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United States v. Pendergrass

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

January 4, 2019

UNITED STATES OF AMERICA,
v.
DONTIEZ PENDERGRASS and SHAWN THOMAS, Defendants.

          ORDER

          Leigh Martin May United States District Judge

         This case comes before the Court on the Magistrate Judge's Report and Recommendation ("R&R") [So], recommending that (1) Defendant Pendergrass's Motions to Suppress [37, 41] be granted in part, as to the LG phone seized on March 10, 2017, and denied in all other respects; and (2) Defendant Thomas's Motions to Suppress [34, 35] be denied. Pursuant to 28 U.S.C. § 636(b)(1), Defendants Pendergrass and Thomas each filed Objections to the R&R [88, 91]. After due consideration, the Court enters the following Order:

         I. LEGAL STANDARD

         Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate's Report and Recommendation for clear error if no objections are filed to the report. 28 U.S.C. § 636(b)(1). If a party files objections, however, the district court must determine de nova any part of the Magistrate Judge's disposition that is the subject of a proper objection. IcL; Fed. R. Crim. P. 59(b)(3). As Defendants filed objections, the Court reviews the Magistrate Judge's challenged recommendations on a de nova basis. 28 U.S.C. § 636(b)(1). The Court will consider each Defendant's objections in turn.

         II. DISCUSSION

         a. Defendant Pendergrass's Objections

         Defendant Pendergrass argues: (1) the Magistrate Judge erred in finding law enforcement more credible than Anquaniece and Alicia Jones with respect to whether the home smelled like marijuana; (2) the Magistrate Judge erred in fnding the March 11, 2017 searches were lawful; and (3) this Court should order a second hearing to evaluate the Magistrate Judge's credibility determinations. The Court OVERRULES these objections.

         First, as to the credibility issue, the Court finds the Magistrate Judge properly credited law enforcement's testimonies that the Wenham Lane home smelled like marijuana. Marijuana was found in the home following the search in the garage, and Alicia Jones, the owner of the home, told law enforcement that her son-who lived in the home-smoked marijuana. Thus, corroborating evidence suggests that law enforcement's testimonies were more credible. See also U.S. v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (holding that a reviewing court "should defer to the magistrate judge's [credibility] determinations unless his understanding of the facts appears to be 'unbelievable."').

         But, even if the home did not smell of marijuana, Pendergrass does not appear to contest that the officers would have had reasonable suspicion that Pendergrass was violating the terms of his probation or otherwise engaged in criminal conduct. Thus, the March 11, 2017 searches were lawful. The Court ADOPTS the Magistrate Judge's recommendations as to the March 11, 2017 searches and DECLINES to order a new hearing. See R&R, Dkt. No. [80] at 29-40.

         b. Defendant Thomas's Objections

         Defendant Thomas essentially objects to all of the Magistrate Judge's fndings with respect to his motions, arguing: (1) none of the three warrants were supported by probable cause; (2) the seizure of the black pants with white stripes was not permissible under the plain view doctrine; (3) the Facebook warrant was overbroad; and (4) the Magistrate Judge erred in finding Shanavia McCall and Alicia Jones's identifications reliable. Dkt. No. [88]. The Court has reviewed the R&R and ADOPTS the R&R as the Order of the Court. See Dkt. No. [80] at 44-71.

         The Court finds the warrants were supported by probable cause and accepts the Magistrate Judge's credibility determinations. See Ramirez-Chilel, 289 F.3d at 749 (holding that a reviewing court "should defer to the magistrate judge's [credibility] determinations unless his understanding of the facts appears to be 'unbelievable."'). Further, the Court agrees with the Magistrate Judge that the black pants at least bore such a "strong resemblance" to the pants worn during the crime that it was reasonable for law enforcement to conclude the pants were evidence related to the robberies and thus permissible to be seized under the plain view doctrine. Finally, the Court agrees that the Facebook warrant falls within the Leon good faith exception. See R&R, Dkt. No. [Bo] at 62-66. Defendant Thomas's Objections are thus OVERRULED.

         III. CONCLUSION

         The Magistrate Judge's R&R [Bo] is ADOPTED as the Order of this Court and Defendants' Objections are OVERRULED. Defendant Pendergrass's Motions to Suppress [37, 41] are GRANTED, in part, as to the LG phone seized on March 10, 2017, and DENIED in all ...


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