Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gibbs

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

October 9, 2018

UNITED STATES OF AMERICA
v.
LENARD ROY GIBBS, Defendant.

          FINAL REPORT AND RECOMMENDATION

          CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE

         On August 15, 2017, a grand jury sitting in the Northern District of Georgia returned a seven-count Superseding Indictment against Defendant Lenard Roy Gibbs and his three alleged accomplices-Bernita Alveranga, Kyrie Campbell, and Miles Butler. Defendant is charged with Hobbs Act robbery and brandishing a firearm during a crime of violence related to the November 3, 2016 robbery of a LoanMax in Norcross, Georgia (Counts One and Two); bank robbery and brandishing a firearm during a crime of violence related to the November 3, 2016 robbery of a PNC Bank in Lilburn, Georgia (Counts Three and Four); bank robbery and brandishing a firearm during a crime of violence related to the November 28, 2016 robbery of a People's Bank in Conyers, Georgia (Counts Five and Six); and being a felon in possession of a firearm on December 2, 2016, the date he was arrested (Count Seven).

         Defendant has filed a number of motions, eleven of which are presently before the Court:

1. Motion to Suppress Evidence Seized During Warrantless Searches of His Residence and His Vehicle [Doc. 22]
2. Amended Motion to Suppress Evidence Seized During the Warrantless Search of the Saturn Vehicle He Was Driving at the Time of His Arrest [Doc. 35]
3. Amended Motion to Suppress Evidence Seized During the Warrantless Search of 396 Westwood Place, Apartment 6, Austell, Georgia [Doc. 36]
4. Motion to Suppress Evidence Seized As a Result of His Warrantless Arrest or in Connection with an Invalid Arrest Warrant [Doc. 41]
5. Amended Motion to Exclude Out-of-Court and In-Court Eyewitness Identifications, Request for Hearing, and Request for Brady Material [Doc. 106]
6-9. Motions to exclude identifications by Benita Alveranga [Doc. 119], Kyrie Campbell [Doc. 127], Miles Butler [Doc. 128], and United States Probation Officer Jason Griffith [Doc. 136]
10. Motion to Dismiss Counts Two, Four, and Six [Doc. 152]
11. Renewed Motion to Suppress Cell Site Data and Other Evidence Collected Pursuant to the Stored Communications Act [Doc. 164]

         I have organized these motions into four groups: (1) the motions to suppress related to Defendant's arrest, the search of the car, and the search of the apartment [Docs. 22, 35, 36, 41]; (2) the motions to suppress related to the five identifications [Docs. 106, 119, 127, 128, 136]; (3) the Motion to Dismiss Counts Two, Four, and Six [Doc. 152]; and (4) the Renewed Motion to Suppress Cell Site Data and Other Evidence Collected Pursuant to the Stored Communications Act [Doc. 164].

         I. BACKGROUND[1]

         On March 15, 2018, I held an evidentiary hearing on Defendant's claim that he was unlawfully arrested, and on his challenges to the warrantless searches of the car he was driving at the time of his arrest and of his girlfriend's apartment. [Docs. 22, 35, 36, 41]. At that hearing, the Government called six witnesses, and Defendant called one witness. [Doc. 135 at 173-74]. A transcript was prepared, and the testimony is summarized below. [Doc. 135].

         A. What Law Enforcement Knew at the Time of the Arrest

         At the time of his arrest on December 2, 2016, Defendant was suspected of having committed three armed robberies, and multiple jurisdictions were engaged in active investigations. Officers from the City of Lilburn were investigating the PNC Bank robbery, the Gwinnett County Police Department was investigating the LoanMax robbery, and the City of Conyers Police Department was investigating the People's Bank robbery. Special Agents from the FBI were also investigating the robberies.

         The Government presented evidence that a PNC Bank in Lilburn, Georgia was robbed on November 3, 2016, and that the robber made away with more than three thousand dollars. [Doc. 132-1 at 8 (Gov. Ex. 10)]. Apparently, the stolen money had a GPS tracker implanted within it, which allowed law enforcement to quickly identify the car carrying the money. [Doc. 135 at 132]. Immediately after the robbery, law enforcement fell in behind the car, at which point the car sped up. After a brief chase, the car stopped, and two male occupants fled on foot, leaving a female passenger in the car. [Id.]. One of the males, co-defendant Kyrie Campbell, was captured at the scene and arrested. The woman left behind in the car, co-defendant Benita Alveranga, was also arrested at that time. Both Campbell and Alveranga gave interviews to law enforcement that day. Campbell identified Defendant by name and by photograph and stated that he (Campbell) had driven Defendant to the bank and away from the bank after the robbery. [Doc. 159 at 34- 42, 53-59]. Alveranga did not identify Defendant by name but told the officers that the robber was the third person in the car, the person who had fled on foot and not been captured. [Id. at 63-65, 68-69; Doc. 142-1 at 10 (Gov. Ex. 12); Doc. 142-1 at 11 (Gov. Ex. 13)].

