United States District Court, N.D. Georgia, Atlanta Division
Martin May United States District Judge.
case comes before the Court on the Magistrate Judge's
Report and Recommendation ("R&R") ,
recommending that (1) Defendant Torey Starling's Motion
to Dismiss Counts 1 and 2 of the Indictment be denied; (2)
Starling's Motion to Sever Parties be deferred to this
Court; (3) Defendant Tyvonne Wiley's
Motion to Dismiss, or in the Alternative, Motion to Sever be
denied as to the Motion to Dismiss but deferred to this Court
as to the alternative Motion to Sever; (4) Wiley's Motion to
Suppress Statements be deferred to this Court; (5)
Wiley's Motion to Suppress be denied; (6) Defendant Tevin
Mitchell's Motion for Bill of Particulars be granted in
part and denied in part; (7) Tevin Mitchell's Motion to
Suppress Search and Seizure be granted; (8) Tevin
Mitchell's Motion to Suppress Statements be granted; and,
(9) Starling's Motion to Dismiss Counts 7 and 9 of the
Superseding Indictment be denied.
Starling and Wiley timely filed Objections [147, 151]. After
due consideration, the Court enters the following Order.
28 U.S.C. § 636(b)(1), the Court reviews the
Magistrate's Report arid 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. Id.; 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.
Defendant Starling's Objections
objects to the Magistrate Judge's recommendation with
respect to his motion to dismiss Counts 7 and 9 of the
Superseding Indictment. See Dkt. No. [14 7] ¶ 14. Counts
7 and 9 of the Superseding Indictment charge Starling under
18 U.S.C. § 924(c) with brandishing a firearm during and
in relation to a crime of violence-specifically, armed
robbery. Dkt. No.  ¶ 7, 9. Starling argues that both
Counts 7 and 9 should be stricken or dismissed because the
Supreme Court recently declared 18 U.S.C. §
924(c)(3)(B)-commonly referred to as the residual
clause-unconstitutionally vague. Dkt. No.  ¶ 6;
United States v. Davis, 588 U.S. (2019).
Starling's objection is without merit because the
Eleventh Circuit has already concluded that Hobbs Act robbery
"is a crime of violence under § 924(c)'s
elements clause"-that is, § 924(c)(3)(A).
United States v. Nelson, 761 Fed.Appx. 917, 919
(11th Cir. 2019). Indeed, in Nelson, the Eleventh
Circuit explicitly stated that the constitutionality of§
924(c)'s residual clause does not effect Hobbs Act
robbery convictions because such convictions qualify as
crimes of violence under § 924(c)'s elements clause.
Id. at 919 n.1. Because Starling's objection to
his § 924(c) charges is foreclosed by the law of this
circuit, it is OVERRULED.
Defendant Wiley's Objections
argues that: (1) the Magistrate Judge erred in finding that
the affidavit Detective Grubbs offered in support of the
Dallas County arrest warrant established probable cause; and,
(2) the Magistrate Judge erred in refusing to suppress the
November 1, 2016 search warrant that permitted officers to
photograph Wiley's tattoos. Dkt. No.  at 2, 5.
respect to the Dallas County arrest warrant, the Court agrees
with the Magistrate Judge's conclusion that the search
warrant affidavit adequately supplied probable cause.
See Dkt. No.  at 82-89. Probable cause for an
arrest exists when law enforcement officials have "facts
and circumstances" within their knowledge sufficient to
warrant a reasonable belief that a suspect had committed or
was committing a crime. Paez v. Mulvey, 915 F.3d
1276, 1285 (11th Cir. 2019). "Probable cause is not a
high bar" and does not require "convincing proof
that an offense was committed." Id. at 1286.
argues that the Magistrate Judge erred in finding probable
cause for the Dallas County arrest warrant for three reasons.
First, Wiley contends that Defendant Grubbs' failure to
indicate in his affidavit that he could not identify Wiley
from the GameStop security video was a material omission.
Dkt. No.  at 3. Detective Grubbs, however, explained
that he could identify Wiley from the video based on the type
of pants he was wearing (black with zippers), his height, and
his weight. See Id. at 88. Thus, under the
circumstances, the fact that Detective Grubbs could not see
Wiley's face on the video was not a material omission.
See, e.g., Ovington v. Atlanta Inv. Grp., Inc., 651
Fed.Appx. 951, 954 (11th Cir. 2016) (noting that while a
photo did not show the face of the robber, it included
specific details that could support an identification such as
a tattoo, shoes, hat, clothing, posture, and the width of the
Wiley avers that he was never seen and had never been in the
Ford Fiesta, nor were there any items in the Ford Fiesta ever
tied to him. Dkt. No.  at 3. But this argument belies
the Magistrate Judge's findings that Wiley was found in
the parking garage where the Ford Fiesta had been parked
shortly after the robbery took place with Defendant Mitchell,
to whom the car was registered. See Dkt. No.  at 5, 85;
cf United States v. Gonzalez,70 F.3d 1236, 1238
(11-h Cir. 1995) (explaining that proximity to a person
"whom officers have probable cause to believe is
committing a crime" may be considered by the court as a
factor). Additionally, the police discovered a rifle with a
light-colored pillow case inside the Ford Fiesta; this
discovery was consistent with the testimony of witnesses who
had described the robber suspected to be Wiley as carrying a
long rifle concealed in a light-colored pillow case. See