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United States v. Forrest Eugene Mays 1

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

September 18, 2018

UNITED STATES OF AMERICA,
v.
FORREST EUGENE MAYS 1, KEVIN GARETT SHELTON 5, Defendants.

          ORDER AND NON-FINAL REPORT AND RECOMMENDATION

          JOHN K LARKINS III United States Magistrate Judge.

         On March 27, 2018, a federal grand jury seated in the Northern District of Georgia returned a twelve-count superseding indictment against Keven Garett Shelton and four other defendants, Forrest Eugene Mays, Ryan Michael Jackson (“Ryan Jackson”), Devin Van Jackson (“Devin Jackson”), and Keenan Justin Jackson (“Keenan Jackson”).[1] [Doc. 31.] Shelton is charged in Count Eleven with possession with intent to distribute methamphetamine, cocaine, marijuana, and alprazolam in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C), 841(b)(1)(D), and 841(b)(1)(E)(2), and in Count Twelve with possession of at least one firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. [Id. at 6-7.] Those charges arise out of Shelton's arrest on June 29, 2016, when officers with the Atlanta Police Department (“APD”) executed a search warrant at Shelton's residence and seized drugs and firearms.

         This order and non-final report and recommendation addresses Shelton's Motion to Suppress evidence seized during that June 29, 2016 search of his residence, located at 1875 North Avenue, Atlanta, Georgia [Doc. 85], which Defendant Mays has adopted [Docs. 90, 91], and Shelton's Motion to Disclose Confidential Informants [Doc. 87].[2] For the reasons that follow, it is RECOMMENDED that the motion to suppress be DENIED and ORDERED that the motion for disclosure be DENIED.

         I. Background

         On June 26, 2016, APD Investigator W. Kellner applied for and obtained a search warrant for Shelton's residence at 1875 North Avenue, Atlanta, Georgia 30318 (the “North Avenue Residence”) from a Superior Court Judge in Fulton County, Georgia. [Doc. 85-1 (affidavit, application, and search warrant).] APD officers executed the warrant three days later, on June 29. [Id. at 7.] The following facts are based on my review of the application and supporting affidavit.

         On June 2, 2016 and June 17, 2016, an APD narcotics team made successful drug buys at a home located at the North Avenue Residence with the assistance of a confidential source (the “CS”). [Doc. 85-1 at 3-4.] The CS had been working with APD narcotics investigators since 1997. [Id. at 4.] The CS had helped secure multiple search warrants on homes were narcotics have been recovered, resulting in multiple arrests and convictions. According to Investigator Kellner, he considers the CS reliable. [Id.]

         The first controlled purchase occurred on June 2, 2016. [Doc. 85-1 at 3.] Undercover investigators drove the CS to a location near the North Avenue Residence. Monitored by audio, via cell phone, and visually by the investigators, the CS went to the North Avenue Residence and entered the front porch area where he[3] encountered an African-American man in his early 20's. The man asked the CS what he was looking for, and the CS replied that he was looking for some “loud, ” a street term for high quality marijuana. The man then took government-issued funds from the CS and handed them to another man inside the house. That man went into the back of the house and then reappeared with marijuana, which he handed to the man who initially met the CS at the door of the house. That man then handed the marijuana to the CS. The CS then left the premises. The CS also noticed a handgun inside the house when he purchased the marijuana. [Id.]

         The second buy took place on June 17, 2016, in similar fashion. [Doc. 85-1 at 4.] Once again, the CS was dropped off near the North Avenue Residence by undercover investigators, who monitored the transaction by audio and visual means. On the front porch, the CS met a man in his 20's and again asked for some “loud.” The man took government-issued funds from the CS, handed them to another man whom the CS observed inside the kitchen of the house packaging the marijuana. Once packaged, the man inside the kitchen handed the marijuana to the man who greeted the CS, who then handed it to the CS. The CS then walked away from the North Avenue Residence and was picked up by undercover investigators at a nearby location. [Id.]

         Before and after each of the two buys, the CS was checked to make sure he was clean of any contraband. [Doc. 85-1 at 4.] The marijuana purchased during both buys was placed into evidence and sent to the Georgia Bureau of Investigation (“GBI”) lab for testing. [Id.]

         Additional facts are discussed in context as necessary in the analysis below.

         II. Shelton's Motion to Suppress Evidence A. The Parties' Arguments

         Shelton moves to suppress the fruits of the June 29, 2016 search of the North Avenue Residence on the grounds that Investigator Kellner's affidavit did not provide sufficient information to the issuing judge to establish the reliability of CS used in the controlled buy. [Doc. 85 at 2.] Shelton points out that the name of the CS was not disclosed to the judge, his criminal history was not provided, and there was no indication whether he was a paid informant or otherwise expected some benefit from providing information to the government. [Id. at 2-3.]

         The government responds that Shelton's arguments fail because a properly-executed controlled buy of illicit drugs-two of which were executed in this case- is sufficient, standing alone, to establish probable cause, and that the veracity of the CS is immaterial in light of the June 2 and June 17, 2016 buys. [Doc. 102 at 2-3.]

         On reply, Shelton argues that the Court should hold a hearing under Franks v. Delaware, 438 U.S. 154 (1978), “to determine whether the apparent misstatements contained in the application, along with the previously identified omissions related to the confidential CS, is enough to invalidate probable cause.” [Doc. 113 at 1.] Specifically, Shelton maintains that although controlled purchases of illicit drugs are normally sufficient to establish probable cause, the application for the search warrant in this case misrepresented that the controlled buys “were monitored via audio recording, ” given that APD did not produce or maintain any audio recording that would corroborate the CS's purported statements to the agents contained in the application and ...


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