United States v. Bates

UNITED STATES OF AMERICA v. TITUS BATES, Defendant.

CRIMINAL CASE NO. 1:13-CR-00501-ELR-JFK-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

June 1, 2017

REPORT AND RECOMMENDATION

Pending before the court is Defendant Titus Bates' motion [Doc. 92] and supplemental brief [Doc. 142] to suppress evidence obtained as the result of the execution of a state warrant for his arrest [Doc. 94, Exhibit ("Exh.") 1 ("State Arrest Warrant")] and a state search warrant [Id., Exh. 2 (State Search Warrant and Affidavit")] and a federal search warrant [Id., Exh. 3 ("Federal Search Warrant and Affidavit")]¹ for his residence located on Diana Drive, Atlanta, Georgia. The Government opposes the motion to suppress [Doc. 143], and Defendant filed a reply brief in support of his motion [Doc. 149]. Also pending before the court areDefendant's motion [Doc. 90] to dismiss Count Two of the Superseding Indictment, motion [Doc. 112] to dismiss Count Four of the Superseding Indictment and motion [Doc. 114] to dismiss both Counts Two and Four of the Superseding Indictment. The Government responded opposing the motions to dismiss [Docs. 144, 145 and 146], and Defendant filed reply briefs in support of the motions [Docs. 147, 148 and 150].

Motion to Suppress

In support of the motion to suppress the arrest warrant and the state and federal search warrants for his residence, Defendant contends that (1) he is entitled to a Franks hearing² because the affiant for the federal search warrant deliberately or with reckless disregard for the truth included misleading information in the federal affidavit and (2) that probable cause is lacking for all three warrants because the affidavits depend on information provided by a confidential informant without establishing the informant's reliability. [Doc. 92; Doc. 142]. The Government opposes the motion to suppress contending that Defendant has not made a sufficient showing to entitle him to a Franks hearing and that the affidavits provide probable cause for the search. [Doc. 143]. Defendant replied providing additional but unpersuasive arguments, for the reasons the court sets forth infra, why the confidential informant is not reliable and presenting twonew claims of intentional misrepresentations in the affidavit for the federal search warrant. After consideration of the arguments, of relevant legal authority, and the search warrants' affidavits, the court recommends that the motion to suppress be denied.³

I. State Search Warrant & Affidavit

The state search warrant for the residence on Diana Drive Southwest, Atlanta, Georgia ("Target Location"), authorized the seizure of evidence of committing violations of O.C.G.A. §§ 16-13-30 (purchase, possession, manufacture, distribution or sale of marijuana) and 16-15-4(a) (person associated with a criminal street gang). Law enforcement officers were authorized to seize records, documents and otherpapers relating to the manufacture, transportation, purchasing, distribution and possession of controlled substances and to the location of controlled substances; electronic devices containing information related to identification and location of those associated in buying and selling controlled substances; proceeds of distribution of controlled substances; drug paraphernalia related to controlled substances; and weapons which may be used to protect and/or guard controlled substances, proceeds and related items. [State Search Warrant].

In support of the warrant, City of Atlanta Police Department ("APD") Officer ("Off.") Chris Kettel provided the following information. Off. Kettel advised that he had been an officer for three years and was currently assigned to the APD Gang Unit, that he had received training in high risk warrant entry and tactics, gang investigations, advanced gang prosecutions and gang testimony, undercover operations, criminal procedure and warrants and affidavits. In the Gang Unit, he is in daily contact with narcotics and gang members "ranging from the possession Of narcotics to the sales and distribution Of narcotics along with possession Of weapons and other Gang affiliated material." Previously, he was assigned to the Zone 3 Crime Suppression Unit entry team resulting in his assistance with over forty narcotic search warrants and execution of the warrants. [State Affidavit, Introduction]. Based on this training and experience,Off. Kettel states that he is "familiar with the strategy, tactics, methods, and techniques employed by persons engaged in the distribution, possession, manufacture and sale Of illegal narcotics and the participation Of Criminal Gang Activity." [Id.].

