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United States v. Carter

United States District Court, D. Nevada

June 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICKY CARTER, JR., Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is defendant Ricky Carter Jr.'s motion to suppress. ECF No. 23. The United States filed a response (ECF No. 24), to which Carter replied (ECF No. 25). The court finds that probable cause supported the search warrant for the four cellphones found in Carter's car during his arrest. Moreover, even if the facts that Carter asserts are missing from the affidavit are considered reckless or intentional omissions, he has not established that they were material to the probable-cause determination. The court will therefore deny the motion.

         I. Background

         Carter is charged by indictment with one count of felon in possession of a firearm under j 18 U.S.C. §§ 922(g)(1), 924(a)(2). ECF No. 1. Reno Police Department ("RPD") officers discovered the firearm after initiating a traffic stop of Carter's vehicle on November 30, 2016. ECF No. 23 at 2. The events leading up to the traffic stop, which also underlie the search warrant at issue, began two months earlier.

         On October 1, RPD officers responded to a shooting at a bar in Reno, Nevada. ECF No. 24 at 1-2. After the officers arrived on scene, they discovered the victim lying in the parking lot with gunshot wounds. Surveillance video from a restaurant next door revealed an individual later identified as Andre Wagner running with a handgun in one hand and an item appearing to be an extended magazine in the other. Wagner was seen running down an alley towards the parking lot where the victim was later found and firing the gun in that direction.

         The video also revealed the presence of Dartanyan Perkins, who, along with Wagner and Carter, is a member of the Crips gang. Id. at 2. Vehicles belonging to Wagner and Carter were seen on video fleeing from the area, but it does not appear that the video ever revealed Carter's presence at the shooting. However, the police eventually learned that Carter and Perkins were at a local casino several hours before the shooting and had argued with the victim and his cousin, who are both members of the rival Bloods gang. Based on this incident and the fact that Carter's vehicle was at the crime scene, officers assigned to the Regional Gang Unit began searching for Carter in order to question him.

         On November 10, 2016, Wagner was arrested for the shooting. ECF No. 23-1 at 2. Over the next few days, he made several recorded phone calls from the detention center to the same phone number, which the police learned belongs to his girlfriend. During one of these calls, Wagner dialed his girlfriend's number but spoke to Carter, who was presumably with Wagner's girlfriend or had access to her phone. Wagner instructed Carter to tell Perkins, who was also caught on video at the crime scene, to flee. ECF No. 23 at 4; ECF No. 23-2 at 3. During another call to his girlfriend, Wagner instructed her to remain in contact with Carter. ECF No. 23-2 at 3.

         Several weeks later, on November 30, 2016, officers assigned to the Regional Gang Unit coincidently pulled alongside Carter's vehicle in traffic. ECF No. 24 at 2. Due to their investigation of the October 1 shooting, the officers recognized Carter as the driver and recalled that his license was indefinitely suspended. The officers therefore decided to initiate a traffic stop.

         Once Carter's vehicle had come to a stop, the front and rear passenger doors opened and two men began fleeing. Id. at 3. Carter, however, remained in the vehicle. With at least some of the passenger doors still open, the officers were able to see a black semi-automatic handgun with an extended magazine near the center console. The gun appeared to match the weapon seen from the video of the shooting.

         Aware that Carter was a convicted felon, the officers arrested Carter and searched him and his vehicle. Id. In turn, they discovered one cellphone on his person and three cellphones inside the vehicle within Carter's reach.

         On January 12, 2017, Detective Edward Wilson of the Sparks Police Department and Regional Gang Unit applied for a warrant to search all electronically-stored files from the four cellphones found during Carter's arrest. Id. In his affidavit, Detective Wilson attested that he believed that evidence related to the October 1 shooting would be found on at least some of these phones. ECF No. 23-2 at 5.

         In support of this assertion, Detective Wilson cited the aforementioned calls that Wagner placed from detention. Detective Wilson attested that, "[d]ue to the amount of communication between Wagner and Carter, " he believed that an examination of the cellphones could corroborate certain elements of the shooting investigation. ECF No. 23-2 at 5. At no point, however, did he explicitly state that none of the calls that Wagner placed from detention were to any of the four cellphones.

         Detective Wilson did cite the fact that both men were Crips gang members and that "[it] is common for people involved in criminal activity to converse with others with the use of cellular phones by calls, text (SMS) messages, and emails regarding their criminal activity." Id. at 4-5. He also briefly noted an incident in which "a confidential informant heard the account of the crime first hand from Wagner, Perkins and their associates all while at Ricky Carter's house." Id. at 4.

         On January 12, 2017, a Reno magistrate issued a search warrant for the four cellphones. During the resulting search, Detective Wilson located text messages between Carter and the individual who sold him the firearm found in his vehicle, including ...


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