United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND ORDER ON DEFENDANT'S PRETRIAL MOTIONS
RUSSELL G. VINEYARD, Magistrate Judge.
Defendant Edward Shane Smallwood ("Smallwood") is charged in a three-count indictment with knowingly possessing a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g), and with two instances of knowingly impersonating a federal officer, in violation of 18 U.S.C. § 912. [Doc. 14]. Smallwood has filed motions to suppress evidence, [Doc. 20], and statements, [Doc. 21], as well as a motion to dismiss Counts One and Three of the indictment, or, alternatively, for a bill of particulars, [Doc. 27]. Smallwood further moves to suppress the statements and testimony of his wife, Sandra Smallwood ("Mrs. Smallwood"), which impinge upon the confidential marital communications privilege. [Doc. 26]. Following an evidentiary hearing on January 22, 2014,  the parties filed post-hearing briefs, [Docs. 53 & 56], on the motions. For the following reasons, it is RECOMMENDED that Smallwood's motions to suppress evidence and statements, [Docs. 20 & 21], and to dismiss Counts One and Three of the indictment, or, alternatively, for a bill of particulars, [Doc. 27], be DENIED, and that his motion to suppress the statements and testimony of Mrs. Smallwood, [Doc. 26], be GRANTED IN PART and DENIED IN PART.
I. STATEMENT OF FACTS
A. The July 15, 2013, Arrest
On July 15, 2013, Investigator Dominick Crea ("Investigator Crea") of the Gwinnett County Sheriff's Department was assigned to execute a Gwinnett County arrest warrant for Smallwood. (Tr. at 6-7). The warrant charged Smallwood with impersonating a police officer, possession of a firearm by a convicted felon, and operating a motor vehicle with unauthorized blue lights. (Tr. at 9). Investigator Crea also received a package containing additional information about Smallwood. (Tr. at 7, 26-28). Among other things, the package indicated that Smallwood drove a black Dodge Charger ("Charger"). (Tr. at 8, 19). Investigator Crea reviewed the paperwork and then went to the address listed on the warrant to look for Smallwood's car. (Tr. at 8). On his way there, Investigator Crea contacted Investigator James Duffield ("Investigator Duffield") of the Gwinnett County Sheriff's Department, to ask for assistance. (Tr. at 8, 63). Investigator Duffield responded that he was aware of the Smallwood investigation and that he had already been instructed to look for Smallwood. (Tr. at 8). In fact, before he was called by Investigator Crea, Investigator Duffield had already been watching Smallwood's residence for about 10 or 15 minutes. (Tr. at 64-65). Investigator Duffield did not observe any signs of movement at the residence during that time, (Tr. at 78), but he did note that the Charger was parked in the driveway, (Tr. at 64-65).
The officers met briefly at a restaurant near Smallwood's residence to plan the arrest, and Investigator Crea said that he would go to the address on the warrant to determine if the Charger was still there and whether they should attempt to make an arrest. (Tr. at 8-9). Investigator Crea arrived at the residence, which he described as a "very small" ranch house, at 11:15 a.m. (Tr. at 9, 30, 36). He noticed the Charger parked in the driveway, (Tr. at 9, 20), although he did not see any signs of activity at the house, such as motion around the windows or blinds, (Tr. at 31). Investigator Crea then contacted Investigator Duffield and asked him to bring additional officers to help effect an arrest. (Tr. at 9). Investigator Duffield called for reinforcements from the Task Force, (Tr. at 65), and Investigator Crea remained at the residence for about an hour, (Tr. at 31), until Investigator Duffield arrived with the additional officers, (Tr. at 10). When Investigator Crea saw the officers approaching, he exited his vehicle and went to the rear of the house, while the other officers proceeded to the front of the house. (Tr. at 10, 66). The officers were wearing tactical, bulletproof vests bearing the words "Sheriff, " "U.S. Marshals, " or "Police, " (Tr. at 66, 84), and their weapons were drawn and pointed toward the front door as they approached the house, (Tr. at 70-71, 75).
