United States District Court, N.D. Georgia, Atlanta Division
HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
matter appears before the Court for consideration of an April
23, 2019, Report and Recommendation (“R&R”)
(Doc. No. [79');">79');">79');">79');">79');">79');">79');">79]) in which The Honorable John K. Larkins, III,
United States Magistrate Judge, recommended that the Court
deny Defendant Miguel Carachure-Guzman's
(“Defendant”) Motion to Suppress (Doc. Nos. ;
)[1" name="FN1" id=
"FN1">1]. Defendant has filed objections to the
R&R (Doc. No. [87');">87');">87');">87]), and this matter is now ripe for
Court incorporates by reference the facts and legal standards
set forth in the R&R. See Doc. No. [79');">79');">79');">79');">79');">79');">79');">79]. 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). In this action,
Defendant objects to the R&R on four different grounds.
See Doc. No. [87');">87');">87');">87]. For the reasons discussed below,
all of Defendant's objections are
OVERRULED and Defendant's Motion to
Suppress is DENIED.
first objection is “that the initial encounter between
the agents and the defendants was impermissible and
unsupported by probable cause” in contravention of the
finding in the R&R. Doc. No. [87');">87');">87');">87], 1');">p. 1. He further
argues that this impermissible encounter tainted the
subsequent procedures “rendering his later supposed . .
. consent improper and unconstitutional.” Id.
at 1');">p. 1. These arguments stem from the Fourth Amendment right
“to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. The inquiries into probable cause and
voluntary consent both require the Court to consider the
totality of the circumstances surrounding the arrest and the
consent, respectively, in reaching a decision. See
Illinois v. Gates, 13');">462 U.S. 213, 238 (1983) (reaffirming
the totality-of-the-circumstances analysis for probable
cause); United States v. Ramirez-Chilel, 289 F.3d
744, 752 (11th Cir. 2002) (quoting United States v.
Robinson, 1211');">625 F.2d 1211, 1218 (5th Cir. 1980)). The
Court rejects Defendant's objections and finds that both
probable cause and voluntary consent existed in this case.
misconstrues the facts and circumstances in this case in
denying that the officers here had probable cause to make a
warrantless arrest. “‘[P]robable cause' to
justify an arrest means facts and circumstances within the
officer's knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing,
in the circumstances shown, that the suspect has committed,
is committing, or is about to commit an offense.”
Michigan v. DeFillippo, 1');">443 U.S. 31, 37 (1979');">79');">79');">79');">79');">79');">79');">79). This
is a “practical, nontechnical conception” dealing
with “‘factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.'” Gates, 462 U.S. at 231
(quoting Brinegar v. United States, 160');">338 U.S. 160,
176 (1949)). The Supreme Court in Gates
re-established that the totality-of-the-circumstances
analysis should inform probable cause determinations.
Id. at 238. Considering the totality of the factual
and practical circumstances informing the officers'
decision here, the Court concludes probable cause existed
justifying a warrantless arrest.
presentation of the facts solely focuses on Defendant's
final departure on foot from the Residence and does not
represent the collective circumstances leading to the
incident in question here. In United States v.
Blascoe, the Eleventh Circuit found probable cause
existed supporting the agents' determinations that a
marijuana off-loading operation was occurring by considering
the agents' knowledge of the modus operandi of drug
smuggling and the facts leading up to the arrest. 702 F.2d
1315, 1325 (11th Cir. 1983). Such facts included: (1) two
independent tips regarding the suspected criminal activity;
(2) the general area's seclusion; (3) a fishing boat with
several men heading to open sea in poor weather; (4) a
confrontation with a suspected lookout who became upset at
encountering the agents; (5) agents' observations of the
boats' approach to the area and thudding that sounded
like bales of marijuana being unloaded. Id. The
Eleventh Circuit held that “these collective facts
would lead a reasonably cautious person to believe that a
crime had been or was being committed.” Id.
Larkins correctly found the officers here had probable cause
to make a warrantless arrest considering the totality of the
circumstances collectively instigating this incident. Doc.
No. [79');">79');">79');">79');">79');">79');">79');">79], 1');">p. 14. First, federal agents purchased heroin from
Defendant and thereafter arranged a money pickup.
