Report & Recommendation on Motion to Suppress Cell Site Data — United States v. Foster (N.D. Ga.)

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A Report & Recommendation filed 02/17/23 as Document 639 in United States of America v. Teldrin Foster, Criminal Action No. 1:20-cr-296-JPB-CMS, U.S. District Court for the Northern District of Georgia, Atlanta Division, on Defendant Teldrin Foster's Motion to Suppress Cell Site Data and Related Evidence [Doc. 493]. The report states that the author will recommend that the motion be denied. It describes a March 11, 2021 application and affidavit by FBI Special Agent Joseph D. Stites for T-Mobile account information tied to seven phone numbers in an investigation of fraudulent Paycheck Protection Program (PPP) applications submitted on behalf of eleven companies, and states that Foster argues the affidavit did not provide probable cause as it relates to the phone information.

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“Report & Recommendation on Motion to Suppress Cell Site Data — United States v. Foster (N.D. Ga.).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cr-00296-dkt-639-n-d-ga-623a49c9e9/, SHA-256 1d527d010f5eb9c6bf52a2e4d311101bb5f2f3a42b4e66c61421bc908daaf1bc.

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Case 1:20-cr-00296-JPB-CMS Document 639 Filed 02/17/23 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA

v. CRIMINAL ACTION NO.

TELDRIN FOSTER, 1:20-cr-296-JPB-CMS

Defendant.

REPORT & RECOMMENDATION

This case is before the Court on Defendant Teldrin Foster’s Motion to

Suppress Cell Site Data and Related Evidence. [Doc. 493]. For the reasons

discussed below, I will recommend that this motion be denied.

I. BACKGROUND

On March 11, 2021, FBI Special Agent Joseph D. Stites submitted an

application and affidavit for information associated with the T-Mobile accounts

tied to seven phone numbers, one of which was used by Foster. [Doc. 493-1 at

1–34 (“Stites Aff.”)].

In his affidavit, Special Agent Stites averred that the United States was

investigating fraudulent Paycheck Protection Program (“PPP”) applications

submitted on behalf of eleven companies. [Stites Aff. ¶ 17]. These eleven

businesses received PPP loan funding totaling more than $8.7 million. [Id. ¶ 18].
Case 1:20-cr-00296-JPB-CMS Document 639 Filed 02/17/23 Page 2 of 10

Special Agent Stites provided details showing that each of the loan applications

contained blatant misrepresentations regarding, among other things, the number of

employees and the average monthly payroll expenses. [Id. ¶¶ 19–22].

The affidavit provided extensive information about Foster’s codefendant,

Darrell Thomas, who appears to have been at the center of the scheme. According

to the affidavit, Darrell Thomas’s emails implicate Foster in the scheme. The

emails show that Foster, Thomas, and two others “fabricated the supporting

documents submitted with the businesses’ applications. For example, these

individuals emailed each other various versions of the supporting documentation

with changing business names, payroll figures, employee names, and other

details.” [Id. ¶ 22a].

Special Agent Stites also included facts showing that money laundering

activities were occurring in connection with the loan proceeds. [Stites Aff.

¶¶ 23–34]. According to the affidavit, one of the companies used its fraudulent

PPP loan proceeds to purchase luxury vehicles, while other companies paid a

substantial portion of their loan proceeds to two of Darrell Thomas’s

companies—Bellator Phront Group, Inc. (“Bellator”) and Elite Executive Services,

Inc. (“Elite”)—despite having no legitimate business ties to either Bellator or Elite.

[Id. ¶¶ 23–26].

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According to Special Agent Stites, a third method of laundering the PPP

loan proceeds was through a service called Rapid Pay Card. [Sties Aff. ¶ 27].

Rapid Pay Card allows businesses to issue payroll cards to their employees. Then,

rather than paying employees using direct deposit or paper checks, employers can

load their employees’ pay onto their payroll cards, which can then be used like a

debit card. [Id. ¶ 28].

The affidavit states that six of the companies who obtained fraudulent PPP

loans made large deposits to a Rapid Pay Card account at MetaBank, and the funds

then made their way into Bellator’s Rapid Pay Card account. [Stites Aff. ¶¶ 27, 29,

30]. According to the affidavit, none of these businesses had any W-2 payroll

employees, such that there was no legitimate reason for any of these businesses to

make payments to Rapid Pay Card. [Id. ¶ 31]. Bank records show that Bellator

issued 198 payroll cards to approximately 159 people, even though Bellator

reported having only 66 employees on its PPP loan application. [Id. ¶ 32].

