USA v. Day

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-CR-00013-MR-WCM
UNITED STATES OF AMERICA )
)
v. ) MEMORANDUM AND
) RECOMMENDATION
PAUL GORDON DAY, )
)
Defendant. )
______________________________________ )
This matter is before the Court on Defendant’s “Motion to Suppress and
Memorandum in Support (Phone Location)” (the “Motion to Suppress – Phone
Location”) (Doc. 35) which has been referred to the undersigned pursuant to
28 U.S.C. § 636 for the entry of a recommendation.
I. Relevant Procedural Background
The Motion to Suppress – Phone Location was filed on July 21, 2023.
The Government responded on August 10, 2023 (Doc. 41) and Defendant
replied on August 22, 2023 (Doc. 49).
The parties were given the opportunity to present oral argument on the
Motion during a hearing that was held on September 28, 2023.1
1 Additional procedural background information appears in the Memorandum
concerning Defendant’s Motion to Suppress – Cash Tracker (Doc. 33), which is being
filed simultaneously.
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 1 of 13

2
II. Factual Background
A. The Subject of the Instant Motion to Suppress
On December 19, 2022, J.P. Hylton (“Detective Hylton”), a detective
with the Chesterfield County, Virginia Police Department and a task force
officer with the Federal Bureau of Investigation, submitted an application
(the “Application”) for a warrant related to Detective Hylton’s investigation of
a bank robbery that occurred on September 29, 2022 at the First Community
Bank in North Chesterfield, Virginia (the “Virginia Bank”). Doc. 35-1. The
Application sought authorization to seize and review data regarding a certain
cellular device, for the period of September 1, 2022 through November 9,
2022, in relation to the commission of the Virginia state law offenses of
robbery and use of a firearm in the commission of a felony. Id. This data
included “information regarding the location of the cellular device…including
information regarding the device's latitude and longitude and distance to
tower….”. Id.
A magistrate granted the Application the same day.2
T-Mobile produced information in response to the warrant.3
2 Defendant states that the Application was approved, and the warrant was issued
by, “a Chesterfield County, VA, magistrate.” Doc. 35 at 1. A copy of the warrant
itself does not appear to be included in the materials submitted. However, the
undersigned presumes that the magistrate issued the warrant that was sought by
the Application.
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 2 of 13

3
Defendant asserts that the Application was insufficient to establish
probable cause that evidence of a crime would be found in information
responsive to the warrant and, specifically, seeks to suppress the phone
location data obtained in response to the warrant. In that regard, Defendant
contends that, although the Application provided facts sufficient to establish
probable cause that a robbery had occurred at the Virginia Bank, the
Application was “wholly conclusory as to the identity of the robber.” Doc. 35
at 2.
B. Evidence Considered
Defendant did not request an evidentiary hearing on the Motion, and
one was not required. United States v. Griffin, 811 F. App’x 815, 816 (4th Cir.
2020) (per curiam) (stating that “an evidentiary hearing is not always
required to resolve a motion to suppress” and that such a hearing is required
“only if the motion to suppress is ‘sufficiently definite, specific, detailed, and
non-conjectural’ to enable a district court to conclude that contested issues of
fact going to the validity of the search are in question”) (citing Fed. R. Crim.
P. 12(c) (other internal citation omitted)); see also United States v. Shah, No.
5:13–CR–328–FL, 2015 WL 72118, at *19 (E.D.N.C. Jan. 6, 2015).
3 The record is unclear as to when the warrant was served on T-Mobile and when T-
Mobile responded. Defendant has produced two sets of data – one that is comprised
of 1660 pages and appears to be the "tower dump" records discussed below, and
another that is comprised of 575 pages and appears to be the information sought by
the subject warrant. Docs. 35-2 and 35-3.
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 3 of 13

