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United States v. McIntosh

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

December 26, 2019

United States of America,
v.
Jasper McIntosh, Defendant.

          ORDER

          Michael L. Brown United States District Judge

         Magistrate Judge Alan J. Baverman recommends denial of Defendant Jasper McIntosh's motions to suppress evidence (Dkt. 17) and statements (Dkt. 18), and to dismiss the superseding indictment (Dkt. 56). (Dkt. 60.) Defendant McIntosh objects to that recommendation. (Dkt. 70.) The Court accepts the Magistrate Judge's recommendation and denies Defendant McIntosh's motions.

         I. Background

         The United States charged Defendant McIntosh in Count One of the First Superseding Indictment with illegally possessing a firearm in violation of Sections 922(g)(1) and 924(e) of Title 18 of the United States Code. (Dkt. 46 at 1-2.)

         The facts for purposes of Defendant McIntosh's motions are as follows. Atlanta Police Department (“APD”) Officers James Dougherty and Anthony Grant were patrolling in a marked APD vehicle on the evening of September 23, 2018, when they observed McIntosh riding a small motorbike on Metropolitan Parkway.[1] (Dkt. 26 at 8:3-17.) McIntosh was not wearing a helmet, and his motorbike had no lights on. (Id. at 8.) Both officers were wearing body cameras. (Dkt. 24, Defendant's Exhibits 1-2.) The officers followed McIntosh from Metropolitan Parkway to Cleveland Avenue and then to Forest Hills Drive, where they initiated a traffic stop because McIntosh was not wearing a helmet. (Dkt. 26 at 9:15-10:13, 150:17-23.)

         The officers turned on their blue lights and siren. (Id. at 10:14-16, 113:9-12.) McIntosh was in the lane of traffic.[2] (Id. at 112:1-113:10, 134, 146:15-25.) At first, McIntosh yelled at the officers and motioned for them to move around him. (Id. at 10:15-21, 113:9-21.) After the officers told him to pull over several times, McIntosh turned from the middle of the right-hand lane of traffic on Forest Hills Drive into a driveway on the left and turned around, facing the police car's driver's door. (Id. at 10:15- 21, 58-59, 113:9-21, 148:18-25.) He appeared agitated. (Id. at 10:22- 23.) The officers told him to get out of the roadway and to pull into the driveway on the left, which he did. (Id. at 150, 151.)

         The counter on the recording from Officer Dougherty's body camera shows the officers stopped and encountered McIntosh one minute and forty-one seconds into the video. (Dkt. 24, Defendant's Exhibit 2.) Forty-nine seconds into the traffic stop Dougherty asked McIntosh why he was not wearing a helmet, and McIntosh replied that he had gone to get gas and lived nearby. (Id.) One minute and ten seconds into the stop, Dougherty asked McIntosh for his driver's license, and McIntosh said it was at home. (Id.) Dougherty asked for McIntosh's name and date of birth, and McIntosh complied. (Id.) Officers Dougherty and Grant told McIntosh to step away from the motorbike, and he did. (Id.; Dkt. 26 at 12:17-13:2.) Dougherty noticed that McIntosh had a holster with a firearm. (Dkts. 24, Defendant's Exhibit 2, Government's Exhibits 4A-D; 26 at 13:5-6.) But the firearm did not make Dougherty suspicious that McIntosh was doing anything illegal, because it is legal to carry a firearm in Georgia. (Dkt. 26 at 63:24-64:8.) When McIntosh asked whether he was being arrested or detained, Dougherty responded that McIntosh was being detained for not wearing a helmet. (Dkts. 24, Defendant's Exhibit 2; 26 at 66:9-67:9.)

         Three minutes and forty seconds into the traffic stop, Dougherty returned to his police vehicle to check whether McIntosh had a valid driver's license in the ISIS program on the Mobile Data Terminal. (Dkt. 26 at 14:12-16.) Dougherty testified that the ISIS program is a “reporting program” that can run vehicle registrations and driver's license files and provide limited information about wants, warrants, probation, and parole “hits.” (Id. at 14:19-24.) Dougherty utilized the ISIS system first for convenience and safety, because he was already logged into the program and could quickly check for warrants and learn if a person is wanted for a crime. (Id. at 106:11-107:2.)[3] Therefore, instead of logging out of ISIS after getting the driver's license information and going to another system (OMNIXX) to view McIntosh's license photograph, Dougherty clicked on all of the ISIS tabs. (Id. at 16:25-17:5, 78:18-81:5; see also Dkt. 24, Defendant's Exhibit 2 at 5:55-6:48.) The system registered a hit for “federal probation/supervised parole.” (Id.) This occurred four minutes and forty-nine seconds after the officers stopped McIntosh. (Dkt. 24, Defendant's Exhibit 2.) That hit led Dougherty to believe McIntosh was on federal supervision, although he did not know the underlying offense or whether it was a felony. (Id.) About nine seconds later, as a precaution, Dougherty called for backup because McIntosh was a large man, had a firearm, and was agitated. (Dkts. 24, Defendant's Exhibit 2 at 6:36-7:26; 26 at 16:25-17:5, 82:9- 83:11, 104:22-105:7.) He also decided to investigate further because of the firearm McIntosh was carrying and the federal probation hit. (Dkt. 26 at 82:22-83:14.)

