United States v. Fatima Ford ( 2023 )

USCA4 Appeal: 20-4404 Doc: 64 Filed: 04/24/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENN QUANTA PERNELL, a/k/a GP,
Defendant - Appellant.
No. 20-4404
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FATIMA FLESINEARS FORD, a/k/a Tima,
Defendant - Appellant.
No. 21-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
USCA4 Appeal: 20-4404 Doc: 64 Filed: 04/24/2023 Pg: 2 of 7
v.
WHITNEY SAD’E PERNELL,
Defendant - Appellant.
Appeals from the United States District Court for the District of South Carolina, at
Columbia. Mary G. Lewis, District Judge. (3:17-cr-00811-MGL-1; 3:17-cr-00811-MGL-
7; 3:17-cr-00811-MGL-5)
Submitted: March 13, 2023 Decided: April 24, 2023
Before GREGORY, Chief Judge, HEYTENS, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jeremy A. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant Glenn Quanta Pernell. Tristan M. Shaffer,
TRISTAN SHAFFER, ATTORNEY AT LAW, Chapin, South Carolina, for Appellant
Fatima Flesinears Ford. William W. Watkins, Sr., WILLIAM W. WATKINS, P.A.,
Columbia, South Carolina, for Appellant Whitney Sad’e Pernell. M. Rhett DeHart, Acting
United States Attorney, Charleston, South Carolina, Jane B. Taylor, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Glenn Quanta Pernell (“G. Pernell”), Fatima Flesinears Ford, and
Whitney Sad’e Pernell (“W. Pernell”) (collectively, “Defendants”) of conspiracy to possess
with the intent to distribute and distribute five kilograms or more of a mixture or substance
containing cocaine and one kilogram or more of a mixture or substance containing heroin,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and convicted G. Pernell and W.
Pernell of using a communication facility during the commission of the conspiracy, in
violation of 21 U.S.C. § 843(b). The district court sentenced G. Pernell to life
imprisonment and sentenced Ford and W. Pernell to 135 months’ imprisonment.
Defendants’ cases stem from an investigation into the criminal activities of brothers
Santerrio Smith (“S. Smith”) and Dantrell Smith (“D. Smith”). On March 30, 2017, the
Government obtained an order authorizing the wiretap of three phones: Target Phone 1,
used by D. Smith, and Target Phones 2 and 3, used by S. Smith. The district court denied
Defendants’ motion to suppress evidence obtained from the wiretaps, and, in these
consolidated appeals, Defendants challenge that decision. We affirm.
“When examining the denial of a motion to suppress, this Court reviews the district
court’s legal determinations de novo and its factual conclusions for clear error. In
conducting this review, the Court evaluates the evidence in the light most favorable to the
government.” United States v. Runner, 43 F.4th 417, 421 (4th Cir.) (cleaned up), cert.
denied, 143 S. Ct. 532 (2022).
Defendants first argue that the district court erred in concluding that the Government
had probable cause to believe that wiretaps of Target Phones 2 and 3, S. Smith’s phones,
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would produce evidence related to the drug-trafficking conspiracy. Section 2518 “requires
the judge to find ‘probable cause’ supporting issuance of the [wiretap] order.” Dahda v.
United States, 138 S. Ct. 1491, 1494 (2018). Specifically, the issuing judge must conclude
that: (1) “there is probable cause for belief that an individual is committing, has committed,
or is about to commit a particular [enumerated] offense”; and (2) “there is probable cause
for belief that particular communications concerning that offense will be obtained through
such interception.” 18 U.S.C. § 2518(3)(a)-(b).
To establish probable cause, the government need only demonstrate “a fair
probability” that communications concerning the criminal activity will be intercepted.
United States v. Depew, 932 F.2d 324, 327 (4th Cir. 1991). “The issuing judge is in the
best position to determine if probable cause has been established in light of the
circumstances as they appear at the time.” Id. Accordingly, “[g]reat deference is normally
paid to such a determination by the issuing judge, and our role is to determine whether the
issuing court had a substantial basis for concluding that electronic surveillance would
uncover evidence of wrong doing.” Id.“Evidence seized pursuant to a warrant supported by stale probable cause is not
admissible in a criminal trial.” United States v. Ebert, 61 F.4th 394, 401 (4th Cir. 2023)
(cleaned up). Thus, “part of a court’s assessment of probable cause must consider whether
the facts supporting it are so closely related to the time of the issuance of the warrant as to
justify a finding of probable cause at that time.” Id. (internal quotation marks omitted).