Off. Kettel identified the other law enforcement officers, federal and state, providing information to him in support of the warrant, including, Sgt. Sinks, who based on his experience has extensive knowledge regarding narcotics distribution. [Id. ¶ 1]. In October 2013, an investigator relayed complaints from concerned citizens about traffic in and out of the Target Location and advised that excessive gang tagging and graffiti was located near the Target Location. [Id. ¶ 2]. In November 2013, Off. Kettel, accompanied by other law enforcement officers, drove through the Target Location's neighborhood and observed large amounts of tagging and graffiti associated with the "Crip" gang, as identified by the "6 point stars that were spray painted . . . using blue in color." [Id. ¶ 3].

Between October 31, 2013, and November 3, 2013, Off. Kettel and other Gang Unit officers conducted a purchase of marijuana from the Target Location using a confidential source ("CS"). Before the October 2013 transaction, the CS was searched for contraband and weapons and was then driven to the location by an undercover police officer, who watched the CS until he entered the Target Location. The CSspoke to "tight," later identified as Titus Bates, confirming the amount of the marijuana and price; then the CS purchased 1.025 ounces of marijuana from Bates for $300, official funds, as the officers listened "through audio capabilities" to the transaction taking place and to the CS and Bates discussing future transactions. After completing the transaction, the CS was searched and the quantity of marijuana was seized and field tested positive for marijuana. The officers observed a Ford Taurus parked in the driveway of the Target Location which, when checked, was registered to Titus Bates. The CS also identified Bates' driver's license photograph as the person who sold the marijuana. Off. Kettel also stated, "The CS stated that while they were inside Of the location they observed a black in color Glock Pistol with an extended magazine and that Mr. Bates advised he had a 'chopper' which is commonly referring to some form Of assault rifle." [Id. ¶ 4].

And Off. Kettel recounted that between November 5, 2013, and November 7, 2013, another purchase of marijuana took place at the Target Location involving the CS. Again, the CS was searched before the transaction for contraband and extra funds - none being found, was provided with $170 in official funds (based on the discussions he had with Bates before the transaction), was driven by the undercover officer to the location and met with Bates in the location. While the officers monitored thetransaction with audio capabilities, the CS purchased 2.18 ounces of marijuana and then exited the location to be immediately driven away by the undercover officer. The marijuana and $20 was seized from the CS and field tested positive for marijuana. The CS advised that Bates "was affiliated with Block 125 Entertainment which [the officer stated has] some Gang symbols in their lyrics and through tattoes which are Blood affiliated." [Id. ¶ 5].

Off. Kettel advised that he researched Block 125 Entertainment and observing Youtube videos heard members following Block 125 Entertainment yelling the word "BLATT which is a common term for Blood gang members" standing for "Blood Loyalty All The Time." Additionally, the Target Location is within "the heart Of Raised on Cleveland Territory" which participates in the sale of narcotics and offers protection for those selling narcotics. Based on working in the area of Cleveland Avenue, where the Raised on Cleveland originated, for three years and debriefing multiple gang members, Off. Kettel stated that the members offer protection for drug distributors and receive profits for the purchase of weapons and that the gang is affiliated with the Bloods and other gang "sets" in the area. [Id. ¶¶ 5-6].

The officer concluded that "[b]ased upon the facts and circumstances outlined above, [he] believed it reasonable to conclude that the [Target Location] is involved in the distribution Of an illegal substance . . . ."⁴ [Id. ¶ 7].

II. Federal Search Warrant & Affidavit

On November 21, 2013, at 12:25 p.m., Special Agent Tyra Cunningham, Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), obtained a federal search warrant for the Target Location from Magistrate Judge Alan J. Baverman. [Federal Search Warrant]. The warrant authorized the agents to search for evidence of violations of 18 U.S.C. § 111 (assault on a federal officer) and 21 U.S.C. § 841 (drug distribution), including, any and all firearms used in the assault on a federal officer in the performance of his duties and the seizure of any and all narcotics, currency and electronic devices used to further drug trafficking activity. [Id.].

In support of the warrant, Agent Cunningham first provided his background since January 2010 with the ATF including conducting criminal investigations of firearms, narcotics and arson and assisting state and local investigations related to thesame activities. [Federal Affidavit ¶ 2]. Agent Cunningham began by summarizing the two controlled purchases of marijuana from the Target Location on or about October 31, 2013, and November 5, 2013. On the first purchase, conducted after a citizen complaint about heavy traffic at the...