Case 8:19-cr-00096-GJH Document 85 Filed 09/20/19 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

UNITED STATES OF AMERICA,

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Plaintiff,

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v.

Case No.: GJH-19-96
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CHRISTOPHER PAUL HASSON,
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Defendant.
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MEMORANDUM OPINION
Defendant Christopher Paul Hasson has been charged with Unlawful Possession of
Unregistered Firearm Silencers (“Count I”) and Unlawful Possession of Firearm Silencers
Unidentified by Serial Numbers (“Count II”) in violation of the National Firearms Act (“NFA”),
26 U.S.C. § 5801 et seq.; Possession of Firearms by Unlawful User of and Addict to a Controlled
Substance in violation of 18 U.S.C. § 922(g)(3) (“Count III”); and Possession of a Controlled
Substance in violation of 21 U.S.C. § 844(a) (“Count IV”). ECF No. 71. Pending before the
Court are Defendant’s Motion to Dismiss Counts I and II on Second Amendment Grounds, ECF
No. 62, Defendant’s Motion to Dismiss Count III on Void-for-Vagueness Grounds, ECF No. 63,
and Defendant’s Motion to Suppress Evidence Seized Pursuant to Search Warrants, ECF No. 66.
A hearing was held on September 9, 2019. ECF No. 81. For the following reasons, Defendant’s
motions are denied.
I.

BACKGROUND
According to the Criminal Complaint, since at least October 2016, Defendant has

regularly purchased 100 to 300 milligrams of Tramadol, a Schedule IV controlled substance,

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every two to three months. ECF No. 1 ¶¶ 16–17.1 He kept and used that Tramadol at, among
other locations, his place of employment in Washington, D.C., where he is employed by the
United States Coast Guard. Id. ¶¶ 21–23. Since at least late 2017, Defendant has also possessed a
number of firearms, including rifles, shotguns, handguns, and revolvers, id. ¶ 11; ECF No. 71 at
3,2 and in February 2019, he also possessed one assembled firearm silencer and one
disassembled firearm silencer, neither of which was registered to Defendant or identified by a
serial number, id. at 1–2.
On February 14, 2019, United States Magistrate Judge Gina L. Simms authorized a
Criminal Complaint charging Defendant with Possession of Firearms by Unlawful User of and
Addict to a Controlled Substance and Possession of a Controlled Substance. ECF No. 1. On
February 27, 2019, a federal grand jury for the District of Maryland returned an indictment
charging Defendant with Unlawful Possession of Unregistered Firearm Silencers (“Count I”) and
Unlawful Possession of Firearm Silencers Unidentified by Serial Numbers (“Count II”), in
addition to the counts previously charged by the Criminal Complaint (“Count III” and “Count
IV,” respectively). ECF No. 16. Defendant was arraigned on these charges on March 11, 2019,
and he entered a plea of not guilty. ECF No. 19.3
On June 24, 2019, Defendant filed three motions: a Motion to Dismiss Counts I and II on
Second Amendment Grounds, ECF No. 62; a Motion to Dismiss Count III on Void-forVagueness Grounds, ECF No. 63; and a Motion to Suppress Evidence Seized Pursuant to Search
Warrants, ECF No. 66. The Government filed a consolidated opposition to Defendant’s motions

1

The core factual contentions in the Criminal Complaint and Superseding Indictment were not challenged for
purposes of the motion hearing.
2
Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
3
A Superseding Indictment, which did not substantively change the charges, was filed on August 14, 2019, ECF No.
71, and Defendant was rearraigned on September 9, 2019, again entering a plea of not guilty to all counts, ECF No.
81.

