United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Cole Jamal Daniels's ("Defendant" or "Daniels") Objections [62, 66] to Magistrate Judge E. Clayton Scofield, III's Reports and Recommendations [60, 64], issued on October 24 and November 20, 2014. The Magistrate Judge recommends that Defendant's Motion to Suppress Statements , and Motion to Suppress Evidence  derived from his arrest and the seizure of his vehicle, be denied. The Magistrate Judge also recommends that Defendant's Motion to Suppress Evidence Seized During Transfer  be granted.
On November 19, 2013, a federal grand jury returned an indictment  charging Defendant with two counts of commercial sex trafficking of a minors, in violation of 18 U.S.C. § 1591 (Counts One and Three), and two counts of transporting a minor in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2423 (Counts Two and Four).
On January 16, 2014, Defendant filed his Motion to Suppress Statements  and Motion to Suppress Evidence . Defendant argues that, on October 3, 2013, he was frisked and searched without reasonable suspicion, and then arrested without probable cause, all in violation of the Fourth Amendment. Defendant seeks suppression of items seized from his person, including his keys, wallet and cellular telephone, and all evidence and testimony derived from the discovery and seizure of those items, including items in his vehicle, which, Defendant alleges, was wrongfully impounded and searched after his arrest. Defendant asserts that statements he made at the scene and in custody must be suppressed as fruit of those alleged violations. Defendant argues further that his October 4, 2013, statements were obtained in violation of his Fifth Amendment Miranda rights,  and must be suppressed for this additional reason.
On February 7, 2014, Defendant filed his Motion to Suppress Evidence Seized During Transfer . Defendant argues that, during his transfer from state to federal custody on December 18, 2013, five (5) pieces of paper were seized as evidence from among his personal belongings, in violation of the Fourth Amendment.
On April 24, 2014, and May 29, 2014, Magistrate Judge Scofield conducted an evidentiary hearing on Defendant's Motions. Testimony was presented from Detective William Parton ("Detective Parton"), Officer Dustin Bak ("Officer Bak"), Lieutenant Heath Holcomb ("Lieutenant Holcomb"), and Detective Laurie Nicholson ("Detective Nicholson"), of the Alpharetta Police Department, and Special Agent Nathan Whiteman ("SA Whiteman") of the Federal Bureau of Investigation ("FBI"). Following the evidentiary hearing, the parties filed their post-hearing briefs [47, 49, 57].
On October 24, 2014, Magistrate Judge Scofield issued his Report and Recommendation ("October 24th R&R") , recommending that Defendant's Motion to Suppress Evidence  derived from his arrest and the impound of his vehicle be denied.
On November 20, 2014, Magistrate Judge Scofield issued his Report and Recommendation ("November 20th R&R") , recommending that Defendant's Motion to Suppress Statements  be denied, and Defendant's Motion to Suppress Evidence Seized During Transfer , be granted.
Defendant timely filed Objections [62, 66] to the R&Rs.
A. October 3, 2013, Investigation and Arrest
On October 3, 2013, the Alpharetta Police Department Special Investigation Unit was conducting a prostitution sting operation at an extended stay hotel located at 3331 Old Milton Parkway in Alpharetta, Georgia. (Tr. 9-10). There were six (6) officers involved in the operation that night ("investigating officers"), including Detective Parton and Lieutenant Holcomb, who was supervising the operation. (Tr. 115-116). They rented several hotel rooms, one of which was being used as an "undercover room" where an undercover officer would meet an escort with whom he had arranged a "date." (Tr. 117). The other team members were stationed in another room, the "operations room, " where they could monitor by video and audio the events in the undercover room. (Tr. 116-117). Detective Parton responded to an advertisement, posted on Backpage.com, for an escort named "Desire." (Tr. 12). He called the number on the advertisement and spoke with Desire, who agreed to meet him for a "date" at his hotel room for $160. (Tr. 12-13).
Approximately one hour later, at about 4:30 p.m., Desire arrived at the undercover room and met Detective Parton. (Tr. 13, 37). Lieutenant Holcomb and the other members of the team were in the operations room monitoring Detective Parton and Desire. (Tr. 117). Detective Parton observed that Desire "looked very young, " and he asked her age. (Tr. 13). Desire replied that she was eighteen. (Id.). While in the hotel room, Desire received a telephone call and Detective Parton overheard Desire tell the caller that, for an hour of her time, it would cost him $160. (Tr. 14). Detective Parton then put $160 on the counter, and after she finished her call, Desire took the money and "disrobed very quickly." (Id.). He asked if there was anything that he could not do and Desire replied "you can do anything you want except I don't have anal sex." (Tr. 15:21-24). Detective Parton gave a signal and his team members, including Lieutenant Holcomb, entered and secured Desire. (Tr. 16:6-8, 38, 118).
