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United States v. Powell

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

December 19, 2018

UNITED STATES OF AMERICA,
v.
EDWARD L. POWELL

          ORDER AND REPORT AND RECOMMENDATION

          J. CLAY FULLER UNITED STATES MAGISTRATE JUDGE

         This 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 DENIED.

         Procedural History

         An 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.[1] (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. 33).[2] 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.

         Discussion

         I. Facts [3]

         Hall 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[4] 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[5] 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[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).

         On 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).

         Jordan 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).

         II. Analysis

         The 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).

         “The 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 ...

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