As the officers advanced to the front door, Smallwood stepped out of the house onto the front porch, told the officers to "come on in, " and motioned with his hand indicating that the officers could enter the residence. (Tr. at 66, 76, 84). The officers immediately ordered Smallwood to the ground and placed him in handcuffs in the front yard. (Tr. at 67, 85). At the time, Mrs. Smallwood was inside the house with a small child. (Tr. at 72, 85). The officers asked Mrs. Smallwood to step outside of the house, and she walked onto the front porch, bringing the child with her. (Id.); see also (Tr. at 11). Mrs. Smallwood inquired several times about what was going on, (Tr. at 11, 40), but she stopped asking when one of the officers told her that Investigator Crea would speak with her momentarily, (Tr. at 11, 22). After being placed under arrest, Smallwood was escorted by an officer to the back seat of a Henry County patrol car, which was parked along the road in front of the house. (Tr. at 10-11, 53, 67, 77).
When Investigator Crea learned that Smallwood had been taken into custody, he returned to the front of the house and proceeded to enter the residence to conduct a protective sweep of the premises. (Tr. at 10-11, 53). Investigator Josh Mauney ("Investigator Mauney") of the Fayette County Sheriff's Office,  along with Investigator Duffield and several other officers, also swept the residence. (Tr. at 35-36, 67, 83, 90). Investigators Crea and Duffield testified that the purpose of the sweep was to ensure officer safety. (Tr. at 11, 67, 73). In particular, Investigator Duffield testified that safety was a concern because there was a firearms charge involved, the officers had their backs to the residence at certain points, and the officers could not see inside the house, while people within the house could see outside. (Tr. at 11, 67, 73, 75). During the sweep, Investigator Crea observed a black bag with the word "Police" written in white letters along the side, sitting "wide open" on the kitchen table. (Tr. at 15, 39). Investigator Crea also noticed what appeared to be a U.S. Marshals badge inside the bag, (Tr. at 15-16),  as well as a bulletproof vest leaning against a wall in a den area near the living room, (Tr. at 16, 51). The sweep lasted no more than a few minutes, (Tr. at 38), and the officers did not seize any evidence or find anyone else inside the house, (Tr. at 11, 16, 67, 85, 91).
When the sweep was finished, Investigator Crea went outside and asked Mrs. Smallwood to come back inside the house so that she would not have to stand in the front yard holding the child in view of the neighbors. (Tr. at 11-12). Investigator Crea then accompanied Mrs. Smallwood into the house, and Mrs. Smallwood sat down in a chair in the living room. (Tr. at 12, 43-44); see also (Def. Ex. 2). Investigator Mauney and another officer, Special Agent Stevens, were also in the living room at the time. (Tr. at 46-47). Investigator Crea explained to Mrs. Smallwood why the officers were there and why her husband had been arrested. (Tr. at 12). In particular, Investigator Crea described each of the charges against Smallwood in the Gwinnett County arrest warrants. (Tr. at 45). Investigator Mauney also informed Mrs. Smallwood that her husband was a convicted felon, and not a Deputy U.S. Marshal. (Tr. at 86). Investigator Crea testified that Mrs. Smallwood appeared to be a "little confused, " at first, because she was under the impression that Smallwood was a police officer, (Tr. at 23, 41); see also (Tr. at 86), but that after the charges were explained, she appeared to understand what the officers were telling her and why they were there, and she seemed "very composed, " (Tr. at 12), and "very calm... [and] rational, " (Tr. at 22), throughout their conversation. Similarly, Investigator Mauney noted that Mrs. Smallwood was speaking normally, and that her demeanor was "calm, cool and collected[.]" (Tr. at 86).
Investigator Crea then asked Mrs. Smallwood if she would consent to a search of the residence and the car outside. (Tr. at 12, 87). Mrs. Smallwood quickly responded that she "didn't have a problem with [the officers] searching the house or the vehicle outside." (Tr. at 12-13). Investigator Crea also asked Mrs. Smallwood whether Smallwood had a gun, and if so, where he usually kept it. (Tr. at 13, 48). Mrs. Smallwood replied that Smallwood had a gun that he usually kept in the car, (id.), and she specifically gave her consent for the officers to search for the gun, (Tr. at 61). Investigator Crea next asked Mrs. Smallwood if she would give him the keys to the car so he could look for the gun. (Tr. at 13, 53-54, 87). Mrs. Smallwood agreed, retrieved the keys to the Charger, and gave them to Investigator Crea. (Id.). Mrs. Smallwood and Investigator Crea then went outside, and Investigator Crea searched inside the Charger for the gun. (Tr. at 13). Investigator Crea looked under the seats, in the glove compartment, in the center console and the trunk, but did not find a firearm. (Id.). However, he found emergency blue lights in the front and rear windows, and a U.S. Marshals badge and a "credentials type of wallet setting, " all of which he seized as evidence. (Tr. at 13-14).
