WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Errol Alfred's ("Alfred") Objections [91] to Magistrate Judge Janet F. King's Report and Recommendation [88] ("R&R"). The R&R recommends that Alfred's Motion to Suppress Search of 352B Asbury Commons, Atlanta, Georgia [50] ("Residence Suppression Motion") and Motion to Suppress Search of Defendant's Car and the Seizure of Items in the Car [56] ("Vehicle Suppression Motion") (together, "Suppression Motions") be denied, and that Alfred's Motion to Sever [78] ("Severance Motion") be granted.
On June 29, 2016, a grand jury returned an Indictment [1] charging Defendants Jordan Dunham ("Dunham") and Alfred with eight counts, and Defendants Kerry Fernandez ("Fernandez") and Alfred with one count, of aiding and abetting each other in causing a false statement to be made during the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(2), 2. The Indictment also charged Alfred, aided and abetted by Fernandez and Dunham, with six counts of causing a false statement to be made during the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(2), 2. The Indictment was filed under seal, and warrants were issued for Defendants' arrest.
On August 1, 2016, the Government presented Magistrate Judge Justin A. Anand with its application ("Application") and supporting affidavit ("Affidavit") for a warrant to search Alfred's residence—located at 352B Asbury Commons, Atlanta, Georgia—for evidence of violations of 18 U.S.C. §§ 922(a)(6), 544.
The Affidavit asserted there was probable cause to believe that Alfred's home contained "evidence, fruits, and instrumentalities of the scheme to straw purchase firearms and illegally smuggle them to Trinidad in violation of . . . Sections 922(a)(6) and 554." (Affidavit ¶ 7). Agent Gray, in the Affidavit, provided information about common firearms trafficking practices, including that traffickers often (1) maintain notes, ledgers, journals, and other documents to track their firearm transactions and financial proceeds, (2) use cell phones, computers, and other electronic media devices to coordinate their firearm transactions, and (3) display, on social media or in their residence, photographs depicting the defendant in possession of the firearms. (Affidavit ¶¶ 8-11). Agent Gray also testified that individuals who engage in unlawful exporting often maintain online records and "numerous files on their computers," and "rely heavily on email and other online instrumentalities to conduct their illegal transactions." (Affidavit ¶ 12).
The Affidavit described the Indictment against Defendants, and explained that, from August 2013 through September 2014, Alfred used Fernandez, Dunham, and Amadee Jean-Baptiste, aka "Haiti" ("Baptiste"), to purchase 36 firearms on his behalf. (Affidavit at 5-8). The Affidavit described several interviews that federal law enforcement officials conducted pursuant to their investigation into Defendants' firearms offenses. Specifically, the Affidavit stated that, on October 30, 2014, Alfred told law enforcement officials that he was born in Trinidad, that he became a naturalized citizen of the United States in 2012, that he moved to his current residence in May 2014, and that he previously lived with his girlfriend, Defendant Dunham. (Affidavit at 8). Alfred also told officials that he and Dunham purchased several firearms during the last year but that the firearms were stolen from his home or from Dunham's car. When pressed for details, Alfred began to shake and stammer and repeatedly contradicted his story. (Affidavit at 8-9). Alfred stated that his most recent firearms purchase was in April 2014, became "very nervous," said that Dunham was arrested the night before the interview for assaulting him, and asked what Dunham had told the officials. (Affidavit at 9).
The Affidavit stated that, on November 26, 2014, Dunham told law enforcement officials that she purchased firearms "on seven different occasions" with money she received from Alfred, that Alfred told her what firearms to purchase, that she gave Alfred the firearms after she bought them, and that she did not know what he did with them. (Affidavit at 9). Dunham stated that she and Alfred sent "clothing and household goods" to Trinidad, that she was with Baptiste when he purchased firearms for Alfred, that she loaned money to Baptiste so he could purchase the firearms, and that Alfred later took possession of the firearms. (Affidavit at 10).
The Affidavit stated that, on November 12, 2014, Baptiste told law enforcement officials that he purchased several firearms for Alfred, that Alfred gave him money to pay for the firearms, and that Baptiste gave the firearms to Alfred. (Affidavit at 10-11). The Affdiavit further stated that, on December 2, 2014, law enforcement officials obtained records of packages shipped by Alfred and Dunham from Atlanta to Trinidad. (Affidavit at 11). Officials also obtained records showing that, in late 2013, Defendant Fernandez shipped a package from Atlanta to Trinidad. Ferndanez listed his sender address as the apartment complex in which Dunham and Alfred lived. (Affidavit at 12). On December 9, 2014, Fernandez told officials that he had known Alfred for more than twenty years, that they grew up together in Trinidad, that he drove Baptiste to purchase a firearm in the summer of 2014, and that he shipped clothing and food to Trinidad on behalf of Alfred. (Affidavit at 12).
