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United States v. Barr

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

August 13, 2019

United States of America,
v.
Michael Anthony Barr (1), Defendant.

          ORDER

          Michael L. Brown, United States District Judge.

         Defendant Michael Anthony Barr filed four motions to suppress evidence. (Dkts. 136, 137, 138, 164.) The Magistrate Judge recommended denying each. (Dkt. 183.) Defendant then objected to those recommendations. (Dkts. 188, 189.) This Court reviewed Defendant's motions de novo, adopts the Magistrate Judge's recommendation, and denies Defendant's motions.

         I. Motion to Suppress Search Warrant (Dkt. 136)

         Defendant claims the affidavit supporting the search warrant for his house contains misstatements or falsehoods. He seeks to suppress any evidence seized under the search warrant and an evidentiary hearing, as outlined by Franks v. Delaware, 438 U.S. 154, 171 (1978). According to the affidavit, a police officer, Sergeant Gibson, and his mother-in-law worked for Defendant. (Dkt. 136-1 at 5-6.) Defendant identified as Carlos Fonseca, both to Sergeant Gibson and in his later interactions with the police. (Id. at 4-8.) In March and then mid-August 2017, the police received phone calls informing them that there had been domestic disturbances at Defendant's address involving a “Mike.” (Id. at 5.) The second phone call had two complainants and both complainants informed the police that “Mike” made his money selling drugs, though not at the residence. (Id. at 5-6.)

         A police officer identified “Mike” as Michael Anthony Barr, including by looking at a driver's license photo of the person believed to live at the residence. (Id. at 6.) Police also went to the house, knocked on the door, spoke with Defendant, and confirmed he was Michael Anthony Barr. (Id.) The police obtained an arrest warrant for Defendant and returned to his house. After officers arrested him, Defendant asked officers to go into the house and get his cell phones so he could call his lawyer. (Id. at 7.)[1] While inside, police saw bullets and firearms. (Id.) They left the house and obtained a search warrant. (Id.) During that search, they found the firearms and other contraband that led to the current charges.

         “Affidavits supporting arrest warrants are presumptively valid . . . [and] a defendant is generally not entitled to an evidentiary hearing on a motion to suppress based on alleged misrepresentations or omissions in a search warrant affidavit.” United States v. Price, 582 Fed.Appx. 846, 850 (11th Cir. 2014) (citations omitted). A defendant has a right to a Franks hearing only if he makes “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” Franks, 438 U.S. at 155-156.

         Defendant attacks almost every part of the affidavit. Many of the items he attacks were simply background information and irrelevant to the issue of probable cause. The core of the affidavit was that the officers had previously identified Defendant as the person for whom they had outstanding warrants and that, after being arrested, he consented to the police entering his house. So, to get a Franks hearing, Defendant must make a substantial preliminary showing that the affidavit establishing probable cause for the search warrant used false statements either to establish Defendant Barr's identity or the basis for the police to enter his house.

         The Magistrate Judge properly found that Defendant has not met this burden. First, identity cannot be suppressed as a fruit of an illegal seizure. See United States v. Farias-Gonzalez, 556 F.3d 1181, 1189 (11th Cir. 2009) (“[W]e hold that the exclusionary rule does not apply to evidence to establish the defendant's identity in a criminal prosecution . . . .”). The affidavit also contains uncontroverted statements creating probable cause to believe Defendant was Michael Anthony Barr, including the phone calls reporting a domestic disturbance and the photo identification with a driver's license photo. (Dkt. 136-1 at 5.) Second, the Court already has determined that Defendant gave the police consent to enter his home. (Dkt. 83 at 13 (“[B]ased on the totality of the circumstances, Mr. Barr voluntarily consented to allow officers to accompany Mr. Hawkins into the house to retrieve his cell phones.”). The Court reaffirms this finding.

         Defendant raises other issues with the affidavit, particularly about Detective Holmes's change of testimony. Detective Holmes initially testified that Defendant motioned for the police to enter the house. (Dkt. 34 at 29.) The video of the arrest showed, however, that Defendant was handcuffed. (Id. at 30.) Seeing this discrepancy, Detective Holmes's attorney contacted Defendant's attorney about this mistake. (Id. at 30- 32.) Defendant, through his attorney, already has had the chance to cross-examine Detective Holmes on this charge. (Id. at 31.) And the discrepancy in his testimony was immaterial to the warrant. In the warrant affidavit, Detective Holmes did not explain how Defendant Barr did not mention the hand gesture. Simply put, this is not new information - the Court already has addressed this issue. (See Dkts. 83, 89.)

         Defendant has not made a preliminary showing that an allegedly false statement in the affidavit was necessary to establish probable cause. The Court thus overrules Defendant's objections, adopts the Magistrate Judge's recommendation, and denies Defendant's motion to suppress. (Dkts. 136, 183, 189.)

         II. Motion to Suppress In Custody Statements (Dkt. 137)

         Defendant immediately asked for a lawyer when the police arrested him. He claims the police continued coaxing him into allowing them into the house. Defendant essentially argues whatever consent he gave the police was not valid because he asked for a lawyer.[2] This argument fails because his statements to Mr. Hawkins and the police about his cell phones were not part of an interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300 (1980) (“ ‘Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.”). He also argues the police violated his Fifth Amendment rights against self-incrimination. The Court, however, has already found Defendant consented to the police entering his home. (See Dkts. 83, 89.)

         For the reasons above, the Court overrules Defendant's objections, adopts the Magistrate Judge's recommendation, and denies Defendant's motion. (Dkts. 137, 183, 189.)

         III. Motion For Evidentiary Hearing On Purported Search ...


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