Criminal Practice – Motion to Suppress Evidence – Double Jeopardy

A detective’s affidavits established probable cause to search not just Defendant’s cell phone, but also his residence.

We affirmed the district court’s denial of Defendant’s motion to suppress he evidence seized from the warrants. We further rejected Defendant’s argument under the Double Jeopardy Clause.

Detective Lowrance obtained two warrants to search the home and electronics of Defendant after Defendant’s second wife, April, reported seeing child sexual abuse material (CSAM) on his cell phone. Defendant claimed the affidavits that Lowrance drafted to support these warrants recklessly omitted known information that would have undermined April’s credibility. But Defendant did not satisfy his heavy burden. Consistent with the Supreme Court’s long-held preference for warrants, we must extend some grace to warrant affidavits. And here, any omissions were immaterial to the state superior court judge’s probable cause findings.

On appeal, Defendant took issue with, among other things, the district court’s denial of his motion to suppress. He then claimed the district court violated the Constitution’s Double Jeopardy Clause by entering judgment on the three receipt counts that, as he sees things, all rest on the same underlying criminal conduct.

According to Defendant, Lowrance recklessly omitted information about April from his affidavits, the inclusion of which would have defeated probable cause. We disagreed. Defendant asserted that April’s allegations about witnessing CSAM on his cell phone (a portable device usually held close on one’s person) did not justify a warrant to search his home. But for support, he cited just two out-of-circuit cases that concerned search warrants of homes for portable communications devices where, crucially, the police had no reason to think that the defendants even owned them. By contrast, the affidavits here not only referenced Defendant’s possession of a cell phone containing CSAM. They also specified the existence of “two laptops at [Defendant’s] residence,” which could reasonably have been thought to contain evidence of his receipt and possession of CSAM. As written, then, Lowrance’s affidavits established probable cause to search not just his cell phone, but also his residence.

The district court likewise did not run afoul of double jeopardy principles. There was no plain error here. Defendant’s indictment alleged different ranges of dates for each offense. Consistent with this specification, the jury heard evidence that Defendant downloaded one video of CSAM at 8:51 p.m. on February 3, 2020; another roughly 25 minutes later; and a third the next day. The jury also learned that each video was a distinct file. Further, in its closing argument, the prosecution specifically linked these files to counts one through three, respectively. The entire record thus clearly demonstrates that the jury’s convictions, and the district court’s judgment, comported with the Double Jeopardy Clause.

Affirmed.

United States v. Jessie Leroy Glass Jr. (Lawyers’ Weekly No. 001-192-25, 18 pp.) (J. Harvie Wilkinson III, J.) Appealed from the U.S. District Court for the Western District of North Carolina, at Statesville (Kenneth D. Bell, J.) ARGUED: Melissa Susanne Baldwin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Asheville, North Carolina, for Appellant. Amy E. Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit