United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
16, 2015, Mr. Jonathan Figueroa called 911 to report that his
motorcycle was missing. ECF No. 56-1. Initially, the Sumter
Police Department responded to the call. Id. at 2.
Mr. Figueroa informed the police that his motorcycle had a
tracking device attached to it that was manufactured by a
private company, Find it Now USA, LLC (“FIN”).
Id. At an evidentiary hearing, Mr. Figueroa
testified that he gathered information by accessing his FIN
phone app that provided the general location of where his
motorcycle's GPS tracking device was located. Using the
information obtained from FIN, Mr. Figueroa went to the
general vicinity of 900 Salterstown Road to find the
motorcycle on his own. ECF No. 57 at 2. Once he arrived, Mr.
Figueroa contacted the Sumter Sheriff's Office and
requested dispatch to 900 Salterstown Road. ECF No. 57-2.
Deputies arrived on the scene minutes later. ECF No. 57 at 2.
the scene, Investigators approached Defendant and asked for
permission to search the property. ECF No. 57 at 2. Defendant
refused consent to the search stating that the home was his
girlfriend's property. Id. Later, Sgt. Mays
with the Sumter Sheriff's Office reported that he noticed
a device that appeared to be the motorcycle's tracking
device in the backyard of 900 Salterstown Road. ECF No. 57-3
at 1. Deputies composing the search warrant affidavit
included Sgt. Mays' statement that he had located the
tracking device in the backyard of the Salterstown property
that they were requesting to search. Id. A search
warrant was signed and approved by a South Carolina
magistrate at 10:35 a.m. Id. As they conducted a
search of the premises, law enforcement found additional
items that they believed would be pertinent to their
investigation but that were outside of the parameters of the
original search warrant. At that time, law enforcement
applied for another search warrant. ECF No. 56-8. A second
search warrant was signed and approved by a South Carolina
magistrate at 1:32 p.m. Id.
September 5, 2016, Frederick Galloway
(“Defendant”) and his co-defendant, Tawania
Galloway, were charged in a four-count indictment that
charged Defendant with tampering with or altering vehicle
identification numbers in violation of 18 U.S.C. § 511
(Count 1); operating, maintaining, and controlling a chop
shop in violation of 18 U.S.C. § 2322(a)(1) and 2 (Count
2); obstructing, influencing, and impeding an official
proceeding by soliciting and procuring a falsely sworn
affidavit and witness statement in violation of 18 U.S.C.
§ 1512(c)(2) (Count 3); and, making a false entry in a
sworn affidavit, a record, document and tangible object with
the intent to impede, obstruct, and influence the
investigation and proper administration of a criminal
investigation in violation of 18 U.S.C. § 1519 (Count
4). ECF No. 1.
Motion to Suppress
matter is before the court on Defendant's motion to
suppress filed February 1, 2017. ECF No. 56. The Government
filed a response in opposition on February 9, 2017. ECF No.
57. Defendant filed a reply in support of the motion to
suppress on February 16, 2017, and a supplemental reply on
March 13, 2017. ECF Nos. 63 and 79.
contends that the evidence seized as a result of the June 16,
2015 search should be suppressed because search warrant
affidavits mischaracterized and omitted information in
violation of Franks v. Delaware, 439 U.S. 154
(1978). Specifically, Defendant argues that the
motorcycle's GPS tracking device was not located on the
property when law enforcement arrived on June 16, 2015. ECF
No. 56 at 10. Defendant argues that the GPS was moved
somewhere between 9:10 a.m. and 9:36 a.m., and that the
device's change in location was either the result of law
enforcement moving the device, or someone under law
enforcement's direction moving the device. Id.
Location logs indicate that the device was moved between 9:10
a.m. and 9:36 a.m. from approximately 890-892 Salters Street
to 920-800 Salterstown Road. ECF No. 56-3 at 3.
Defendant argues that the evidence should be suppressed
because law enforcement engaged in a search of the property
prior to obtaining a warrant. ECF No. 56 at 1-2. Defendant
specifically draws attention to the property and evidence
voucher that indicates that items were “seized”
at 9:48 a.m., prior to the search warrant being signed at
10:35 a.m. ECF No. 56-7 at 6.
Defendant asserts that he has standing to seek suppression of
the evidence derived from the searches despite the
Government's argument that he lacked the requisite
expectation of privacy. ECF No. 63 at 7. Defendant maintains
that he did not deny ownership of the home, and that, even if
he did not possess ownership of the home, the law makes clear
that ownership or residency is not a prerequisite for
standing to challenge a search under the Fourth Amendment.
court held an evidentiary hearing on March 21, 2017, and a
continued evidentiary hearing on April 7, 2017.
Testimony of Mr. Banken
Banken testified that he is an Operations Manager for FIN and
that he has been working with the company for about nine
years. He stated that he is familiar with the functioning of
the company's tracking device because he helped to design
it. Next, Mr. Banken explained the process by which customers
are notified of movement of their property. First, he
explained that, when the GPS is disconnected from the
motorcycle's power source, the device begins to operate
using its own battery. Next, the device sends the customer an
automatic alert letting them know that the power has been
disconnected. Such notifications can be sent by email or
text, depending on the customer's preference. The
automated alert informs the customer of the time the power
was disconnected, and directs the customer to log into their
account to see the particular address where the power
disconnect occurred. Customers are given an approximate
address that is based on “software conversions.”
Once logged into their personal accounts, customers are able
to access google generated maps accompanied with the
longitude and latitude coordinates of where the power
disconnected for an accurate location description.
Banken testified that he received a call from Mr. Figueroa
around 8:30 a.m. on the morning of June 16, 2015. Mr. Banken
stated that he assumed that Mr. Figueroa slept through the
alerts sent by FIN to notify him that his property had been
moved earlier that morning. Next, Mr. Banken testified that
Mr. Figueroa requested information concerning the location of
his stolen motorcycle. Mr. Banken stated that he told Mr.
Figueroa that the motorcycle's GPS tracking device was
disconnected at 1:33 a.m. in the middle of the 900
Salterstown Road property. Mr. Banken then testified that around
8:39 a.m. he sent Mr. Figueroa an email with pictures of the
location where the device last reported noting, “device
reporting on the side of the road where the street line
starts approximately 150' from corner of Salters St. and
Holmes St.” ECF No. 56-2 at 4.
to Mr. Banken's testimony, once Mr. Figueroa arrived at
the location, Mr. Figueroa expressed that he did not see his
motorcycle on or near the property. Mr. Banken then asked Mr.
Figueroa to describe the property and the surrounding area.
He asked Mr. Figueroa if there was a shed or trailer
somewhere on the property and Mr. Figueroa indicated that
there was a shed on the property. Mr. ...