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on August 5, 2019, ECF No. 70, and Defendant filed three separate replies on August 26, 2019,
ECF Nos. 76, 77, 78.
On September 9, 2019, the Court held an evidentiary hearing on the nature, benefits, and
purposes of silencers, the application process for registering and serializing silencers, and the
prevalence of silencers. ECF No. 81. Defendant offered expert testimony from Gary Schaible, a
recently-retired agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”),
and Daniel O’Kelly, a firearms consultant and former ATF agent. Mr. Schaible testified about
the NFA and ATF’s administration of the NFA, and Mr. Kelly testified about the demand for and
uses of NFA-firearms, including silencers.
The Government offered expert testimony from Elizabeth A. Gillis, a firearms
enforcement officer with ATF, and Ted Clutter, a legal instruments examiner supervisor with
ATF. Ms. Gillis testified about the objective features of silencers and silencer parts, ATF’s
testing of silencers, and her report regarding the silencers in the instant case. Mr. Clutter testified
about the procedure for obtaining a silencer and how ATF processes applications to make and
transfer NFA-firearms, including silencers.
The evidence showed that a silencer, which is also referred to as a muffler or a
suppressor, is a device that is attached to a firearm for the primary purpose of reducing the
firearm’s sound signature. Ms. Gillis testified that, in general, silencers can reduce a firearm’s
sound signature by anywhere between 2 to 35 decibels.4 Mr. O’Kelly testified, however, that it is
unlikely that a silencer will completely eliminate the sound of a gunshot unless the firearm is
particularly small or the silencer is particularly large. Silencers can be commercially-

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A firearm’s sound signature is measured in decibels, which run from 0 to 180 on a logarithmic scale. Thus, if a
firearm’s sound level is 140 decibels and a silencer is attached that reduces that level by 10 decibels, the firearm’s
sound has been cut in half. If a silencer decreases the level by 20 decibels, the firearm’s sound signature would be
reduced to only 25% of its original level.

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manufactured or homemade from common household items such as soda bottles, magnesium
light flashlights, or oil filters, but Ms. Gillis explained that commercial silencers typically cause
a larger sound reduction than homemade silencers.
Silencers generally have no use independent of their attachment to a gun. They do not fire
bullets on their own and do not contain a slide, trigger, firing pin, cartridge case, barrel, primer,
or gunpowder. Mr. O’Kelly testified that “you can’t hurt anybody with a silencer unless you hit
them over the head with it.” Rather, based on his conversations with gun owners, Mr. O’Kelly
testified that the primary reasons for owning a silencer are hearing protection and courtesy to
others. Silencers also have an incidental effect of increasing the accuracy of a firearm because
their weight prevents muzzle rise. Mr. O’Kelly also explained that when he was on the ATF
shooting range as an instructor, he sometimes used firearms without silencers, but he always
used earmuffs or earplugs for hearing protection. Finally, Mr. O’Kelly testified that in his thirtyfour years as a law enforcement officer, he never saw a case in which a silencer was used in the
commission of a violent crime.
Silencers are regulated, in part, by the NFA, which requires that NFA-firearms be
serialized and registered in the National Firearms Registry and Transfer Record (“NFRTR”) in
order to be lawfully possessed. The NFA Division of ATF administers the NFA and maintains
the NFRTR. Mr. O’Kelly testified that the NFRTR is helpful in criminal investigations because it
can assist law enforcement officers in tracing the control or possession of any NFA-firearm that
may have been used during the commission of a crime.
Mr. Schaible testified that any individual, trust, legal entity, or government entity that
wants to make or obtain an NFA-firearm, including a silencer, must apply for approval from
ATF. The application process involves filling out the appropriate form, providing necessary

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supporting documentation, and submitting fingerprints for the purpose of an FBI criminal
background check. Applicants who want to make and register an NFA-firearm must fill out
“Form 1,” which is available both as a paper form and as an electronic form (“eForm”).
Applicants who want to transfer and register a firearm must fill out “Form 4,” which, since
January 2016, has only been available as a paper form. Mr. Schaible and Mr. O’Kelly both noted
that demand for silencers has consistently increased over the past ten years, and Mr. Schaible
testified that when he retired in September 2018, the most in-demand NFA-firearm registrations
were for silencers and short-barrel rifles.
Once an application is submitted, an ATF legal instruments examiner must process that
application. Mr. Clutter testified that processing times for applications vary, but he estimated that
the processing time is currently thirty days for eForm 1, seven months for paper Form 1, and
eight to ten months for paper Form 4. He estimated that in February 2019, when Defendant was
arrested, the processing time was less than thirty days for eForm 1 and eight months for paper
Form 1. He did not have a February 2019 estimate for Form 4. Mr. Clutter also testified that
making and registering an NFA-firearm pursuant to Form 4 is more popular today than it has
been in ATF’s history; he stated that the increased demand may correlate with the lengthy delays
in processing Form 4.
After processing the application, the legal instruments examiner will determine whether
to approve the application, deny the application, or ask for additional information. Mr. Schaible
testified that the denial rate is low and there is little discretion as to approval or denial where a
form is complete. Mr. Clutter testified that an application can be denied for a variety of reasons,
including administrative error, incomplete application, failure to provide supporting