         After Defendant was identified as a suspect in the PNC Bank robbery, Lilburn police officers contacted Detective Michael Baker of the Gwinnett County Police Department and advised him that the person who robbed the PNC Bank might be the same person that had robbed a LoanMax in Norcross, Georgia on the same day, because there were similarities between the two robberies. After learning this information, Detective Baker followed up on the lead by, among other things, contacting Defendant's federal probation officer and asking the officer to review video and audio recordings from the LoanMax robbery to see if he thought Defendant was the robber. [Doc. 135 at 140-41]. The probation officer positively identified Defendant by his voice. [Id.].

         A few weeks later, the robber hit again. He robbed a People's Bank in Conyers, Georgia on November 28, 2016. Eyewitnesses had seen the robber flee on the back of a motorcycle driven by a second suspect. That suspect, co-defendant Miles Butler, was arrested shortly thereafter. [Doc. 135 at 33-34]. On December 1, 2016, Butler was questioned by law enforcement, and he admitted to participating in the robbery. He also identified Defendant-both by name and by photograph-as the person who committed the robbery. [Id. at 31, 34; Doc. 159 at 71-79; Doc. 142-1 at 14 (Gov. Ex. 17)].

         Later in the evening on December 1, 2016, the news media aired coverage of the People's Bank robbery. [Doc. 135 at 34]. Within hours, law enforcement received an anonymous tip that was later revealed to have been made by Defendant's pregnant girlfriend, Stacy Redwine. [Id. at 17, 35, 102, 160]. In the tip, Redwine stated that Defendant was the robber, that he frequented the Westwood apartment complex in Austell, Georgia, and that he might be found driving a dark-colored Saturn. [Id. at 16-17, 35, 98, 160]. The tip also included Defendant's date of birth and physical description. [Id. at 35].

         The Government presented evidence regarding several warrants for Defendant's arrest. One was issued on November 4, 2016 for the PNC Bank robbery, and another was issued for the People's Bank robbery shortly before Defendant was arrested.[2]

         With respect to the warrant for Defendant's arrest issued on November 4, 2016, by Kenneth A. Parker, a judge in the Magistrate Court of Gwinnett County, related to the PNC Bank robbery, the Government called Cody Belcher, a detective with the City of Lilburn Police Department, who was the affiant for an arrest warrant. [Doc. 135 at 126-28; Doc. 132-1 at 8 (Gov. Ex. 10)]. Detective Belcher testified that he gave Judge Parker a brief summary of the case, i.e., that immediately after the PNC Bank was robbed, law enforcement identified the vehicle carrying the stolen money using a GPS tracker implanted in the money; that the car carrying the money sped up after law enforcement fell in behind it; that after a brief chase, the car stopped and two male occupants fled on foot, leaving a female in the car; that one of the males, co-defendant Kyrie Campbell, [3] was captured at the scene and arrested; that the woman left in the car, co-defendant Benita Alveranga, was also arrested at that time; and that both Campbell and Alveranga gave oral statements indicating that Defendant was the person who had robbed the PNC Bank and that Defendant was the third person in the car who escaped on foot. [Doc. 135 at 129-33]. The warrant states:

The facts of this affidavit for arrest are based on: said accused did with the intent to commit theft, take $3, 139.00, the property of PNC Bank from the person of the victim by use of an offensive weapon to wit: weapon by pointing a silver and black firearm at the bank employee and demanding money.

[Doc. 132-1 at 8 (Gov. Ex. 10)]. There are no facts in the warrant regarding any identifications made by Campbell or Alveranga, or anything else to explain why law enforcement believed that Defendant was the robber. [Id.].

         Detective Belcher testified that it is a common practice for the factual basis for Gwinnett County arrest warrants to be presented orally to the judge and not be written down. [Doc. 135 at 127-31]. During his testimony, Detective Belcher did not state whether he provided the information to the judge under oath. On cross- examination, Detective Belcher admitted that Alveranga did not identify Defendant by name, but only by photograph. [Id. at 133-35]. Detective Belcher testified that after he obtained the warrant, he informed FBI Special Agent Ashton Charles about it. [Id. at 130].

         The Government also presented evidence that the City of Conyers Police Department obtained a warrant just prior to Defendant's arrest for the People's Bank robbery. Although the affiant, Corporal M. Vaughn, did not testify at the evidentiary hearing, another officer, Sergeant Kimberly Lucas, testified that in December 2016, she was investigating the November 28, 2016 People's Bank robbery. [Doc. 135 at 15, 17, 32-33]. She testified that on the date the warrant was issued, December 2, 2016, she and her investigation team, including Corporal Vaughn, knew that co-defendant Miles Butler had admitted to being the getaway driver, and that he had identified Defendant-both by name and by photograph- as the person who had committed the robbery. [Id. at 31, 34]. Sergeant Lucas also testified that her team was aware of the anonymous tip identifying Defendant as the People's Bank robber. [Id. at 15, 17, 28-30, 39]. The warrant states:

Lenard Gibbs did enter People's Bank, leap over the teller counter and take possession of monies belonging to People's bank, from the presence of [K.S.] by threat of violence while brandishing what appeared to be a semi automatic handgun.