After the search of the vehicle, Investigator Crea and Mrs. Smallwood went back inside the house, and Investigator Crea asked Mrs. Smallwood if she could think of any other place where the gun might be found. (Tr. at 14). Mrs. Smallwood said that it might be in the bedroom. (Id.). Investigator Crea testified that, because Mrs. Smallwood was unusually cooperative with the investigation, he allowed her to look for the gun in the bedroom, with another officer present, while Investigator Crea remained in the living room. (Tr. at 14-15). Mrs. Smallwood found the gun in a drawer in the bedroom just a few moments later. (Tr. at 15). Investigator Crea then walked down the hall to the bedroom, and Mrs. Smallwood showed him where the gun was located. (Id.); see also (Def. Ex. 6). Investigator Crea seized the firearm and several magazines. (Tr. at 15); see also (Tr. at 51). While Investigator Crea was collecting the evidence, Mrs. Smallwood also located the box in which the gun was originally purchased, and offered it to Investigator Crea. (Tr. at 15). Investigator Crea said that he did not need the box, but Mrs. Smallwood insisted, so Investigator Crea took the box and placed the firearm and magazines inside. (Id.). Investigator Crea also took the bag marked "Police" and the bulletproof vest, and then secured all of the evidence in the trunk of his car for safekeeping. (Tr. at 16). Investigator Crea estimated that the total amount of time he had spent in the house, from the time of the initial sweep until the conclusion of the search, was less than 30 minutes. (Tr. at 36).
Mrs. Smallwood did not ask to speak with Smallwood, (Tr. at 54), or say she wanted the officers to stop searching at any time, (Tr. at 88), and Investigator Mauney testified that Mrs. Smallwood remained "calm and collected" throughout the entire duration of the search, (id.). At some point during the search, Mrs. Smallwood also told Investigator Mauney that she was an avid hunter and that she had hunted various animals that were mounted for display in her house. (Tr. at 87). Investigator Duffield, who remained with Smallwood after the sweep, testified that he was not aware that Smallwood ever objected to the search of either his house or his car, although both of these were visible to Smallwood from his position in the back of the patrol car. (Tr. at 67, 77). Investigator Duffield also explained to Smallwood the charges on the warrants for his arrest, but Investigator Duffield did not ask any questions relating to the charges. (Tr. at 67-68). Smallwood was sobbing, (Tr. at 80), and repeatedly told Investigator Duffield that he had not done anything wrong, (Tr. at 68-69).
A few minutes after Investigator Duffield first approached Smallwood at the patrol car, Investigator Crea came to speak with Smallwood because he had been informed that Smallwood wanted to talk. (Tr. at 16-17, 68). Investigator Crea read Smallwood his Miranda rights, in the presence of Investigator Duffield, from a printed card provided to him by the Gwinnett County Sheriff's Department. See (Tr. at 17, 24, 68; Def. Ex. 9). Specifically, Investigator Crea advised Smallwood that he had the right to remain silent and that any statements he made could be used against him in court. (Def. Ex. 9). He further advised him that he had the right to speak to an attorney, to have one present during questioning, and to have one appointed for him if he could not afford one. (Id.). Investigator Duffield also told Smallwood that he could "decide at any time to exercise these rights and not answer any questions or make any statement, " and he asked him whether he understood the rights that were explained to him and if he wanted to speak with the officers. (Id.). Smallwood responded that he understood his rights. (Tr. at 17). Investigator Crea did not ask Smallwood any questions about the charges against him, but instead told Smallwood that he was not the investigating officer, and that if Smallwood wanted to make a statement, it would be better for him to speak with the investigator who was responsible for obtaining the warrants for his arrest. (Tr. at 17, 55). Investigator Duffield also testified that, after Miranda warnings were administered, he "believe[d] [he] asked [Smallwood] about a weapon that was in the house, " and Smallwood said it belonged to his wife. (Tr. at 69, 81). Investigator Duffield testified that he did not ask Smallwood any additional questions and that Smallwood did not tell him anything else. (Tr. at 69).
