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United States v. Dubose

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

November 16, 2018

UNITED STATES OF AMERICA,
v.
MONIQUE DUBOSE (2), Defendant.

          NON-FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III United States Magistrate Judge

         Pending before the Court is Defendant Monique Dubose's Motion to Suppress Search of Cellular Telephone or Alternatively for a Franks Hearing [Doc. 130] and Dubose's Motion to Suppress Statements [Doc. 131]. The government has responded to these motions [Docs. 154, 157], and Dubose has filed a reply in support of the motion to suppress evidence [Doc. 161].

         On November 15, 2018, I held an evidentiary hearing on the circumstances surrounding Dubose's purported interrogation following her arrest. Homeland Security Investigations (“HSI”) Special Agent Stuart C. Reagan testified at the hearing. Because this case is scheduled for trial beginning December 3, 2018, I am issuing this report and recommendation prior to the preparation of the transcript of the evidentiary hearing to give the parties time to review and object to my findings and conclusions.

         For the following reasons, it is RECOMMENDED that the Motion to Suppress Search of Cellular Telephone or Alternatively for a Franks Hearing [Doc. 130] be DENIED and Dubose's Motion to Suppress Statements [Doc. 131] be GRANTED IN PART AND DENIED IN PART.

         I. Background

         On January 9, 2018, a grand jury seated in the Northern District of Georgia returned an indictment against Quintavious Obie, charging him with five counts of human trafficking. [Doc. 13.] On August 21, 2018, the government superseded the indictment to, among other things, add Dubose as a defendant and charge her with conspiracy to commit witness tampering and two corresponding substantive witness tampering counts.[1] [Doc. 71.]

         Ten days later, on August 31, 2018, Dubose surrendered to SA Reagan at SA Reagan's office, accompanied by her attorney. Initially, Dubose, her attorney, and SA Reagan all met for around ten minutes in an interview room, where SA Reagan explained the booking process. Afterwards, Dubose was taken separately to a processing room for booking and her attorney departed for the federal courthouse to meet her there for her initial appearance.

         Prior to booking Dubose, SA Reagan had partially completed a U.S. Marshals Service (“USMS”) New Arrest/Booking Packet form based on information that was already known to SA Reagan. Among the fields of information that he completed in advance of the booking procedure was Dubose's cellular telephone number, 404-740-3499. During the booking interview, he confirmed with Dubose that her phone number was correct.

         Dubose also had in her possession an Apple iPhone (the “iPhone”), which SA Reagan seized and placed into an evidence bag because he thought it likely contained evidence of criminal activity. SA Reagan does not recall whether he asked Dubose if the iPhone he seized was associated with her phone number. After booking was complete, SA Reagan transported Dubose to the federal courthouse for her initial appearance and arraignment. [See Doc. 84; Doc. 157 at 2-3.] During her transport, SA Reagan asked her to give him the access code for the iPhone, but she said nothing.

         On September 5, 2018, SA Reagan applied for a search warrant from United States Magistrate Judge Janet F. King to search the iPhone. [Doc. 130-1 (application for search warrant and affidavit in support).] Because Dubose challenges the sufficiency of the affidavit supporting the search warrant, the Court summarizes the pertinent portions of the affidavit as follows.

         SA Reagan first discussed his training and experience as an HSI special agent and law enforcement officer. (Reagan Aff. ¶¶ 3-9, 11-16.) Among other things, he stated that he knows that persons involved with sex trafficking typically use cell phones and other computer devices to (1) maintain contact information of traffickers and victims; (2) take photographs of residences, their property, and victims; (3) communicate with victims, clients of commercial sex, other sex traffickers, and coconspirators via phone, text messaging, and other phone applications; (4) advertise prostitution services on the internet; (5) access social networking sites to look for new victims and communicate with victims and coconspirators; (6) make video and audio records; (7) maintain audio recordings or text messages; and (8) maintain records of travel, agendas, appointments, and dates. (Id. ¶ 14(a)-(j).) Sex traffickers also often provide cell phones to victims for the purpose of communicating with the trafficker and clients of commercial sex. (Id. ¶ 14(k).)

         To establish probable cause for the search warrant, SA Reagan stated that HSI and the FBI had been jointly investigating alleged sex trafficking of women by Obie who is also known as “Swayzii.” (Reagan Aff. ¶ 17.) SA Reagan stated that Obie had been the subject of multiple criminal investigations into sex trafficking of adults and minors and that law enforcement had conducted physical and electronic surveillance of Obie, compiled records of local police investigations, and identified associates and coconspirators. (Id. ¶ 18.) A toll analysis of a phone used by Obie allegedly to conduct prostitution-related business indicated that a top contact was the telephone number associated with Dubose's iPhone. (Id. ¶ 19.) Agents were able to identify Dubose as the user of the iPhone through an administrative subpoena. (Id. ¶ 20.) They were also aware through an earlier FBI investigation that Dubose was the mother of Obie's child. (Id.)

         SA Reagan stated that on July 27, 2017, H.T., an alleged adult prostitute, was arrested during an escort service sting operation in Dunwoody, Georgia. (Reagan Aff. ¶ 21.) Based on posts on Obie's Instagram account, agents had identified H.T. as working for Obie. H.T. was charged with misdemeanor state charges of prostitution and was booked into the DeKalb County Jail. According to records, Dubose paid the bond for H.T., who was released on July 28, 2017. (Id.)

         On December 12, 2017, HSI and FBI agents executed a search warrant at Obie's residence and arrested him for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Reagan Aff. ¶ 22.) In a recorded interview following his arrest, Obie identified Dubose as the mother of his daughter. Obie was detained pending trial at the Robert A. Deyton Detention Center (“RAD”) after his initial appearance. (Id.) On January 9, 2018, a federal grand jury returned a five-count indictment against Obie, charging him with sex trafficking of adults by force, fraud, or coercion in violation of 18 U.S.C. § 1591. (Id. ¶ 23.)

