United States v. Known, Criminal File No. 1:10–CR–251–10–TWT.

• Citation: 835 F.Supp.2d 1329
• Decision Date: 02 December 2011
• Docket Number: Criminal File No. 1:10–CR–251–10–TWT.
• Parties: UNITED STATES of America, v. Artis LISBON also known as Bebe, Defendant.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

835 F.Supp.2d 1329

UNITED STATES of America,

v.Artis LISBON also known as Bebe, Defendant.

Criminal File No. 1:10–CR–251–10–TWT.

United States District Court,

N.D. Georgia,

Atlanta Division.

Dec. 2, 2011.

David E. Suchar, Sandra Elizabeth Strippoli, Michael John Brown, U.S. Attorney's Office, Atlanta, GA, for United States of America.

Craig A. Gillen, Gillen Withers & Lake, LLC, Atlanta, GA, for Defendant.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is a criminal action. It is before the Court on the Report and Recommendation [Doc. 304] of the Magistrate Judge recommending denying the Defendant's Motions to Suppress [Doc. 178, 194 & 256]. No useful purpose would be served by repeating the facts and contentions of the parties set forth in the thorough and well-reasoned Report and Recommendation of the Magistrate Judge. The Magistrate Judge correctly found that the Defendant lacks standing to contest the search at 1899 Trotti Street. The items seized at 355 West Ponce de Leon Avenue were in plain view. There was probable cause to search the Chevrolet Malibu. The searches of the safe deposit boxes were supported by probable cause. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant's Motions to Suppress [Doc. 178, 194 & 256] and Motion to Sever [Doc. 180] are DENIED.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Attached is the Report and Recommendation (“R & R”) of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and N.D. Ga. CrR. 58.1(A)(3)(a), (b). Let the same be filed, and a copy of the R & R, together with a copy of this Order, shall be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections to the R & R within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. See United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir.1990). The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. Failure to object in accordance with this rule waives a party's right to review. Fed.R.Crim.P. 59(b)(2).

Pursuant to 18 U.S.C. § 3161(h)(1)(H), the above-referenced fourteen (14) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act (“the Act”), whether or not objections are actually filed. If objections to this R & R are filed, the Clerk is DIRECTED to EXCLUDE from the computation of time all time between the filing of the R & R and the submission of the R & R, along with any objections, responses and replies thereto, to the District Judge. 18 U.S.C. § 3161(h)(1)(D), (H); Henderson v. United States, 476 U.S. 321, 331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); United States v. Mers, 701 F.2d 1321, 1337 (11th Cir.1983). The Clerk is DIRECTED to submit the R & R with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this 13th day of October, 2011.

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Defendant Lisbon has filed a motion, an amended motion, and a second amended motion to suppress evidence, [Docs. 178, 194, 256], as to which the Court held evidentiary hearings on April 13, 2011, [Doc. 257] (“T1–___”) and June 16, 2011, [Doc. 285] (“T2–___”). The parties then filed post-hearing briefs. [Docs. 266, 271, 292, 293]. With briefing concluded, the motions are now ripe for recommended resolutions. For the following reasons, the undersigned RECOMMENDS that the motions be DENIED. In addition, Lisbon filed a motion for severance, [Doc. 180], which the undersigned RECOMMENDS be DENIED.

Motions to Suppress

Lisbon filed motions to suppress seeking to exclude evidence seized from searches conducted by warrant at 1899 Trotti Street, Atlanta, Georgia (hereinafter “Trotti”), 335 W. Ponce De Leon Avenue, Unit 210, Decatur, Georgia (hereinafter “W. Ponce”), and three safe deposit boxes, as well as a warrantless search of W. Ponce and an automobile located there. The Court previously concluded that Lisbon was not entitled to an evidentiary hearing as to the searches conducted by warrant at Trotti and W. Ponce. [Doc. 242]. Because that order was issued to set evidentiary hearings (as discussed infra ), the Court repeats its prior analysis for purposes of review by the District Court and discusses the issues that remain to be decided following the evidentiary hearings and briefing.

I. Searches as to which Lisbon was not entitled to an evidentiary hearing:A. 1899 Trotti Street, Atlanta, Ga. (No. 1:10–MJ–728–LTW, issued June 10, 2010) [Doc. 203–1].

