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United States v. Cooper

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

June 13, 2019

UNITED STATES OF AMERICA
v.
MICHAEL COOPER

          ORDER

          HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for consideration of the February 26, 2019, Report and Recommendation (“R&R”) (Doc. No. [69');">69');">69');">69');">69');">69');">69');">69])[1" name="FN1" id= "FN1">1], in which the Honorable Catherine M. Salinas, United States Magistrate Judge, recommended that Defendant Michael Cooper's (“Defendant”) Motion to Suppress Cellular Geo-Location Data (Doc. Nos. [28]; [29]) and Motion to Suppress Identification Testimony (Doc. Nos. [25]; [31]) be denied. Also before the Court is the magistrate judge's February 22, 2019, order (Doc. No. [68]) denying Defendant's Motion to Reveal the Deal (Doc. Nos. [24]; [32]), Motion for Production of Criminal Histories (Doc. No. [33]), and Motion to Sever Counts (Doc. No. [26]). Pursuant to 28 U.S.C. § 636(b)(1), Defendant filed objections to the R&R on March 22, 2019. Doc. No. [77');">77');">77');">77]. Defendant also filed objections to the magistrate judge's February 22, 2019, order on March 17, 2019. Doc. No. [76]. These matters are now ripe for review, and the Court rules as follows.

         I. OBJECTIONS TO THE REPORT AND RECOMMENDATION

         A. Background

         The Court incorporates the magistrate judge's facts and legal standards by reference. As stated in the R&R, Defendant is charged in a four-count indictment with conspiracy to knowingly make a false and fictitious written statement to a federally-licensed firearms dealer (Count I), making a false statement to two different licensed firearm dealers-Arrowhead Pawn Shop (Count II) and Liquidation Outlet Center (Count III)-and being a felon in possession of a firearm (Count IV). Doc. No. [69');">69');">69');">69');">69');">69');">69');">69], 1');">p. 1');">1');">p. 1. The indictment also contains a forfeiture provision. Id.

         On July 14, 2018, Defendant filed a Motion to Suppress Identification Testimony, in which he moves to suppress two witness identifications made by Ashlie Onyedika (“Ms. Onyedika”) and Mark Eiken (“Mr. Eiken”). Doc. Nos. [25]; [31].[2] An evidentiary hearing on the motion was subsequently held on November 1, 2018. Doc. No. [46]. Further, on July 15, 2018, Defendant filed a Motion to Suppress Cellular Geo-Location Data, in which he moves to suppress cellular location data obtained without a warrant through the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2711. Doc. Nos. [28]; [29].[3]

         On February 26, 2019, the magistrate judge entered the R&R, recommending that Defendant's Motion to Suppress Cellular Geo-Location Data and Motion to Suppress Identification Testimony be denied. Doc. No. [69');">69');">69');">69');">69');">69');">69');">69], 1');">p. 1');">1');">p. 17. Pursuant to 28 U.S.C. § 636(b)(1), Defendant subsequently filed objections to the R&R. Doc. No. [77');">77');">77');">77]. The Court now addresses Defendant's objections as to each motion in turn.

         B. Legal Standard

         In reviewing the R&R, the Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. p. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”). “Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” Marsden v. Moore, 1536');">847 F.2d 1536, 1548 (11th Cir. 1988) (citation omitted). After conducting this review, the Court “may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Additionally, the Court may “receive further evidence or recommit the matter to the magistrate judge with instructions.” Id.

         C. Discussion

         1. Motion to Suppress Cellular Geo-Location Data

         Defendant states in his Motion to Suppress Cellular Geo-Location Data that the Government executed a search warrant for his home in Pennsylvania and that the probable cause for the warrant came, in part, from historical cell site data acquired under the SCA without a warrant. Doc. Nos. [28]; [29]. Consequently, he argues that the Supreme Court's decision in Carpenter v. United States, 138 S.Ct. 2206');">138 S.Ct. 2206 (2018), requires the suppression of any cell site data obtained under the SCA without a warrant as well as any evidence obtained via a warrant that relied on such evidence.[4] Doc. No. [29], 1');">p. 1');">1');">p. 1.

         In the R&R, however, the magistrate judge relied on the Eleventh Circuit's decision in United States v. Joyner, 1199');">899 F.3d 1199 (11th Cir. 2018), as grounds for recommending that Defendant's motion be denied. Doc. No. [69');">69');">69');">69');">69');">69');">69');">69], pp. 2-4. In Joyner, the Eleventh Circuit held that if, prior to the Supreme Court's decision in Carpenter, law enforcement agents acted in good faith in obtaining cell site data without a warrant, then the good faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897, 922 (1984), may apply. See Joyner, 899 F.3d at 1204-05 (holding that the Government's failure to obtain a search warrant for cell site data fell under the Leon good faith exception and did not constitute reversible error). In this case, the order authorizing the disclosure of the cell site data was signed on December 15, 2017-six months prior to the Supreme Court's decision in Carpenter. Doc. No. [29-1], 1');">p. 1');">1');">p. 13. Finding no evidence to suggest that the Government's actions were not taken in good faith, the magistrate judge concluded that the Leon good faith exception to the exclusionary rule should apply to the cell site data obtained without a warrant.[5] Doc. No. [69');">69');">69');">69');">69');">69');">69');">69], pp. 2-4.

         Defendant does not appear to object to the magistrate judge's application of the law. On the contrary, he concedes that “Joyner is controlling” and acknowledges that “the Court must follow binding precedent.” Doc. No. [77');">77');">77');">77], pp. 2-4. Rather, Defendant argues that that “a proper application of Carpenter mandates exclusion of the Leon good faith doctrine” and that he thus “makes and reserves objection on the potential contingency that the Supreme Court may ultimately agree with his position and find that Leon is inapplicable to the context.” Id. at p. 2. Until such time, however, the Court is bound by the Eleventh Circuit's decision in Joyner. Therefore, absent any evidence that the Government's actions in obtaining the cell site data were not in good faith, the magistrate judge correctly ...


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