USA v. Day

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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 the following:
1. Defendant’s “Motion to Suppress and Memorandum in Support
(Location)” (the “Motion to Suppress – Cash Tracker,” Doc. 33); and
2. Defendant’s “Motion to Suppress and Memorandum in Support
(Hotel Room)” (the “Motion to Suppress – Tennessee Hotel Search,”
Doc. 36).
These motions have been referred to the undersigned pursuant to 28
U.S.C. § 636 for the entry of a recommendation.
I. Relevant Procedural Background
On February 8, 2023, a Bill of Indictment was filed charging Paul
Gordon Day (“Defendant”) with one count of bank robbery in violation of 18
U.S.C. §2113 and one count of knowingly using, carrying, possessing, and
brandishing a firearm in furtherance of a crime of violence in violation of 18
U.S.C. §924(c)(1)(A)(ii). Doc. 1.
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On February 27, 2023, Defendant made an initial appearance.
On March 3, 2023, during his arraignment, Defendant pled not guilty
and requested a jury trial. Defendant’s trial was scheduled for May 1, 2023.
On April 21, 2023, at Defendant’s request, his trial was continued to
June 26, 2023. Doc. 16. On June 12, 2023, at Defendant’s request, his trial
was continued to August 28, 2023. Doc. 26.
On July 21, 2023, Defendant filed four Motions to Suppress. Docs. 33,
34, 35, and 36.1
On September 28, 2023, a hearing was conducted on all four motions.
During those proceedings, the Court received evidence concerning the Motion
to Suppress – Cash Tracker. See United States v. Taylor
, 13 F.3d 786, 789
(4th Cir. 1994) (“When material facts that affect the resolution of a motion to
suppress ... are in conflict, the appropriate way to resolve the conflict is by
holding an evidentiary hearing after which the district court will be in a
position to make findings.”).
The parties were also given an opportunity to present oral argument
with regard to all of the Motions to Suppress.
1 The instant Memorandum pertains to two of the Motions. Separate Memoranda
that address the remaining Motions are being filed simultaneously.
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The day after the hearing on the Motions to Suppress, Defendant filed
a reply to the Government’s response to Defendant’s Motion Suppress – Cash
Tracker. Doc. 57.2
II. Factual Background
A. Evidence Presented
During the hearing, the Government called the following witnesses: 1)
Rachel Hyatt, who is a teller with PNC Bank; 2) Patrol Sergeant Nicholas
Shae of the Weaverville Police Department; and 3) Robert Stevens, a bureau
chief with 3SI Security Systems (“3SI”).
The Government also presented, without objection, the following
exhibits: 1) video footage of the subject robbery; 2) an image of the front of a
“bait bill”; 3) an image of the back of a “bait bill”; 4) police call logs; 5) footage
from Sergeant Shae’s body-worn camera; 6) a video produced by 3SI that
showed the movement of the subject GPS device; and 7) a spreadsheet
created by 3SI with additional information concerning transmissions from
the GPS device.
Defendant did not call any witnesses but did submit, without objection,
a two-page Case Supplemental Report from the Asheville Police Department
(marked as DMTS 1); investigative notes from Detective Roach of the
2 Subsequently, at Defendant’s request, the trial was continued to January 3, 2024
and Defendant’s request to represent himself was granted. Docs. 63, 64.
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Asheville Police Department pertaining to an interview with Ms. Hyatt
(marked as DMTS 2); and notes from an interview with another teller at PNC
Bank, Melissa Pressley (marked as DMTS 3).
The Asheville Police Department’s Event Report was also attached to
the Motion to Suppress – Cash Tracker. Doc. 33-1.
B. Factual Findings
Based on the information of record and as presented during the
hearing, the undersigned finds the relevant facts to be as follows:
At approximately 4:15 p.m. on November 9, 2022, an individual entered
the branch of PNC Bank (the “Bank”) located at 8 O’Henry Avenue in
Asheville, North Carolina, and approached the teller station where Ms. Hyatt
was working. The individual was wearing a dark hat, glasses, gloves, and a
mask, and appeared to be a male. In his right hand he held an object that
appeared to be a handgun wrapped in some type of black plastic or tape-like
material.