[Doc. 132-1 at 4-5 (Gov. Ex. 4)]. There are no facts in the warrant to explain why law enforcement believed that Defendant was the robber. [Id.]. The warrant does not mention Butler's confession, Butler's identification of Defendant, or the anonymous tip. [Doc. 135 at 40-41; Doc. 132-1 at 4-5 (Gov. Ex. 4)]. Although there is no indication on the warrant to reflect what time it was issued, Sergeant Lucas testified that her officers obtained the warrant before Defendant was arrested. [Doc. 135 at 30, 39-40; Doc. 132-1 at 4-5 (Gov. Ex. 4)]. Sergeant Lucas testified that Corporal Vaughn was part of the investigation team and was fully aware of all the facts that led law enforcement to believe that Defendant was the People's Bank robber, including the fact that Butler had named Defendant as the robber. [Doc. 135 at 30-31, 35]. Sergeant Lucas testified that it is common practice in Rockdale County for the affiant to provide “verbal probable cause” to the judge. [Id. at 32, 41]. The Government, however, presented no evidence that the “verbal probable cause” for this particular warrant was sworn or otherwise provided to the judge under oath.

         B. Surveillance and Arrest of Defendant

         Sergeant Lucas testified further that the tipster had also advised them that Defendant frequented the Westwood apartment complex in Austell, Georgia, and that he might be found driving a dark-colored Saturn. [Doc. 135 at 16-17, 35, 98, 160]. The tip also included Defendant's date of birth and physical description. [Id. at 35]. At approximately 11:30 a.m. on December 2, 2016, the day after law enforcement received the tip regarding Defendant's whereabouts, Sergeant Lucas and her partner set up surveillance at the Westwood apartment complex in a white van. [Id. at 16, 40]. FBI Special Agents Ashton Charles and Dayne Henriques were also part of the surveillance team and were present at the complex in a separate, unmarked car. [Id. at 16, 40, 98-99]. According to Sergeant Lucas, the purpose of the surveillance was to see if Defendant was at the apartment and, if so, to arrest him. [Id. at 43]. While Sergeant Lucas was conducting the surveillance, Corporal Vaughn advised her that he had obtained a warrant for Defendant's arrest. [Id. at 30, 39-40; Doc. 132-1 at 4-5 (Gov. Ex. 4)].

         At around 1:00 p.m. that day, Sergeant Lucas was advised by Special Agent Charles that Defendant and a woman were leaving the apartment; she then saw Defendant and a woman get into a dark-colored Saturn. Defendant got into the driver's side of the car. [Doc. 135 at 17]. When the Saturn pulled out, the FBI agents followed the Saturn in their unmarked car, and then Sergeant Lucas and her partner fell in behind them in the van. [Id. at 17-18, 21, 44-45, 100].

         At that point, Sergeant Lucas requested that the Cobb County Police Department assist them by stopping the Saturn and arresting Defendant. [Doc. 135 at 19]. Sergeant Lucas testified that she advised the Cobb County Police Department that there were active bank robbery warrants for the driver who was a convicted felon and known to be armed and dangerous. [Id. at 19, 45-48]. From this point on, Sergeant Lucas was in phone contact with both FBI Special Agent Charles and with Sergeant Latham of the Cobb County Police Department. [Id. at 20, 46-47]. According to Special Agent Henriques, who also testified at the hearing, the FBI Special Agents followed the Saturn until they missed an exit and lost visual contact with the Saturn. [Id. at 100-01]. Sergeant Lucas and her partner, however, remained behind the Saturn. [Id. at 20].

         A few minutes after Sergeant Lucas requested assistance, Cobb County Police Department officers, including Officer John Moore, arrived. [Doc. 135 at 21, 57-87]. Officer Moore testified that on December 2, 2016, he received a radio call on his private channel from his supervisor, Sergeant Latham. [Id. at 58, 73- 74]. Sergeant Latham told him that there were state and federal law enforcement officers following a serial bank robbery suspect and that there was a possibility that the suspect would be coming into Cobb County. [Id. at 58]. Officer Moore was also advised that there were multiple warrants for the suspect, that the suspect was likely armed, and that there was a white van following the Saturn. [Id. at 59]. Officer Moore testified that he proceeded to the location where he expected the suspect to be, at which time he saw a black Saturn pass by with a white van following it. [Id. at 59-60].