4
Accordingly, for purposes of this Motion, the undersigned has
considered only the information presented in the Application. See United
States v. Lyles, 910 F.3d 787, 791 (4th Cir. 2018); United States v. Wilhelm,
80 F.3d 116, 118 (4th Cir. 1996) (“When reviewing the probable cause
supporting a warrant, a reviewing court must consider only the information
presented to the magistrate who issued the warrant.”).
C. Facts from the Application
Attachment II of the Application provided “material facts constituting
probable cause.” Specifically, the Application stated as follows:
On September 29, 2022, at approximately 3:53 p.m., an unknown
subject, who was later identified to be Defendant, entered the Virginia Bank,
approached a teller, produced an all-black semiautomatic handgun, and
directed the teller to give him “all the 20s, 50s, and 100s.” Doc. 35-1,
Attachment II at ¶ 1. The teller complied. Defendant placed the money in his
pockets, returned the firearm to his waistband, and left the area on foot. Id.
Subsequently, law enforcement responded and began using a K-9 unit
to track Defendant’s scent. The Application described the route followed by
the K-9 before the scent was lost and included descriptive maps. Id. at ¶ 2.
Additionally, Detective Hylton interviewed the bank teller and reviewed
surveillance video of the robbery. That information indicated that Defendant
was:
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 4 of 13

5
… a W/M of slim build and average height
(approximately 5’8-9”), brown hair, and between 40-
50 years of age. Furthermore, wearing a gray-five
panel/flat cap, sunglasses, white medical-style mask,
light colored dress shirt, dark colored blazer jacket
(dark blue or black), black “mechanics” gloves with
white lettering, khaki pants, white socks, and brown
squared-toe dress shoes.
Id. at ¶ 3.
Investigators then began gathering surveillance video from
surrounding businesses. Id. at ¶ 4. From this information and having walked
the path tracked by the K-9 unit on at least three occasions, Detective Hylton
stated that he believed Defendant had parked his vehicle at approximately
3:23 p.m., entered the Virginia Bank at 3:53 p.m., and returned to his vehicle
to flee the area no later than 4:08 p.m. Id. at ¶ 5.
On December 6, 2022, Detective Hylton obtained a “T-Mobile timing-
advance/tower dump search warrant.” Id. at ¶ 7.
On December 7, 2022, Detective Hylton traveled to Asheville Police
Department headquarters where he was briefed on a robbery of a PNC Bank
that occurred in Asheville on November 9, 2022. Detective Hylton learned
that a GPS tracking device had been taken from PNC Bank, used to track
money stolen from that bank, and that Defendant’s vehicle, in which
Defendant was the sole occupant, was thereafter stopped by law enforcement
and Defendant was subsequently arrested. When given the opportunity to
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 5 of 13

6
make a phone call, Defendant contacted his mother and confessed to having
committed the Asheville robbery. Before the conclusion of that call,
Defendant advised that he had been staying in Room 227 at the Red Roof Inn
in Johnson City, Tennessee. Id. at ¶ 8.
The Asheville Police Department had requested assistance from law
enforcement in Johnson City, who, on November 10, 2022, after being advised
that Defendant was the last occupant of Room 227 and that the room was
empty, entered the room and found “evidence of [Defendant’s] extended stay
(clothing, computer, notebook, perishable food, luggage, firearms, and
evidence of drug use).” Id. at ¶ 9. The law enforcement officers photographed
the room and collected items of evidentiary value. Upon Detective Hylton’s
review of those photographs, he observed several items of clothing that were
consistent with the clothing worn by Defendant during the robbery of the
Virginia Bank. Several flat caps, which were consistent with the style worn
by Defendant, were also present in the room. Id. at ¶ 10.
Before leaving the Asheville Police Department, Detective Hylton
learned that a black Samsung Galaxy S8+ was found in Defendant’s vehicle.
Detective Hylton was given access to this device and documented its serial
numbers. Id. at ¶ 11.
On December 8, 2022 at 2:33 p.m., Defendant called his mother from a
recorded line at the Buncombe County Detention Facility. During that call,
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 6 of 13

