United States v. Dukes
| Decision Date | 11 March 2022 |
| Docket Number | CRIMINAL ACTION 1:19-cr-0414-RWS-AJB |
| Parties | UNITED STATES OF AMERICA v. JORDAN DUKES, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
UNITED STATES OF AMERICA
v.
JORDAN DUKES, Defendant.
CRIMINAL ACTION No. 1:19-cr-0414-RWS-AJB
United States District Court, N.D. Georgia, Atlanta Division
March 11, 2022
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
ALAN J. RAVERMAN, UNITED STATES MAGISTRATE JUDGE
Defendant Jordan Dukes is also named in Case No. 1:18-CR-0054-RWS-AJB. He previously moved in this case to adopt his motions filed in No. 1:18-CR-0054-RWS-AJB, [Doc. 10], which the Court granted. [Doc. 12]. The Court has now issued a final report and recommendation in No. 1:18-CR-0054-RWS-AJB, attached hereto as Exhibit A, and the recommended rulings in that case are fully applicable to the adopted motions filed by Dukes in this case.
The Court has now ruled upon, or recommended a ruling upon, all matters referred pursuant to Standing Order 14-02 (N.D.Ga. Aug. 15, 2014). As a result, this matter is CERTIFIED READY FOR TRIAL
IT IS SO RECOMMENDED.
10 March, 2022.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
UNITED STATES OF AMERICA
v.
CHRISTOPHER HEARST, CEDEVONTE' HENRY, and JORDAN DUKES, Defendants.
CRIMINAL ACTION FILE NO. 1:18-cr-054-RWS-AJB
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
ALAN J. RAVERMAN, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are the following the following pretrial motions:
• Christopher Hearst's motion and amended motion to suppress historical cell-site locational data, [Doc. 46, 60]
• Christopher Hearst's motion and amended motion to suppress evidence, [Docs. 47, 59]
• Christopher Hearst's motion and amended motion to suppress identification testimony, [Doc. 49, 137]
• Christopher Hearst's motion to sever defendant and exclude out-of-court statement of co-defendant, [Doc. 51];
EXHIBIT A
• Christopher Hearst's motion and amended motion to dismiss Counts Two, Four, Six, and Eight, [Docs. 52, 62];
• Cedvonte' Henry's motion to suppress cell site data, [Doc. 56];
• Cedvonte' Henry's motion to dismiss Counts Four, Six, and Eight, [Doc. 57]; [1]
• Christopher Hearst's amended motion to suppress evidence, [Doc. 70];
• Jordan Dukes' motion to suppress evidence, [Doc. 146];
• Jordan Dukes' motion to suppress cell phone data, [Doc. 147]; and
• Jordan Dukes' motion to suppress DNA evidence, [Doc. 148]
The Court will group the motions where appropriate and discuss them below.
I. MOTIONS TO SUPPRESS HISTORICAL CELL-SITE INFORMATION, [DOCS. 46, 56, 60, & 147]
The Court previously recommended denial of Hearst's and Henry's motions to suppress evidence of historical cell-site information obtained by a court order issued under 18 U.S.C. § 2703(d), on the grounds that the governing law in this Circuit at the time that law enforcement obtained the orders and prior to the Supreme Court's decision in Carpenter v. United States, 585 U.S.___, 138 S.Ct. 2206 (2018), did not require search warrants to obtain historical cell-site data. [Doc. 66 at 2-3 (citing United States v. Davis, 785 F.3d 498, 518 (11th Cir. 2015) (en banc))]; see also United States v. Green, 981 F.3d 945, 957-58 (11th Cir. 2020) (applying good faith reliance upon Davis and holding that at the time of the issuance of the cell-site orders issued in that case (five years before Carpenter), “there was no reason for the officers to believe there was a reasonable expectation of privacy to such records such that they would need a warrant supported by probable cause to acquire them”).[2] The District Judge adopted the recommendation that good faith saved the cell-site data obtained by order from
suppression, but referred the motions back to the undersigned to address other points raised therein. [Doc. 76].
Turning to the unaddressed portion of their motions, although they cite to no legal authority in support and make only a passing reference to the issue,[3] Hearst and Henry contend that historical cell-site information is beyond the scope of information and records for which a § 2703(d) order may be issued. [See Doc. 46 at 2; Doc. 56 at 4; Doc. 60 at 5]. Section 2703(c)(1) of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., permits an electronic communication service provider “to disclose [to a government entity] a record or other information pertaining to a subscriber to or customer of such service” when the government entity obtains an order (that is, prior to Carpenter) under § 2703(d). Every court that has addressed the issue has concluded that cell-site data is included within “a record or other information pertaining to a subscriber to or customer of such service.” United States v. Rogers, 71 F.Supp.3d 745, 751 (N.D. Ill. 2014) (“The Court concludes that the disclosure of electronic location evidence is authorized
under the SCA, and was properly disclosed here.”), aff'd sub nom. United States v. Curtis, 901 F.3d 846 (7th Cir. 2018); United States v. Madison, No. 11-60285-CR, 2012 WL 3095357, at *7 n.6 (S.D. Fla. July 30, 2012) (Rosenbaum, J.) (“As information pertaining to a subscriber and as a record of telephone connections, times, and durations, cell-site location data fulfills the requirements of Sections 2703(c)(1) and (2).”) (citing cases).[4] The Court agrees with these authorities and thus Hearst's and Henry's scope-of-§-2703 argument should be rejected.
