United States v. Mayo

STEPHANIE M. ROSE, CHIEF JUDGE

William Reiser Ripley, United States Attorney's Office, Davenport, IA, for Plaintiff.

Terence L. McAtee, Public Defender, Federal Public Defender, Davenport, IA, for Defendant.

ORDER ON MOTION TO SUPPRESS

STEPHANIE M. ROSE, CHIEF JUDGE

Defendant Darron Javon Mayo was charged with one count of possession with intent to distribute and two counts of illegal possession of a firearm following a search of his residence. He filed this Motion to Suppress, alleging a variety of violations of his constitutional rights related to the criminal investigation leading up to the search.

I. BACKGROUND

The investigation that culminated in the arrest of Defendant began on August 1, 2021 when off-duty police officers with the Moline Police Department were assisting with security at a hip-hop concert in Moline, Illinois. Officers were alerted to the impending arrival of the performer and were asked to secure an area of the parking lot. As the officers were doing that, they noticed a black Nissan in the corner of the lot. They observed in plain-view a clear plastic bag of a substance with an appearance consistent with ecstasy, and a digital scale on the center console of the vehicle. The keys to the vehicle were also visible in the center console and the passenger door was slightly ajar, indicating the vehicle may not be locked.

While officers were taking steps to secure the passenger door to tow the vehicle, a fanny pack was found to be obstructing the door preventing it from closing. Upon grabbing the fanny pack, an officer felt a metal object, which he instantly recognized as a firearm. The fanny pack was returned to the vehicle and it was towed to the Moline Police Department. After the vehicle had been towed, officers at the concert venue were approached by two men who asked about the vehicle's whereabouts. They were advised that the vehicle had been towed and, after a brief conversation with officers, the men left the area.

After it was towed to the police station, officers applied for a search warrant for the Nissan and the vehicle was searched. They recovered approximately two grams of ecstasy pills, ten grams of marijuana, a digital scale, and two firearms. The firearms were reported stolen. A fingerprint examiner with the Rock Island Police Department recovered a fingerprint from the magazine of one of the firearms and determined that it belonged to Defendant. Defendant was also linked to the Nissan after police canvassed area law enforcement with a video recording of the two men who had inquired about the Nissan's whereabouts. Officers with the Moline Police Department identified Defendant in the video, and the Davenport police began an investigation into him.

Davenport police soon determined that Defendant resided at an apartment building on Heatherton Drive in Davenport, Iowa. This was confirmed by records obtained from Mid-American Energy, reflecting that the utilities to a particular apartment on Heatherton Drive were registered in his name. Defendant's apartment is located in a multi-unit building consisting of three floors with four apartments on each floor. Defendant's apartment is on the ground floor level, which is accessible through two doors at either end of the building. Each apartment is then accessed through a common hallway. The Government asserts that at least one of the two exterior doors is not locked.

On August 31, 2021, Davenport police officers entered Defendant's apartment building to install a camera on the wall across from his residence. The motion-activated camera was disguised to resemble a fire alarm. The Government represents that the camera stored the footage on a memory card and the camera did not have real-time video streaming capabilities. Davenport police first downloaded the camera's contents on September 6, 2021.

Davenport police conducted a traffic stop on a vehicle driven by Defendant on September 1, 2021 for an equipment violation. At first, Defendant provided officers with a false name. Marijuana shake was observed in the center console of the vehicle as well. While officers continued to investigate the scene, Defendant was seated in the backseat of the squad car. During this period, Defendant made several phone calls, including one where he urged a female on the other line to not tell the police his real name. On another phone call, he told a male "when you get to the crib bro you got to get all that shit out of the crib man there is shit everywhere." These phone calls were recorded by a squad car camera.

On September 23, 2021, Davenport police entered Defendant's apartment building to install a camera on the landing to one of the staircases. From this vantage point, the door to Defendant's apartment was not visible. The camera was instead focused on the opposite side of the hallway on the residence of a man who was also associated with the Nissan seized from the Moline concert. The contents of this camera were downloaded on September 27, 2021 in the same manner as the camera affixed to the wall outside of Defendant's apartment. The footage from the camera depicted instances of different individuals, primarily Defendant, entering and exiting his apartment and the other man's apartment across the hall.