7
Defendant told his mother he was being investigated for a “look-alike crime
up in Richmond.” Id. at ¶ 13.4
On December 9, 2022, at 8:37 p.m., Defendant called his father and
mother, again using a recorded line at the jail. During that call, Defendant’s
father told Defendant that they (Defendant’s parents) had “looked at the
pictures from Richmond” and could tell it was Defendant. Specifically,
Defendant’s father stated: “You’re wearing your white khaki pants, your light
brown shoes…. ” Defendant protested that it was not him, to which his father
responded, “I’m telling you that your mother and I could recognize you from
the pictures.” Id. at ¶ 14.
On December 14, 2022, the “tower dump” records from T-Mobile were
sent to Detective Hylton. The Application reported that a preliminary
plotting of that data showed the phone that had been located in Defendant’s
possession when he was arrested “was in the area around the time of” the
Virginia Bank robbery. Id. at ¶ 15.
III. Discussion
A. Probable Cause
“Probable cause requires only ‘a fair probability,’ and not a prima facie
showing, that ‘contraband or evidence of a crime will be found in a particular
4 It appears that North Chesterfield is located near Richmond. See North
Chesterfield, Richmond, VA to Richmond, VA - Google Maps, last accessed Nov. 3,
2023.
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 7 of 13

8
place.’ Probable cause is therefore ‘not a high bar.’” United States v. Bosyk,
933 F.3d 319, 325 (4th Cir. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983) and District of Columbia v. Wesby, --- U.S. ---, 138 S. Ct. 577, 586
(2018)) (internal citations omitted). “An assessment of the presence of
probable cause must be based on the totality of the relevant circumstances,
rather than on the technical or rigid demands of a formulaic legal test.”
United States v. Glass, No. 5:21-CR-00060-KDB-DSC, 2023 WL 2844365, at
*7 (W.D.N.C. Apr. 7, 2023). Consequently, “‘great deference’ is given to the
magistrate’s assessment of the facts presented to him.’” United States v.
Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (quoting United States v.
Blackwood, 913 F.2d 139, 142 (4th Cir. 1990)) (internal citation omitted).
The instant Motion presents the question of whether the Application
provided sufficient information to indicate there was probable cause to
believe that evidence of the Virginia crimes referenced by the Application –
robbery and use of a firearm in the commission of a felony – would be found
in the location data associated with Defendant’s cell phone.
Defendant argues that a significant portion of the Application relied on
the Asheville robbery, which occurred more than a month after the Virginia
Bank robbery, and the conclusory implication that the same individual
committed both crimes. However, the Application explained that Defendant
had been arrested following the Asheville robbery and that preliminary
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 8 of 13

9
plotting of the “tower dump” data obtained from the phone seized following
Defendant’s arrest in North Carolina showed the same phone had been in the
area of the Virginia robbery on September 29, 2022.5 Further, the Application
explained how Defendant, during a phone call with his mother, identified the
Tennessee hotel room, how that room came to be searched, and that items of
clothing consistent with those worn by Defendant during the Virginia robbery
were identified. The Application also included color photographs of the
suspect during the Virginia robbery.
Significantly, the Application also reported that, during a recorded jail
call on December 9, 2022, Defendant’s father told Defendant that he and
Defendant’s mother had “looked at the pictures from Richmond” and
identified Defendant, stating specifically that Defendant was wearing his
white khaki pants and his light brown shoes. When Defendant protested, his
father repeated that he and Defendant’s mother could recognize Defendant
from the pictures. Although Defendant is correct that the Application did not
explain how Defendant’s parents came to see pictures from the robbery of the
Virginia Bank or state specifically that the color photographs of that robbery
in the Application were the same pictures that Defendant’s parents had
reviewed, the three photographs from the Virginia robbery that appear in the
Application show an individual wearing clothes that are consistent with the
5 Defendant does not challenge the warrant for the “tower dump” data.
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 9 of 13

