United States District Court, N.D. Georgia, Gainesville Division
ORDER AND REPORT AND RECOMMENDATION
CLAY FULLER UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendant's Motion To
Suppress DNA Evidence And Fruit Of State Search Warrants
(Doc. 16). For the reasons discussed below, it is
RECOMMENDED that Defendant's motion be
Indictment filed June 14, 2017 charges Defendant with
committing bank robberies at a Piedmont Bank branch in
Norcross, Georgia on July 7, 2016 and a BB&T branch in
Buford, Georgia on July 15, 2016. (Doc. 1). Defendant moved
to suppress DNA evidence obtained pursuant to a state search
warrant issued on October 12, 2016 and all fruits derived
therefrom. (Doc. 16). The Court conducted a hearing
on Defendant's motion on June 18, 2018 (see Doc.
27), and the transcript was filed on July 3, 2018 (Doc.
Defendant filed a post-hearing brief (Doc. 34); the
Government responded (Doc. 37); and Defendant replied (Doc.
39). With briefing complete, the undersigned now considers
the merits of Defendant's motion.
County Sheriff's Office Investigator Tom Wilson is the
lead investigator for an investigation of a robbery that
occurred in July 2016 at the BB&T bank branch located on
Lanier Islands Parkway in Buford, Georgia. (Tr. 47). Video of
that robbery showed that the suspect's arm hit the glass
in the door as he attempted to flee out the front door,
leaving his sweat on the glass. (Tr. 49-50). The suspect then
ran out of a side door, and his stocking mask came off his
head and landed in the parking lot. (Tr. 50). A crime scene
technician collected the mask and swabbed the sweat off of
the glass panel in the front door. (Tr. 48-50, 55-56). That
evidence was sent to the Georgia Bureau of Investigation
(GBI) lab for analysis. (Tr. 49). The GBI sent a report to
Hall County investigators informing them that there was a
CODIS match and provided a name, date of birth,
Florida Department of Law Enforcement (FDLE) number, and an
FBI number for the match. (Tr. 50; Gov't Ex. 1).
Specifically, the report noted that the GBI had received a
sealed package containing clothing, a brown knitted stocking,
and swabbings, and the DNA from that evidence had been
matched to a convicted offender from Florida, “Gregory
Powell, ” date of birth 10/12/1967, FDLE number
02369263, and FBI number 490977HA6. (Gov't Ex. 1). The
report also stated, “we require a new biological sample
from the offender be submitted as soon as possible. Upon
submission, the offender will be added as an official suspect
and a new DNA report will follow.” (Id.).
Wilson then ran the identifying information about the
offender through the NCIC database, and he received information
indicating that “Gregory M. Powell” is an alias
for Edward Lewis Powell, who has the same FDLE number and FBI
number associated with the offender in the CODIS match
report; that Edward Lewis Powell has provided multiple birth
dates, including 10/12/1967; and that Edward Lewis Powell was
in the Butts County, Georgia jail. (Tr. 51, 59-61, 64-65, 70;
see also Gov't Ex. 6). Wilson
therefore believed that the “Gregory Powell”
identified in the CODIS match report and Edward Lewis Powell,
i.e., Defendant, were the same person. (Tr. 70).
October 12, 2016 Wilson applied for and obtained a search
warrant signed by a Butts County magistrate judge to obtain
two buccal (cheek) swabs from Defendant at the Butts County
jail. (Tr. 51-52, 55, 70; Gov't Exs. 3, 4). Wilson and an
FBI agent then went to the Butts County jail and obtained the
DNA samples. (Tr. 54-55; Gov't Ex. 5). When Wilson saw
Defendant, he observed that Defendant looked like the suspect
he had observed in the surveillance video and as described by
witnesses. (Tr. 70-71). When he executed the search warrant,
Wilson believed he was “executing the search warrant on
the perpetrator who committed the bank robbery in this
case[.]” (Tr. 71).
Dayan, a staff investigator with the Federal Defender's
Office in Atlanta, was assigned to Defendant's case and
ran an Accurint report in reference to Gregory M. Powell.
(Tr. 81). That report indicated that “there's a
Gregory M. Powell that lived in Florida who was
deceased” and was Defendant's brother, but his date
of birth was April 28, 1966. (Tr. 82-83; Def. Ex. 1). The
report does not show that Gregory Powell had a Florida
Department of Law Enforcement number or FBI number. (Tr. 83).
Dayan did not run a criminal history through NCIC or GCIC on
Gregory M. Powell, nor did he make a request through the
Florida Department of Law Enforcement to determine if Gregory
M. Powell with the date of birth of April 28, 1966 had been
arrested in Florida and does not know if Gregory had ever
been arrested in Florida (Tr. 83-85).
Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause . . . .” U.S. Const. amend. IV.
“The ‘ultimate touchstone of the Fourth Amendment
is reasonableness.' ” United States v.
Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (quoting
Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
“Where a search is conducted under the authority of a
warrant, the defendant challenging the search carries the
burden of showing the warrant to be invalid.”
United States v. Kilgore, 2012 U.S. Dist. LEXIS
154148, at *14 (N.D.Ga. Sept. 13, 2012) (internal quotation
omitted), adopted by 2012 U.S. Dist. LEXIS 153867
(N.D.Ga. Oct. 26, 2012). “It is not easy for a
Defendant to meet this burden, and a judicial preference is
accorded searches under a warrant.” United States
v. Teague, No. 2:10-CR-006-RWS-SSC, 2010 U.S. Dist.
LEXIS 142717, at *86 (N.D.Ga. Nov. 22, 2010) (internal
quotation omitted), adopted by 2011 U.S. Dist. LEXIS
42260 (N.D.Ga. Nov. 22, 2010).
Fourth Amendment allows warrants to issue on probable cause,
a standard well short of absolute certainty.” L.A.
County v. Rettele, 550 U.S. 609, 615 (2007). The task of
a magistrate judge, when issuing a warrant, “ ‘is
simply to make a practical, commonsense decision whether,
given all the circumstances set forth in the affidavit . . .,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.' “
United States v. Miller, 24 F.3d 1357, 1361 (11th
Cir. 1994) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). The Miller court explained the role of
a court reviewing a search warrant:
Courts reviewing the legitimacy of search warrants should not
interpret supporting affidavits in a hypertechnical manner;
rather, a realistic and commonsense approach should be
employed so as to encourage recourse to the warrant process
and to promote the high level of deference traditionally