Davenport police received search warrants for both Defendant's apartment and the other man's apartment on September 28, 2021. The search of Defendant's residence yielded marijuana, cocaine, clonazolam, drug paraphernalia, a large amount of cash, and a loaded nine-millimeter pistol. Also recovered from Defendant's apartment was an iPhone, for which police obtained a search warrant on September 30, 2021. The iPhone contained numerous photographs and videos showing Defendant possessing firearms, large amounts of cash, and marijuana. On October 27, 2021, a third search warrant was received and executed for data maintained by the social media application Snapchat. Defendant was personally present during the execution of the residential search warrant on September 29, 2021. He was arrested at the time and transported to the Davenport police station. Once he arrived at the station, he waited in an interview room for approximately an hour and a half before he was interviewed by Detectives Emily Rasche and Detective Mike Griffin. Detective Rasche immediately read Defendant his Miranda rights. Once she finished, she asked if he understood his rights to which he responded in the affirmative. She then asked Defendant if he would like to speak with the detectives, and he responded, "No, I ain't do no shit, that's all I got to say." Detective Rasche asked Defendant if he wanted "to know what's going on?" Defendant responded, "Yeah, yeah ... what's going on." When asked by Detective Rasche to confirm that they could speak with him he said, "Yeah, yeah. I want to know what's going on." Following this statement, both detectives had an extended interview with Defendant, lasting nearly 45 minutes.

Defendant was indicted by a grand jury on December 7, 2021 for possession with intent to distribute, possession of a firearm during a drug trafficking crime, and felon in possession. [ECF No. 2]. On May 13, 2022, he filed this Motion to Suppress asserting that the investigation leading to his arrest violated his rights under the Fourth Amendment to the United States Constitution and that Detective Rasche and Detective Griffin violated his privilege against self-incrimination under the Fifth Amendment when they conducted a custodial interrogation after he had asserted his right to remain silent. [ECF No. 32]. The Government resists. [ECF No. 42].

II. DISCUSSION

Defendant offers four bases to exclude the evidence against him. First, he argues that the use of a video camera in the common areas of his apartment complex constituted a warrantless search. Second, Defendant claims that the search warrant affidavit omitted information regarding the video surveillance. Third, he asserts that the searches of his iPhone and Snapchat accounts were based on a search warrant supported by the unlawful video surveillance evidence. And finally, Defendant insists that he did not voluntarily waive his Fifth Amendment right to remain silent.

A. Video Surveillance

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... and no Warrants shall issue, but upon probable cause ...." U.S. Const. amend. IV. "Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place." United States v. Bettis , 946 F.3d 1024, 1029–30 (8th Cir. 2020) (citation omitted). Probable cause is not a high bar, only requiring "the kind of ‘fair probability’ on which ‘reasonable and prudent people,’ not legal technicians, act." Florida v. Harris , 568 U.S. 237, 244, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (citation and alterations omitted).

A search warrant "provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ " United States v. Chadwick , 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (quoting Johnson v. United States , 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ). When considering a request for a search warrant, a magistrate must "make a practical, common-sense decision" whether the search warrant affidavit supports a finding of probable cause. Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Supreme Court has concluded that the preference for warrants is most appropriately effectuated by according "great deference" to a magistrate's probable cause determination. Spinelli v. United States , 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Nevertheless, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining the existence of probable cause." Gates , 462 U.S. at 239, 103 S.Ct. 2317.

Warrantless searches "are per se unreasonable" unless they fall within a defined exception to the warrant requirement. Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Evidence obtained in violation of the Fourth Amendment is subject to the exclusionary rule and cannot be used in a criminal proceeding against the person whose constitutional rights were violated. See United States v. Riesselman , 646 F.3d 1072, 1078 (8th Cir. 2011).

Courts have recognized two types of Fourth Amendment "searches." The first, which has been referred to as "the common-law trespassory test," occurs when a government agent physically intrudes on "a constitutionally protected area in order to obtain information," without consent. United States v. Jones , 565 U.S. 400, 407, 409, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (citation omitted); Kyllo v. United States , 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (noting that the Supreme Court's Fourth Amendment jurisprudence was historically "tied to common-law trespass.").

The second type derives from the concurrence of Justice John Marshall Harlan II in Katz . Katz involved the issue of whether the placement of an eavesdropping device outside a public telephone booth violated the Fourth Amendment's protections. Justice Harlan found "that a violation occurs when government officers violate a person's ‘reasonable expectation of privacy.’ " Jones , 565 U.S. at 406, 132 S.Ct. 945 (quoting Katz , 389 U.S. at 360, 88 S.Ct. 507 ). Such a search could occur "even in the absence of a trespass." Jones , 565 U.S. at 414, 132 S.Ct. 945 (Sotomayor, J., concurring). The Katz test has two components: first, whether a person has "exhibited an actual (subjective) expectation of privacy" and second, whether the "expectation be one that society is prepared to recognize as ‘reasonable.’ " Katz , 389 U.S. at 361, 88 S.Ct. 507.

