United States District Court, N.D. Georgia, Rome Division
case is before the Court on the Motion to Suppress filed by
Defendant Michael Anthony Barr ("Mr. Barr") ,
as well as on the Non-Final Report and Recommendation of
United States Magistrate Judge Walter E. Johnson  and Mr.
Barr's Objections to the Non-Final Report and
Standard of Review
reviewing a magistrate judge's report and recommendation,
28 U.S.C. § 636 requires the district court to conduct
"a de novo determination of those portions of the report
... to which objection is made." 28 U.S.C. §
636(b)(1). The Court therefore must conduct a de
novo review of the report and recommendation if a party
files a "proper, specific objection" to a factual
finding contained therein. Macort v. Prem. Inc., 208
Fed.Appx. 781, 784 (11th Cir. 2006); United States v.
Gaddy,, 894 F.2d 1307, 1315 (11th. Cir. 1990).
party files a timely objection to a factual finding in the
report and recommendation, the Court reviews that finding for
clear error. Macort, 208 Fed.Appx. at 784. Legal
conclusions, of course, are subject to de novo
review even if no party specifically objects. United
States v. Keel, 164 Fed.Appx. 958, 961 (11th Cir. 2006);
United States v. Warren, 687 F.2d 347, 347 (11th
12, 2018, a grand jury in the Northern District of Georgia
returned a nine-count Superseding Indictment against Mr. Barr
and against Defendant Nadya Ivette Diaz. (Superseding
Indictment (Docket Entry No. 35).) The indictment charged
both defendants with knowingly and willfully conspiring, in
violation of 18 U.S.C. § 371, for Mr. Barr to possess
firearms after being convicted of a felony, in violation of
18 U.S.C. §§ 2 and 922(g)(1). (Id.)
indictment also charged Mr. Barr with additional offenses:
(1) possession of a silencer that was not registered to him,
in violation of 26 U.S.C. §§ 5861(d), 5845(a)(7),
and 5871; (2) possessing a shotgun with a barrel of less than
eighteen (18) inches in length, in violation of 26 U.S.C.
§§ 5861(d), 5845(a)(2), and 5871; (3) possession of
a firearm while being an unlawful user of a controlled
substance, in violation of 18 U.S.C. § 922(g)(3); and
(4) unlawfully using the identity "C.F." to obtain
a temporary motor vehicle registration, in violation of 18
U.S.C. § 1028(a)(7) and in violation of Georgia law as
codified at O.C.G.A. § 16-10-71. (Id.)
Barr filed a Motion to Suppress on August 10, 2018. (Mot. to
Suppress (Docket Entry No. 67).) The Court therefore
conducted an evidentiary hearing on September 12, 2018,
(Docket Entry No. 76), which has been transcribed. (Tr.
(Docket Entry No. 74).)
November 29, 2018, Judge Johnson issued his Non-Final Report
and Recommendation on Mr. Barr's Motion to Suppress.
(Non-Final Report & Recommendation (Docket Entry No.
95).) He recommended that the Court deny the Motion. Mr. Barr
filed Objections to the Non-Final Report and Recommendation
on December 10, 2018. (Objs. (Docket Entry No. 100).) The
Court therefore finds this matter ripe for resolution.
August 31, 2017, officers of the Whitfield County Sheriffs
Office (the "Sheriffs Office") arrested Mr. Barr at
his home. (Tr. at 11-12.) At the time of his arrest, Mr. Barr
asked the officers to retrieve his cell phones from inside
the home. (id. at 13.) Mr. Barr also invoked his
constitutional right to counsel by requesting an attorney,
(id. at 3-4.)
evening, the lead investigator, Detective Rickey Dewayne
Holmes, approached Mr. Barr while he was in the jail's
booking area to advise Mr. Barr of his charges. (Tr. at 12,
16, 2-27.) At this time, Mr. Barr asked Detective Holmes if
they could talk. (id. at 12, 15-16, 26-27.)
Detective Holmes then reminded Mr. Barr that he had invoked
his right to counsel upon arrest, and he declined to speak
with Mr. Barr that evening. (Id. at 12, 27.)
Detective Holmes told Mr. Barr that he should think about
whether he wanted to speak without an attorney, then said
that they could meet the next day if Mr. Barr still wished to
talk. (id. at 12, 27-29.)
September 1, 2017, Detective Holmes asked the jailors to
bring Mr. Barr to an interview room. (Tr. at 13.) Detective
Holmes also asked an evidence technician to bring Mr.
Barr's cell phones. (Id.) Mr. Barr was in the
interview room when Detective Holmes entered. (Id.
at 14-15, 30.) Detective Holmes asked Mr. Barr if he still
wanted to talk without an attorney present. (Id.)
Mr. Barr responded that this depended on what Detective
Holmes wanted to talk about. (Id. at 15-16, 30-31.)
Detective Holmes informed Mr. Barr that he could decline to
answer any question. (Id. at 16, 31.) ...