Although “time is a crucial element, the existence of probable cause cannot be determined
by simply counting the number of days between the occurrence of the facts supplied and
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the issuance of the affidavit.” Id. (cleaned up). Rather, “the Court looks to all the facts
and circumstances of the case, including the nature of the unlawful activity alleged, the
length of the activity, and the nature of the property to be seized.” Id. (cleaned up).
The affidavit in support of the wiretap application at issue here established that S.
Smith was arranging drug sales on Target Phones 2 and 3 in January 2017, just two months
prior to the issuance of the wiretap order. That some of the sales did not come to fruition
does not negate the fact that S. Smith was engaging in criminal activity using Target
Phones 2 and 3. And we conclude that the historical information Defendants argue is too
stale to support probable cause demonstrated that this recent flurry of drug activity was not
an anomaly. See, e.g., United States v. Encarnacion, 26 F.4th 490, 498 (1st Cir. 2022)
(explaining that “shelf life sometimes may be extended when the application describes an
ongoing pattern of conduct in the drug-trafficking arena, because the probable cause
determination will not hinge on discrete pieces of standalone evidence but, rather, on the
totality of the circumstances” (citation omitted)); United States v. Rhynes, 196 F.3d 207,
234 (4th Cir. 1999) (concluding that search warrant was not stale when, among other
factors, “the nature of the activities alleged were long-term drug trafficking and money
laundering”), vacated in part on other grounds by 218 F.3d 310 (4th Cir. 2000) (en banc).
Next, Defendants argue that the Government failed to establish that the wiretaps of
Target Phones 2 and 3 were necessary. To obtain a wiretap authorization, “the government
[must] submit an application containing ‘a full and complete statement as to whether or not
other investigative procedures have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous.’” United States v. Galloway,
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749 F.3d 238, 242 (4th Cir. 2014) (quoting 18 U.S.C. § 2518(1)(c)). And a district court
may “issue a wiretap order only after making a specific finding that ‘normal investigative
procedures have been tried and have failed or reasonably appear to be unlikely to succeed
if tried or to be too dangerous.’” United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994)
(quoting 18 U.S.C. § 2518(3)(c)). These requirements “are designed to ensure that the
relatively intrusive device of wiretapping is neither routinely employed as the initial step
in criminal investigation, nor resorted to in situations where traditional investigation
techniques would suffice to expose the crime.” Id. (internal quotation marks omitted).
The government’s burden of demonstrating the necessity for a wiretap “is not great,
and the adequacy of such a showing is to be tested in a practical and commonsense fashion
that does not hamper unduly the investigative powers of law enforcement agents.” United
States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007) (internal quotation marks omitted).
Thus, “[a]lthough wiretaps are disfavored tools of law enforcement, the [g]overnment need
only present specific factual information sufficient to establish that it has encountered
difficulties in penetrating the criminal enterprise or in gathering evidence such that
wiretapping becomes reasonable.” Id. (cleaned up). We review for abuse of discretion a
district court’s determination that a wiretap was necessary. Id. at 280.
Here, in the affidavit in support of the wiretap application, the agent set forth in
exhaustive detail the investigative techniques used in the investigation up to that point and
explained why those techniques had not achieved the goals of the investigation. The agent
also explained why continued use of those techniques or the use of additional techniques
would threaten the investigation and the safety of those involved. We conclude that this
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showing was sufficient and that the district court did not abuse its discretion in concluding
that the wiretaps were necessary. See id. at 281 (holding that showing of necessity was
sufficient under similar circumstances); Galloway, 749 F.3d at 243 (same).
Because the district court did not err in denying Defendants’ motion to suppress the
evidence obtained from the wiretaps, we affirm the district court’s judgment. We deny G.
Pernell’s motion to file a pro se supplemental brief. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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