10
clothing referenced by Defendant’s father, as well as the articles of clothing
found in the Tennessee hotel room.6
Finally, Defendant takes issue with the information Detective Hylton
provided about the location of the phone immediately before and after the
robbery. For example, Defendant appears to argue that the “tower dump”
records themselves indicated that the device appeared to be stationary from
3:58 p.m. to 4:40 p.m., and that this information was contradictory to
Detective Hylton’s statement that the device appeared to be leaving the area
at 3:59 p.m. However, Defendant does not explain the basis for his position
that the “tower dump” records showed that the device was stationary from
3:58 p.m. to 4:40 p.m.
In sum, while Defendant takes issue with the inclusion or absence of
individual facts, it is not necessary for the Court to determine whether any of
these specific facts, standing alone, provided probable cause for the issuance
of the warrant because the totality of the relevant circumstances did provide
probable cause to believe that evidence of the Virginia crimes referenced in
the Application would be found in the data sought.
6 These articles of clothing are not particularly unusual, but they are consistent
with the apparel worn by the suspect in the Virginia robbery, as described by the
bank teller and shown by the surveillance images.
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 10 of 13

11
B. The Good Faith Exception
The Government also argues that, even if the warrant was legally
deficient, the evidence regarding the location of Defendant’s cell phone should
not be suppressed because it was obtained in good faith reliance on the
warrant.
The decision of the Supreme Court in United States v. Leon, 468 U.S.
897 (1984) “teaches that a court should not suppress the fruits of a search
conducted under the authority of a warrant, even a ‘subsequently invalidated’
warrant, unless ‘a reasonably well trained officer would have known that the
search was illegal despite the magistrate’s authorization.’” United States v.
Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (quoting Leon, 468 U.S. at 922
n.23).
“This ‘good faith’ exception will be applied except in four limited
situations: (1) when the affiant based his application on knowing or reckless
falsity; (2) when the judicial officer wholly abandoned his role as a neutral
and detached decision maker and served merely as a ‘rubber stamp’ for the
police; (3) when the affidavit supporting the warrant was so lacking in indicia
of probable cause as to render official belief in its existence entirely
unreasonable; and (4) when the warrant was so facially deficient that the
executing officers could not reasonably have presumed that the warrant was
valid.” United States v. Wellman, 663 F.3d 224, 228–29 (4th Cir. 2011) (citing
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 11 of 13

12
United States v. Doyle, 650 F.3d 460, 467 (4th Cir. 2011) (quoting United
States v. DeQuasie, 373 F.3d 509, 519–20 (4th Cir. 2004)).
As discussed above, the Application presented sufficient evidence to
establish probable cause for the issuance of the warrant.
However, in the alternative, even if probable cause was lacking, a
reasonably well-trained law enforcement officer would not have known that
the search of Defendant’s phone location date was illegal despite the warrant,
given the information in the Application about the Asheville robbery and the
Virginia robbery, the identification of Defendant by his own parents, and the
information from the “tower dump” records that indicated Defendant’s phone
was in the area of the Virginia robbery.
IV. Recommendation
The undersigned therefore respectfully RECOMMENDS that
Defendant’s Motion to Suppress – Phone Location (Doc. 35) be DENIED.
Signed: November 6, 2023
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 12 of 13

13
Time for Objections
The parties are hereby advised that, pursuant to Title 28, United
States Code, Section 636(b)(1)(B), written objections to the findings of fact,
conclusions of law, and recommendation contained herein must be filed
within fourteen (14) days of service of same. Responses to the objections
must be filed within fourteen (14) days of service of the objections. Failure to
file objections to this Memorandum and Recommendation with the presiding
District Judge will preclude the parties from raising such objections on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985).
Case 1:23-cr-00013-MR-WCM Document 74 Filed 11/06/23 Page 13 of 13