After Investigator Crea concluded the search, he transferred Smallwood from the patrol car into his undercover vehicle, and then drove Smallwood to Gwinnett County Jail, with Investigator Duffield following behind in a separate vehicle. (Tr. at 18, 69). Investigator Crea and Smallwood engaged in "general chitchat" throughout the trip, which took about an hour, but they did not speak about anything pertaining to the charges against Smallwood. (Tr. at 18, 25-26, 56).
B. The August 19, 2013, Arrest
On August 19, 2013, an arrest team arrived at Smallwood's residence, located at 109 Beacon Street, Stockbridge, Georgia, to execute a federal arrest warrant that had issued from the Northern District of Georgia. (Tr. at 94-96). One of the members of the arrest team was Special Agent James Taylor Booth ("Agent Booth") of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Id.). Sometime between approximately 9:00 p.m. and 11:00 p.m., the agents formed a tactical stack at the door of Smallwood's residence, and Deputy Hathaway knocked on the door and announced the agents' presence. (Tr. at 96). Smallwood came to the door, and the agents placed him handcuffs on the steps of the front porch. (Id.). Agent Booth then led Smallwood to the front of Smallwood's car, which was parked in the driveway, and told him that he was under arrest. (Tr. at 96-97). Smallwood stayed by the car while Agent Booth went to speak with Mrs. Smallwood, and Smallwood's handcuffs were then removed, and subsequently reapplied together with a belly-chain device and leg shackles. (Id.). Agent Booth next secured Smallwood in the front passenger seat of Agent Booth's vehicle, and he explained to Smallwood the charges against him. (Tr. at 97-98). Agent Booth testified that Smallwood appeared to understand the charges, (Tr. at 98), and that he did not read Smallwood his Miranda rights at that time because he had no intention of interviewing him after the arrest, (Tr. at 99-100).
Agent Booth then transported Smallwood to the Atlanta Detention Center, with Deputy Hathaway following in a separate vehicle. (Tr. at 98). Within minutes of their departure, Smallwood began asking Agent Booth whether someone is allowed to have a Marshals' badge, without using it. (Tr. at 99, 111). Agent Booth told Smallwood that he should not be talking because he had not been advised of his Miranda rights. (Tr. at 100). Soon afterwards, Smallwood began speaking about a first-offender conviction, and Agent Booth again told Smallwood that he had not been read his rights. (Tr. at 100, 111). Smallwood then began saying that he had gotten into trouble because of the actions of another individual. (Id.). Agent Booth activated his blue lights, pulled over to the emergency lane, and called Deputy Hathaway to come to the passenger side of the car. (Tr. at 100). With Deputy Hathaway present, Agent Booth read Smallwood his Miranda rights from a Miranda rights card issued by the Federal Law Enforcement Training Center. (Tr. at 100-01). Specifically, Agent Booth advised Smallwood that he had the right to remain silent and that anything he said could be used against him in court; that he had the right to consult with an attorney and to have one present during questioning; and that, if he could not afford an attorney, one would be appointed to represent him prior to any questioning. (Id.). Smallwood replied that he understood his rights and that he wanted to talk to Agent Booth. (Id.). Smallwood spoke to Agent Booth about the charges pending against him during the remainder of the trip to the Detention Center, and after they arrived there. (Tr. at 102-03).
Smallwood moves to suppress the evidence seized during the search of his residence on July 15, 2013, [Doc. 20], as well as any statements he made prior to Miranda warnings on July 15, 2013, and August 19, 2013, [Doc. 21; Doc. 53 at 37-39]. Smallwood has also filed a motion to suppress any testimony or statements by Mrs. Smallwood that would impinge upon the confidential marital communications privilege, [Doc. 26], and a motion to dismiss Counts One and Three of the indictment as insufficient in their allegations, [Doc. 27]. The Court will consider each of the pending motions and the parties' arguments in turn.