Defendant argues that the video surveillance in his apartment complex, even within common areas, was a warrantless search in violation of the Fourth Amendment. He contends that the surveillance constituted a search under a trespass theory or under the reasonable expectation of privacy theory. Defendant claims that law enforcement committed a trespass by placing the video camera within the commons area of his apartment building—therefore entering the "curtilage" of his home. Curtilage is the area "immediately surrounding and associated with the home," which the Supreme Court has held is "part of the home itself for Fourth Amendment purposes." Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). This is because the curtilage is "intimately linked to the home, both physically and psychologically," where "privacy expectations are most heightened." California v. Ciraolo , 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). Defendant analogizes the mounting of the video camera to the intrusion of using a drug sniffing dog on the exterior of an apartment door, which the United States Court of Appeals for the Eighth Circuit has recognized is a search. See United States v. Hopkins , 824 F.3d 726, 732 (8th Cir. 2016).

Defendant insists that the continuous use of video surveillance on his apartment also violated his right to a "reasonable expectation of privacy" under Katz. He compares the video camera to the Supreme Court's holding in Kyllo that the use of a thermal imaging device to detect heat radiating from the exterior of a home was a search under the Fourth Amendment. Kyllo , 533 U.S. at 35–36, 121 S.Ct. 2038. Kyllo found that use of a "sense-enhancing technology," like a thermal imaging device, was an "intrusion into a constitutionally protected area" and a search for Fourth Amendment purposes. Id. at 34, 121 S.Ct. 2038 (quoting Silverman v. United States , 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). The video camera, according to Defendant, was also a "sense-enhancing tool" used by law enforcement to gather evidence. [ECF No. 32-1 at 9]. He alleges that evidence recovered from the warranted search of his apartment is derivative evidence of the unconstitutional, warrantless video surveillance, and is thus subject to the exclusionary rule as "fruit of the poisonous tree." See Wong Sun v. United States , 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In its Resistance to the Motion, the Government urges that the Court need not reach the question of whether the video surveillance on Defendant's apartment violated his Fourth Amendment rights. Rather, it argues that even if the video surveillance was a warrantless search, the search warrant affidavit can be analyzed by excising the information obtained by the video surveillance. United States v. Hernandez Leon , 379 F.3d 1024, 1027 (8th Cir. 2004) (holding that "[t]he sufficiency of a warrant affidavit which contains information from an unlawful search is evaluated after deleting that information."). The Government contends that the remaining information in the search warrant affidavit still supports a finding of probable cause. Information derived from the video surveillance of the interior of the apartment building appears in the first sentence of paragraph 21 and in paragraphs 12, 13, 17–20, 26–30 of the search warrant affidavit.

The Government is correct that, absent the information obtained from video surveillance, the search warrant affidavit set forth sufficient evidence to support probable cause for a search warrant of Defendant's apartment. Defendant was associated with a vehicle that was towed from a concert on August 1, 2021. A lawful search of that vehicle recovered ecstasy pills, marijuana, a digital scale, and two stolen firearms. Defendant's fingerprints were recovered from the magazine of one of the firearms. He was prohibited from possessing firearms or ammunition by virtue of his prior felony convictions. Defendant was also the driver of a vehicle during a traffic stop where he provided a false name to officers and he made phone calls from the backseat of the squad car, one of which he was recorded telling another individual "when you get to the crib bro you got to get all that shit out of the crib man there is shit everywhere." This statement certainly appears to be referring to contraband of some sort. Marijuana shake was recovered from the center console of the vehicle during the traffic stop as well.

Evidence in the search warrant affidavit connected Defendant to the specific Heatherton Drive apartment through the utilities registered in his name for the address. He was also observed via in-person surveillance arriving at the Heatherton Drive apartment building on September 13, 2021 and September 20, 2021 driving the same vehicle from the September 1, 2021 traffic stop. Excluding information obtained from the video surveillance, the remaining evidence was sufficient to create "a fair probability that contraband or evidence of a crime" would be found at the Heatherton Drive apartment building. United States v. Jones , 471 F.3d 868, 873 (8th Cir. 2006) (quoting United States v. Mahler , 141 F.3d 811, 813 (8th Cir. 1998) ).