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documentation or fingerprints, failure to pass the criminal background check, state law
violations, or disqualifying characteristics such as unlawful drug use.
In general, the evidence demonstrated that the registration process for silencers does
involve certain inefficiencies and redundancies that cause the process to take longer than certain
purchasers would like.
II.

MOTION TO DISMISS COUNTS I AND II
Counts I and II of the Superseding Indictment charge Defendant with possession of

unregistered and unserialized silencers in violation of the NFA. Defendant contends that the
NFA’s registration and serialization requirements unconstitutionally infringe upon his Second
Amendment rights and that Counts I and II must be dismissed. Specifically, he contends that
silencers are “arms” within the meaning of the Second Amendment, and the NFA’s requirements
unconstitutionally burden the right of law-abiding citizens to possess silencers for lawful
purposes. The Government responds that silencers are not arms and therefore do not fall within
the Second Amendment’s protections, and even if they did, the NFA does not impose an
unconstitutional burden on those protections.
A. The Second Amendment
The Second Amendment provides, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. Const. amend. II. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme
Court held that the Second Amendment “conferred an individual right to keep and bear arms,”
and it observed that the Second Amendment’s “core protection” is “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 595, 634–35
(invalidating a District of Columbia statute banning handgun possession in the home).

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The Heller Court recognized, however, that “the right secured by the Second Amendment
is not unlimited,” in that it is “not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” Id. at 626. It also cautioned that its ruling should
not “cast doubt” on certain “longstanding prohibitions” on firearms, such as prohibitions on the
possession of firearms by felons and the mentally ill or laws imposing conditions and
qualifications on the commercial sale of arms. Id. at 626–27.
Following Heller, the Fourth Circuit has used a two-step approach to determine whether a
challenged law violates the Second Amendment. First, the Court must determine “whether the
challenged law imposes a burden on conduct falling within the scope of the Second Amendment
guarantee.” Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (quoting United States v. Chester,
628 F.3d 672, 680 (4th Cir. 2010)) (internal quotations omitted). If the answer is no, then the
challenged law is valid. Id. If the challenged law does impose a burden on conduct protected by
the Second Amendment, the Court must “apply an appropriate form of means-end scrutiny” to
determine whether the law is nonetheless constitutional. Id. (internal punctuation omitted). The
Court will apply this approach to determine whether the NFA’s requirement that silencers be
registered and serialized violates the Second Amendment.
B. Application
The initial question is whether silencers are within the scope of the Second Amendment.
Under Heller, “the Second Amendment extends, prima facie, to all instruments that constitute
bearable arms.” 554 U.S. at 582. The “most natural reading” of the Second Amendment’s right
to “keep and bear Arms” is the right to “have weapons.” Id. (internal quotations omitted).
Indeed, the Second Amendment “guarantee[s] the individual right to possess and carry weapons
in case of confrontation.” Id. at 592 (emphasis added). Heller defines the “arms” protected by the

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Second Amendment as “[w]eapons of offence, or armour of defence” or “any thing that a man
wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” Id. at
581 (citing two dictionaries from the eighteenth century and one from the nineteenth century).
The Court finds that a silencer is not an “arm” or a “weapon” because it is not inherently
useful “in case of confrontation” as a “[w]eapon of offence” or an “armour of defence.” A
silencer is not itself used “to cast at or strike another,” it does not contain, feed, or project
ammunition, and it does not serve any intrinsic self-defense purpose. As Defendant’s own expert
testified, a silencer cannot, on its own, cause any harm,5 and it is not useful independent of its
attachment to a firearm. A silencer is not a weapon in and of itself, but simply a “firearm
accessory,” see United States v. Cox, 906 F.3d 1170, 1186 (10th Cir. 2018), and therefore not a
“bearable arm” protected by the Second Amendment.
Defendant cites to Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) in support of his
contention that a silencer is nonetheless protected by the Second Amendment because it is
necessary to the effective operation of a firearm. In Ezell, the Seventh Circuit invalidated a
Chicago ordinance that prohibited all firing ranges despite the City also mandating firing-range
training as a prerequisite to lawful gun ownership. 651 F.3d at 691. The Seventh Circuit reasoned
that shooting ranges are not “categorically unprotected by the Second Amendment” because
“[t]he right to possess firearms for protection implies a corresponding right to acquire and
maintain proficiency in their use; the core right wouldn’t mean much without the training and
practice that make it effective.” Id. at 704.
Defendant argues that just as the Seventh Circuit has determined that firing ranges are
constitutionally protected because they are necessary to the effective exercise of the core Second