         According to SA Reagan's affidavit, after Obie's arrest, agents began reviewing recorded telephone calls that Obie placed from RAD to alleged victims, witnesses, associates and coconspirators immediately after his arrest. (Reagan Aff. ¶ 24.) According to RAD call logs, Obie placed dozens of calls to Dubose's iPhone following his arrest, and on numerous calls he addressed the called party as “Monique” (Dubose's first name) or “Marley” (her nickname). (Id. ¶¶ 22, 25.) During many of the calls, Obie instructed Dubose to perform tasks for him, including collecting money from suspected prostitution activities and delivering the proceeds to his counsel, deleting social media accounts, and contacting alleged victims on Obie's behalf. (Id. ¶ 25.)

         SA Reagan then summarized several of the alleged communications between Obie and Dubose. On February 7, 2018, Obie allegedly instructed Dubose to contact A.V.P. (one of the alleged victims named in the indictment) and asked her to sign an affidavit denying that she had ever been victimized by Obie. (Reagan Aff. ¶ 26.) In that same call, Obie allegedly instructed Dubose to call another alleged victim named in the indictment, A.N.P., and provided A.N.P.'s telephone number to Dubose. Obie also allegedly instructed Dubose to search social media for C.C., another alleged victim named in the indictment. (Id.)

         Then, according to SA Reagan's affidavit, on February 9, 2018, Obie allegedly directed Dubose in a recorded telephone call to text A.V.P. with the message “Swayzii is not going to talk to the Dekalb DA” and “they need to be on the same page.” (Reagan Aff. ¶ 27.) A.V.P. had been implicated in an August 9, 2016 robbery of a prostitute who allegedly worked for Obie, and that case was being prosecuted in DeKalb County. Local police investigators interviewed A.V.P., but as of the date of SA Reagan's affidavit, no charges had been filed as against A.V.P. (Id. ¶ 27.)

         On February 12, 2018, Obie and Dubose allegedly discussed A.V.P.'s refusal to sign an affidavit denying that she was the victim of sex trafficking. (Reagan Aff. ¶ 28.) Obie allegedly told Dubose to tell A.V.P. that the police were lying in the investigation and that A.V.P. should sign the affidavit to keep from being “bothered.” Allegedly, Obie additionally instructed Dubose to tell A.V.P. that she was the only one who had not signed an affidavit, which was not true. (Id.)

         Also on February 12, 2018, C.C. notified agents that an unknown person had contacted her on February 8, 2018 through direct messaging on Instagram and asked if she intended to cooperate with law enforcement against “Swayzii.” (Reagan Aff. ¶ 30.) The sender of the message, identified as Instagram account _lexii_dejee_, stated that “he [presumably, Obie] deeply apologizes for anything he has done wrong.” Instagram records obtained by law enforcement indicate that the account was assigned to Alexia Stribling, and that Obie placed at least two recorded calls to a phone number used by Stribling in February 2018. (Id.)

         SA Reagan averred that on February 13, 2018, allegedly during a call to the iPhone, Dubose reported to Obie that C.C. “wrote back telling them to stop and that she hopes he goes away forever.” (Reagan Aff. ¶ 29.) Dubose allegedly also told Obie that A.V.P. had agreed to sign the affidavit. (Id.) On February 19, 2018, Obie allegedly placed four consecutive calls from RAD to Dubose's iPhone. (Id. ¶ 31.) Two of the calls lasted fifteen minutes, one lasted fourteen minutes, and the final one lasted ten minutes. According to SA Reagan, Obie used those calls to make three-way phone calls to alleged victim H.T. During each call, Obie allegedly pressured H.T. to sign an affidavit, which denied the allegations of sex trafficking by force, fraud, or coercion; however, in each call, H.T. resisted and refused to sign the affidavit. In one of the calls, Dubose is captured telling Obie “she's not going to sign it.” Also, at the end of one conversation, Obie is heard allegedly remarking that if anyone were to listen to his calls, they would think that his statements to H.T. were coercive. (Id.)

         SA Reagan next summarized an April 13, 2018 interview of A.V.P. by agents at the U.S. Attorney's Office in Atlanta. (Reagan Aff. ¶ 32.) In the interview, A.V.P. admitted that she had agreed to sign the affidavit prepared by Obie's defense counsel, but that she had not understood the document. A.V.P. also provided text messages that she had received from someone known to her as “Marley” and originating from the iPhone. One such message dated March 18, 2018, stated: “Swayzii said he will give u $1000 to come to the court date April 16.” (Id.)

         SA Reagan next wrote that according to Georgia Department of Driver Services records, on March 16, 2018, Dubose renewed her driver's license and provided the telephone number assigned to the iPhone as on her license application. (Reagan Aff. ¶ 33.)

         SA Reagan then explained that on August 21, 2018, Dubose was charged, along with Obie, in a superseding indictment with witness tampering. (Reagan Aff. ¶ 34.) He then stated that on August 31, 2018, Dubose surrendered to agents and at that time agents seized the iPhone. (Id. ¶ 35.) According to SA Reagan's affidavit, Dubose acknowledged the phone number of the device. (Id.)

         Additional facts are discussed in the analysis that follows.

         II. Motion to Suppress Evidence Seized from the iPhone

         Dubose raises three main challenges to the search warrant: (1) that SA Reagan's affidavit was insufficient to establish probable cause; (2) that the warrant was not sufficiently particularized; and (3) that the Leon good faith exception to the exclusionary rule is inapplicable. The Court addresses each of those arguments in turn.

         A. ...


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