United States District Court, N.D. Georgia, Atlanta Division
CHARLES A. PANNELL, Jr., District Judge.
This matter is before the court on the final report and recommendation of the magistrate judge ("R&R") [Doc. No. 110], Lewis Mobely's objections thereto [Doc. No. 112], and the government's opposition to Mobely's objections [Doc. No. 115]. The R&R addresses Mobely's motion to suppress evidence resulting from unlawful search warrants [Doc. No. 18], his supplement to the motion to suppress evidence resulting from unlawful search warrants [Doc. No. 59], and his motion to strike portions of the government's opposition to his motions to suppress [Doc. No. 91].
I. Standard of Review
To challenge the findings and recommendations of the magistrate judge, a party must file with the clerk of court written objections which "shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis of the objection." Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989). If timely and proper objections are filed, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
II. Objections to the R&R
Mobely argues that there was not sufficient probable cause for the search of 2771 White Oak Drive in Decatur, Georgia, because the affidavit prepared by Atlanta Police Detective Michael Young to obtain the search warrant relied on improper eyewitness identification and failed to establish a nexus between the location and the alleged criminal activity. Mobely asserts two objections to the R&R.
A. Objection One - Probable Cause
Mobely's first objection focuses on the magistrate judge's determination that she could not conclude that the affidavit lacked indicia of probable cause. Mobely argues that almost all of the facts relied on by the magistrate judge pertain to his alleged criminal wrongdoing-shooting an individual in a convenience store and weapons offenses-rather than a nexus between his alleged criminal wrongdoing and 2771 White Oak Drive.
The affidavit offers no facts to suggest any connection between Mr. Mobley [sic] and 2771 White Oak Drive, that he stored any items there, that he had a possessory interest of any kind in the premises, or even that he had ever been there. While the affidavit makes a conclusory allegation that "investigation" suggested that it was "Mr. Mobley's [sic] place of residence, " the affidavit contains no facts to support that suggestion. The affidavit is devoid of any factually [sic] information regarding why the officer believed 2771 White Oak Drive was Mr. Mobley's [sic] residence. This conclusory allegation was not sufficient to provide the Magistrate with facts necessary to make an independent determination that a nexus existed, rather than simply rubber-stamp the unsupported conclusion drawn by the officer.
Objections at 3-4 [Doc. No. 112]. The Eleventh Circuit has held, "To make a showing of probable cause for a search warrant for a residence, the affidavit must demonstrate a nexus between the premises and both the alleged criminal activity and the defendant; it is not a requisite that the affidavit shows that illegal activity took place at the residence." United States v. Piloto, 562 F.Appx. 907, 913 (11th Cir. 2014). In addition, "[P]robable cause to search a residence exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place."'" United States v. Tate, 586 F.3d 936, 942-43 (11th Cir. 2009). The affidavit included extensive details that Mobely shot an individual and was a member of a gang. The affidavit also alleged that officers had concluded through investigation that 2771 White Oak Drive was Mobely's place of residence. Together, this information forms a sufficient basis for a probable cause finding. Based on the nature of the alleged criminal activity, there was a fair probability that evidence of the crime-weapons and gang clothing-would be found at 2771 White Oak Drive. While Mobely contends that the allegation that he resided at 2771 White Oak Drive is conclusory, the court concludes this allegation was sufficient to establish a nexus.
Regarding the magistrate judge's analysis concerning probable cause, Mobely challenges a footnote to the R&R discussing factual admissions made by the defendant in a court filing. Def.'s Br. on Standing at 1-2 [Doc. No. 75]. This challenge does not warrant attention by the court. The magistrate judge stated in the R&R that she did not rely on the factual admissions to support her analysis. Therefore, to the extent that Mobely objects to footnote one of the R&R, the court declines to consider the objection because it is moot.
The magistrate judge did not err in her determination as to indicia of probable cause. Mobely's first objection to the R&R is OVERRULED.
B. Objection Two - Good Faith
Mobely's second objection is to the magistrate judge's finding that the officers acted in good faith. The United States Supreme Court has held, "In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate 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." United States v. Leon, 468 U.S. 897, 926 (1984). According to the Eleventh Circuit, "[t]he purpose of the exclusionary rule is to deter unlawful police misconduct; therefore, when officers engage in objectively reasonable law enforcement activity' and have acted ...