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United States v. Sharp

United States District Court, N.D. Georgia, Atlanta Division

August 4, 2015

GARY EDWIN SHARP, II, et al., Defendants.


TIMOTHY C. BATTEN, Sr., District Judge.

This case comes before the Court on Magistrate Judge Vineyard's Final Report and Recommendation (the "R&R") [71], which recommends denying Defendant Gary Edwin Sharp, II's motion to suppress [54]. Sharp has filed objections to the R&R [74].

I. Legal Standard on Review of a Magistrate Judge's R&R

A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. Unit B 1982)).[1] Where a party objects to an R&R, a district judge "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 district judge must "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990). Those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F.Appx. 781, 784 (11th Cir. 2006).[2]

"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410.

After conducting a complete and careful review of the R&R, the district judge may accept, reject or modify the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C). The district judge also has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).

II. Factual Background

The magistrate judge discussed the facts thoroughly, and the Court will briefly restate only those most relevant to its ruling. On the morning of August 21, 2012, Federal Bureau of Investigation Agents Keith Kabrhel and Scott Cieplik went to 5 Old Summit Road, Coventry, Rhode Island, to execute a search warrant for evidence related to copyright infringement and unauthorized circumvention of digital access codes. Sharp was the subject of the investigation, and the agents believed that Sharp resided at the Summit Road address. When they knocked on the door, the agents instead discovered that Sharp's parents resided at the Summit Road house and that Sharp did not. They learned that Sharp might be living at 129 Quaker Highway, Apartment 3, Uxbridge, Massachusetts. The agents then drove to the Uxbridge apartment. When they knocked on the door, Sharp's girlfriend, Katherine Renahan, answered and told the agents that Sharp was not home.[3] Renahan called Sharp and then gave the phone to Agent Kabrhel, who told Sharp that the agents "had some questions for him" that they thought he might be able to answer.[4]

Sharp arrived at the apartment about half an hour later. Agent Kabrhel informed Sharp that he was not under arrest and that "whether or not he talked to [them] was voluntary." R&R at 4-5. Although Sharp later denied that the agents told him that he did not have to talk to them, Sharp agreed to accompany the agents to another room and speak with them. Agents Kabrhel and Cieplik interviewed Sharp for about an hour. Toward the end of the interview, Agent Kabrhel asked for Sharp's consent to search his laptop, email accounts, and Dropbox folder.[5] Agent Kabrhel presented Sharp with a standard FBI "Consent to Search Computer(s)" form, and a standard FBI "Consent to Assume Online Identity Authorization Form." R&R at 7. Agent Kabrhel read the consent forms aloud to Sharp, and Sharp also read the forms for himself. Sharp then signed each form.[6]

On August 31, 2012, the agents delivered Sharp's computer and disks to FBI Special Agent Kevin Orkin in Atlanta. Agent Orkin asked Special Agent Steven Bennett to make a forensic image or copy of Sharp's computer, and Agent Bennett completed the imaging process on September 11, 2012, at 8:45 a.m. That afternoon, at 3:44 p.m., Assistant United States Attorney Brian Pearce was notified that Sharp had revoked his consent to the search and seizure of his property, including his laptop; at 4:24 p.m., Agent Orkin learned about Sharp's revocation of consent.

Sharp moves to suppress any evidence obtained from his online accounts and his laptop computer, claiming that his consent was involuntary and that his revocation of consent made any subsequent search of his property illegal. The magistrate judge found that Sharp's consent was voluntary, that Sharp revoked consent only after the relevant evidence was imaged, and that the search warrants for Sharp's Facebook account and laptop were supported by probable cause. Accordingly, the magistrate judge recommends that Sharp's motion to suppress be denied.

Sharp objects to the findings that Sharp's consent was voluntary and that the search of the image of the laptop computer was illegal. The Court will consider each of these objections in turn.

III. Analysis

A. Sharp's Consent was ...

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