United States District Court, Northern District of Georgia, Rome Division
December 8, 2014
UNITED STATES OF AMERICA,
TERRY EUGENE PEACE.
This case is before the Court on Defendant's Motion to Suppress Statements , on Defendant's Motions to Suppress Evidence Resulting from Execution of Search Warrants [46, 56],  on the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson , and on Defendant's Objections to the Non-Final Report and Recommendation .
I. Standard of Review for a Report and Recommendation
28 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem. Inc.. 208 F.App'x 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ. 896 F.2d 507. 513 (11th Cir. 1990): United States v. Gaddy. 894 F.2d 1307, 1315 (11th Cir. 1990): LoConte v. Dugger. 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort. 208 F.App'x at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel. 164 F.App'x 958, 961 (11th Cir. 2006); United States v. WarrenT 687 F.2d 347, 347 (11th Cir. 1982).
A. Procedural Background
On March 12, 2014, a federal grand jury sitting in the Northern District of Georgia returned an indictment against Defendant and two co-defendants, alleging that they participated in a conspiracy to receive and possess destructive devices not registered to them in the National Firearms Registration and Transfer Record, in violation of 18U.S.C. §371 and 26 U.S.C. §§ 5861(d) and 5871. (See generally Indictment (Docket Entry No. 27).)
On April 18, 2014, Defendant filed his Motion to Suppress Statements. (Docket Entry No. 45.) On May 29, 2014, Judge Johnson held an evidentiary hearing on the Motion to Suppress Statements. (Docket Entry Nos. 58-59.) Defendant and the Government filed post-hearing briefs relating to the Motion to Suppress Statements. (Docket Entry Nos. 62, 64, 65.)
On September 25, 2014, Judge Johnson issued his Non-Final Report and Recommendation. (Docket Entry No. 66.) Judge Johnson recommended that the Court deny the Motion to Suppress Statements. (See generally id.)
Defendant filed Objections to the Non-Final Report and Recommendation. (Docket Entry No. 72.) The time period in which the Government could file a response to Defendant's Objections has expired, and the Court consequently finds that the matter is ripe for resolution.
B. Factual Background
The Court has reviewed the record and concludes that Judge Johnson accurately and completely summarized the factual background for the Motion to Suppress Statements. (Non-Final Report & Recommendation (Docket Entry No. 66) at 3-19.) The Court incorporates that portion of the Non-Final Report and Recommendation into this Order as if set forth fully herein. To the extent that Defendant objects to this portion of the Non-Final Report and Recommendation, the Court overrules those Objections. (See generally Objections (Docket Entry No. 72).)
The Court finds that Judge Johnson correctly set forth the applicable law relating to Miranda v. Arizona, 384 U.S. 436 (1966). (Non-Final Report and Recommendation at 20-21.) Likewise, the Court concludes that Judge Johnson accurately detailed and discussed the public safety exception established by New York v. Quarles. 467 U.S. 649 (1984). ( Id. at 21-24.) Similarly, Judge Johnson correctly summarized authority from the United States Court of Appeals for the Eleventh Circuit relating to the public safety exception. ( Id. at 25-27.) Finally, Judge Johnson properly set forth the law governing suppression of post-warning statements. ( Id. at 27-31.) The Court consequently incorporates those portions of the Non-Final Report and Recommendation into this Order as if set forth fully herein. Finally, to the extent that Defendant objects to those portions of the Non-Final Report and Recommendation, the Court overrules those Objections. (See generally Objections.)
A. The Public Safety Exception Applied to the Afternoon Interview
After reviewing the record in this case and the applicable law, the Court concludes that Judge Johnson correctly found that the agents lawfully conducted the afternoon interview of Defendant under the public safety exception to Miranda. (Non-Final Report & Recommendation at 31-42.) Specifically, the Court agrees with Judge Johnson that this case is akin to United States v. Abdulmutallab. No. 10-20005, 2011 WL 4345243 (E.D. Mich. Sept. 16, 2011), in which the district court concluded that the public safety exception justified an un-warned interrogation of a defendant with a self-proclaimed association with al-Qaeda who attempted but failed to detonate plastic explosives on a commercial airplane flight). (Id. at 34-35.) As Judge Johnson noted, although this case differs from Abdulmutallab's "because the government does not claim that, like al-Qaeda, the anti-government militias with whom [Defendant] communicated have a history of executing coordinated terrorist attacks, ... FBI agents had no need to infer a threat to public safety here . . . because they had evidence that [Defendants were actively promoting a multifaceted terror operation, one of such scale it was intended to trigger the institution of martial law." ( Id. at 35.) The Court agrees with Judge Johnson that "law enforcement had reason to believe that [Defendants were planning something catastrophic." (Id.)
