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United States v. Bourassa

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

October 18, 2019

United States of America,
Jeffrey Alan Bourassa (1), Defendant.

          OPINION & ORDER

          Michael L. Brown United States District Judge

         The Magistrate Judge issued two Non-Final Report and Recommendations (“R&R”) (Dkts. 707; 772). The first recommends denial of Defendant Jeffrey Alan Bourassa's motion to suppress items found during the execution of a search warrant at a residence on Beaver Shop Road in Cobb County on June 8, 2006 (Dkt. 631), his motion to suppress items found during a traffic stop on March 9, 2013 (Dkt. 527), and his motion to suppress items found during a traffic stop on March 24, 2006 (Dkt. 523). The Court adopts the Magistrate Judge's recommendations about the first two searches but orders an evidentiary hearing to better assess the basis for the March 24, 2006, traffic stop search.

         The second R&R recommends denial of Defendant's motion to suppress wiretaps conducted by Cobb County. (Dkts. 529; 579.) The Court adopts the recommendations in the second R&R and denies Defendant Bourassa's motion to suppress.

         I. Background and Procedural History

         The United States charged Defendant Bourassa with RICO conspiracy, conspiracy to traffic a controlled substance, kidnapping, and maiming. (Dkt. 279.) Law enforcement obtained some of the evidence the United States intends to use at trial during traffic stops of vehicles in which Defendant was a passenger, specifically traffic stops on March 24, 2006, and March 9, 2013. The United States also apparently intends to introduce evidence recovered on June 8, 2006, during the search of a house in which Defendant Bourassa was located and from telephone conversations intercepted under state-authorized wiretaps. Defendant Bourassa moved to suppress all of this evidence (Dkts. 523; 527; 631; 529; 579) and the Magistrate Judge conducted evidentiary hearings (Dkts. 635; 673). The Magistrate Judge then issued two R&Rs recommending the denial of each of Defendant Bourassa's motions. (Dkts. 707; 772.)

         Defendant Bourassa filed objections to both of the Magistrate Judge's R&Rs. (Dkts. 723; 783.)

         II. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall 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)(C). A district judge should consider those issues to which a party makes specific objections. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990). For those findings and recommendations to which a party has not asserted objections, the court must conduct a plain error review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         III. Discussion

         A. Magistrate Judge's First R&R (Dkt. 707)

         1. Execution of a Search Warrant on June 8, 2006

         Defendant Bourassa moved to suppress the search of a house located at 2200 Beaver Shop Road in Cobb County, Georgia, on June 8, 2006, claiming that the search violated his Fourth Amendment rights. “[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88 (1998); see also United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir. 2000) (“Fourth Amendment rights, however, are personal, and only individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search.”). “A defendant may have a reasonable expectation of privacy in a home that he does not own or rent if he shows ‘an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee.' ” See United States v. Campbell, 434 Fed.Appx. 805, 810 (11th Cir. 2011) (quoting United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir. 1984)); see also United States v. Rodriguez, 762 Fed.Appx. 712, 715-16 (11th Cir. 2019) (holding defendant's status as a mere social guest or commercial transaction participant could not establish standing to challenge the search of a home).

         Defendant Bourassa thus had the burden of establishing his reasonable expectation of privacy in the Beaver Shop Road house. The Magistrate Judge properly concluded that he failed to do so. At the evidentiary hearing, Special Agent Mathew Owen testified that he went to the house to investigate after a man called 911 to report that he had been threatened with a gun while at the house. (Dkt. 635 at 56:21-24.) He further explained that, after he called to the occupants several times, a woman - later identified as Ms. Mines - came out and spoke with him. (Id. at 57:18-61:3.) When officers asked Ms. Mines who else was in the house, she at first said she did not think anybody else was inside. (Id. at 61:4-9, 82:3-12.) She later changed her response and said that her roommates might be inside. (Id.) When Special Agent Owen asked who was living there, she identified her roommates as Mark and Ryan. (Id. at 61:17-20.) Special Agent Owen did not recall Ms. Mines saying anything about Defendant Bourassa. (Id. at 61:21-22.) The agent testified that Defendant Bourassa and two other men, Mark and Ryan, later came out of the house. (Id. at 62:19-24, 64:17-21.) Police later found drugs and a gun in the house.

         In his objections to the Magistrate Judge's R&R, Defendant Bourassa relies exclusively on testimony from Special Agent Owen about Ms. Mines's statements to police on the night of the search. He relies on the fact that - after exiting the house and lying to Special Agent Owen when she said no one else remained in the house - she then told the agent that her “roommates” might still be inside. Defendant Bourassa refers to this as her “disembl[ing] with the officers.” (Dkt. 723 at 6.) Defendant Bourassa contends that, since he was in the house at the time, Ms. Mines identified him as one of her roommates. Not only was her statement to Special Agent Owen untrustworthy and non-specific, but she later identified the two other men who came out of the house with Defendant Bourassa (Mark and Ryan) as her roommates. Special Agent Owen testified at the evidentiary hearing that he could not recall if she said anything about Defendant Bourassa. (Dkt. 635 at 61:21-22.) Defendant Bourassa presented no other evidence at the hearing to suggest he had an unrestricted right of occupancy or custody and control of the residence, or that Ms. Mines identified him as a roommate or guest. He really presented no evidence that he had any connection to the house at all other than having been found there by police.

         Defendant Bourassa's mere presence in the house is not enough for him to challenge the search. United States v. Garcia, 741 F.2d 363, 366 (11th Cir. 1984) (“[M]ere presence in the apartment would not be enough to give [the defendant] standing, for the precedents binding on this court require that an occupant other than the owner or lessee of an apartment demonstrate a significant and current interest in the searched premises in order to establish an expectation of privacy.”). He had an evidentiary hearing, a chance to explain his presence in the home and, from that, carry his burden of establishing a legitimate expectation of privacy. He presented no evidence suggesting he was a guest or had any connection to the residence other than having visited for momentary purposes. Perhaps he was a guest at a party - after all, police went to the house in response to a 911 call that a man had been threatened with a gun while at a party in the house. (Dkt. 635 at 80:1-5.) Perhaps he stopped by just moments before the police arrived. Or perhaps he was staying there for the night. Defendant Bourassa failed to present evidence to answer this question. He provided the Court no evidence from which it could conclude that he had a legitimate expectation of privacy in the house. The Magistrate Judge properly concluded that Defendant's motion to suppress this search should be denied.

         2. March 9, 2013, Traffic Stop

         A traffic stop is a seizure under the Fourth Amendment. See United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009). A traffic stop is constitutional if a law enforcement officer has probable cause to believe the driver committed a traffic violation or a reasonable suspicion that an occupant of the car is engaged in criminal activity as required by Terry v. Ohio. See id.; see also United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008). The existence of probable cause or reasonable suspicion is viewed from the standpoint of an objectively reasonable police officer. See United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003); see also Harris, 526 F.3d at 1337. “[A] court must examine the totality of the circumstances in order to determine whether a search or seizure is reasonable under the Fourth Amendment.” United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012).

         Defendant Bourassa was a passenger in a vehicle stopped by Lieutenant Brett Dever of the Douglas County Sheriff's Office on March 9, 2013. The driver of the vehicle consented to its search. Defendant Bourassa moved to suppress the evidence (marijuana, money, and phones) that police found during the search of the car, claiming the traffic stop was unlawful. (Dkt. 723 at 2.) The Magistrate Judge found that, as a mere occupant, Defendant lacked ...

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