pathfinder [Id.]. He was immediately taken into custody [Id.]. The driver then proceeded to drive from the scene, and he ultimately fled on foot [Id.]. Officers apprehended the driver and took him into custody [Id.]. Both of the men had black bags with them, which contained rubber gloves [Id. ¶ 30]. The defendant's bag also contained a digital camera, food, a cell phone charger, a stocking cap, and a monocular scope [Id.]. He had $1, 500 and the key to a Lincoln vehicle on his person [Id.]. A later search of the Pathfinder revealed a black stocking cap, gloves, and two cell phones with the batteries removed, wrapped in plastic [Id. ¶ 32].

         Once the defendant was in the custody of NCSHP, he constantly fidgeted in his handcuffs, and the officer consequently suspected that he was attempting to conceal an item in his hands [Id. ¶ 29]. Officers seized a balled up sheet of paper from the defendant's hands, which had handwritten notes of addresses, later identified as bank locations, along with names of individuals later confirmed to be bank employees [Id.]. The paper also included South Carolina license tag numbers and the following phrases: “FIND CEO, ” “FIND CARS AT BRANCH, ” and “CALL, WATCH IT CLOSE” [Id.].

         The NCSHP Trooper involved in the previous chase identified the driver on November 25 as the same man who was operating the car on September 3 [Id. ¶ 31]. He did not, however, positively identify the defendant as the September 3 passenger [Id.].

         Agent Rory Poynter subsequently sought a search warrant for Southern Comfort based on the foregoing information [Id. ¶ 1]. In the supporting affidavit, he testified under oath that, “based on [his] training and experience, . . . criminals rely heavily on cellular phone communication and often times will communicate via text, have co-conspirator contact information, take photographs and video, and utilize their cellular phones for mapping/GPS purposes” [Id. ¶ 33]. In conclusion, Agent Poynter stated that “perpetrators of crimes will utilize similar methods, or Modus Operandi, when committing crimes specifically when they have eluded capture from previous crimes” [Id. ¶ 34]. Consequently, according to Agent Poynter, “[t]he events [that] occurred on November 25, 2015 demonstrate a willingness to flee from law enforcement to avoid prosecution and/or to destroy evidence and show Modus Operandi of similar characteristics to the aforementioned offenses” [Id.]. A United States Magistrate Judge in the Western District of North Carolina issued the search warrant for Southern Comfort, located at 380 Allison Drive, based on Agent Poynter's affidavit [Doc. 33-1].

         In his Motion to Suppress Evidence Obtained at 380 Allison Drive [Doc. 33], the defendant argues that all evidence resulting from the search of Southern Comfort should be suppressed because the affidavit supporting the search warrant “lack[ed] any constitutional nexus between the crimes alleged, the individuals involved, and the places and the things to be searched and seized” [Id. at 1].

         After hearing oral argument on the motion and reviewing exhibits submitted by the parties, Magistrate Judge Shirley determined that law enforcement searched 380 Allison Drive pursuant to a valid search warrant [Doc. 65 p. 2]. He, therefore, recommended that the defendant's motion to suppress be denied [Id.]. Magistrate Judge Shirley declined to address the issue of whether the good-faith exception to the exclusionary rule applied in this case, however, because he determined that the search warrant was supported by probable cause [Id. at 20-21].

         The defendant has objected to the R&R, arguing that Magistrate Judge Shirley based his analysis “on erroneous facts that are not supported by the record and are not contained within the four corners of the supporting affidavit” [Doc. 76 p. 2]. The defendant argues that a “careful reading of the affidavit reveals that there is not a nexus between the bank robberies alleged in the supporting affidavit and [the defendant]” [Id.]. Furthermore, according to the defendant, “there is no nexus between the bank robberies alleged in the supporting affidavit and the rental cabin at 380 Allison Drive” [Id.]. The defendant also objects to the R&R's finding that “the information provided in the supporting affidavit was not stale” [Id.]. Lastly, the defendant asserts that the R&R “incorrectly determined that the [d]efendant failed to make the ‘strong showing' necessary to look beyond the four corners of the affidavit relative to a material misrepresentation or omission” [Id.]. The defendant does not object to the portion of the R&R addressing “illegally gained information, ” which is predominantly addressed in a prior R&R [Doc. 58]. The Court will not, therefore, address this section of the R&R.

         The government responded in opposition to the defendant's objections and additionally requested that the Court, in the alternative, deny the defendant's motion to suppress based on the good-faith exception to the exclusionary rule [Doc. 81]. The defendant replied to this response, focusing on his contention that the good-faith exception does not apply in this case [Doc. 86].

