United States District Court, N.D. Georgia, Atlanta Division
ORDER AND REPORT AND RECOMMENDATION
S. ANAND UNITED STATES MAGISTRATE JUDGE.
having been convicted on firearms and narcotics trafficking
charges in Fulton County Superior Court, Defendant Douglas
Harden is now also facing a two-count federal indictment
charging him with possession of a firearm by a convicted
felon and possession of a firearm in furtherance of a drug
trafficking crime. He now moves to dismiss the federal
indictment on double jeopardy grounds and moves to suppress
the fruits of the search of a residence, which apparently was
the basis of Defendant's initial arrest. For the reasons
explained below, the Court RECOMMENDS that
Defendant's Motion to Dismiss  and Motion to
Suppress Evidence  be DENIED.
March 27, 2014, a Fulton County Superior Court Judge issued a
warrant authorizing Atlanta Police Department
(“APD”) officers to search 36 Howell Street,
Apartment 5, Atlanta, GA. [23-1] at 4. This warrant was based
on the application and affidavit executed by an APD
investigator, which explained that a APD confidential source
(“CS”) bought cocaine at the Howell Street
apartment in two separate undercover transactions on March 4
and March 24, 2014. See Id. at 3-4. The
investigators used a CS who had successfully purchased
narcotics in an undercover role on several other occasions
and had otherwise provided reliable information. Id.
On both occasions, the CS purchased $20 worth of cocaine from
an individual at the he knew as “Mudd.”
Id. The investigators knew that the CS did not have
the cocaine prior to entering the Howell Street apartment
because they searched him immediately prior to the undercover
buys and observed him as he approached and entered the
apartment. See Id. Field tests were positive for
cocaine in both cases. Id.
investigator returned the warrant to the Superior Court Judge
on April 15th, 2014. [23-2] at 1. The return
indicated that an inventory was attached consisting of two
pages, although the return that the Government obtained from
the state officials and produced to the Defendant in
discovery includes only a one page inventory. Id. at
2. According to this inventory, the investigators obtained
60.9 grams of marijuana, 8 grams of cocaine, a handgun, a
digital scale, $1, 226 in U.S. currency and various packaging
material. Id. The investigators also arrested the
Defendant at the scene. Id.
was indicted in Fulton County on four charges: (1) possession
of cocaine with intent to distribute; (2) possession of
marijuana with intent to distribute; (3) possession of a
firearm during the commission of a felony; and (4) possession
of a firearm by a convicted felon. Defendant subsequently
entered a no contest plea pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), and thereby was convicted of
each of these state charges. A federal grand jury empaneled
in this District then issued this Indictment, which charges
Defendant with being a felon in possession of a firearm and
possessing a firearm in furtherance of a drug trafficking
crime, in violation of federal law.
Defendant's Motion to Dismiss
undisputed that Defendant has already been previously
convicted of possession of a firearm as a convicted felon,
drug trafficking, and other violations of the State of
Georgia's criminal code based on the same events at issue
in this case. Thus, on September 26, 2016, Defendant filed a
Motion to Dismiss Indictment Based on the Double Jeopardy
Fifth Amendment to the United States Constitution
“protects defendants against successive prosecutions
for the same criminal offense.” United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir.1994).
But “identical offenses are nevertheless different for
purposes of the Double Jeopardy Clause when they are charged
by separate sovereigns.” Id.; United States v.
Lanza, 260 U.S. 377, 382 (1922) (“an act denounced
as a crime by both national and state sovereignties is an
offense against the peace and dignity of both and may be
punished by each.”); Abbate v. United States,
359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S.
121 (1959). Defendant criticizes the wisdom and fairness of
these principles, although candidly acknowledges that the
“dual sovereignty” doctrine is binding on this
Court based on current precedents. See Pl. Br. 
invokes the Supreme Court's recent decision in Puerto
Rico v. Sanchez Valle, et al., __ U.S. __, 136 S.Ct.
1863 (2016). In that case, the Court found that the Double
Jeopardy clause barred the Commonwealth of Puerto Rico from
separately prosecuting two defendants for the same
transactions for which they had previously been convicted in
federal court. Id. at 1876-1877. That case, however,
did not eliminate or limit the dual sovereignty principle as
it relates to successive State and Federal prosecutions.
Rather, the Supreme Court addressed a question entirely
irrelevant to the Court here: whether a United States
territory, such as Puerto Rico, is in fact a separate
sovereign from the United States Government. The Court
answers that question in the negative at least as it relates
to Puerto Rico. Id. The Court noted that the test of
dual sovereignty turns on the “ultimate source”
of the power undergirding the respective prosecutions.
Id. at 1871. Because the Court found that the
“ultimate source” of Puerto Rico's
prosecutorial authority was statutory action by the U.S.
Congress, the Court concluded that the Commonwealth of Puerto
Rico was not a dual sovereign for purposes of the Double
Jeopardy Clause. Id. at 1874-1877.
Rico by its own terms has no impact on the application
of the dual sovereignty doctrine to a prior prosecution by
the State of Georgia. To the contrary, the Court reaffirmed
the long standing principle that “the States are
separate sovereigns from the Federal Government (and from one
another).” Id. at 1871. The Defendant here has
not been previously convicted for the same conduct in the
courts of Puerto Rico, Guam, the U.S. Virgin Islands,
American Samoa, or any other U.S. territory. Thus, Puerto
Rico does not change the result that this Court is
compelled to reach here based on binding precedent, which is
to deny Defendant's double jeopardy challenge to his
federal prosecution. Defendant's Motion to Dismiss should
Defendant's Motion to Suppress Evidence
also moves to suppress the fruits of the March 27, 2014
search of the Howell Street Apartment that was authorized by
the Fulton County Superior Court. Defendant argues that the
warrant was not supported by a showing of probable cause, and
that the APD failed to timely return the warrant and that,
when it did return the warrant, it attached an incomplete