United States District Court, N.D. Georgia, Atlanta Division
CHARLES A. PANNELL, JR. UNITED STATES DISTRICT JUDGE.
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.
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
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.
11. Renewed motion to suppress cell site data and other
evidence collected pursuant to the Stored Communications Act
& 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.
Motions to suppress based on the Fourth Amendment
The defendant's motion to suppress evidence obtained as
a result of his arrest [Doc. No.
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.
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.
The surveillance team's collective knowledge at the time
of the arrest
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
• 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].
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.
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.
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.
Officer Moore's communication with the surveillance team