         II. Standard of Review

         The Court reviews de novo those portions of the R&R to which the defendant has objected. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). Accordingly, the Court considers the R&R, the motions to suppress, the parties' underlying and supporting briefs, the defendant's objections, the government's response to those objections, and the defendant's reply, all in light of the applicable law.

         III. Analysis

         The defendant has objected to the majority of Magistrate Judge Shirley's recommendations. Specifically, the defendant first contends that the R&R relies on “erroneous facts” outside the four corners of the affidavit [Doc. 76 p. 2]. Thus, this Court's foregoing recitation of the background in this case is strictly based on the affidavit, giving no deference to the R&R's statement of facts.

         The defendant's additional objections relate to three main arguments, similar to those made by the defendant in his original motion to suppress [Doc. 33]: (1) lack of nexus, (2) staleness, and (3) material misrepresentation or omission by the affiant [Doc. 76 p. 2]. Accordingly, the Court will proceed by evaluating each of these objections in turn, and it will then address whether the good-faith exception applies to the case at hand.

         A. Nexus

         The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. Thus, the Fourth Amendment requires that an affidavit submitted in support of a search warrant “indicate a nexus between the place to be searched and the evidence sought, ” United States v. Hawkins, 278 F.App'x 629, 634 (6th Cir. 2008), and “[t]he belief that the items sought will be found at the location to be searched must be ‘supported by less than prima facie proof but more than mere suspicion.'” United States v. Bethal, 245 F.App'x 460, 464 (6th Cir. 2007) (quoting United States v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003)); see United States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006) (“To demonstrate probable cause to justify issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.”). In other words, the connection between the place to be searched and the items to be seized must not be “vague, generalized, or insubstantial.” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004). Thus, “[t]he critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (internal quotation omitted).

         A nexus between a suspect and the premises to be searched can be inferred in certain circumstances, depending upon “the type of crime being investigated, the nature of things to be seized, the extent of an opportunity to conceal the evidence elsewhere and the normal inferences that may be drawn as to likely hiding places.” United States v. Savoca, 761 F.2d 292, 298 (6th Cir. 1985). Where the nexus is inferred, the supporting affidavit must also contain an “additional fact that permitted the magistrate to draw the inference that evidence of wrongdoing would be found in the defendants' homes, ” such as “the independently corroborated fact that the defendants were known drug dealers at the time the police sought to search their homes.” United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006). An issuing court “may give considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found and is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.” United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir. 1996) (internal quotations and citations omitted). But see United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994) (“While an officer's training and experience may be considered in determining probable cause, it cannot substitute for the lack of evidentiary nexus in this case, prior to the search, between the [place to be searched] and any criminal activity.” (internal quotations and citations omitted)).

         In the R&R, Magistrate Judge Shirley determined that direct evidence links the bank robberies and kidnappings on April 28 and July 7 to the cabin at 380 Allison Drive [Doc. 65 p. 6]. Judge Shirley also found that the affidavit provided a nexus between the two men involved in the September 3 chase and Southern Comfort [Id. at 7]. Finally, Judge Shirley determined in the R&R that direct evidence provided a nexus between the defendant and the other white male, who were renting and residing at Southern Comfort, and the bank robberies and kidnappings set forth in Agent Poynter's affidavit [Id. at 8]. The R&R concluded that the issuing magistrate judge could have reasonably inferred that evidence from the robberies could be found at Southern Comfort [Id. at 10]. Consequently, Judge Shirley found that the supporting affidavit provided a sufficient nexus between the items sought, evidence from and instrumentalities of the robbery and attempted robbery, and the place to be searched, Southern Comfort [Id. at 11].

         1. Defendant's Objections

         In objecting to this portion of the R&R, the defendant argues that the R&R “fails to connect [the robberies] to the rental cabin in any way” [Doc. 76 p. 17]. The defendant notes that he was not renting a cabin from PVR at the time of the April 28 incident, and he did not rent the Rebel Ridge Cabin until twenty days after the July 7 occurrence [Id.]. Furthermore, the defendant asserts that the R&R “does not explain why law enforcement believed that the September 3 North Carolina chase was related to the April 28 and July 7 Tennessee incidents” [Id.]. The defendant admits that “the court could reasonably tie the GPS device to the cabin at 124 Rebel Ridge Road, ” but he argues that the court could not, ...

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