The Affidavit stated that, on October 6, 2015, Baptiste told law enforcement officials that, in the summer of 2014, Baptiste agreed to send "food" to Trinidad on Alfred's behalf, that the suitcases purportedly containing the food were "very heavy" and appeared to contain "coffee containers wrapped in saran wrap," and that Alfred later picked the suitcases back up and said, without explanation, that he would ship them to Trinidad himself. (Affidavit at 13). Baptiste stated that, in July or August 2014, Alfred asked him to ship firearms to Trinidad, that Baptiste refused, that Alfred said Dunham previously shipped firearms on Alfred's behalf, that Alfred later shipped the firearms himself, and that Alfred said he was "trying to send guns back home." (Affidavit at 13). Baptiste stated that, after law enforcement officials began conducting interviews as part of their investigation, Fernandez advised Baptiste to tell officials he "lost" the firearms he purchased. (Affidavit at 14). Fernandez bragged that he told officials he "only shipped food to Trinidad," and, while laughing, said the shipments actually contained firearms hidden in the food. (Affidavit at 14). Alfred told Baptiste that "he was sending firearms to Trinidad[,] that he had been doing it `for years,'" and that Baptiste should not worry. (Affidavit at 14). Alfred and Fernandez told Baptiste that they had a cousin who worked for the Trinidad government, and that the cousin picked up the packages containing the firearms and sold them for $2,000 each. (Affidavit at 14).
Finally, the Affidavit stated that Alfred's vehicle was registered at 352B Asbury Commons, Atlanta, Georgia, and that the vehicle's registration was renewed on March 29, 2016. (Affidavit at 14). The Affidavit stated that law enforcement officials confirmed that Alfred signed a lease for the residence for the May 2016, through May 2017, time period. (Affidavit at 14-15).
The Government's Application for the search warrant identified the following items sought to be seized in Alfred's apartment:
([50.2] at 20).
On August 1, 2016, Magistrate Judge Anand found that the Affidavit established probable cause to search Alfred's apartment, granted the Government's Application, and issued the search warrant requested. ([50.1]).
On August 3, 2016, at 6:00 a.m., Agent Gray and approximately twelve to fifteen other law enforcement officers arrived at Alfred's apartment to arrest Alfred and to execute the search warrant. (Transcript of Evidentiary Hearing before Magistrate Judge Janet F. King (Apr. 26, 2017) [83] ("Tr.") at 8-10, 13, 48-49). The officers, who wore tactical gear and carried firearms, previously had reviewed the list of items to be seized under the search warrant. (Tr. at 10-13, 39-40, 50, 70). At approximately 6:03 a.m., Agent Gray knocked on the door to the residence and repeatedly shouted, "police with a search warrant, open the door." (Tr. at 14). There was no response from inside the apartment, and the officers forced the door open. (Tr. at 14).
When the officers entered the residence, they saw Alfred, dressed in his underwear, standing in the living room hallway. (Tr. at 14-15, 51). When the officers told him to raise his hands, Alfred complied and was handcuffed. (Tr. at 15). He was briefly taken outside while the officers completed their security sweep of the residence. (Tr. at 15-16, 19). After he got dressed, the officers took him into the bathroom, the only room with a working light, and seated him on a chair brought into the room. (Tr. at 19-20, 39). Agent Gray and Special Agent Lienwand
Agents Gray and Lienwand told Alfred he had been indicted, that a warrant for his arrest had been issued, and that he was under arrest. (Tr. at 21). The officers' tone was pleasant, non-threatening and non-coercive. (R&R at 9 n.4). Alfred was calm, cooperative and did not appear to be under stress. (R&R at 9 n.4). Agent Gray completed the Marshal's Booking Form
([90.1] at 7; Tr. at 24-25).
Alfred was not handcuffed when he executed the form and he remained unhandcuffed for the remainder of his interview with the officers. (Tr. at 40). Agent Gray testified that there were no indications that Alfred's consent was involuntary or that he did not understand "what he was doing." (Tr. at 25-26). Alfred did not withdraw his consent or tell the officers to stop searching his car. (Tr. at 26). Agents Gray and Lienwand did not draw their weapons, were not "looming over" Alfred, did not threaten him, did not yell at him, and did not make him any promises. (Tr. at 26, 42). The officers recorded that "miscellaneous documents" were found in Alfred's car. ([90.3] at 6).