Id. at p. 2. When Defendant failed to bring the
proper amount, he returned to the Residence, with officers
surveilling him. Id. at p. 2-3. The agents then
learned Defendant had rescheduled the pickup and observed
Defendant leaving the Residence in the car he had driven
earlier. Id. at p. 3');">p. 3. Agents again followed him to
two different locations where they suspected Defendant made
two more pickups before returning to the Residence.
Id. Later, the car left the Residence once again,
but a different individual was driving the car. Id.
at p. 4. Agents observed the driver on the phone as they
pulled him over. Id. During the stop, the agents
seized $200, 000, 400 grams of heroin, and a digital kitchen
scale from the car. Id. Meanwhile, agents observed
Defendant walking away from the Residence while on the phone,
and, having learning of the stop, intercepted Defendant.
Id. These facts construed together suggest that
Defendant could have been conspiring to possess a controlled
substance with intent to distribute. Therefore, these
circumstances could lead “a reasonably cautious person
to believe that a crime had been or was being
committed”. Thus, the Court concludes probable cause
for the arrest existed.
the R&R was also correct in finding that Defendant
voluntarily consented to the search of the Residence. Doc.
No. [79');">79');">79');">79');">79');">79');">79');">79], 1');">p. 18. The Eleventh Circuit laid out the framework
for the inquiry in United States v. Ramirez-Chilel
with the following:
According to United States v. Robinson, 625 F.2d
1211, 1218 (5th Cir. 1980), “[t]he question of
voluntariness is one of fact to be determined from the
totality of the circumstances, and the trial court's
voluntariness determination must not be reversed on appeal
unless clearly erroneous.” In determining the
voluntariness of a defendant's consent, we stated in
Gonzalez that a court must look at several factors,
which include whether the defendant was “free to leave,
” whether there was “coercive police procedure,
” “the extent of [the] defendant's
cooperation or awareness of a [right to] refuse to consent,
” “whether [the defendant] could refuse to
consent, ” the extent of the defendant's
“education and intelligence, ” and the
defendant's “belief that no incriminating evidence
would be found.” 71 F.3d at 830-31.
289 F.3d 744, 752 (11th Cir. 2002).
the above factors weigh in favor of finding that Defendant
voluntarily consented to the search. Though Defendant was not
free to leave, being arrested is not the determinative factor
in deciding whether a consent to search was free and
voluntary. Moreover, the remaining factors suggest Defendant
voluntarily consented to the search of the Residence. There
was no evidence of any coercion by the police here. Although
TFO LeCour at one time drew his weapon, he never pointed the
gun at Defendant. Doc. No. [79');">79');">79');">79');">79');">79');">79');">79], p. 5. Furthermore, at the
time consent was given, Defendant had not been handcuffed and
later cooperated with the search by unlocking the door for
the officers. Id. at p. 5, 7. Additionally, SA Ivory
informed Defendant before and during the search in Spanish of
his ability to refuse and revoke his consent to the search.
Id. at p. 6. Defendant affirmed that he understood
the rights as SA Ivory explained and responded in the
negative when asked whether there were any weapons, money, or
drugs in the house which would incriminate Defendant.
Id. at p. 6, 16; see United States v.
Morales, 1360');">893 F.3d 1360 (11th Cir. 2018) (finding consent
was voluntary where there was no evidence of coercive
procedures, no guns were drawn, the defendant's mother
was not handcuffed, the officers made sure she understood her
right to refuse by communicating in Spanish, and she
confirmed she believed there was nothing to hide). The Court
concludes under these circumstances Defendant voluntarily
consented to the search of the Residence. Thus,
Defendant's first objection is overruled.
second objection is that the warrant and what was seized
thereto should have been suppressed. Doc No. [87');">87');">87');">87], p. 2.
Defendant argues that in “allowing the affidavit to be
based in whole or in part on observations conducted in whole
or in part by attributed or unattributed others, the
affidavit becomes essentially insulated from meaningful
review.” Id. However, the Supreme Court has
stated that “observations of fellow officers of the
Government engaged in a common investigation are a plainly
reliable basis for a warrant applied for by one of their
number.” United States v. Ventresca, 380 U.S.
102, 111 (1965). In United States v. Kirk, the
Eleventh Circuit held:
To comply with the requirement of particularity and to enable
the magistrate to make an independent probable cause
evaluation, however, the agent must state in the affidavit
that he is relying upon other officers. . . . It is
sufficient if the affidavit recites at the outset, or if it
is clear from reading the affidavit as a whole, that it ...