As Judge Johnson noted, when Captain Mark Mayton and Federal Bureau of Investigation ("FBI") Agent Jason Harris entered the interview room on the afternoon of February 15, 2014, they
were aware of these important facts: (1) [Defendant] and his codefendants had just tried to get their hands on more than a dozen explosive devices; (2) they had been communicating via the Internet with individuals who shared their misgivings about the government and a willingness to address what injustices they perceived through premeditated violence; and (3) as soon as [Defendants commenced their attacks, the clock would start running for other militias to carry out attacks of their own initiatives.
(Non-Final Report & Recommendation at 35-36.) Judge Johnson properly concluded that:
Based on this information, law enforcement had an objectively reasonable basis to (1) fear that other militias would fill the vacuum created by [Defendants' apprehension and quickly perpetrate terror plots before police had the chance to preempt them, and (2) think that [Defendant] held information that could prove useful in thwarting operations against infrastructure, police, and civilians. As in Quarlest where officers "were confronted with the immediate necessity" of locating a loose and loaded revolver, 467 U.S. at 657, officers here were confronted with the immediate necessity of uncovering the plans of other militant, anti-government groups.
Judge Johnson properly found that this case, which involved a terrorist plot, presented a serious threat to public safety. (Non-Final Report & Recommendation at 36.) Under those circumstances, the Court agrees with Judge Johnson that "Captain Mayton and Agent Harris lawfully questioned [Defendant], the putative fomentor of a violent revolt, about other militias, their members, their locations, and their plans, without first reading him Miranda rights." (Id. at 36-37.) Judge Johnson therefore correctly found that this "interrogation falls within the scope of the public safety exception." (Id. at 37.)
Judge Johnson properly rejected Defendant's argument that the public safety exception could not apply because Captain Mayton testified that the afternoon interview was intended to prevent future violent events. (Non-Final Report & Recommendation at 37.) As Judge Johnson pointed out, "the very nature of a public safety threat is prospective." (Id.) Here, like the officers in Quarles, "the officers who interviewed [Defendant] faced the possibility that militant groups would perpetuate violence within a period of hours." (Id.) Judge Johnson also correctly noted that:
For purposes of the public safety exception, there is no difference between a gun waiting to fall into the wrong hands and a cluster of militias waiting to launch a guerilla war. Notably, there is no language in Quarles to suggest it is geographically bound. The fact that other militias were operating in other states does not lessen the exigency.
(Id. at 37-38.) To the extent that Defendant objects to those conclusions, the Court overrules those Objections. (Objections at 21-24.)
Likewise, Judge Johnson properly rejected Defendant's attempt "to heighten the Quarles standard by quoting from its dissent." (Non-Final Report & Recommendation at 38.) Moreover, Judge Johnson correctly rejected Defendant's argument "that the police behaved in a manner belying the existence of an emergency" by waiting seventy minutes before questioning Defendant and by failing to provide Defendant with a computer. (]d at 38-41.) As Judge Johnson noted:
[T]he officers' actions did not betray a lack of urgency. After [Defendants were taken into custody, searched, brought to the Sheriff's Office, and seated in interview rooms, only forty additional minutes passed before Captain Mayton began questioning [Defendant]. The undersigned declines to presume that officers frittered away this time. Given the intricacy of the FBI's investigation and the operation in the Walmart parking lot-which [Defendant dramatically describes as an operation with many moving parts-law enforcement apparently had related issues to address. Captain Mayton apologized for the delay to Agent Harris when he entered the interview room, explaining that he had been working out "some logistics." In other cases, equivalent passes of time between arrest and questioning have not barred reliance on the public safety exception.
any longer under the public safety exception, they had no immediate need to provide him with a computer to access the information. (id) Second, granting Defendant access to the Internet posed the risk that Defendant could access his e-mail and social media accounts and either delete incriminating information or send an alert to other militias. (Id.) Under those circumstances, it would not have been unreasonable for Captain Mayton and Agent Harris to decide "that an evidentiary search of [Defendant's] Internet accounts was better left to the forensics experts." (Id.) In any event, the Court declines to hold that the public safety exception does not apply simply because the officers refused to grant Defendant access to his social media account. To the extent that Defendant objects to this portion of the Non-Final Report and Recommendation, the Court overrules those Objections. (Id. at 28-29.)
Judge Johnson also properly rejected Defendant's contention that the public safety threat was predicated on Defendant's successful purchase of pipe bombs, and that the fear of future harm greatly diminished upon Defendants' arrests. (Non-Final Report & Recommendation at 41-42.) As Judge Johnson observed, "law enforcement's fear was predicated on the possibility that militias, hearing of [Defendants' arrest[s], would set out to finish what [Defendant] had begun." (Id. at 42.) Although Defendants were held at the jail and could not communicate with the outside world, the militias certainly could have learned about Defendants' arrests in other ways, (Id.) Additionally, "if [Defendant's] catalyzing operation did not transpire at the appointed time, another militia, whether or not it knew the cause of his failure to act, might decide to become the catalyst in [Defendant's stead." (Id.) As Judge Johnson pointed out, during his interview, Defendant "described other militias as 'giant question mark[s]."' (Id.) (alteration in original).) To the extent that Defendant objects to this conclusion, the Court overrules that Objection. (Id.) at 5-6, 26.)