The officers saw, on the couch in Alfred's living room, several credit cards, a laptop computer, and a credit card reader (a "skimmer") attached to the laptop by cable. (Tr. at 16, 52-53). Agent Gray believed that Alfred was "doing some type of credit card fraud," and discussed his suspicions with ATF Agent Jon Judkins, who previously worked for the Secret Service. Agent Judkins told him, "this is going to be credit card fraud. I've dealt with this numerous times." (Tr. at 16-18, 43; [90.1] at 2-4). Special Agent Don Dorman, the designated evidence technician for the search warrant, also believed the items were evidence of credit card fraud. (Tr. at 52-53). The officers seized the laptop on the grounds that it was covered by the search warrant and was evidence of fraudulent activity. (Tr. at 17-18, 34, 37, 63; [90.4] at 39). The officers also seized a counterfeit driver's license that bore Alfred's photograph but a different name and address. The license was found in a Bible on the mantel in Alfred's living room. It was seized on the grounds that it was covered by the search warrant—because it indicated occupancy of the apartment—and as evidence of fraudulent activity. (Tr. at 28-30, 63; [90.3] at 1-2; [90.4] at 39). The officers seized several other documents covered by the search warrant, including money order receipts, a ledger, Alfred's social security card, and his Trinidad and United States passports. (Tr. at 30-34, 61, 63-64, 71-74, 76; [90.3] at 9-10; [90.4]).
Agent Dorman saw a bag in the kitchen during his search of Alfred's residence. He did not know what was in the bag but believed it was large enough to contain items covered by the search warrant, including documents evidencing firearm shipments and documents indicating occupancy of the apartment. (Tr. at 54, 64-66). Agent Dorman searched the bag and found several credit cards in it, including some in Alfred's name. Agent Dorman believed the credit cards indicated occupancy of the apartment and ownership of the bag, and constituted evidence of fraud in light of other items found in the residence. (Tr. at 55, 62, 64-65). Officers also seized a credit card embossing machine on the grounds that it was used to make credit cards and was evidence of fraud. (Tr. at 34, 56, 62; [90.3] at 5).
On September 25, 2016, Alfred filed his Residence Suppression Motion, seeking to suppress evidence obtained during execution of the search warrant at his residence. Alfred argues that the search warrant was not supported by probable cause, that the good faith exception to the exclusionary rule does not apply, and that law enforcement officers seized items beyond the scope of the search warrant. On November 4, 2016, Alfred filed his Vehicle Suppression Motion, seeking to exclude evidence obtained during the search of Alfred's vehicle. Alfred argues that his consent to the vehicle search was not voluntary.
On March 1, 2017, the grand jury returned a Superseding Indictment [65] charging Defendants with the same counts listed in the initial Indictment (Counts 4-18), and also charging Alfred and Fernandez with one count of conspiracy to smuggle firearms out of the United States, in violation of 18 U.S.C. 371 (Count 1), one count of submitting false or misleading export information, in violation of 13 U.S.C. § 305 (Count 2), and one count of delivering firearms to a common or contract carrier for international shipment without written notice, in violation of 18 U.S.C. § 922(e) (Count 3). The Superseding Indictment also charges Alfred with one count of access device fraud, in violation of 18 U.S.C. §§ 1029(a)(3), 1029(c)(1)(A)(i), 1029(c)(2) (Count 19), and one count of access device fraud, in violation of 18 U.S.C. §§ 1029(a)(4), 1029(c)(1)(A)(ii), 1029(c)(2) (Count 20).
On March 22, 2017, Alfred filed his Severance Motion, seeking to sever Counts 19 and 20 from the other counts in the Superseding Indictment. On April 26, 2017, the Magistrate Judge held an evidentiary hearing on Alfred's motions. ([83]). The parties later filed post-hearing briefs. ([84]; [86]). On July 18, 2017, Magistrate Judge King issued her R&R, recommending that Alfred's Suppression Motions be denied and that his Severance Motion be granted. The Magistrate Judge found that the search warrant was adequately supported by probable cause and, even if it was not, the good faith exception applied because the officers reasonably relied on the warrant to search Alfred's residence. The Magistrate Judge further found that the items seized during the search were covered by the warrant or were lawfully seized under the "plain view" doctrine. The Magistrate Judge also found that Alfred voluntarily consented to the vehicle search, and that Alfred's Severance Motion should be granted, including because the Government agreed that severance was warranted.
On August 1, 2017, Alfred filed his Objections to the R&R. Alfred generally objects to the Magistrate Judge's finding that his consent to the vehicle search was voluntary. (Objections [91] at 1-3). Alfred also objects to the Magistrate Judge's recommendation that the Residence Suppression Motion be denied. Alfred argues that the Affidavit and Application to search his residence did not establish "sufficient probable cause to connect the residence to criminal activity." (Objections [91] at 3). Alfred further argues that Agent Dorman "went beyond the scope of the search warrant when [he] looked into [Alfred's] bag and found credit cards in it," because the agent "did not know what was in it when he opened the bag." (Objections [91] at 3-4).
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1);
Alfred objects to the Magistrate Judge's findings that the search warrant was supported by probable cause, that the credit cards found in Alfred's bag were lawfully seized under the plain view doctrine, and that Alfred voluntarily consented to the search of his vehicle. The Court conducts a de novo review of these findings, and conducts a plain error review of the remaining portions of the R&R to which Alfred did not specifically object.
