Opinion
CRIMINAL ACTION FILE NO. 1:17-CR-315-LMM-JKL-1
02-06-2019
UNITED STATES OF AMERICA, v. DONTIEZ PENDERGRASS, Defendant.
FINAL REPORT AND RECOMMENDATION
This criminal case is before the Court on Defendant Dontiez Pendergrass's Motion to Suppress Evidence as a Result of the Tower Dump in the Instant Case [Doc. 102]. The motion has been referred to me to issue a report and recommendation. [See Dkt. Entry dated Feb. 5, 2019.] For the following reasons, I recommend that the motion be DENIED.
Pendergrass is charged in this case with five counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 and five corresponding firearm offenses in connection with the armed robberies of three restaurants, a grocery, and a laundromat in the metropolitan Atlanta area. [See Doc. 1.] Pendergrass filed several motions to suppress, which the Court has considered and ruled on. [Doc. 80 (Sept. 11, 2018 report and recommendation); Doc. 94 (Jan. 4, 2019 order adopting report and recommendation).] In one of those motions, Pendergrass previously sought to suppress information that the government received pursuant to a "tower dump." Pendergrass argued that because the government obtained the information by a court order, rather than a warrant, the evidence and fruits thereof should be suppressed under Carpenter v. United States, 138 S. Ct. 2206 (2018). [See Doc. 37 at 2; Doc. 72.] In my report and recommendation dated September 11, 2018, I rejected Pendergrass's argument, concluding that, even if a tower dump is a Fourth Amendment search, the Leon good faith exception to the exclusionary rule applies. [See Doc. 80.] In reaching my conclusion, I relied on several cases, including the then-recent decision in United States v. Joyner, 899 F.3d 1199, 1205 (11th Cir. 2018), which held that the good faith exception to the warrant requirement applied to a Stored Communications Act order for cell site information issued before Carpenter was decided. [Id. at 40-43.] Pendergrass did not object to that portion of my report and recommendation. [See Doc. 89.] On January 4, 2019, the District Judge adopted my recommendation that the motion to suppress be denied to the extent it sought suppression of the tower dump information. [Doc. 94 at 4.]
In a "tower dump," cell service companies provide data identifying all the cell phone numbers that used particular cell phone antennas at a specific location during a specific window of time. [Doc. 49 at 47.]
United States v. Leon, 468 U.S. 897 (1984).
On February 3, 2019, a month after the District Judge entered her order adopting my report and recommendation, Pendergrass filed an out-of-time motion to suppress the same information "tower dump" information. [Doc. 102.] Though lengthier than his earlier motion to suppress, the gist of the motion is the same: Pendergrass again contends that a tower dump is a search under the Fourth Amendment, under Carpenter the government should have obtained a warrant, and, therefore, the information should be suppressed. [Id.] Pendergrass's motion does not address (or even acknowledge) this Court's prior rulings on this issue, much less the application of the Leon good-faith exception.
The Court could deny Pendergrass's motion as untimely. The deadline for filing pretrial motions expired on November 27, 2017. [Doc. 33.] In addition, I gave Pendergrass an opportunity to supplement his motion to suppress to address Carpenter by July 23, 2018 [Doc. 70], and Pendergrass did so [Doc. 72]. On August 17, 2018, with leave of Court, Pendergrass filed a reply in support of his supplemented motion, in which he acknowledged the Circuit's decision in Joyner but declined to concede his challenge to the tower dump. [Doc. 79.] Pendergrass does not point to a single argument in his new motion that he could not have timely raised before the motions deadline or in one of his supplemental filings.
But even on its merits, the motion is due to be denied for the same reasons that I previously explained in my report and recommendation. Assuming for the sake of argument that Carpenter applies to tower dumps, I remain of the view that the tower dump in this case fits within the Leon good-faith exception to the exclusionary rule as applied in Joyner. See Joyner, 899 F.3d at 1204-05 (holding that data obtained prior to the ruling in Carpenter was not suppressible under Leon good faith exception). Specifically, FBI Special Agent Matthew Winn obtained a court order for the tower dump on January 30, 2017, pursuant to the Stored Communications Act, nearly seventeen months before Carpenter was decided. [Doc. 102-1 (Application for Cell Tower Records), Doc. 102-2 (Order for Cell Tower Records).] At that time, the law in this Circuit was that communications records obtained under the Stored Communications Act could be obtained by a court order without the need of a search warrant. See United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc) (holding that "the government's obtaining a[n 18 U.S.C.] § 2703(d) court order for the production of [defendant's telephone company's] business records did not violate the Fourth Amendment"). Accordingly, SA Winn had a good-faith basis to believe that he was not conducting a search that would require a warrant under the Fourth Amendment, and the Leon exclusionary rules applies and Pendergrass's motion to suppress should be denied.
For the foregoing reasons, it is RECOMMENDED that Pendergrass's Motion to Suppress Evidence as a Result of the Tower Dump in the Instant Case be DENIED. [Doc. 102.]
This report and recommendation resolves all matters referred to me. This case remains CERTIFIED READY FOR TRIAL.
IT IS SO RECOMMENDED this 6th day of February, 2019.
/s/_________
JOHN K. LARKINS III
United States Magistrate Judge