         Six minutes and twenty-five seconds after stopping McIntosh, Dougherty accessed the OMNIXX program, another online database that allows him to obtain a photograph of the person and run a criminal history. (Id. at 17:6-23, 83:15-84:10; see also Dkt. 24, Defendant's Exhibit 2 at 7:45-8:10.) Although ISIS and OMNIXX contain some of the same information, he could get more information and perform additional searches in OMNIXX. (Dkt. 26 at 17:18-23.) To do this, he had to minimize the ISIS platform, access the internet, and log onto the OMNIXX system. (Id. at 18:7-17; see also Dkt. 24, Defendant's Exhibit 2 at 7:25-7:55.) He did. (Dkt. 24, Defendant's Exhibit 2 at 7:55-8:10.) He then entered the information McIntosh gave him to pull up a driver's license photo. (Id. at 19:1-4.)

         The OMNIXX program produces a series of messages with information about driver's licenses, warrants, and supervision. They appear at the same time, but (as in ISIS) a user has to click on each individual message. (Id. 84:20-85:15; see also Dkt. 24, Defendant's Exhibit 2 at 8:54-9:39.) Seven minutes and forty-nine seconds after stopping McIntosh, Dougherty accessed McIntosh's driver's license photo (confirming that this was the same person that the officers had encountered) and he also obtained the same supervised federal parole/probation hit on the same name and date of birth that McIntosh had previously given him. (Dkts. 24, Defendant's Exhibit 2 at 8:59-9:19; 26 at 19-20, 21, 80, 86.)

         APD Officer Hansen, who had responded to Dougherty's request for backup, reported that he was nine to ten minutes away and Dougherty replied, “[a]lright, we'll be here.” (Dkts. 24, Defendant's Exhibit 2 at 9:25-9:35; 26 at 24:2-11.) When McIntosh asked Dougherty what was going on, Dougherty lied and said he was trying to verify who McIntosh was because he was not carrying his driver's license. (Dkts. 24, Defendant's Exhibit 2 at 11:20-11:29; 26 at 94:6-25.) Dougherty testified he was delaying McIntosh with this lie until backup arrived. (Dkt. 26 at 93:11-14.) Dougherty also ran McIntosh's criminal history (after he researched and obtained his FBI or Georgia criminal history index number), receiving that report at approximately 7:53 p.m. (Dkts. 24, Defendant's Exhibit 2 at 9:39-13:00; 26 at 26:19-27:9, 89:17-90:16, 96:2- 97:22.) With this, he discovered McIntosh was a convicted felon. (Dkt. 26 at 27:15-24, 96:2-11.) Approximately three minutes had elapsed since he initially received notification of a probation hit. (Id. at 90:9-17.) Slightly less than twelve minutes had elapsed since the initial stop. (Id. at 96.) Dougherty decided to arrest McIntosh for being a felon in possession of a firearm. (Id. at 98.) Those initial twelve minutes, therefore, are the only ones relevant to the determination of whether the traffic stop was reasonable.

         Ultimately, due to further delay on backup's arrival and the arrival of a civilian vehicle (towards which McIntosh started to approach and Dougherty told Grant to not let McIntosh approach), Dougherty decided to place McIntosh under arrest. (Id. at 100:5-12, 105:8-18.) McIntosh resisted, struggled with Dougherty and Grant, and fled before Dougherty caught up and tased him twice. (Id. at 100:5-101:15; see also Dkt. 24, Defendant's Exhibit 2 starting at 14:15.) Officer Hanson, who arrived as backup, tased McIntosh a third time. Dougherty grabbed the firearm from the holster on McIntosh's waist and threw it into some brush.

         McIntosh was charged with several offenses, including possession of a firearm by a convicted felon, not wearing a helmet, and misdemeanor obstruction of an officer. (Dkt. 26 at 33:3-12.)

         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 (“R&R”). 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). The district judge should “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). For ...


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