Alfred claims the search warrant was not supported by probable cause, and thus was invalid, because the Affidavit "does not link the alleged criminal activity, firearm violations, to [Alfred's] home at 352B Asbury Commons, Atlanta, Georgia." ([86] at 5). A search warrant must be "supported by an affidavit establishing probable cause."
Where, as here, the government seeks to search defendant's home for evidence of criminal activity, "the affidavit must supply the authorizing magistrate with a reasonable basis for concluding that Defendant might keep evidence of his crimes at his home, i.e., a safe yet accessible place."
The Court finds, and Alfred does not dispute, that the Affidavit established probable cause that Alfred "straw purchase[d] firearms and illegally smuggle[d] them to Trinidad." (Affidavit ¶ 7). Agent Gray testified, in the Affidavit, that evidence of firearms trafficking often includes documents, electronic devices, photographs, and online records. (Affidavit ¶¶ 8-12). This evidence is "of the type that would normally expect to be hidden at [the defendant's] residence."
The Magistrate Judge found that, even if the Affidavit did not establish probable cause, evidence obtained from Alfred's residence is not required to be suppressed because the "good faith exception" applies. Alfred does not specifically object to this finding and the Court thus reviews it for plain error.
The good faith exception "allows courts to admit evidence obtained by [law enforcement] officers in reasonable reliance upon search warrants ultimately found to be unsupported by probable cause."
Alfred claims several items seized from his apartment were not covered by the search warrant and thus should be suppressed. The Magistrate Judge found that the following items seized from Alfred's apartment fell within the scope of the search warrant: Alfred's smart phone, laptop, driver's license, passports, social security card, money orders, receipts, and ledger. (R&R at 26). Alfred did not specifically object to this conclusion, and the Court finds no plain error in the Magistrate Judge's determination.
Alfred does object to the Magistrate Judge's conclusion that the credit cards, found inside Alfred's bag, were properly seized under the plain view doctrine. "An officer may seize evidence that is in plain view despite the failure to obtain a search warrant if two elements are satisfied: (1) lawful access to the object seized, and (2) the incriminating nature of the object seized is immediately apparent."
Agent Dorman had "lawful access" to the credit cards because they were found during his execution of a valid search warrant.
The Court also finds that the second element of the plain view doctrine is met here, because the incriminating nature of the credit cards was "immediately apparent" in light of other items in Alfred's residence.
Alfred seeks to suppress evidence obtained from the officers' search of his vehicle, on the grounds that his consent to the search was not voluntary. Law enforcement officers, "possessing neither reasonable suspicion nor probable cause, may nonetheless search [a vehicle] without a warrant so long as they first obtain the voluntary consent of the individual in question."
"[D]etermining whether consent was voluntary is not susceptible to neat talismanic definitions; rather, the inquiry must be conducted on a case-by-case analysis."
The facts here show that Alfred voluntarily consented to the vehicle search. Although approximately twelve to fifteen officers entered Alfred's apartment, only Agents Gray and Lienwand were in the room where Alfred was interviewed.
([90.1] at 7; Tr. at 24-25).
Alfred was not handcuffed when he executed the form and he remained unhandcuffed for the remainder of his interview with the officers. (Tr. at 40). Agent Gray testified that there were no indications that Alfred's consent was involuntary or that he did not understand "what he was doing." (Tr. at 25-26). Alfred did not withdraw his consent or tell the officers to stop searching his car. (Tr. at 26). Agents Gray and Lienwand were not "looming over" Alfred, did not threaten him, did not yell at him, and did not make him any promises. (Tr. at 26, 42);
The Eleventh Circuit has found that a defendant's consent was voluntary in more extreme circumstances than those presented here. For example, in
In
Having conducted a de novo review of the record, the Court agrees with the Magistrate Judge that Alfred voluntarily consented to the search of his vehicle. Alfred's objections to the R&R are overruled, and his Vehicle Suppression Motion is denied.
Alfred seeks to sever Counts 19 and 20 from the other counts in the Superseding Indictment. Rule 14 of the Federal Rules of Criminal Procedure provides: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a).
Alfred is charged, in Counts 1 through 18, with committing firearms offenses from August 2013 through September 2014. Counts 19 and 20 charge Alfred with unrelated fraud offenses allegedly committed two years later, namely, the possession of "counterfeit and unauthorized access devices"—and "device-making equipment"—with "intent to defraud." ([65] at 14). The Government agrees that Counts 19 and 20 should be severed from the other counts in the Superseding Indictment. ([84] at 2). The Magistrate Judge recommends granting Alfred's Severance Motion, and the Court finds no plain error in this recommendation.
For the foregoing reasons,