He demanded that Ms. Hyatt hand over currency in denominations of
20s, 50s, and 100s. Ms. Hyatt complied and removed currency from the cash
drawer at her teller station and gave it to the suspect. She included with that
currency a packet of $20 bills, which are known as “bait bills.” Affixed to the
bills, which were banded together, was a GPS tracking device.
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Ms. Hyatt testified that she had been trained to use bait bills in the
event of a robbery, that bait bills were located in the Bank’s teller drawers at
all times, and that the specific bait bills she used on November 9, 2022 had
been placed in her drawer by the Bank’s security team.
After the suspect obtained the currency from Ms. Hyatt, he told Ms.
Hyatt to “get down” and she complied. Sometime later, when she stood up,
the suspect was no longer in the Bank. Ms. Hyatt did not call the police
directly or trigger a silent alarm but understood that bait bills were designed
to activate an alarm when they were picked up.
Mr. Stevens is one of four bureau chiefs for 3SI and is responsible for
overseeing 3SI’s tracking of GPS devices in the eastern United States. He
explained that the devices employed by banks use high sensitivity GPS
receivers that are equipped with a battery, an RF transmitter, and a Wi-Fi
receiver.
There are several ways a tracking device can be activated; it can be
triggered remotely, or it can become active if it goes through a geo-fence. A
device is also activated if it is removed from a magnetic plate, such as when a
teller or a suspect reaches into a bank drawer and removes money to which
the device is attached; a bank teller does not need to take any further action
to activate the device. The device used in this case was activated when it was
removed from Ms. Hyatt’s teller drawer.
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A device begins transmitting information within fifteen seconds of
becoming active and transmits its heading, speed, and direction of travel
every six seconds. The location information is accurate to within
approximately ten to twelve feet.
Data from tracking devices used by 3SI’s customers is transmitted to
the company’s command center in Pennsylvania. When the company receives
an alert from a tracking device, company personnel contact local law
enforcement to advise that the device is being actively tracked. Personnel at
the command center may stay on the telephone with local law enforcement
the entire time the device is being actively tracked, and transmissions from
the device are provided to local law enforcement’s dispatch center so
dispatchers can follow the device’s movements in real time. The company
produces a tracker tool application that can be downloaded to any cellular
phone so that individual law enforcement officers can also receive the real
time data about the movements of a device that is being tracked.
At approximately 4:20 p.m. on November 9, 2022, 3SI’s command
center began tracking the bait bills that were taken from the Bank. At
approximately the same time, the Asheville Police Department received a call
regarding the robbery.
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The dispatch center informed officers that an armed bank robbery had
taken place and began relaying information regarding the location of the GPS
device, which information was being provided by 3SI.3
At approximately 4:37 p.m., Sergeant Shae was in a marked vehicle
near Exit 19 on Interstate 26, when he heard a call from dispatch that an
armed bank robbery had occurred in Asheville and that a suspect was being
tracked on Interstate 26 westbound toward Weaverville. He heard that the
suspect’s vehicle was approaching the Flat Creek exit (Exit 17), so Sergeant
Shae began traveling west on Interstate 26. As Sergeant Shae drove,
dispatch continually relayed information about the location of the suspect’s
vehicle and reported that the suspect was a white male and had a firearm.
Sergeant Shae traveled to the Forks of Ivy exit (Exit 13), where he left
the interstate, since dispatch reported that the suspect was then moving
down Stockton Branch Road. Sergeant Shae described the area as being
rural, with only local traffic, and Stockton Branch Road as being a two-lane,
“curvy, kind of country back road.”
3 No evidence was presented that any individual officers used 3SI’s tracker tool
application on November 9, 2022. Rather, the information regarding the movements
of the device was sent to dispatch by 3SI and then relayed by dispatch to officers.
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Sergeant Shae saw one vehicle on a nearby road but did not pursue
that vehicle because its direction of travel was not consistent with the reports
from dispatch regarding the device’s direction of travel.
As Sergeant Shae continued traveling the route dispatch had described
as having been followed by the device, he believed he was getting closer to the
device because he was seeing side street names that dispatch had just
identified.
