United States District Court, E.D. Virginia, Richmond Division
Robert E. Payne Senior United States District Judge
This matter is before the Court on Defendant's MOTION TO SUPPRESS ILLEGALLY SEIZED EVIDENCE (Docket No. 14). Having reviewed the papers, taken evidence, and heard oral argument, the Court concludes that: (1) there was a valid traffic stop; (2) even if the stop was an investigatory stop (rather than a traffic stop), the police officers had reasonable suspicion to stop the vehicle in which Marcus Harris ("Harris") was a passenger; (3) officers legally seized Harris' phone following the traffic stop; and (4) Harris does not have standing to challenge the search of his phone conducted pursuant to the search warrant issued on September 4, 2015. Therefore, the MOTION TO SUPPRESS ILLEGALLY SEIZED EVIDENCE (ECF No. 14) was denied by the Court's Order issued on March 8, 2016 (ECF No. 28) .
In July 2015, a number of burglaries occurred in Colonial Heights, Virginia. (Transcript of March 7, 2016 ("Hrg. Tr., " ECF No. 29) at 6) . One of those burglaries occurred on July 7, 2015, when three firearms and several items of jewelry were stolen from a residence located at 144 Carroll Avenue. Id. The firearms were: a .40 caliber Glock pistol, a .380 Walther semiautomatic pistol, and a .38 caliber revolver. Id. at 7. On July 11, 2015, Detective Thad Johnson ("Johnson") of the Colonial Heights Police Department ("CHPD") received a telephone call from the proprietor of a Colonial Heights jewelry store reporting that Stephan Adams ("Adams") (who was a suspect in the July 7 burglary) was attempting to sell some jewelry. Id. Shortly thereafter, Adams was arrested and admitted that he had stolen the firearms and the jewelry from 144 Carroll Avenue. Id. at 8-9. Adams also made several other statements against his penal interest, including admitting to other burglaries and to extensive drug use, Adams reported that he had taken the stolen firearms to 404 North Carolina Avenue in the nearby City of Petersburg in an effort to sell them to a man named "Vice." Id. at 9. However, upon Adams' arrival at that address, Vice and a man named "Marcus" had robbed Adams of the firearms and his wallet. Id. That residence was occupied by the man Adams knew as "Vice, " Tommy Williams ("Williams"), Williams' girlfriend, Mona, and Vice's mother. Id. at 12.
Johnson informed the Petersburg Bureau of Police ("PBP") of the information that Adams had provided and asked for assistance in obtaining and executing a search warrant for 404 North Carolina Avenue, where Adams had allegedly been robbed of the firearms and his wallet. Id. at 10. The search warrant was obtained and executed in the early morning hours of July 12. Id. Officers from the PBP effectuated the entry, and once the house was secured, Johnson and members of the CHPD and the PBP searched the residence. Id. at 10-11. However, the stolen firearms were not found. Id. at 12.
As the search was concluding, Johnson interviewed Williams and explained to him why his residence was being searched. Id. at 13. At that point, Williams admitted that he had seen Marcus Harris ("Harris") rob Adams of the firearms. Id.
Detective James Aponte ("Aponte") of the PBP also participated in the July 12 search of 404 North Carolina Avenue. After the search was concluded, Aponte spoke with Williams, gave him a business card, and asked Williams to telephone him in the event that Williams came in contact with Vice or Harris, or if he should learn of their whereabouts. Id. at 83. Aponte was aware from his communications with CHPD and his participation in the search warrant briefing that Harris had been identified as the perpetrator of the robbery of the weapons from Adams. Id.
The next day, July 13, Aponte received a telephone call from Williams advising that Harris would be meeting Williams at Williams' residence, 404 North Carolina Avenue, that afternoon. Id. at 84. Aponte arranged for a surveillance perimeter to be established at that location. Id. at 85-86. While Aponte was awaiting Harris' arrival in a surveillance vehicle not far from Williams' address, Williams again telephoned the PBP headquarters to report that Harris would be a passenger in a vehicle that Williams described as a gray Nissan. Id. at 86. Williams also said that there would be a weapon in the vehicle. Id. That information was promptly relayed to Aponte. Id.
