USA v. Day

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:23-cr-00013-MR-WCM
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) O R D E R
)
PAUL GORDON DAY, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant’s Motions to
Suppress [Docs. 33, 34, 35, 36]; the Magistrate Judge’s Memoranda and
Recommendations regarding those motions [Docs. 73, 74, 75]; and the pro
se Defendant’s “Objections to the Magistrate Judge’s Memorandum and
Recommendation (Phone Location)” [Doc. 80].
On February 8, 2023, the Defendant Paul Gordon Day was charged in
a Bill of Indictment with one count of bank robbery, in violation of 18 U.S.C.
§ 2113, and one count of using and possessing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), in relation to the
robbery of the PNC Bank in Asheville, North Carolina. [Doc. 1]. On July 21,
2023, the Defendant through his appointed counsel, filed four motions to
suppress, seeking to suppress: evidence obtained through the use of a GPS
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tracking device to monitor the Defendant’s location (“GPS Tracker”) [Doc.
33]; evidence obtained from the search of the Defendant’s car on November
10, 2022 (“Vehicle Search”) [Doc. 34]; evidence obtained from the search of
the Defendant’s phone location data on December 19, 2022 (“Phone
Location”) [Doc. 35]; and evidence obtained from the search of the
Defendant’s hotel room on November 10, 2022 (“Hotel Search”) [Doc. 36].
On September 28, 2023, the Honorable W. Carleton Metcalf, United States
Magistrate Judge, conducted an evidentiary hearing on the motions to
suppress.1 On November 6, 2023, the Magistrate Judge issued three
separate Memoranda and Recommendations regarding the pending
suppression motions. [Docs. 73, 74, 75]. The Defendant timely filed
Objections only to the Memorandum and Recommendation addressing his
motion to suppress the phone location data, evidence which the Government
contends confirms the Defendant’s presence at both the robbery of the PNC
Bank in Asheville, North Carolina in November 2022 and the robbery of the
First Community Bank in Chesterfield, Virginia in September 2022. [Doc.
80].
1 Subsequent to these hearings, the Defendant requested to represent himself, which the
Court allowed. [Doc. 64].
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In his Objections, the Defendant takes issue with the characterization
of certain facts2 relied upon in the search warrant application for the phone
location data. [Doc. 80 at 1-2]. While the Defendant takes issue with the
inclusion of certain individual facts in the search warrant application, it is not
necessary for the Court to determine whether these individual facts, standing
alone, provided probable cause for the issuance of the warrant. As the
Magistrate Judge correctly concluded, the totality of the relevant
circumstances presented to the magistrate provided ample probable cause
to believe that evidence of the Defendant’s crimes would be found in the cell-
site location information recorded by T-Mobile. The Defendant’s objections
in this regard, therefore, are overruled.
The Defendant also argues that the search warrant application for cell-
site location information was “plainly illegal” in that the investigating agent
already had “tower dump” records indicating that the Defendant’s cell phone
was near the site of the First Community Bank robbery. [Doc. 80 at 2].
2 Specifically, the Defendant challenges the inclusion in the search warrant application of
references to: the Defendant’s purported confession to the “Asheville robbery”; the
statements of the Defendant’s father identifying the Defendant by certain articles of
clothing in surveillance video from the First Community Bank crime scene; and the agent’s
characterization of the area around the subject cell towers as being “sparsely populated.”
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The Defendant’s argument is without merit. The investigating officer
previously had obtained a search warrant for T-Mobile cell tower dump
records from the area surrounding the First Community Bank at the time it
was robbed.3 One of the cell phone IMEI4 numbers disclosed by T-Mobile in
those tower dump records matched the cell phone IMEI number on the
phone recovered from the Defendant ollowing the PNC Bank robbery in
Asheville. Using that information and other evidence obtained during the
investigation, the investigating officer then sought authorization to seize and
review more extensive data regarding the Defendant’s cell phone for the
period of September 1, 2022 through November 9, 2022. There was nothing
illegal in the use of the tower dump records to seek a warrant specifically
targeting more extensive information about the Defendant’s individual cell
phone. This objection is also overruled.
Upon conducting a de novo review of the Memoranda and
Recommendation, the Court finds that the Magistrate Judge’s proposed
findings of fact are correct and that the proposed conclusions of law are
consistent with current case law. Accordingly, the Court hereby overrules
3 The Defendant does not challenge the lawfulness of that search warrant.
4 IMEI stands for “International Mobile Equipment Identity.”
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the Defendant’s Objections and accepts the Magistrate Judge's
recommendations regarding the Defendant’s Motions to Suppress.
IT IS, THEREFORE, ORDERED that:
(1) The Defendant’s Objections to the Magistrate Judge’s
Memorandum and Recommendation [Doc. 80] are
OVERRULED;
(2) The Magistrate Judge’s Memoranda and Recommendations
[Docs. 73, 74, 75] are ACCEPTED;
(3) The Defendant’s Motion to Suppress (GPS Tracker) [Doc. 33] is
DENIED;
(4) The Defendant’s Motion to Suppress (Vehicle Search) [Doc. 34]
is DENIED;
(5) The Defendant’s Motion to Suppress (Phone Location) [Doc. 35]
is DENIED; and
(6) The Defendant’s Motion to Suppress (Hotel Search) [Doc. 36] is
DENIED AS MOOT.
IT IS SO ORDERED. Signed: December 19, 2023
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