         Officer Moore then caught up to the Saturn and pulled directly behind it, got on the main channel, advised the dispatcher that he had visual contact with the Saturn, and requested backup in order to do a felony stop. [Doc. 135 at 60-61]. Two other units fell in behind Officer Moore, at which point Officer Moore activated his blue lights. The Saturn turned onto a road that led to an apartment complex. [Id. at 61].

         Upon entering the complex, the Saturn sped up and went over several speed bumps at a high rate of speed. [Doc. 135 at 63]. Officer Moore followed the Saturn through the complex and then initiated a “pit maneuver, ” which he described as a “precision immobilization technique” whereby the officer taps the bumper of the car, causing the suspect's car to turn sideways and slide. [Id. at 64]. Officer Moore testified that as a result of the pit maneuver, the Saturn came to a stop, having blown a tire, and Officer Moore's patrol car struck the Saturn's driver-side door. [Id. at 64-65]. Officer Moore testified that the driver then climbed over the female passenger (later identified as Stacy Redwine, Defendant's girlfriend), jumped out of the passenger-side door, and ran away.[4] [Id. at 65]. Officer Moore testified that he pursued the suspect until the suspect climbed a fence that Officer Moore could not climb due to a shoulder injury that he sustained during the chase. [Id. at 65-67].

         Jordan Calliero, a uniformed patrol officer with the Cobb County Police Department, testified that he was tasked with helping to set up a perimeter to cut off routes of escape. [Doc. 135 at 88-89]. According to Officer Calliero, K-9 officers had apprehended the suspect behind a house, and the officers brought Defendant out toward Officer Calliero's patrol car. The officers handed Defendant over to Officer Calliero, who conducted a pat down and search for weapons. [Id. at 89-90]. During the search, Officer Calliero found a loaded handgun in a leather inside-the-waistband holster. [Id. at 90-91]. He also found marijuana and other drugs during the search. [Id. at 91]. A video showing the pat down that Officer Calliero conducted was admitted into evidence. [Id. at 92-93; Gov. Ex. 7].

         The female passenger did not flee and later identified herself to Sergeant Lucas as Stacy Redwine. Redwine, who was pregnant at the time, was placed in the back of a patrol car; initially she was in handcuffs, but the handcuffs were later removed. [Doc. 135 at 24-26, 51-52; Doc. 159 at 62-63]. Redwine told Sergeant Lucas that the driver of the car who had fled was Defendant and that she thought he might go back to her apartment at the Westwood apartment complex, which backed up to the apartments where the Saturn had been abandoned. [Id. at 22, 24- 25, 52]. Sergeant Lucas testified that she observed a large handgun on the asphalt next to the Saturn. [Id. at 23].

         C. Search of the Car and the Apartment

         Redwine testified that when she was discovered in the Saturn, an officer pulled his gun on her and told her to get on the ground. [Doc. 135 at 156]. She was then handcuffed and placed in the back of a patrol car. [Id. at 156-57]. She confirmed that the handcuffs were later removed. [Doc. 159 at 62-63].

         Special Agent Henriques testified that he spoke with Redwine while she was sitting in the back of a patrol car. He said that he wanted to verify the information that Redwine had given to the police when she made the anonymous tip regarding Defendant the previous evening. [Doc. 135 at 102]. He also told Redwine that they were going to search her car. According to Special Agent Henriques, he told Redwine that she could either give the officers consent to search the car right then and her car would be returned to her, or they could tow the car, get a warrant, and search the car that way. [Id. at 103]. Special Agent Henriques testified that Redwine opted to give consent, at which point the officers searched the car. [Id. at 103-04]. He testified that he did not have a consent form available at the time because the forms were in his FBI vehicle which was at the arrest location with Special Agent Charles. [Id. at 104]. Redwine contradicted this version of events, testifying that no one ever asked for her consent to search the car and that she did not give consent to search her car. [Id. at 169].

         Redwine testified that at some point later, the officers asked her if she thought that Defendant might go back to her apartment, and she said yes. [Doc. 135 at 157]. Redwine testified that the officers asked her if they could go look for Defendant at the apartment, and she said yes. She testified that it was her understanding that the officers were going to the apartment for the sole purpose of searching for Defendant. [Id. at 157-58].

         Special Agent Henriques testified that he was the person who spoke with Redwine about searching the apartment, and that Redwine gave verbal consent to search the apartment. [Doc. 135 at 105-06]. He testified that because Special Agent Charles had returned with the FBI vehicle, Special Agent Henriques was able to retrieve a blank consent form from the vehicle, which Redwine signed, giving her written consent to search the apartment. [Id. at 26-28, 52, 105-08]. The form is signed by Redwine, witnessed by Special Agent Henriques, and dated December 2, 2016. It states in full:

1. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete search of: 396 Westwood ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.