United States v. Bourassa
| Decision Date | 20 May 2019 |
| Docket Number | CRIMINAL ACTION FILE NO. 4:18-CR-0003-MLB-WEJ-1 |
| Parties | UNITED STATES OF AMERICA, v. JEFFREY ALAN BOURASSA, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on the following Motions filed by defendant Jeffrey Alan Bourassa: (1) a Motion to Suppress Search and Seizure [523] that arose from a traffic stop that occurred on March 24, 2006; (2) a Motion to Suppress Search and Seizure [631] that arose from execution of a search warrant at a residence located at 2200 Beaver Shop Road in Cobb County, Georgia on June 8, 2006; and (3) a Motion to Suppress Search and Seizure [527] that arose from a traffic stop that occurred on March 9, 2013.
The Court conducted an evidentiary hearing on these Motions on February 28, 2019 [618], which has been transcribed ("Tr.") [635]. These Motions have been fully briefed (see Def.'s Br. [687]; Gov't Opp'n Br. [692]; Def.'s Reply [703]) and are ripe for decision. For the reasons explained below, the undersigned RECOMMENDS that Mr. Bourassa's Motions to Suppress Search and Seizure [523, 527, and 631] be DENIED.
On February 8, 2018, a grand jury in this District returned an Indictment [1] charging Jeffrey Alan Bourassa and others with violations of federal law, including RICO conspiracy (Count 1), conspiracy to possess and distribute controlled substances and substantive drug offenses (Counts 2, 19), carjacking (Count 3), attempted murder (Counts 4, 6, 13-14), kidnapping (Counts 9, 11), maiming (Count 10), assault (Count 12), and various firearms violations (Counts 5, 7-8, 15-18, 20-21). The charges are based on the defendants' alleged activities as members or associates of a criminal enterprise known as the Ghostface Gangsters ("GFG").
With specific reference to Mr. Bourassa, the Indictment charges him in Count 1 with RICO conspiracy; in Count 2 with conspiracy to traffic a controlled substance and alleges that he is responsible for the distribution of at least 500 grams of methamphetamine (a Schedule II controlled substance), a substance containing a detectable amount of cocaine (a Schedule II controlled substance), a mixture and substance containing a detectable amount of marijuana (a Schedule I controlled substance), and a substance containing Alprazolam (a Schedule IVcontrolled substance); in Count 9 with kidnapping; and in Count 10 with maiming. The grand jury returned a Superseding Indictment [279] on August 22, 2018. The Superseding Indictment adds three defendants and new overt acts and substantive charges involving drug sales, firearms, and witness tampering. However, the charges against Mr. Bourassa were left unchanged.
The Government described this traffic stop through the testimony of Detective Bradley McEntyre, who worked for the Cobb County Police Department in 2006 in the Crimes Against Persons Unit. (Tr. 5.) On March 24, 2006, Detective McEntyre, along with Detectives Caldwell and Twiggs, responded to radio traffic regarding a strong-arm robbery and shots fired at Cumberland Mall. (Id. at 5-6.) Further radio traffic reported a carjacking at the intersection of U.S. Highway 41 and Akers Mill Road adjacent to the Mall. (Id. at 6, 20-21.) Detectives Twiggs and Caldwell went to the Mall and Detective McEntyre, who learned that the hijacking victim (Maria Arajuo) was at the Embassy Suites on Akers Mill Road, went to that location to interview her. (Id. at 6-7, 19-20.) In the course of their initial investigation, law enforcement concluded that the two incidents were likely related. (Id. at 6-7.)
Detective McEntyre interviewed the victim, who relayed what had happened to her and provided a description of the assailant as a young white male, early 20s, fairly short, dark hair, with something like silver on his front teeth, waiving a gun. (Tr. 7-8.)1 As Detective McEntyre was interviewing the victim, he received information that her hijacked car had been found at a parking deck close to where the crime had occurred. (Id. at 8, 21.) He then travelled to that location. (Id. at 8.)
When he arrived at the parking deck, Detective McEntyre learned from other officers that there had been some sort of "drug deal gone bad" at the Mall, that shots had been fired, that one of the individuals involved had fled through the Mall's parking lot toward the intersection of Highway 41 and Akers Mill Road, and that this individual was the suspected carjacker. (Tr. 8-9.) Witnesses from the Mall and those who observed the carjacking described this individual as wearing a gray hooded sweatshirt. (Id. at 9.)2
A description of the suspect was broadcast to all police personnel. (Tr. 10.) Given the significant response of law enforcement to these incidents, a large number of police officers were spread out over the area looking for the suspect. (Id. at 9.) Specifically, officers were on the lookout for a short white male, early 20s, with dark hair and silver on his front teeth, wearing a gray hooded sweatshirt.