Moreover, MetaBank’s records provided additional indicators of fraud, showing

that the amounts deposited onto the payroll cards by Bellator were not consistent

with legitimate payroll activity, that the dates the funds were deposited onto the

payroll cards by Bellator were not consistent with legitimate payroll activity, and

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that many of the payroll cards were used in locations other than where the

purported employees lived. [Id. ¶¶ 33–34].

Finally, Special Agent Stites included facts in his affidavit showing why the

agents believed that evidence related to the fraudulent loans and laundering of the

proceeds would be found in the information provided by T-Mobile. [Stites Aff.

¶¶ 36–65]. With respect to Foster’s phone, the affidavit states:

55. The Target Telephone (678) 559-8218 is believed to be used by
TELDRIN FOSTER. Specifically, your Affiant spoke with TELDRIN
FOSTER on this number. The service provider is T-Mobile.

56. Bellator issued a payroll card in the name of TELDRIN FOSTER. In
an interview with your Affiant, TELDRIN FOSTER admitted that he
is not a Bellator employee.

57. Between July 11, 2020 and August 7, 2020, the payroll card issued to
TELDRIN FOSTER was used to make approximately $8,554.10 in
purchases and ATM withdrawals at various locations in the Atlanta
area, where TELDRIN FOSTER resides.

[Stites Aff ¶¶ 55–57]. The affidavit then provided background information

regarding historical cell site information and explained that cell-site data provides

an approximate location of the cellular telephone. [Id. ¶ 66]. Special Agent Stites

also stated that “disclosure of historical cell-site information . . . will assist

investigating agents in determining who used the Rapid Pay Card payroll cards

issued to Bellator’s purported employees.” [Id. ¶ 65].

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On March 11, 2021, United States Magistrate Judge Russell G. Vineyard

signed the warrant that Special Agent Stites had presented, requiring T-Mobile to

provide the Government with the historical cell site data and the other information

requested in the application from the accounts associated with the seven phone

numbers, for the time period between July 1, 2020 through the processing date.

[Doc. 493-1 at 35–40]. And it authorized the Government to seize all such

information to the extent it constituted “fruits, evidence, and instrumentalities of

violations of Title 18, United States Code, Sections 1343 (Wire Fraud), 1344 (bank

fraud), 1028A (Aggravated Identity Theft), 1956 and /or 1957 (Money

Laundering), and conspiracy to commit these offenses . . . .” [Id. at 39].

In his motion to suppress, Foster argues that the affidavit did not provide

probable cause “as it relates to Mr. Foster’s phone information.” [Doc. 493 at 2].

He claims that there was insufficient information: (1) connecting him to any actual

use of a Rapid Pay Card; (2) regarding the precise location where the card in his

name was used; and (3) explaining why the cell site data would be relevant to the

investigation. [Id. at 2–4].

II. DISCUSSION

The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the

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Case 1:20-cr-00296-JPB-CMS Document 639 Filed 02/17/23 Page 6 of 10

place to be searched, and the persons or things to be seized.” U.S. CONST. amend.

IV.

With respect to probable cause, “the task of a reviewing court is not to

conduct a de novo determination of probable cause, but only to determine whether

there is substantial evidence in the record supporting the magistrate judge’s

decision to issue the warrant.” United States v. Bushay, 859 F. Supp. 2d 1335,

1379 (N.D. Ga. 2012) (citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984)).

Probable cause to support a search warrant exists when the totality of the

circumstances allows a conclusion that there is a fair probability of finding

contraband or evidence at a particular location. United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). The search warrant affidavit must “state facts

sufficient to justify a conclusion that evidence or contraband will probably be

found at the premises to be searched.” United States v. Martin, 297 F.3d 1308,

1314 (11th Cir. 2002) (citation omitted). Issuing judges are to employ a practical,

commonsense approach to the probable cause analysis and should avoid hyper-

technical review of the legitimacy of search warrants:

In attempting to ensure that search warrant affidavits comply with the
Fourth Amendment’s prohibition against unreasonable searches and
seizures resultant from warrants issued without probable cause, the
issuing magistrate is simply to make a practical, commonsense
decision whether, given all the circumstances set forth in the affidavit,
there is a fair probability that contraband or evidence of a crime will
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be found in a particular place. Probable cause deals with probabilities.
These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men,
not legal technicians, act. Courts reviewing the legitimacy of search
warrants should not interpret supporting affidavits in a hypertechnical
manner; rather, a realistic and commonsense approach should be
employed so as to encourage recourse to the warrant process and to
promote the high level of deference traditionally given to magistrates
in their probable cause determinations.

