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United States v. Galloway

United States District Court, D. South Carolina, Columbia Division

May 4, 2017

UNITED STATES OF AMERICA
v.
FREDERICK DEON GALLOWAY CR.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge.

         I. INTRODUCTION

         A. Factual Background

         On June 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.

         Once on 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.[1] 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.

         On 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.

         B. Motion to Suppress

         This 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.

         Defendant 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.

         Next, 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.

         Finally, 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. Id.

         C. Evidentiary Hearing

         The court held an evidentiary hearing on March 21, 2017, and a continued evidentiary hearing on April 7, 2017.

         1. Testimony of Mr. Banken

         Mr. 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.

         Mr. 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.[2] 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.[3]

         According 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. ...


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