About one hour after the carjacking, plainclothes officer Ken Rita reported that he saw a person fitting the description of the suspect acting suspiciously outside of a Red Lobster restaurant located about a quarter mile from where the incident occurred. (Tr. 9, 21.)3 A tactical unit set up surveillance and observed a dark-colored Mazda with two occupants pull up in front of the restaurant and pick up the suspect. (Id. at 10, 21.) When the Mazda started to leave, it travelled no more than 100 yards before it was stopped by police at a BP gas station located at Highway 41 and Herodian Way. (Id. at 10, 21-22.)
Detective McEntyre went to the BP station, where the suspect, later identified as co-defendant David Gene Powell, was in custody. (Tr. 10-11, 22.)The Detective testified that the other two occupants of the Mazda, the driver (Kimberly Mines) and the front-seat passenger (Mr. Bourassa), were also in custody. (Id. at 11, 12, 13, 22.)4 A K-9 brought in to track the suspect from the carjacking alerted to a purse that was on the front passenger floorboard. (Id. at 12-13.) The search of the suspects and the Mazda located Ecstasy tablets in the purse, Valium and a Kel-Tec PT-11 9mm handgun on Mr. Powell, and $8,177 in cash on Mr. Bourassa. (Id. at 13-14, 22-23.)
The Government described this search through the testimony of ATF Special Agent Mathew Owen (who previously worked as a uniformed officer with the Cobb County Police Department) and Lieutenant Donald Zell of the Cobb County Police Department, who was in 2006 a Sergeant and morning watch (10:00 p.m. to 8:00 a.m.) shift supervisor for Precinct 4. (Tr. 55, 78-79.)
Then-Officer Owen testified that he was working morning watch in Precinct 4 on June 8, 2006, wearing a police uniform and driving a markedvehicle. (Tr. 56.) On that date at approximately 2:00 a.m., he received a 911 call from an individual who said that a white male wearing black shorts pointed a silver automatic pistol at him and that he had been ordered to leave a house located at 2200 Beaver Shop Road. (Id. at 56, 65-66.)5 Sergeant Zell added that the 911 caller said he had been at a party at this address and saw a large quantity of drugs. (Id. at 80.)
Officer Owen went to the house immediately along with Officers New and Withers. (Tr. 56-57, 66.) Occupants of the house were not visible. (Id. at 56-57.) Officers Owen and Withers went to the front door of the house, while Officer New went to the back corner of the house. (Id. at 57, 69.) As Officer Owen walked up the driveway and by the carport on the way to the front door, he could see through a window located in the carport; he noticed a white male in a short-sleeved striped shirt in the kitchen area. (Id. at 69.) When the officers arrived at the front door, Officer Withers knocked and announced, (Id. at 57, 69.) Someone inside responded, "Who's there?" and different persons inside the house asked that same question repeatedly.(Id. at 57, 70.) However, no one would open the door. (Id. at 70.) Officer Owen then knocked and announced that it was the Cobb County Police, that they needed to talk to someone about an incident, and that someone needed to come outside. (Id. at 57-58.) Again, no one came out. Instead, someone came to the door and repeatedly stated, "Who is it?" (Id. at 58.) Finally, someone came to the front door and stated, "You're not coming in without a warrant." (Id. at 58, 70, 87.)
Officer Owen felt the situation was escalating, so he stepped off the small, low front porch and walked to the right along the front side of the house that faced the street. This end of the house had two windows, the first of which was fully covered and the second of which was only partially covered. (Tr. 58, 70-72.)6 He was able to see into the house through this second window, and through that window, he observed a man come into what appeared to be a bedroom carrying two large Ziploc bags full of marijuana. (Id. at 58-59, 72-73, 81.)7 Thismale subject placed the bags of marijuana in the closet and quickly left the room. (Id. at 74.)
Officer Owen immediately backed off, informed the other officers about what he had seen, and together they established a perimeter. (Tr. 59, 75.) He also alerted his supervisor (then-Sergeant Zell) about the marijuana; he was told to sit tight until other officers arrived. (Id. at 59-60, 75.) Officer Owen and the other two officers continued to observe the house. Most of the lights had been turned off, but the officers could hear people moving around inside. (Id. at 60.)
Before other officers arrived at this location, two females came out of the house and were detained. (Tr. 60-61, 63, 75.) When asked who else was in the house, they first told the officers that no one else was inside, but then changed their story to say that...
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