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Putting to the side the possibility that it could be thrown at someone like a shoe or a baseball, which, most would
agree, are not arms protected by the Second Amendment.

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Amendment right, this Court should determine that silencers are also protected because they are
similarly necessary to the exercise of the core Second Amendment right. However, the firing
ranges in Ezell are distinguishable from the silencers in the instant case. The Ezell Court noted
that even the City “consider[ed] live firing-range training so critical to responsible firearm
ownership that it mandate[d] this training as a condition of lawful firearm possession.” 651 F.2d
at 704–5. Indeed, under the City’s ordinance, an individual could not exercise his Second
Amendment right without access to the prohibited firing ranges. See id. at 689–90 (citing Chi.
Mun. Code § 8–20–120). Here, there is no evidence that silencers are “so critical” to firearm
ownership that firearms cannot be used effectively without them. Although silencers may
improve the usage of a firearm, they are not necessary, and they are therefore not protected by
the Second Amendment.
Defendant’s citations to Assoc. of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney Gen.
of New Jersey, 910 F.3d 106 (3d Cir. 2018) and Jackson v. City and Cty. of San Francisco, 746
F.3d 953 (9th Cir. 2014), cases involving access to and ability to use ammunition including, in
Jackson, hollow-point bullets, fail for similar reasons. In those cases, the Third and Ninth
Circuits, respectively, held that ammunition as a category is protected by the Second
Amendment because “without bullets, the right to bear arms would be meaningless. A regulation
eliminating a person’s ability to obtain or use ammunition could thereby make it impossible to
use firearms for their core purpose.” Jackson, 746 F.3d at 967; see also Rifle & Pistol Clubs, 910
F.3d 106 (“Because magazines feed ammunition into certain guns, and ammunition is necessary
for such a gun to function as intended, magazines are ‘arms’ within the meaning of the Second
Amendment.”). Although ammunition is the means by which firearms are effective at serving
their purpose as weapons and restrictions on type and usage may run afoul of the Second

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Amendment, the same cannot be said for silencers because a firearm remains an effective
weapon without a silencer of any type attached. Thus, this Court joins every other court to
consider the issue in determining that a silencer is not a weapon protected by the Second
Amendment. See, e.g., Cox, 906 F.3d at 1186 (holding that a silencer is not a “bearable arm”
protected by the Second Amendment); United States v. Stepp-Zafft, 733 F. App’x 327, 329–30
(8th Cir. 2018) (on plain error review, finding no plain error where district court failed to dismiss
unregistered silencer charge on Second Amendment grounds); United States v. McCartney, 357
F. App’x 73, 76 (9th Cir. 2009) (holding that silencers are not protected by the Second
Amendment); United States v. Grey, Case No. CR-18-00412-CAS-1, 2018 WL 4403979, at *13
(N.D. Cal. Sept. 13, 2018) (following McCartney’s holding to deny motion to dismiss
unregistered silencer charge on Second Amendment grounds); United States v. Perkins, Case No.
4:08CR3064, 2008 WL 4372821, at *4 (D. Neb. Sept. 23, 2008) (holding that silencers are not
protected by the Second Amendment); United States v. Garnett, 2008 WL 2796098, at *4–5
(E.D. Mich. 2008) (finding that nothing in Heller “casts doubt” on the constitutionality of the
NFA’s regulation of silencers). The NFA does not implicate Defendant’s constitutional rights, so
his Motion to Dismiss Counts I and II must be denied.6
III.