Shortly thereafter, Aponte observed a gray vehicle arrive at 404 North Carolina Avenue. Id. at 86-87. Williams left the house and entered the vehicle, which was then driven away. Id. Aponte advised his colleagues via radio that the car was a gray Infiniti, at which time Detective Eric McCall ("McCall"), a PBP officer and member of the perimeter surveillance team, spotted the vehicle and began to follow it. Id. at 60. Not long after that, the gray Infiniti made a turn without using its turn signal at a stop sign. Id. at 65. McCall activated his emergency lights and radioed to report the traffic infraction. Id. at 63. However, McCall mistakenly said that the vehicle "did not use the stop sign, " rather than reporting that the vehicle had failed to use a turn signal. Id. at 65.
Disregarding McCall's signal to pull over, the gray Infiniti continued to proceed at a slow speed. Id. at 65-66. Consequently, McCall activated his siren. Id. at 66.
McCall's experience in similar situations led him to believe that all or some of the occupants of the vehicle were preparing to flee on foot when the car came to a stop. Id. Using a tactical radio, McCall broadcast this apprehension to the other members of the surveillance team. Id. at 67-68. The Infiniti continued to proceed slowly north on Sycamore Street, turned right onto East Fillmore, and then turned onto Adams Street, where it finally stopped. Id.
Having been made aware by McCall that the vehicle was not responding to McCall's signals to stop, Aponte drove east on Mars Street, parallel to the course of the Infiniti. Id. at 88. Based on his previous experience, Aponte, like McCall, was of the view that the passengers in the car were getting ready to flee once the car came to a stop. Id. Aponte saw the Infiniti stop on Adams Street, whereupon, as both he and McCall had predicted, an occupant jumped from the rear of the vehicle and fled from the scene of the traffic stop, running down Adams Street toward Aponte, who was approximately one-half a block away. Id. at 90. Aponte apprehended that occupant, who was subsequently identified as J'Quan Finch-Howard ("Finch-Howard"). Id. Aponte walked Finch-Howard back to the site of the traffic stop. Id. at 90-91.
Meanwhile, McCall was dealing with the occupants of the Infiniti who had not taken flight. Id. at 68-69. As McCall approached the vehicle, Harris (the front passenger) and Williams (the right rear passenger) stepped out of the car. Alone and mindful of the report that there was a gun in the car, McCall told Harris and Williams to lie down on the ground behind the car, at which time other officers arrived and placed both in handcuffs. Id. at 69-70. McCall then instructed the driver, Calvin Tucker ("Tucker"), to exit the car. Id. at 70-71.
When questioned, Tucker said that he had borrowed the vehicle from a relative. Id. at 91. Aponte then explained to Tucker that the police thought there would be a weapon in the vehicle and asked for permission to search it, which Tucker gave. Id. at 91-92. Aponte began to search and, just behind the center console, located a "fanny pack" containing a Glock semiautomatic pistol and two magazines. Id. at 93. Underneath the fanny pack, Aponte found a Jansport book bag containing a .22 caliber revolver, a .22 caliber survival rifle, and some .22 caliber ammunition. Id.
Having located a Glock and a revolver, and mindful that weapons of that description had reportedly been stolen by Harris, who was a passenger in the Infiniti, Aponte telephoned Johnson (of the CHPD) and advised him that PBP had "found the Glock and the revolver that we [the CHBP and PBP] previously were searching for." Id. at 96. Johnson immediately came to the scene of the traffic stop. Id. at 97. Johnson took a quick look into the vehicle and, without taking any item out of either the fanny pack or the Jansport book bag, told Aponte that "those were the weapons they were looking for from a burglary." Id.
After searching the Infiniti, Aponte saw two cell phones lined up on the curb, next to the individuals who had been in the vehicle. He picked up the cell phones and asked for the owners to identify them. Id. at 99. Williams claimed a flip phone, and Harris claimed a Samsung smartphone. Id.
