United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S FINAL REPORT AND
RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR
T. WALKER CHIEF UNITED STATES MAGISTRATE JUDGE.
case is before the court on Defendant Nathan Reed's
("Defendant") Motion to Suppress Search (Doc. 16),
Motion to Suppress Statement (Doc. 17), and Amended Motion to
Suppress Search (Doc. 22). For the reasons that follow,
Defendant's Motion to Suppress Search and Amended Motion
to Suppress Search should be DENIED. (Docs.
16, 22). Defendant's Motion to Suppress Statement has
been abandoned and should also be DENIED.
(Doc. 17). Because there are no more motions or other matters
to address for Defendant Reed, the undersigned certifies him
ready for trial.
MOTION TO SUPPRESS STATEMENT
Defendant's Motion to Suppress Statement (Doc. 17),
Defendant seeks to suppress statements he made to federal
agents who allegedly continued to interrogate him after he
asked several times to end the interrogation. On March 2,
2018, the Courtroom Deputy for the undersigned emailed
Defendant's counsel, Robert Glickman, and copied the
Government's counsel, Phyllis Clerk, to ascertain how he
would like to handle the pending Motion to Suppress Statement
in light of the fact that Mr. Glickman had notified the Court
that the Court's suppression hearing, set for February
26, 2018, was no longer needed. Ms. Clerk responded to the
Court's email and explained that the Government would not
seek admission of the Defendant's statement challenged in
the Motion and that Mr. Glickman indicated that he would
withdraw the Motion given that the Government would not seek
admission of Defendant's statement. Additionally,
Defendant never perfected his Motion to Suppress Statement.
Thus, it appears to this Court that Defendant's Motion to
Suppress Statement has been abandoned. See United States
v. Rosso, No. 3:14-CR-00014-TCB, 2015 WL 7115860, at *28
n.26 (N.D.Ga. Nov. 12, 2015); United States v.
Cadet, No. 1:11 -CR-00522-WBH, 2013 WL 504892, at *9
(N.D.Ga. Jan. 16, 2013), R. & R. adopted. No.
1:11 -CR-113-WBH-2, 2013 WL 504815 (N.D.Ga. Feb. 8, 2013)
(citing United States v. Chappell, No.
1:10-CR-513-WSD-ECS, 2011 WL 5353016, at*5 (N.D.Ga. May 25,
2011)(deeming argument defendant raised in pre-hearing
motion, but did not expound upon in post-hearing briefs, to
be waived and abandoned); United States v. Sanders,
No. 3:15-CR-00010-TCB, 2015 WL 6684746, at *2 (N.D.Ga. Oct.
29, 2015) (concluding that where defendant was granted an
extension to perfect motion, but did not do so, motion was
deemed abandoned); United States v. Shorr, No.
1:07-CR-182-1 -TWT, 2008 WL 655994, at * 1 (N.D.Ga. Mar. 10,
2008) (same). Accordingly, Defendant's Motion to Suppress
Statement should be DENIED.
MOTIONS TO SUPPRESS SEARCH
September 6, 2017, the Grand Jury charged Defendant with
knowingly receiving on his computer at least one visual
depiction of a minor engaging in sexually explicit conduct as
defined in 18 U.S.C. § 2256(2) in violation of 18 U.S.C.
§ 2252(a)(2), and (b). Defendant was also charged with
knowingly possessing a computer and external hard drive that
contained at least one visual depiction of a minor engaging
in sexually explicit conduct as defined in 18 U.S.C. §
2256(2) in violation of 18 U.S.C. § 2252(a)(4)(B).
November 23, 2017, Defendant filed his Motion to Suppress
Search. (Doc. 16). Therein, Defendant argued that evidence
obtained from computers seized during a search of a bedroom
he was renting inside of a townhome should be suppressed. In
support, Defendant argues that even though the search warrant
law enforcement officers relied upon did not specifically
authorize the search of Defendant's bedroom, the officers
searched the entire townhome, including his bedroom, for
materials believed to be possessed by Kevin Dean, another
tenant at the rental house. Within the Motion, Defendant
requested an evidentiary hearing to address issues presented
by his Motion. On November 27, 2017, the Court scheduled a
suppression hearing for January 26, 2018. (Doc. 18). On
January 23, 2018, Defendant moved for a continuance of the
hearing because one of his witnesses was unable to testify on
the scheduled date. (Doc. 20). The Court granted
Defendant's motion and reset the hearing for February 26,
2018. (Doc. 21). On February 23, 2018, Defendant filed an
Amended Motion to Suppress Search (Doc. 22). Therein,
Defendant again argued that law enforcement wrongfully
searched his bedroom apartment since the warrant did not
specifically authorize the search of his bedroom. Defendant
also stated that he and the Government had agreed to the
following facts: (1) that a search was conducted at 4164
Oakwood Way on June 30, 2016, pursuant to a search warrant
and the corresponding affidavit in support of the warrant;
(2) that the affidavit mentioned that Mr. Dean had a
roommate, but no specifics were included, either as to the
roommate's identity or the housing arrangements; (3)
during the search of the bedroom Defendant rented (which he
leased and paid for separately from Mr. Dean),
Defendant's two computers were seized; and (4) Defendant
was never Dean's roommate. (Doc. 22, at 2). Defendant
then advised the Court that he would like to present a
briefed argument. On February 23, 2018, defense counsel also
emailed the undersigned's courtroom deputy advising her
that he did not need to have the hearing set for the
following Monday and that he preferred to move to a briefing
schedule. Based on defense counsel's representations in
his email, the Court then set a briefing schedule for the
parties to brief the issues. After requesting a couple of
extensions of the deadline for filing a reply brief,
Defendant filed his Reply on September 17, 2018. (Docs. 31,
33). In addition to the four facts to which the parties have
agreed as outlined above, both parties referenced the
Affidavit of Special Agent Kevin Orkin of the Federal Bureau
of Investigation submitted in support of the application for
a warrant. (Docs. 22-1, 30-1). In his affidavit, Special
Agent Orkin stated that FBI Special Agent Thomas Thompson
logged onto a peer to peer file sharing program, which allows
computer users to share files over the internet with other
users running compatible peer to peer software, in an
undercover capacity. (Orkin Aff. ¶ 4). Special Agent
Thompson discovered that username "mitch7177" was
connected to the network and that mitch7l77 had 653 items
available for download. (Orkin Aff. ¶ 5). After
downloading and reviewing thirteen of the files, Special
Agent Thompson found that the files contained suspected child
pornography. (Orkin Aff. ¶ 5). Special Agent Thompson
used a software tool to capture the internet protocol
("IP") address being used by mitch7177, and
discovered that the IP address from which the files were
downloaded belonged to Comcast. (Orkin Aff. ¶ 7). After
obtaining responses to an administrative subpoena served upon
Comcast, Special Agent Thompson learned that the subscriber
using the IP address was Kevin Mitchell Dean and that the
service address was 1395 Alison Court S W in Atlanta. Special
Agent Thompson referred the matter to the FBI in Atlanta, and
Special Agent Orkin began investigating the matter. (Orkin
Aff. ¶¶ 9, 10). When Special Agent Orkin followed
up on the address for Mr. Dean, the property manager of
Dean's apartment complex advised Orkin that Dean was in
the process of being evicted for failure to pay rent and that
he had unsuccessfully tried to contact Dean. (Orkin Aff.