MOTION TO DISMISS COUNT III
Count III of the Superseding Indictment charges Defendant with a violation of 18 U.S.C.

§ 922(g)(3), which provides, in relevant part, that “[i]t shall be unlawful for any person … who is

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The evidence received by the Court at the hearing presents close calls on other aspects of the Second Amendment
analysis, including whether silencers are in common use for lawful purposes, see Heller, 554 U.S. at 625 (stating
that the Second Amendment only protects weapons “typically possessed by law-abiding citizens for lawful
purposes”), and whether the regulation at issue would survive intermediate scrutiny, see Kolbe, 849 F.3d at 138
(applying intermediate scrutiny where a law “does not severely burden the core protection of the Second
Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home”). Because
the Court’s determination that a silencer is not an arm subject to protection by the Second Amendment is dispositive
of the motion, the Court will decline to resolve those issues.

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an unlawful user of or addict to any controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)) … to … possess in or affecting commerce, any
firearm or ammunition.” Defendant contends that Count III must be dismissed because §
922(g)(3) is unconstitutionally vague on its face and is therefore void. The Government responds
that Defendant cannot make a facial challenge to the statute because it clearly covers his alleged
conduct.
A. The Void-for-Vagueness Doctrine
“The void-for-vagueness doctrine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and discriminatory enforcement.” United States v.
Hosford, 843 F.3d 161, 170 (4th Cir. 2016) (quoting Kolender v. Lawson, 461 U.S. 352, 357
(1983)) (internal punctuation omitted). Vagueness challenges to statutes not threatening First
Amendment interests are typically judged on an as-applied basis, United States v. Jaensch, 665
F.3d 83, 89 (4th Cir. 2011), but the Supreme Court has permitted facial challenges to criminal
statutes “[w]hen vagueness permeates the text of such law,” see, e.g., City of Chicago v.
Morales, 527 U.S. 41, 55 (1999).
The Fourth Circuit has recently reaffirmed that “a plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct
of others.” Hosford, 843 F.3d at 170 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1,
18–19 (2010)) (internal quotations omitted). “Thus, if a law clearly prohibits a defendant’s
conduct, the defendant cannot challenge, and a court cannot examine, whether the law may be
vague for other hypothetical defendants.” Id. Defendant contends, however, that the Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) eliminated this rule and

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permitted defendants to mount facial vagueness challenges regardless of whether their conduct is
clearly prohibited by a statute. The Court disagrees.
In Johnson, the Supreme Court declared the residual clause of the Armed Career
Criminal Act (“ACCA”) to be unconstitutionally vague without requiring the defendant to show
that the ACCA was vague as applied to his particular conduct. 135 S. Ct. at 2563. The ACCA
increases the prison term of a defendant convicted of a firearms offense under § 922(g) from ten
years to a minimum of fifteen years and a maximum of life where the defendant has three or
more prior convictions for either a “serious drug offense” or a “violent felony.” § 924(e)(1);
Johnson, 135 S. Ct. at 2555. As was relevant in Johnson, “violent felony” was defined as any
crime punishable by imprisonment for more than one year that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]” § 924(e)(2)(B)(ii). The italicized portion of the definition is what
was known as the ACCA’s “residual clause.” 125 S. Ct. at 2556.
As the Court held prior to Johnson, the ACCA requires a sentencing court to employ a
categorical approach to determining whether an offense “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another,” wherein the court will assess the generic version of the offense,
rather than how the specific offender committed the crime on the particular occasion at issue.
Johnson, 135 S. Ct. at 2557 (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). In light of
this categorical approach, the Johnson Court concluded that the ACCA’s residual clause was
unconstitutionally vague because it combined the indeterminacy of how to measure the risk
posed by an idealized version of a crime with the indeterminacy of how much risk it takes for an
idealized version of a crime to qualify as a violent felony when compared with the offenses