Sergeant Shae then came upon a Kia Sportage with a Tennessee
license tag. He saw no other vehicles moving in the same direction and did
not have to pass any other vehicles. He noted that there was a single
occupant in the vehicle.
Sergeant Shae followed the vehicle for approximately twenty to thirty
seconds and then, after receiving no inconsistent information from dispatch,
activated his emergency equipment. The Kia Sportage stopped at the
intersection of Stockton Branch Road and Highway 197/Barnardsville
Highway.
Another officer, who had been traveling behind Sergeant Shae, arrived
shortly thereafter. The two of them drew their weapons, ordered the driver,
who was later identified as Defendant, out of the car, and placed him in
handcuffs.
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Defendant was checked for weapons and asked for his identification,
which was verified. The officers also found an open book bag with a firearm
which appeared to be wrapped in some kind of material. Sergeant Shae
observed a bicycle in the back seat of Defendant’s vehicle.
Dispatch advised that 3SI was asking if the officers wanted the
company to activate a “chirp alarm” on the tracking device. Sergeant Shae
responded affirmatively, the alarm was activated, and Sergeant Shae heard
an alarm inside the vehicle.
Numerous other law enforcement officers arrived at the scene and
information was relayed, including that the suspect had used a bicycle to
leave the Bank.
After the robbery, 3SI emailed the Asheville Police Department a
spreadsheet showing the tracker’s movement using latitude and longitude
and recorded speed. 3SI also provided the Asheville Police Department with a
map of the tracker’s movements, which ended at the location where
Defendant’s car was stopped.
The tracker itself was owned by the Bank, while 3SI owned and
managed the data stream from the device.
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III. Discussion
A. The Motion to Suppress—Cash Tracker
1. Use of the Tracking Device as a Search for Purposes of
the Fourth Amendment
“The Fourth Amendment provides in relevant part that ‘[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.’” United States v.
Stephens, 764 F.3d 327, 331 (4th Cir. 2014). Therefore, “[t]he ‘threshold
question’ in every Fourth Amendment case is whether a search or seizure
occurred, and ‘not every observation made by a law enforcement officer—even
if consciously intended to disclose evidence of criminal activity—constitutes a
search within the meaning of the Fourth Amendment.’” Id. (quoting United
States v. Taylor, 90 F.3d 903, 908 (4th Cir.1996)).
Here, Defendant argues that the Government conducted an
unconstitutional search of his location using data from the tracking device
and therefore any evidence obtained following that search should be
suppressed. In response, the Government contends that use of data from the
tracking device did not constitute a search for purposes of the Fourth
Amendment because (1) the data was given to the investigating officers
voluntarily by a private party; and (2) Defendant had no reasonable
expectation of privacy in the data.
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a. Government Action
“The Fourth Amendment is directed exclusively at state action” and
therefore “evidence secured by private searches, even if illegal, need not be
excluded from a criminal trial.” United States v. Kinney, 953 F.2d 863, 865
(4th Cir. 1992) (citing Burdeau v. McDowell, 256 U.S. 465, 475 (1921); United
States v. Mehra, 824 F.2d 297, 299 (4th Cir.), cert. denied, 484 U.S. 915
(1987)).
The Fourth Amendment does prohibit, though, unreasonable searches
and seizures by “those private individuals acting as ‘instruments or agents’ of
the Government.” United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003)
(citing U.S. Const. amend. IV; Coolidge v. New Hampshire, 403 U.S. 443, 487
(1971)) (internal brackets omitted). In determining whether a private party
acted as an instrument or agent of the Government, courts consider: “‘(1)
whether the Government knew of and acquiesced in the private search; and
(2) whether the private individual intended to assist law enforcement or had
some other independent motivation.’” United States v. Wood, No. 3:22-CR-
201-MOC-DCK, 2023 WL 1456792, at *1 (W.D.N.C. Feb. 1, 2023) (quoting
Jarrett, 338 F.3d at 344).
Here, the Government argues that 3SI gave the data from the tracking
device to law enforcement voluntarily and was otherwise not acting as a
government agent.