United States v. Miller, 24 F.3d 1357, 1361 (11th Cir. 1994) (internal citations and

quote marks omitted). Reviewing courts accord “great deference” to judicial

determinations of probable cause to issue a search warrant. United States v. Leon,

468 U.S. 897, 914 (1984); Martin, 297 F.3d at 1317.

In its response brief, the Government succinctly (and in my view, correctly)

responds to Foster’s argument, as follows:

The facts described above showed probable cause to believe
that Darrell Thomas orchestrated a PPP fraud scheme involving nearly
a dozen businesses and used Rapid Payroll cards to launder more than
$3 million in proceeds of those fraudulent loans. Moreover, the facts
established that [Foster] was involved in fabricating documents
submitted with various businesses’ PPP loans. And they showed that
Bellator issued a Rapid payroll card in [Foster’s] name (despite
[Foster’s] admission that he was not a Bellator employee), which was
used to make more than $8,000 in purchases. As Special Agent Stites
explained, the Affidavit established probable cause to believe that
cell-site data associated with [Foster’s] and others’ phones would
“assist investigating agents in determining who used the Rapid Pay
Card payroll cards issued to Bellator’s purported employees.” (Aff.
¶ 65.)

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Case 1:20-cr-00296-JPB-CMS Document 639 Filed 02/17/23 Page 8 of 10

Here, cell-site data would either show that (1) [Foster] himself
used the Teldrin Foster payroll card – i.e. that he participated in
laundering the proceeds of the crime he participated in; or (2) [Foster]
did not use the Teldrin Foster payroll card – i.e. that Darrell Thomas
or another individual used a payroll card in another individual’s name
to launder the proceeds of the PPP fraud. Indeed, the Affidavit
explained that Darrell Thomas may have in his possession payroll
cards issued to Bellator’s purported employees. Whether [Foster’s]
cell-site data showed that he used the Teldrin Foster payroll card or
not, it would provide evidence of the crimes under investigation,
including money laundering and/or aggravated identity theft.

[Doc. 533 at 10–11].

Foster tries to draw a distinction between evidence related to Darrell Thomas

and evidence related to him, saying “whether there was sufficient probable cause to

obtain information related to Darrell Thomas is not the point. Instead, the issue is

whether there was probable cause to support the warrant as it related to

Mr. Foster.” [Doc. 597 at 1]. I disagree.

The Affidavit includes facts directly tying Foster to the scheme, stating that

Foster participated in fabricating documents accompanying the PPP loan

applications. [Stites Aff. ¶ 22(a)]. That fact, in conjunction with a payroll card

issued in Foster’s name, establishes probable cause to believe that Foster received

and used a Rapid Payroll card as part of the conspiracy. But even if Foster did not

use the card, the historical cell site information could still be evidence of money

laundering and/or aggravated identity theft against Darrell Thomas or other

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Case 1:20-cr-00296-JPB-CMS Document 639 Filed 02/17/23 Page 9 of 10

individuals. It was not necessary for Special Agent Stites to state a probable cause

basis to believe that Foster committed any of the crimes under investigation.

Rather, he had to show only that there was probable cause to believe that evidence

of a crime—not evidence related to a specific criminal—would be found in the

data and information described in the warrant.

While it was not a certainty that evidence of the enumerated crimes would

be discovered in the historical cell site information associated with Foster’s T-

Mobile account, the “totality of the circumstances” makes it probable that such

evidence would be found, and that is all that the law requires. United States v.

Brundidge, 170 F.3d at 1352. It is evident that Judge Vineyard followed the law,

used a commonsense, practical approach, and correctly found that there was

probable cause to believe that the requested searches would yield evidence of

violations of law.

III. CONCLUSION

For the reasons discussed above, I RECOMMEND that Foster’s Motion to

Suppress Cell Site Data and Related Evidence [Doc. 493] be DENIED.

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IT IS SO RECOMMENDED, this 17th day of February, 2023.

CATHERINE M. SALINAS
United States Magistrate Judge

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