As a result, the Court RECOMMENDS that Hearst's and Henry's motions to suppress cell-site data [Docs. 46, 56, 60], be DENIED.
II. CHRISTOPHER HEARST'S MOTION AND AMENDED MOTIONS TO SUPPRESS EVIDENCE, [DOCS. 47, 59, 70]
A. FACTS[5]
On February 7, 2018, FBI Special Agent Tim Burke arrested Henry at the Economy Hotel in Decatur, Georgia. T144. Henry agreed to be questioned; he thereafter admitted that he participated in several commercial robberies with a person he referred to as “Savage,” and indicated that Savage was staying at a nearby
Efficiency Lodge in south DeKalb County. T144-45. Henry also referred to Savage as “Devante Hugh.” T146.[6] He described Savage as having two “H” tattoos on his face and stated that he was a member of the “G-Shan” gang. T145. He identified Savage when shown surveillance or BOLO photos. T148, 196-97.[7]Henry wrote “Savage” and “Devante Hugh” on the back of the BOLO photograph. T199; Def. Exh. 4. Henry also drew a map of the Efficiency Lodge for Burke and the location he believed Savage was staying. T199-200; Def. Exh. 3. He also stated he went to high school with Devante Hugh. T201.
Henry's girlfriend was interviewed separately and prior to Henry being interviewed. She identified the person in BOLO or surveillance photos as the person she knew as “Savage” and that he stayed at the Efficiency Lodge. She further stated that she had been with him the week before being interviewed. T147.
Burke then obtained from the DeKalb County Police Department a room roster of the guests at the Efficiency Lodge, as well as the contact information of the property manager at that location. T150, 202.
On February 8, 2018, before 9:00 AM, Burke came to the Efficiency Lodge on Flat Shoals Road in Decatur, Georgia, and met with the property manager. T17-18, 71, 152-53. He was accompanied by seven other FBI agents and task force officers in four unmarked cars, and a Conyers police detective in an unmarked vehicle them joined mid-morning. T153. Burke showed the manager a photograph of a black male from the BOLO, but the manager did not think that she recognized him. T19-20, 22, 157-58, 204-05, 206.[8] The property manager advised Burke that a weekly room check needed to be performed, and if the employees located the person they were talking about, they would tell him.[9] T23-24, 89, 90, 158-59, 163-64, 227. Burke gave her no instructions as to conducting the room checks. T92.
Burke left his cell phone number with the property manager and went back to his vehicle to resume surveillance. T159. The other surveillance vehicles also were positioned in the area. T104-05, 121-22, 162-63.
The property manager and other employees began doing room checks, beginning with Room 101. T90. A little later, the property manager brought the desk clerk out to the parking lot to meet with Burke, and after Burke showed the desk clerk the BOLO photo, she told him that she thought that she recognized the person as “Savage,” that he was staying (“hung out”) in Room 133, and she had seen him as recently as the day before. T20, 23, 32, 159-60, 206-07. Henry had provided Burke with a map of the Efficiency Lodge pointing to where Savage was staying, and after the desk clerk told Burke about Room 133, Henry's map made more sense to Burke. T162.
It took 30 to 45 minutes for the lodge employees to get to Room 133 to perform a room check. T90-91.[10] According to the rental roster from the Efficiency Lodge, Room 133 had been rented on November 18, 2017 by “Ronald Tyus.” T28-30, 40-41, 192; Govt. Exh. 18. Only one person was reportedly staying
in the room. T44. Around noon, when the property manager entered Room 133, no one was present but she observed ammunition and a digital scale on the dresser, as well as drug paraphernalia in a drawer that was ajar. T24, 35, 71, 78-79, 89.[11],[12] In conducting a bedbug check, a long gun was observed under the mattress, and although her testimony on this issue was not straightforward or clear, the property manager stated that after she called Burke, Burke instructed her to photograph the items and send them to him, which she did. She then continued on performing room checks on the first level of the Efficiency Lodge. T24, 25, 39, 64, 92, 165, 228-29 (Burke testifying that the property manager simply texted him the photos).
A little later, Burke heard via radio from a member of the surveillance team that a black male was observed going into Room 133, where he stayed for only a few...
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