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However, it is not necessary to decide if 3SI was acting as an agent of
the Government when it provided the data transmissions because Defendant
did not have a reasonable expectation of privacy in that data.
b. Reasonable Expectation of Privacy
“[A] search occurs for constitutional purposes only ‘when an expectation
of privacy that society is prepared to consider reasonable is infringed,’ and
‘[o]fficial conduct that does not compromise any legitimate interest in privacy
is not a search subject to the Fourth Amendment.’” United States v.
Stephens, 764 F.3d 327, 331 (4th Cir. 2014) (quoting United States v.
Jacobsen, 466 U.S. 109, 113 (1984); Illinois v. Caballes, 543 U.S. 405, 408
(2005)) (internal citations omitted); see also United States v. Rose, 3 F.4th
722, 727 (4th Cir. 2021) (without “an objectively reasonable expectation of
privacy in the items searched, an individual cannot claim protection under
the Fourth Amendment”) cert. denied, 142 S. Ct. 1676, 212 L. Ed. 2d 582
(2022) (internal citations omitted).
“The defendant bears the burden of showing a reasonable expectation
of privacy in the property searched.” Rose, 3 F.4th at 727.
In this case, Defendant, relying on United States v. Jones, 565 U.S. 400
(2012) and United States v. Carpenter, 585 U.S. ---, 138 S. Ct. 2206 (2018),
argues that he had a reasonable expectation of privacy in information
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regarding his personal movements and, consequently, that the Government’s
use of the data stream from the tracking device was improper.
In Jones, the Supreme Court concluded that the Government’s
installation of a GPS device on a vehicle and the Government’s use of that
device to monitor the vehicle’s movements constituted a search for purposes
of the Fourth Amendment.
Here, however, no tracking device was installed on Defendant’s vehicle.
Rather, the evidence indicates that the tracking device was attached to the
bait bills which were taken by the suspect during the robbery. See e.g.,
United States v. Jones, 31 F.3d 1304 (4th Cir. 1994) (Postal inspectors’
placement of an electronic tracker in a bank deposit bag after bank deposit
bag had been stolen was not a search because “[t]he beeper was not planted
in the van; it was concealed in a mail pouch which belonged to the
government and in which Jones had no expectation of privacy whatsoever.
The mail pouch with the beeper found its way into Jones’ van only because
Jones stole the pouch and hid it in the van himself.”)
In Carpenter, the Supreme Court found that a person maintains a
legitimate expectation of privacy, for Fourth Amendment purposes, in the
record of his physical movements as they are captured through cell site
location information and, consequently, that the Government must generally
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obtain a warrant, supported by probable cause, before acquiring cell site
location information from a wireless carrier.
Here, though, 3SI and law enforcement were trying to track the cash
that had been taken from the Bank during the robbery in the hopes of finding
the robber. No evidence indicated that Defendant had a reasonable
expectation of privacy either in the GPS device or in the data that was
produced by the device. To the contrary, Mr. Stevens testified that the Bank
owned the device and 3SI owned the data stream. See Byrd v. United States,
584 U.S. ---, 138 S. Ct. 1518, 1529 (2018) (“No matter the degree of possession
and control, the car thief would not have a reasonable expectation of privacy
in a stolen car.”) (citing Rakas v. Illinois, 439 U.S. 128, 143, n. 12 (1978) (“‘A
burglar plying his trade in a summer cabin during the off season,’ for
example, ‘may have a thoroughly justified subjective expectation of privacy,
but it is not one which the law recognizes as ‘legitimate.’’”); Jones, 31 F.3d at
1311 (“Here, the government has placed the electronic device in its own
property. Only purloiners of such property need fear adverse consequences.
Accordingly, we conclude that the postal inspectors’ use of an electronic
tracking device to monitor movement of the mail pouch did not constitute a
search within the ambit of the Fourth Amendment.”).