Furthermore, evidence obtained from a search based on an invalid search warrant may still be admissible if the search warrant was obtained in good faith. United States v. Leon , 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Eighth Circuit applies the Leon good-faith exception to potential Fourth Amendment violations as long as the conduct of law enforcement was "close enough to the line of validity to make the officers’ belief in the validity of the warrant objectively reasonable." United States v. Cannon , 703 F.3d 407, 413 (8th Cir. 2013) (quoting United States v. Conner , 127 F.3d 663, 667 (8th Cir. 1997) ). However, "[i]f the officers’ prewarrant conduct is ‘clearly illegal,’ the good-faith exception does not apply." Id. (citation omitted).

It does not appear as if the Eighth Circuit has directly addressed the question of whether prolonged use of a surveillance camera is a search under the Fourth Amendment. Two federal courts of appeals have considered a similar question and both have found such surveillance is not a search under the reasonable expectation of privacy theory. In United States v. Tuggle , 4 F.4th 505 (2021), the Seventh Circuit applied existing Supreme Court precedent to hold that pole camera surveillance of a defendant's home was not a search. The Tuggle Court expressed reservations about its determination, acknowledging that modern camera technology enables government officials to "freely observe citizens outside their homes for eighteen months," which "challenges the Fourth Amendment's stated purpose of preserving people's right to ‘be secure in their persons, houses, papers, and effects.’ " Id. at 526. The Seventh Circuit recognized that the Supreme Court did not fully endorse a novel theory of the Fourth Amendment, referred to as the "mosaic theory ," in its recent decision in Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Absent binding case law requiring them to apply the mosaic theory, Tuggle declined to do so. Id. at 529.

Defendant cites two state court cases which held that extended use of pole cameras are a search. See Commonwealth v. Mora , 485 Mass. 360, 150 N.E.3d 297 (2020) and People v. Tafoya , 494 P.3d 613 (Colo. 2021). The Colorado court held that use of pole camera surveillance of the exterior of a defendant's property constituted a search under the Fourth Amendment. Tafoya , 494 P.3d at 623. The court in Mora declined to reach the question under the Fourth Amendment but determined that the use of "continuous, long-term pole camera surveillance" targeted at the defendant's residence was a search under the Massachusetts Constitution. Mora , 150 N.E.3d at 302.

The "mosaic theory" as defined in Tuggle , is the notion that the "government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic." Id. at 516 (citation omitted). Essentially, the information collected by the Government through non-searches can far exceed "the sum of its parts" to the point it violates an individual's reasonable expectation of privacy. See id. (collecting academic articles).

More recently, the First Circuit, sitting en banc , reversed a district court's order granting a defendant's motion to suppress based on the use of a pole camera for eight months outside of their residence. United States v. Moore-Bush , 36 F.4th 320 (1st Cir. 2022). However, the en banc court divided on its opinion as to whether the use of such surveillance was a search under the Fourth Amendment. Chief Judge Barron writing for himself, Judge Thompson, and Judge Kayatta held that the camera was a search but they reversed the district court based on the good-faith exception, noting that the Government was entitled to rely on previous Circuit precedent which had previously affirmed the use of such surveillance techniques. Id. at 321. In a second concurrence, Judge Lynch, Judge Howard, and Judge Gelpi found that the use of the camera did not violate the Fourth Amendment, asserting that the other concurring judges wrongly applied Carpenter . Id. at 361.

Both Tuggle and Moore-Bush only considered the Fourth Amendment implications under Katz . Defendant also argues that the use of video surveillance was a trespassory search relying on Eighth Circuit precedent regarding the use of a dog sniff in multi-family housing. See United States v. Hopkins , 824 F.3d 726 (8th Cir. 2016) ; United States v. Burston , 806 F.3d 1123 (8th Cir. 2015). On this issue too, it is apparent that if any constitutional violation occurred, the Davenport Police Department's "pre-warrant conduct was ‘close enough to the line of validity’ to make their belief in the validity of the subsequent warrant ‘objectively reasonable.’ " Cannon , 703 F.3d at 414.

