United States District Court, N.D. Georgia, Rome Division
Michael L. Brown, United States District Judge.
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
Motion to Suppress Search Warrant (Dkt. 136)
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
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.) 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
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.
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.
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.
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.)
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,
Motion to Suppress In Custody Statements (Dkt. 137)
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. 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.)
reasons above, the Court overrules Defendant's
objections, adopts the Magistrate Judge's recommendation,
and denies Defendant's motion. (Dkts. 137, 183, 189.)
Motion For Evidentiary Hearing On Purported Search ...