Because Defendant has not established that he had reasonable
expectation of privacy in the bait bills, the tracker, or the transmissions being
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made by the device, the use by law enforcement of the location data from the
tracking device did not constitute a search for purposes of the Fourth
Amendment. See United States v. Thomas, No. 21-4366, 2023 WL 4363652,
*5 (4th Cir. July 6, 2023) (unpubl.) (per curiam) (“And where the government
provides a basis for believing the property in question is stolen, [the Fourth
Circuit] require[s] that the defendant show the opposite: that the property in
fact belongs to him.”) (citing United States v. Dickerson, 655 F.2d 559, 561
(4th Cir. 1981)).
2. Arrest of Defendant
Defendant also contends that his arrest was improper since “all of the
evidence relied upon to conclude that [Defendant] was the robber was the
result of the unconstitutional search of [Defendant’s] location information.”
Doc. 33 at 6.
As explained above, the undersigned does not find Defendant’s
argument that the Government’s use of the data from the tracking device was
unconstitutionally obtained to be persuasive.
In addition, the use of that information provided sufficient grounds
upon which to stop Defendant’s vehicle and arrest Defendant.
A law enforcement officer “may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.
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Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30
(1968)). “A reasonable suspicion exists when law enforcement officers possess
‘a particularized and objective basis’ for suspecting the person stopped of
criminal activity.” United States v. Singh, 363 F.3d 347, 355 (4th Cir. 2004)
(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)) (internal
citations omitted).
Further, “[a] police officer may make a warrantless arrest as long as he
has probable cause to do so.” United States v. Lesane, 498 F. App’x 363, 366
(4th Cir. 2012) (unpubl.) (citing United States v. Williams, 10 F.3d 1070, 1073
(4th Cir. 1993)). “Probable cause is present when the ‘facts and circumstances
within the officer’s knowledge’ are enough to justify a prudent person's belief
‘that the suspect has committed, is committing, or is about to commit an
offense.’” Id. (quoting Williams, 10 F.3d at 1073).
In this case, Sergeant Shae had reasonable suspicion to stop
Defendant’s vehicle. He had received information regarding the location of
the tracking device that had been taken from the Bank and had followed that
information until he encountered Defendant’s vehicle, which he noted
contained a single occupant and was traveling in a direction consistent with
the movements of the tracking device. See e.g., United States v. Johnson, No.
13-14047-CR, 2014 WL 272664, at *9 (S.D. Fla. Jan. 23, 2014), (law
enforcement officer properly stopped vehicle based on reasonable suspicion
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where officer’s decision to stop vehicle was based on “information he was
receiving from a law enforcement dispatcher who related that the signal from
the GPS money tracker was coming from that same road and specific
vicinity”).
Additionally, law enforcement had probable cause to arrest Defendant.
In addition to the information available to Sergeant Shae at the time of the
stop, other information was developed subsequently. A firearm, which
appeared to be wrapped in plastic or some similar material, was discovered in
Defendant’s vehicle. Information was also relayed that the robbery suspect
had fled using a bicycle, and a bicycle was discovered in Defendant’s vehicle.
Further, the GPS device was triggered to emit a chirp alarm and an alarm
was heard coming from the inside of Defendant’s vehicle.
The undersigned will, therefore, recommend that Defendant’s Motion to
Suppress – Cash Tracker be denied.
B. The Motion to Suppress – Tennessee Hotel Search
By the Motion to Suppress – Tennessee Hotel Search, Defendant seeks
the exclusion of evidence that was obtained from the search of a hotel room
which law enforcement had identified through a recorded jail call made by
Defendant.
At the beginning of the hearing on September 28, 2023, the
Government reported that it did not intend to introduce evidence obtained
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from the search of the hotel room and, therefore, that this Motion should be
denied as moot.4 Defendant concurred.
IV. Recommendation
Based on the foregoing, the undersigned respectfully RECOMMENDS
that:
(1) The Motion to Suppress – Cash Tracker (Doc. 33) be DENIED, and
(2) The Motion to Suppress – Tennessee Hotel Search (Doc. 36) be
DENIED AS MOOT.
4 The Government did indicate, however, that it believed the Court could consider
the information obtained from the hotel room when deciding Defendant's separate
motion that seeks the suppression of location data from Defendant’s cell phone. See
Doc. 35. That motion is the subject of a separate Memorandum.
Signed: November 6, 2023
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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).
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