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expressly identified in the statute. Id. at 2558. This uncertainty “produce[d] more
unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.
Contrary to what Defendant argues, Johnson did not expand the universe of litigants who
may attack statutes as facially vague. Although the Johnson Court rejected the notion that for a
statute to be vague on its face, it must be vague in all of its applications, 135 S. Ct. at 2561, the
Court’s invalidation of the residual clause on vagueness grounds was tied to the “hopeless
indeterminacy” caused by application of the ACCA’s unique categorical approach. Id. at 2558;
see United States v. Cook, 914 F.3d 545, 553 (7th Cir. 2019) (“[S]o much of the Court’s analysis
in Johnson deals with a statute that is in key respects sui generis … it was the categorical
approach called for by the ACCA’s residual clause … which the court found to be particularly
vexing.”). “Assessing the degree of risk posed by an idealized ‘typical’ version of an offense was
significantly different, as the Court emphasized, from looking at the risks posed by a set of
actual, concrete facts.” Cook, 914 F.3d at 553 (citing Johnson, 135 S. Ct. at 2558); see Johnson,
135 S. Ct. at 2561.
In contrast to the ACCA, Section 922(g)(3) “does not call for the court to engage in any
abstract analysis; it calls on the court to apply the statutory prohibition to a defendant’s realworld conduct.” Cook, 914 F.3d at 553 (listing cases). Thus, the uncertainty posed by the
residual clause is not found in § 922(g)(3), and the Court will apply “the general rule that a
defendant whose conduct is clearly prohibited by a statute cannot be the one to make a facial
vagueness challenge.” See Cook, 914 F.3d at 554; see also United States v. Bramer, 832 F.3d
908, 909 (8th Cir. 2016) (After Johnson, “our case law still requires [a defendant] to show that
the statute is vague as applied to his particular conduct.”).

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B. Application
Having determined that a facial challenge is only available when a statute is vague as
applied to a defendant’s particular conduct, the Court is left with the question of whether
Defendant’s conduct in this case is clearly prohibited by § 922(g)(3). Fourth Circuit case law
makes clear that “[t]o sustain a conviction [under § 922(g)(3)], the government must prove that
the defendant’s drug use was ‘sufficiently consistent, prolonged, and close in time to his gun
possession to put him on notice that he qualified as an unlawful user’ under the terms of statute.”
United States v. Sperling, 400 F. App’x 765, 767 (4th Cir. 2010) (quoting United States v. Purdy,
264 F.3d 809, 812 (9th Cir. 2001)). Whatever doubt there may be about the exact reach of §
922(g)(3), “this is not a borderline case,” see United States v. Jackson, 280 F.3d 403, 406 (4th
Cir. 2002), and even Defendant does not seem to contest that his alleged conduct falls squarely
within the confines of the statute.
The Criminal Complaint states that Defendant possessed firearms since at least late 2017.
ECF No. 1 ¶ 11. When he was arrested, he was in possession of seventeen different firearms.
ECF No. 71 at 3. The Criminal Complaint also states that over the past three years, Defendant
regularly purchased Tramadol, a Schedule IV controlled substance, ECF No. 1 ¶¶ 16–17, and he
contemporaneously purchased synthetic urine, likely in an attempt to “beat” the urinalysis tests
he was subjected to as a Coast Guard employee. Id. ¶¶ 19–20. In its brief, the Government refers
to additional evidence that Defendant had Tramadol in his bloodstream at the time of his arrest,
ECF No. 70 at 20, and had admitted to relatives on recorded jail calls that he “has been using
drugs for years,” id. at 19 n.14. This alleged conduct is clearly prohibited by § 922(g)(3)’s
prohibition on possession of firearms by an individual whose drug use is consistent, prolonged,

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and close in time to his firearm possession. Because § 922(g)(3) is not vague as applied to
Defendant, he cannot mount a facial attack, so his Motion to Dismiss Count III must be denied.
IV.

MOTION TO SUPPRESS
Finally, Defendant moves to suppress evidence seized pursuant to warrants dated January