The occupants of the vehicle, including Harris, were then taken to the PBP for questioning. Id. at 102. CHPD officers conducted all four interviews. Id. While there, Aponte spoke again with Williams and asked who had possessed the bags that had been found in the car. Id. at 103. Williams reported that the fanny pack that contained the Glock had been in Harris' possession, and asked whether Aponte had located the drugs that were in the fanny pack. Id. at 103. Aponte had not, but returned to further search the fanny pack, where he located the drugs that Williams had said would be there. Id.
Finch-Howard, the occupant who had fled from the rear seat of the vehicle, corroborated Williams' statement that Harris had possessed the fanny pack (containing the Glock and the drugs) at the time that the Infiniti was being followed by the police car. Id. at 107. Finch-Howard also added that, once the lights of the police car came on, Harris tossed the fanny pack into the back seat toward Finch-Howard, where it was found in the search (behind the center console). Id.
Finch-Howard also told Johnson that there was a video on Harris' cell phone that showed Harris shooting one of the stolen weapons. Id. at 38. Johnson testified that thereafter he advised Aponte that a video would be found on Harris' cell phone. Id. Aponte did not recall being informed about the content of the video, but did recall that Johnson had mentioned the video. Id. at 147.
In light of the information obtained from Williams and Finch-Howard and Harris' presence in the car near where the weapons and drugs were found, Aponte believed that he had probable cause to arrest Harris for possession of the drugs and stolen weapons found in the vehicle. Id. at 105-06. However, Aponte did not immediately place Harris under arrest. Instead, he retained Harris' cell phone with a view to obtaining a search warrant to search the contents of the phone. Id. at 107.
According to Aponte, criminals tend to take photos, often called "glamour shots" or "trophy photos, " of items involved in their crimes (such as money, drugs, or guns). Id. at 108. In Aponte's experience, this practice occurs on a widespread basis; Aponte stated that he and his fellow detectives had investigated numerous cases in which individuals had taken "trophy photos" on their cell phones of weapons, drugs, money, or other evidence. Id. at 108-110. Both Aponte and Johnson testified that the pervasiveness of "glamour shots" or "trophy photos" is common knowledge among law enforcement officers. Id. at 27-29; 107-111.
As Harris was leaving the PBP after the questioning concluded, he asked Aponte to return the cell phone, but Aponte declined the request, explaining that he would be immediately seeking a search warrant for the phone's contents. Id. at 111-12. He advised Harris to telephone in a couple of days regarding the cell phone's return. Id. at 112. Upon the advice of the Attorney General's laboratory, Aponte powered the phone off or put it into airplane mode so as to protect the phone's contents from being remotely wiped or otherwise destroyed. Id. at 110. The phone was then secured in the PBP property room pending application for a search warrant. Id.
The next day, July 14, Aponte applied for, and received, a warrant to search the cell phone. Aponte then took the cell phone to the crime lab at the Virginia Attorney General's Office to have a professional conduct a forensic examination of the phone's contents. Id. at 113-14. On July 16, the Attorney General's forensic team informed Aponte that the telephone was password protected and that, at the time, the laboratory did not have the necessary software to access the contents of the phone. Id. Aponte returned the cell phone to the PBP's property room.
Meanwhile, Aponte's investigation into Harris' conduct continued, and, as part of that investigation, Aponte had obtained a search warrant for Harris' DNA. On July 20, Aponte served that warrant on Harris at Harris' home and obtained the DNA sample. Id. at 114-15. At that time, Aponte also asked Harris to provide the cell phone password so that the contents could be examined. Id. at 115. Aponte explained that, with the password, the search of the contents could be completed in a few days, whereas without the password, it could take up to 45 days. Id. at 115. Harris responded that the cell phone was not his and that therefore Aponte would just have to wait the 45 days to find out what was on the phone. Id.
After Harris disclaimed ownership of the phone on July 20, he had no contact with Aponte or any other officer at PBP regarding the phone before Aponte obtained a second search warrant on September 4.Id. at 117. Following the issuance of the second warrant, the state police lab was able to successfully access the phone's contents, and their forensic examination revealed a number of photographs showing the weapons that had been seized from the car and the scale that was in the fanny pack found in the car. Id. at 118. Examiners also found several videos on the ...