United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION AND ORDER
GERRILYN G. BRILL, Magistrate Judge.
Defendant Patrick McIntosh ("Defendant") is charged with receiving firearms and ammunition while under indictment for a felony (Count One) and making a threat on the life of the President of the United States (Count Two). Pending before this court are Defendant's Motion to Suppress Evidence, Motion to Allow Participation in Voir Dire and Motion to Suppress Statements [Docs. 37, 38, and 39]. The Motion to Allow Participation in Voir Dire is hereby DEFERRED to the Honorable Thomas W. Thrash. An evidentiary hearing on the suppression motions was held before me on September 9, 2014. All transcript references are to the transcript of that hearing. For the reasons discussed below, I recommend that Defendant's Motions to Suppress Evidence [Doc. 37] be GRANTED IN PART AND DENIED IN PART and that his Motion to Suppress Statements [Doc. 39] be GRANTED.
A. Search of Defendant's Room at the Intown Suites
On October 4, 2012, deputies with the Gwinnett County Sheriff's Office had a temporary protective order ("TPO") and a Fulton County warrant for misdemeanor stalking for Defendant. (Tr. 25-7; Gov. Ex. 1). The warrant described the crime as contacting another person at her job by email and sending her flowers without her consent for the purpose of harassing and intimidating her. (Gov. Ex. 1). The stalking victim had applied for and obtained the TPO. (Tr. 33).
The deputies had learned that Defendant was staying in a particular room at the Intown Suites, an extended stay motel in Gwinnett County. (Tr. 28-9, 73). Deputy Perlaza of the Fugitive Unit went to the motel around noon, and watched the room and the parking lot until 4:00 p.m. Deputy Lee and other deputies with the Family Violence Unit went to relieve Deputy Perlaza around 4:00 p.m. Deputy Perlaza told Deputy Lee that Defendant was not present at the motel. (Tr. 26, 30, 44-5).
Earlier in the day, Deputy Lee's lieutenant had prepared a "threat matrix" with respect to Defendant that gave Defendant a high score. (Tr. 33). There were notes on the threat matrix that Defendant had mentioned "suicide by cop" and that he was heavily armed. (Id.).
The deputies knew what type of vehicle Defendant had been driving and did not see his vehicle in the parking lots adjacent to the motel. The deputies stayed to conduct surveillance of Defendant's room and around the motel. (Tr. 29-30, 67-68).
Around 5:00 p.m., the deputies went to Defendant's room for a closer inspection. They saw movement behind a window (located immediately to the left of Defendant's door) that they believed belonged to Defendant's room. (Tr. 30, 59). The deputies had one of the motel housekeepers come to the room and announce "housekeeping" to try to get Defendant to come to the door. However, no one came to the door. (Tr. 59, 70). The housekeeper then opened the door with a key card and the deputies entered the room. (Id.).
As soon as the door was opened, the deputies realized, based on the location of the wall dividing the motel rooms, that the window through which they had observed movement was not the window to Defendant's room. (Tr. 31, 59, 71). They also immediately saw a shotgun propped against a closet wall. (Tr. 30-31, 69). The deputies then searched the room and found one pistol in a dresser drawer and a second pistol under the bed. (Tr. 32, 60, 69). All of the firearms were loaded. (Tr. 31-2). The deputies also found boxes of assorted ammunition in the room. (Tr. 37). One of the deputies unloaded all of the firearms and placed the ammunition in a different location in the room that would not be visible to someone entering the room. (Tr. 32). The deputies left the firearms and the ammunition in the room. (Id.).
B. Defendant arrives in his van and is arrested
Around 7:30 p.m. Defendant drove up to the motel in his van. He parked near his room, got out, opened the front passenger side door, and leaned in as if he were going to retrieve something from the van. (Tr. 33-4). The deputies approached Defendant at gunpoint, gave him verbal commands not to move, and placed him under arrest. (Tr. 34). One of the deputies looked through the windows of the van with a flashlight in order to make sure no one else was in the van. He saw a box of shotgun shells through the window after Defendant had been taken into custody. (Tr. 49, 51). After Defendant was arrested, handcuffed and placed in a police vehicle, the deputies searched Defendant's van and retrieved the box of shotgun shells from the back of the van. (Tr. 35, 47-49). Defendant's vehicle was not impounded. [Doc. 47].
C. After Defendant was arrested, the deputies took custody of the firearms and ammunition from the motel room at the request of the manager
After Defendant was arrested, Deputy Lee told the manager of the Intown Suites that Defendant had been arrested and he didn't know if or when Defendant was coming back. Deputy Lee told the manager about the weapons and ammunition in the room and asked her what she wanted done with them. The manager told Deputy Lee to take the ...