Additionally, Judge Johnson correctly found that the questions asked of Defendant during the afternoon interview did not exceed the scope of a valid public safety interview. (Non-Final Report & Recommendation at 43-47.) As Judge Johnson pointed out,
while the officers' questions had the collateral effect of furnishing the government with testimonial evidence, every question asked before 3:06 p.m. addressed the perceived threat of other militant organizations. Nothing bars police from asking questions that could, in addition to their primary purpose to safeguard the public, help them build a case against a defendant. For these reasons, the questions asked during the afternoon interview did not exceed the scope of a valid public safety interview.
(Id. at 47 (citation omitted).)
Defendant objects to the above conclusion, arguing that the questions asked during the initial interview were impermissible and that it is "impossible to separate the strands of the dialogue that were aimed at preventing exigent harm from those illustrating the crime" against Defendant. (Objections at 30-31.) The Court agrees with Judge Johnson's assessment that the questions asked by the officers, taken in context, did not exceed the scope of a valid public safety interview. (Non-Final Report & Recommendation at 43-46.) Further, the Court, like Judge Johnson, finds Defendant's reliance on United States v. Rogers. Criminal No. 13-130 ADM/JJG, 2013 WL 6388457 (D. Minn. Dec. 6, 2013), misplaced. (Objections at 32-34.) The Court consequently overrules this portion of Defendant's Objections.
For the above reasons, the Court agrees with Judge Johnson that Captain Mayton and Agent Harris did not violate Miranda by relying on the public safety exception to question Defendant without warnings. The Court further finds that the questions asked during the afternoon interview did not exceed the scope of a valid public safety interview. The Court therefore adopts this portion of the Non-Final Report and Recommendation, overrules Defendant's corresponding Objections, and denies this portion of the Motion to Suppress Statements.
B. Statements Given During the Evening Interview Are Admissible
Defendant also argues that the Court should suppress the statements he made during the evening interview, although those statements followed an adequate recitation of his Miranda rights and a voluntary and knowing waiver of those rights, under Missouri v. Seibert. 542 U.S. 600 (2003). Judge Johnson correctly rejected this argument. (Non-Final Report & Recommendation at 47-48.) First, as Judge Johnson pointed out, Seibert "expressed disapproval of a deliberate interrogation tactic intended to undermine the purpose of Miranda warnings." (Id. at 48.) Indeed, "[a]n officer's decision to withhold warnings based on his interpretation of judicial precedent-even a faulty interpretation-is not the equivalent of the cunning question-first scheme that the police in Seibert routinely employed." (Id.) Here, Defendant, of his own accord, "requested to reinitiate a dialogue with law enforcement, " and the evening interview most likely would not have occurred if Defendant had "not willingly reached out in the spirit of cooperation." (Id.) Judge Johnson therefore correctly concluded that "[t]his is clearly not a Seibert case, and [Defendant is not entitled to the suppression of statements he voluntarily made to police after a knowing and voluntary waiver of his Miranda rights." (Id.) With all due respect to Defendant, nothing in his Objections warrants a different conclusion. (Objections at 34-41.) Specifically, the Court cannot agree with Defendant that the two separate interviews were, for all intents and purposes, the same session. (Id. at 35.) The Court also rejects Defendant's contention that the statements given by Defendant during the later interview were "irreparably poisoned" by the earlier alleged Miranda violation. (Id. at 35-36.) Finally, the Court finds unpersuasive Defendant's argument that the second interview overlapped with the first interview to the extent that the second interview essentially was a continuation of the first. (Objections at 37-41.) The Court therefore adopts this portion of the Non-Final Report and Recommendation, overrules Defendant's corresponding Objections, and denies the portion of Defendant's Motion to Suppress Statements relating to the evening interview.
ACCORDINGLY, the Court ADOPTS the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson , OVERRULES Defendant's Objections to the Non-Final Report and Recommendation , DENIES IN PART AND DENIES AS MOOT IN PART Defendant's Motion to Suppress Statements , and DENIES AS MOOT AND WITHOUT PREJUDICE Defendant's Motions to Suppress Evidence Resulting from Execution of Search Warrants [46, 56]. The Court DENIES AS MOOT the portion of the Motion to Suppress Statements relating to testimony that Defendant provided to police between 3:14 p.m. and 3:39 p.m. on February 15, 2014, and DENIES the remaining portions of that Motion.
IT IS SO ORDERED