A. Motion to Suppress Evidence
Smallwood argues that the evidence seized from his residence and vehicle pursuant to the search of July 15, 2013, must be suppressed because the government has failed to show that Mrs. Smallwood's consent to the search was valid. [Doc. 53 at 24-33]. Smallwood further argues that the protective sweep that preceded the search of July 15 was unlawful, [id. at 17-24], and thus, even were Mrs. Smallwood's consent to the search valid, the evidence should nonetheless be suppressed because the consent was "tainted by the illegal protective sweep, " [id. at 36]. The government responds that the protective sweep was a valid sweep intended to ensure officer safety, and that the evidence from Smallwood's residence is admissible because it was seized pursuant to a valid, lawful consent search, which was untainted by any prior constitutional violations. See [Doc. 56]. Finally, Smallwood argues that certain pieces of evidence were improperly seized because of "problems with the search itself[.]" [Doc. 53 at 36].
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. Consequently, "a search or seizure must normally be conducted under the authority of a court-issued warrant, supported by a finding of probable cause to believe that evidence of a crime will be found in the targeted location." United States v. Cruz, Criminal Action No. 1:11-CR-0377-WSD-CCH, 2012 WL 1564671, at *5 (N.D.Ga. Mar. 19, 2012), adopted by 2012 WL 1564667, at *3 (N.D.Ga. Apr. 30, 2012) (citing Skinner v. Ry. Labor Executives' Ass'n , 489 U.S. 602, 619 (1989); Mincey v. Arizona , 437 U.S. 385, 390 (1978)). Warrantless "searches and seizures inside a home... are presumptively unreasonable, " United States v. Bervaldi , 226 F.3d 1256, 1262-63 (11th Cir. 2000) (citing Payton v. New York , 445 U.S. 573, 586, 603 (1980)), subject only to "a few specifically established and well-delineated exceptions, " Mincey , 437 U.S. at 390 (quoting Katz v. United States , 389 U.S. 347, 357 (1967)). "Under the doctrine commonly known as the exclusionary rule, evidence is inadmissible if it is obtained through a search and seizure that is conducted without a warrant and is not subject to one of the specific exceptions to the warrant requirement." Cruz, 2012 WL 1564671, at *5 (citing Mapp v. Ohio , 367 U.S. 643, 655 (1961)). Since a warrantless search or seizure is presumptively invalid, the government bears the burden of establishing by a preponderance of the evidence that a particular exception to the warrant requirement applies. Michigan v. Tyler , 436 U.S. 499, 509 (1978); Vale v. Louisiana , 399 U.S. 30, 34 (1970).
"Consent is one such exception; so is a properly limited protective sweep of an area incident to a person's arrest." United States v. Barsoum, No. 8:11-cr-548-T-33MAP, 2012 WL 1405699, at *2 (M.D. Fla. Apr. 5, 2012), adopted by 2012 WL 1405679, at *1 (M.D. Fla. Apr. 23, 2012) (citing Maryland v. Buie , 494 U.S. 325, 337 (1990); Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973)). The only evidence seized in this case was taken after Mrs. Smallwood ostensibly consented to a search of the residence and the car, and it is undisputed that no evidence was seized during the protective sweep. See (Tr. at 11, 16, 60-61, 85, 91). Nevertheless, as the legality of the protective sweep is relevant to the Court's resolution of whether Mrs. Smallwood's consent was valid, and particularly whether it was tainted, the Court will first address the protective sweep in considering the motion to suppress evidence.
1. Protective Sweep of July 15, 2013
A protective sweep is "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others, " and is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Buie , 494 U.S. at 327. The Buie Court identified two types of protective sweeps. See United States v. Mayo , 792 F.Supp. 768, 773 (M.D. Ala. 1992). First, incident to an in-home arrest, officers may "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Buie , 494 U.S. at 334. This has been characterized as a type-one Buie search. See Cruz, 2012 WL 1564671, at *6 (citing United States v. Sunkett , 95 F.Supp.2d 1367, 1368 (N.D.Ga. 2000)). Second, a more extensive search is permitted if there are "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie , 494 U.S. at 334. This has been characterized as a type-two Buie search. See Cruz, 2012 WL 1564671, at *6 (citing Sunkett , 95 F.Supp.2d at 1368). Smallwood argues that the sweep was illegal because "none of the [g]overnment's witnesses claimed that they had any belief, reasonable or otherwise, that someone was inside  Smallwood's residence at the time of the sweep." [Doc. 53 at 17]. The government argues that the sweep was a valid ...