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United States v. Gibbs

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

December 4, 2018

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

          ORDER

          CHARLES A. PANNELL, JR. UNITED STATES DISTRICT JUDGE.

         Before the court is the magistrate judge's report and recommendation (“R & R”) that eleven of defendant Lenard Gibbs' pretrial motions be denied [Doc. No. 195]. The defendant timely filed objections [Doc. No. 201], and the R & R is now ripe for review by this court.

         I. Background

         The defendant is charged with a 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). He filed the following motions relating to these charges which are presently before the court:

1. Motion to suppress evidence seized during the warrantless searches of his residence and his vehicle [Doc. No. 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. No. 35];
3. Amended motion to suppress evidence seized during the warrantless search of 396 Westwood Place, Apartment 6, Austell, Georgia [Doc. No. 36];
4. Motion to suppress evidence seized as a result of his warrantless arrest or in connection with an invalid arrest warrant [Doc. No. 41];
5. Amended motion to exclude out-of-court and in-court eyewitness identifications, request for hearing, and request for Brady material [Doc. No. 106];
6. Motion to exclude the identification of the defendant by Benita Alveranga [Doc. No. 119];
7. Motion to exclude the identification of the defendant by Kyrie Campbell [Doc. No. 127];
8. Motion to exclude the identification of the defendant by Miles Butler [Doc. No. 128]; 9. Motion to exclude the identification of the defendant by United States Probation Officer Jason Griffith [Doc. No. 136];
10. Motion to dismiss counts two, four, and six [Doc. No. 152];
11. Renewed motion to suppress cell site data and other evidence collected pursuant to the Stored Communications Act [Doc. 164].

         The R & R recommended the court deny all of the defendant's motions. The defendant objected to all of these recommendations except the recommendation to deny the motion to exclude the identification by Benita Alveranga [Doc. No. 119] as moot. Accordingly, the court will review the recommended denial of that motion for plain error, and every other recommendation de novo.

         II. Legal Analysis

         A. Motions to suppress based on the Fourth Amendment

         1. The defendant's motion to suppress evidence obtained as a result of his arrest [Doc. No. 41]

         The defendant challenged his December 2, 2016, arrest-and sought to exclude evidence seized because of that arrest-based on the validity of the arrest warrants. While the R & R noted there were serious deficiencies with the warrants, it did not determine their validity. Instead, the R & R held that the facts and circumstances within the collective knowledge of law enforcement at the time of the defendant's arrest were sufficient to establish probable cause to believe the defendant committed one or more armed robberies. The defendant objects to this ruling, claiming that the information used by law enforcement to establish probable cause is unreliable and that the only facts known to the arresting officers when they stopped the defendant on December 2, 2016, were claims that there were valid arrest warrants issued for the defendant.

         “Probable cause to arrest exists where the facts and circumstances within the collective knowledge of law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed.” United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir. 2002) (quoting United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992)). For the collective knowledge of the group to be imputed to the officer who conducts the stop or makes the arrest, the government must show that the officer “maintained at least a minimal level of communication during [the] investigation.” United States v. Willis, 759 F.2d 1486, 1494 (11th Cir. 1985). Clearly this requires a two-step inquiry. First the court must determine whether the surveillance team trailing the defendant had the requisite collective knowledge to establish probable cause. Then it must determine if Officer Moore of the Cobb County Police Department-the officer who conducted the stop by applying the PIT maneuver to the car the defendant was driving-maintained at least minimal communication during the investigation with the surveillance team.

         i. The surveillance team's collective knowledge at the time of the arrest

         At the time Officer Moore conducted the stop, the surveillance team- which consisted of FBI Special Agents Charles and Henriques and two members of the Conyers Criminal Investigation Division, Sergeant Lucas and Detective Williams-collectively knew the following:

• Benita Alveranga, an alleged accomplice in the PNC Bank robbery, was unable to identify the defendant as the robber but stated that the individual in the surveillance photos robbing the PNC Bank was the same individual who was in the car with her and Kyrie Campbell on November 3, 2016 [Doc. No. 135 at 133-35; Doc. No. 159 at 63-68].
• Kyrie Campbell, an alleged accomplice and getaway driver in the PNC Bank robbery, stated that the defendant (with whom Campbell was previously acquainted) robbed the PNC Bank on November 3, 2016 [Doc. No. 159 at 34-42, 55-59].
• The defendant's probation officer identified the defendant by voice, with 90% certainty, as the individual who committed the LoanMax robbery on November 3, 2016 after viewing the surveillance footage [Doc. No. 135 at 140-41].
• C.C., one of the victims of the LoanMax robbery, picked the defendant out of a photo array with 80% certainty as the individual who robbed the LoanMax on November 3, 2016 [Doc. No. 135 at 140].
• Miles Butler, an alleged accomplice and getaway driver in the People's Bank robbery, stated that the defendant (with whom Butler was previously acquainted) robbed the People's Bank on November 28, 2016 [Doc. No. 159 at 71-77].
• Law enforcement received a crime stoppers tip from the defendant's girlfriend that the defendant, who was a suspect in the LoanMax, PNC Bank, and People's Bank robberies, was staying at 396 Westwood Place, Austell, Georgia and may be driving a dark colored Saturn [Doc. No. 135 at 98-100].
• Multiple arrest warrants, including a federal probation violation warrant, had been issued for the defendant [Doc. No. 135 at 99].

         The defendant contends this information is not reliable because all the identifications of the defendant as the robber are statements made by co-defendants trying to minimize their own involvement. But this position ignores the identification of the defendant by his probation officer and C.C., one of the victims of the LoanMax robbery. Also, the court is not convinced that the co-defendants were trying to minimize their own involvement in the robberies when they identified the defendant. Campbell and Butler both admit they were the wheelmen in their respective robberies, and the surveillance footage from all three businesses shows that a lone gunman- who is neither Butler nor Campbell-committed the robberies. So while Campbell, Butler, or Alveranga (who was a passenger for the PNC Bank robbery) may try to plead ignorance that the robbery was going to occur, police never actually suspected that any of them were the armed individual who entered the bank, brandished a weapon, and physically carried away the money. So pointing the finger at the defendant as the gunman in no way minimizes their own role in the crimes, as this was never in dispute.

         The defendant also claims that the tip by Stacy Redwine (the defendant's pregnant girlfriend who called in the crime stoppers tip) is not helpful in establishing probable cause because Redwine never specifically said he was the robber when calling in the tip. While the crime stoppers tip was invaluable in determining where to set up surveillance, the court disagrees with the defendant's assertion that it has no value in establishing probable cause. When Redwine called in the crime stoppers tip, she did so in response to a report that her boyfriend was wanted for armed robbery. Even if she did not explicitly state during the call that the defendant committed the robberies, tipping law enforcement to her boyfriend's whereabouts after learning he is wanted for bank robbery implies that something led her to believe he committed the robberies. While her tip is insufficient, alone, to establish probable cause, it is certainly probative on this issue.

         After looking at the collective knowledge of law enforcement at the time of the arrest-which includes four eyewitness identifications, one voice identification, and a tip from the defendant's own girlfriend turning him in for the People's Bank robbery- the court finds there was probable cause to arrest the defendant.

         ii. Officer Moore's communication with the surveillance team ...


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