The Court previously concluded that Lisbon was not entitled to an evidentiary hearing on the execution of the search warrant at Trotti. Lisbon objected to the search conducted at Trotti on three grounds. He argued that (1) the search warrant lacked particularity, (2) the executing agents exceeded the scope of the search warrant when they seized “miscellaneous paperwork” from that location and searched a Pontiac automobile on the premises at the time of the search, [Doc. 194 at 12–13]; and (3) the agents lacked probable cause to search the Pontiac. [ Id. at 14].

The Court rejected each argument. First, Lisbon did not establish “standing” to contest the Trotti Street search. See Rakas v. Illinois, 439 U.S. 128, 133–34, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir.2000).¹ One's standing to challenge governmental actions on Fourth Amendment grounds is a threshold question. United States v. McBean, 861 F.2d 1570, 1573 (11th Cir.1988). A defendant bears the burden of showing a legitimate expectation of privacy in the area searched. United States v. Brazel, 102 F.3d 1120, 1147–48 (11th Cir.1997); United States v. Ramos, 12 F.3d 1019, 1023 (11th Cir.1994). To have standing to challenge a search, one must manifest a subjective expectation of privacy in the invaded area that “society is prepared to recognize as reasonable.” Rakas, 439 U.S. at 143 & n. 12, 99 S.Ct. 421;United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir.1998). A defendant must establish both a subjective and an objective expectation of privacy. United States v. Segura–Baltazar, 448 F.3d 1281, 1286 (11th Cir.2006); United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir.1995). “ ‘The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.’ ” Robinson, 62 F.3d at 1328;see also Cooper, 133 F.3d at 1398. Also, the individual's expectation, viewed objectively, must be justifiable under the circumstances. Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). A bare claim that an individual has an interest in the items seized during a search, however, is insufficient to establish that his or her Fourth Amendment rights were implicated by a search. United States v. Chaves, 169 F.3d 687, 690 (11th Cir.1999). Courts assess on a case-by-case basis the “standing” of a particular person to challenge an intrusion by government officials into an area over which that person lacked primary control. Oliver v. United States, 466 U.S. 170, 191 n. 13, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The subjective prong is a factual inquiry. United States v. McKennon, 814 F.2d 1539, 1543 (11th Cir.1987); see also United States v. Jones, 184 Fed.Appx. 943, 947 (11th Cir.2006). The objective prong is a question of law. McKennon, id.

Lisbon first argued in his brief that he had a legitimate expectation of privacy in the residence because although it was his father's, he kept belongings, including his vehicle, at the residence. [Doc. 194 at 8]. It is true that “even where a defendant does not own the property searched, he or she may nonetheless have a reasonable expectation of privacy in that place by virtue of his or her relationship with that place.” Chaves, 169 F.3d at 690. For example, the Supreme Court has held that an overnight guest in a house of a third party has a reasonable expectation of privacy. Minnesota v. Olson, 495 U.S. 91, 96–100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). However, as the Supreme Court has affirmed, not everyone “who is merely present with the consent of the householder” may necessarily be able to challenge a search of the premises. Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas, 439 U.S. 128, 99 S.Ct. 421). In Carter, the Supreme Court in fact declined to find that a visitor to a residence, present for only a short period of time and for the purpose of conducting illicit drug transactions, without any known prior connection to the residence, had a reasonable expectation of privacy to contest a search of the residence. Carter, id. at 90–91, 119 S.Ct. 469.

The allegations asserted in Lisbon's brief ² were insufficient to establish standing since they failed to demonstrate that Lisbon had “an unrestricted right of occupancy or custody and control of the premises” that would create a legitimate expectation of privacy in the residence. United States v. Cossio, 336 Fed.Appx. 909, 912 (11th Cir.2009) (quoting United States v. Baron–Mantilla, 743 F.2d 868, 870 (11th Cir.1984)); see also United States v. Torres, 705 F.2d 1287, 1294–95 (11th Cir.1983), vacated en banc, consideration pending remand to panel,718 F.2d 998 (11th Cir.1983), remanded,720 F.2d 1506 (11th Cir.1983), on appeal after remand,741 F.2d 1323 (11th Cir.1984) (where appellants were house guests of searched house, ate, slept and showered there, stored personal belongings there and were the only guests in...