Agent Orkin recontacted Special Agent Thompson to find out
what address mitch7l77 was currently using. (Orkin Aff.
¶ 11). Special Agent Thompson subsequently advised
Special Agent Orkin that the new IP address now belonged to
Charter Communications. (Orkin Aff. ¶ 11). On request,
Charter subsequently identified the subscriber for the IP
address as Ryan Morse who resided on 4164 Oakwood Way in
Duluth, Georgia. (Orkin Aff. ¶ 12).
8, 2016, Dean responded to a Craigslist ad placed as part of
an FBI undercover operation targeting producers of child
pornography. (Orkin Aff. ¶ 14). Dean provided a Kik
Messenger ID of mitch7077 to an undercover agent. (Orkin Aff.
¶ 14). During Dean's conversations on Kik, Dean
allegedly indicated an interest in meeting to have sex with
an eleven-year-old boy. (Orkin Aff. ¶ 15). Dean further
stated that he lived in the Norcross, Georgia area and that
he has a roommate. (Orkin Aff. ¶ 16). When law
enforcement officers conducted a drive-by surveillance on
April 13, 2016, officers observed that a Chevrolet registered
to Kevin Dean was in the parked area of 4164 Oakwood Way.
(Orkin Aff. ¶ 17). Based on these facts, Special Agent
Orkin sought authorization to search 4164 Oakwood Way in
Duluth for, among other things, computers, computer hardware,
computer software, and computer files. (Orkin Aff.,
Attachments A, B). The warrant described 4164 Oakwood Way as
being a townhouse style home with a front and rear entry.
(Orkin Aff, Attachment A).
argues the search of his bedroom pursuant to a warrant was
too broad because the affidavit in support of the warrant
shows that the FBI's investigation led the FBI to suspect
Kevin Dean and an internet account registered to Ryan Morse,
but Defendant's name was not mentioned anywhere within
the affidavit. In addition, Defendant contends that while the
investigation of Dean led to a residence At 4164 Oakwood Way,
the affidavit inaccurately described the residence as a
townhouse style home instead of a multiple dwelling.
Defendant contends that law enforcement officers, despite
entering the property and seeing that the property was a
multiple dwelling, continued their search through the entire
house, including Defendant's rented bedroom, without a
warrant specifically authorizing the search of his bedroom.
Defendant also contends that because the townhouse was so
different from the particulars of the warrant and affidavit,
which make no mention of him or the property being a
multi-dwelling unit, the officers should have stopped their
search and sought a warrant prior to searching his bedroom
Government argues in response that the warrant authorized the
search of Defendant's bedroom because the warrant
explicitly authorized the FBI to search the entire premises,
acknowledged that Dean had a roommate, and made no reference
to exclude the roommate's bedroom and belongings from the
search. The Government also argues that the warrant
application was supported by probable cause because the
username mitch7177 possessed items available for download
that contained suspected child pornography, Dean was
identified by Comcast as the user behind mitch7177, and Dean
resided at 4164 Oakwood Way. The Government further contends
that although the initial investigation revealed that Dean
was associated with username mitch177, agents had no way of
knowing which computers in the residence contained suspected
child pornography without taking all the computers and the
computer equipment. Finally, the Government contends that to
the extent that there was a problem with the warrant, the
agents acted in good faith when they relied upon it.
Fourth Amendment guarantees "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const,
amend IV. The Fourth Amendment provides that warrants shall
issue only "upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
Id. The purpose of the particularity requirement was
to prevent general searches. Maryland v. Garrison,
480 U.S. 79, 84 (1987). The scope of a lawful search is
defined by the object of the search and the places in which
there is probable cause to believe that the object of the
search may be found. Garrison, 480 U.S. at 85.
"Whether a search conducted pursuant to a warrant is
lawful requires consideration of issues: the validity of the
warrant itself and the reasonableness with which the officers
executed the search." United States v. Schwinn,376 Fed.Appx. 974, 980 (11th Cir. 2010). Defendant has the
burden of proof in challenging the validity and the
reasonableness of execution of the search warrant. United
States v. Lockett, 533 F. App'x957, 965 (11th Cir.
2013); United States ...