The dog sniffs in Hopkins and Burston are distinguishable from this case. First, a dog sniff requires the physical presence of law enforcement—officer and K9—to execute the search of the curtilage. This is important because the animating concern with video surveillance using an ordinary camera is not what it explicitly reveals but the continuousness in which a camera can surveil. Otherwise, a camera generally does not reveal anything a human could not observe during a lawful surveillance. A dog sniff, however, is much closer to the Supreme Court's concern about protecting a home's curtilage. See Jardines , 569 U.S. at 6, 133 S.Ct. 1409 (holding the Fourth Amendment right of security within one's home "would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity.").

The use of continuous video surveillance without a warrant appears to be on tenuous constitutional grounds. But, in the absence of federal case law, binding or otherwise, holding that the long-term use of a surveillance camera in a non-private area, the Court holds that, at a minimum, the good-faith exception to the exclusionary rule must apply here.

B. Franks Violation

Defendant also argues that the search warrant affidavit deliberately or recklessly misstated and omitted information critical to the review of the search warrant. Specifically, he contends that the search warrant documents did not make clear that the surveillance of his apartment that was described in the affidavit was derived from a video camera, and not from the live observations of officers.

A court may order a hearing at a defendant's request if he makes a substantial preliminary showing that a false statement was knowingly and intentionally included in a warrant affidavit. Franks v. Delaware , 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A Franks violation can include the omission of a critical fact. See United States v. Engler , 521 F.3d 965, 969 (8th Cir. 2008). "A defendant may only receive ‘a Franks hearing ... after making a substantial preliminary showing’ that the warrant's issuing judge relied on statements in an affidavit that were false or were ‘omissions made knowingly and intentionally or with reckless disregard for the truth.’ " United States v. Mayweather , 993 F.3d 1035, 1043 (8th Cir. 2021) (quoting United States v. El-Alamin , 574 F.3d 915, 924–25 (8th Cir. 2009) ). "Allegations of negligence or innocent mistake are insufficient," for a hearing. Franks , 438 U.S. at 171, 98 S.Ct. 2674.

Here, the alleged omission by officers falls short of the standard under Franks . In light of the earlier discussion regarding the uncertain constitutionality of warrantless video surveillance, it cannot be said that the failure to specify that some of the surveillance evidence was derived from a video camera, and not live observation, were "omissions made knowingly and intentionally or with reckless disregard for the truth." United States v. Snyder , 511 F.3d 813, 816 (8th Cir. 2008).

C. Miranda Warnings

Defendant asserts that the questioning by Davenport police detectives following his arrest on September 29, 2021 violated his Fifth Amendment privilege against self-incrimination. He contends that he asserted his right to remain silent after police read him his Miranda rights, and Detective Rasche and Detective Griffin proceeded to conduct a custodial interrogation despite his invocation.

The Supreme Court has held that the Government may not use statements made during a custodial interrogation "unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Prior to a custodial interrogation, Miranda requires that a suspect must be advised of his right to remain silent, that any statement can be used in evidence against him, that he has a right to the presence of an attorney during such interrogation, and that counsel may be appointed for him if he cannot afford an attorney. Id. at 444, 471, 86 S.Ct. 1602. A statement during custodial interrogation must be freely and voluntarily given, and the Government bears the burden of establishing it as such by a preponderance of the evidence. Edwards v. Arizona , 451 U.S. 477, 483, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

To invoke the right to remain silent, "a suspect must indicate a clear, consistent expression of a desire to remain silent." United States v. Adams , 820 F.3d 317, 323 (8th Cir. 2016) (citation omitted). Clear invocation of the right to remain silent is considered by the entirety of the defendant's statements "to determine whether they indicate an unequivocal decision to invoke the right to remain silent." United States v. Johnson , 56 F.3d 947, 955 (8th Cir. 1995). "Indirect, ambiguous, and equivocal statements or assertions of an intent to exercise the right to remain silent are not enough to invoke that right for the purposes of Miranda . " United States v. Ferrer-Montoya , 483 F.3d 565, 569 (8th Cir. 2007) (citing Johnson , 56 F.3d at 955 ).

Here, Defendant initially indicated a desire to remain silent. However, after the officers asked whether he wanted to know "what was going on" he answered in the affirmative and engaged in a nearly hour-long interview, asking questions, and going back and forth with the detectives. Never during the interview does he even ambiguously invoke his right to remain silent again. "Being evasive and reluctant to talk is different from invoking one's right to remain silent." Mann v. Thalacker , 246 F.3d 1092, 1100 (8th Cir. 2001).

III. CONCLUSION

For the foregoing reasons, Defendant's Motion to Suppress is DENIED. [ECF No. 32].

IT IS SO ORDERED.