11, 2019, which authorized the FBI to place a tracker on Defendant’s car, seize and search two of
Defendant’s email accounts, and obtain information from Defendant’s cellphone. See ECF No.
65-2; ECF No. 65-3; ECF No. 65-4; ECF No. 65-5. He also challenges subsequent warrants, but
only as derivative of his challenge to the January 11, 2019 warrants. Defendant contends that the
January 11, 2019 warrants were not supported by probable cause, so the evidence seized
pursuant to those warrants and all derivative evidence must be excluded. The Government
responds that there was probable cause for issuance of the January 11, 2019 warrants, but even if
the issuing magistrate judge lacked a substantial basis to find probable cause, the good-faith
exception applies.
A. Standard of Review
“As a general rule, the Fourth Amendment requires that law enforcement searches be
accompanied by a warrant based on probable cause.” United States v. Kolsuz, 890 F.3d 133, 137
(4th Cir. 2018). “Although the concept of probable cause defies a precise definition, it exists
where the known facts and circumstances are sufficient to warrant a man of reasonable prudence
in the belief that contraband or evidence of a crime will be found in the place to be searched.”
United States v. Richardson, 607 F.3d 357, 369 (4th Cir. 2010) (quoting Ornelas v. United
States, 517 U.S. 690, 696 (1996)) (internal quotations omitted). “A probable cause assessment
requires the issuing judge to decide whether, given the totality of the circumstances, there is a
fair probability that contraband or evidence of a crime will be found in a particular place.” Id.

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(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quotations omitted). A magistrate
judge’s determination of probable cause “is entitled to great deference,” and this Court’s role “is
simply to ensure that the magistrate had a substantial basis for concluding that probable cause
existed.” United States v. Drummond, 925 F.3d 681, 687 (4th Cir. 2019) (quoting Richardson,
607 F.3d at 369)) (internal quotations omitted).
B. Discussion
Here, the issuing magistrate judge clearly had a “substantial basis” to conclude that there
was probable cause to support the January 11, 2019 warrants. In making his determination, the
issuing judge relied on a detailed, 46-page affidavit submitted by FBI Agent Rachid Harrison
that outlined Defendant’s relevant conduct, tied the Defendant’s conduct to the specific locations
to be searched, and explained what evidence of criminal activity law enforcement officials
expected to find at those locations. ECF No. 65-1. Specifically, the affidavit describes
Defendant’s extremist views, his tattoo’s indicative of white supremacist and Neo-Nazi views,
and a letter he wrote in September 2017 to a known American neo-Nazi leader in which he
discussed being “a long time White Nationalist” and his intention to “make change with a little
focused violence.” Id. ¶¶ 13–15. The affidavit also provides background on Norwegian citizen
Anders Breivik, a far-right domestic terrorist who committed two coordinated terror attacks
leading to the death of 77 Norwegian citizens, and it describes Defendant’s possession and
distribution of the Breivik manifesto, as well as his possession of other terrorist manifestos. Id.
¶¶ 16–17.
The affidavit goes on to describe strong correlations between instructions in the Breivik
manifesto and Defendant’s own conduct, including conducting extensive targeting research;
acquiring firearms and ammunition; obtaining disguises, survival gear, and provisions for

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conducting terrorist attacks and escaping thereafter; studying improvised munitions; and
preparing a steroid regimen. Id. ¶¶ 18–37. The affidavit links each of Defendant’s acts to his
specific use of his two email accounts, his car, and his cellphone. Id. ¶¶ 38–44.
Considered together, as is required by a “totality of the circumstances” analysis, these
activities demonstrate at least a “substantial basis” for the issuing judge to determine that there
was probable cause to support the January 11, 2019 warrants. Even if probable cause did not
exist, however, the good-faith doctrine would apply to prevent suppression because law
enforcement acted in objectively reasonable reliance on the warrants. See United States v. Perez,
393 F.3d 457, 460 (4th Cir. 2004); United State v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993)
(noting that the good-faith exception provides that “evidence obtained from an invalidated search
warrant will be suppressed only if ‘the officers were dishonest or reckless in preparing their
affidavit or could not have harbored an objectively reasonable belief in the existence of probable
cause’”) (quoting United States v. Leon, 468 U.S. 897, 926 (1984)). Thus, there are no grounds
for suppression of any evidence seized pursuant to the January 11, 2019 warrants, and because
Defendant’s challenges to subsequent warrants are derivative of his challenge to the January 11,
2019 warrants, those challenges fail as well. The Motion to Suppress is denied.
V.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss Counts I and II is denied,

Defendant’s Motion to Dismiss Count III is denied, and Defendant’s Motion to Suppress is
denied. A separate Order shall issue.

Date: September 20, 2019

___/s/_______________________
GEORGE J. HAZEL
United States District Judge

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