Detective Parton conducted the interview of Desire and Lieutenant Holcomb was also present for some period of time. (Tr. 119-122). Detective Parton asked Desire for her name and birth date. (Tr. 16). He learned her name,  and that she was a minor. A law enforcement database search revealed that she was a runaway from Virginia. (Tr. 16:14-24). He asked D.G. how she got to the hotel and she told him that someone had dropped her off, but she did not know if that person was there. (Tr. 17). She described him as a slim, light-skinned black male. (Tr. 18, 120-121).
Detective Parton had D.G. send a text message to the man who brought her to the hotel, to determine his location. (Tr. 17, 120-121). Detective Parton and Lieutenant Holcomb noticed that the person D.G. texted was listed in her contacts as "Daddy." (Tr. 17, 121). In Detective Parton's experience investigating prostitution, especially prostitution of minors, "Daddy' [is] commonly used by prostitutes to refer to their pimp.... [He estimated in] 90 percent of the prostitution arrests... made, that when they do have a pimp, they're definitely listed as a - as Daddy or names like that." (Tr. 17:22-24, 18:4-7). Based on Lieutenant Holcomb's experience investigating vice crimes, that this person was listed as "Daddy" in D.G.'s phone indicated to him "that he was controlling her, that he was in fact her pimp." (Tr. 121:12-23). Once he had a basic description of the suspect, Lieutenant Holcomb left the room and started looking around the hotel to locate the person whom D.G. texted. (Tr. 121-122). The suspect sent a text in response to the text D.G. sent, which said he was "right beside [her]... at the Burger King." (Tr. 17). At some point, one of the investigating officers called Lieutenant Holcomb and told him that the suspect was at the Burger King, which was located 50 to 130 yards from the hotel, and Lieutenant Holcomb walked to the restaurant. (Tr. 127, 122).
Still at the hotel, Detective Parton asked D.G. to identify "Daddy, " and she identified him as Cole Daniels. (Tr. 17). D.G. did not know the street address, but she told Detective Parton that she had been living with Daniels in Duluth, Georgia, for "a couple of months at the most." (Tr. 19). D.G. told Detective Parton that Daniels "helped [her] get from Virginia to Georgia, " that she is living with him, and that "he brought [her] up here" which, Detective Parton testified, indicated to him "there was definitely a correlation there." (Id.). D.G. stated that Daniels drove her to the hotel in a silver Chevrolet Malibu (the "Malibu"). (Tr. 18:17-23). Detective Parton testified that a description of Daniels and the Malibu was broadcast over the police radio on a secure channel "so... if he was in the area, we can at least interview him or detain him and interview him about if there's any involvement - if he has any involvement in what's going on." (Tr. 19-20).
Officer Bak was on patrol, in uniform and in a marked Alpharetta Police car, patrolling near the hotel. Officer Bak was not part of the undercover operation and he testified that he did not know anything about the investigation. (Tr. 78, 84). Officers who were working a detail at the hotel "asked [over the police radio] for an additional officer in the area that could try to locate a suspect." (Tr. 78:13). Officer Bak, who was between one tenth and three-tenths of a mile from the hotel, "was the closest one, so [he] told them that [he] would be en route to meet up with them." (Tr. 78).
While on his way to the hotel, Officer Bak, using a radio channel separate from their main dispatch channel, "was able to talk with [the investigating officers] and communicate directly with them." (Tr. 78-89). They told Officer Bak "that [he] was to look for a silver Malibu that was supposedly in a parking lot and it was supposedly occupied by a black male driver in his mid 20's, and that they wanted [him] to try to locate that vehicle in the parking lot." (Tr. 79).
Officer Bak located the vehicle "towards the end of the parking lot which was by the hotel and the gas station and Burger King that connect to it." (Tr. 79). Officer Bak told the investigating officers over the radio that the vehicle was unoccupied. (Id.). They told Officer Bak "that the suspect might be at the Burger King... and that he was possibly wearing a white t-shirt and a hat or some type of covering on his head." (Tr. 79-80). The investigating officers did not tell Officer Bak the name of the suspect or why they were looking for him. (Tr. 87).
Officer Bak walked into the Burger King and "observed a black male, mid-20s, with a black do rag on his head wearing a white t-shirt and pants.... [T]he only other people inside were the two employees that were behind the counter." (Tr. 80). Officer Bak approached him and "told him that [he] was looking for an individual that matched [his] description." (Tr. 88). Officer Bak asked him for identification and he "produced a[n] Oklahoma driver's license with the name of Cole Daniels." (Tr. 80, 88). Officer Bak radioed the dispatcher over the police records channel to check the information on his license, and the "dispatchers told [Officer Bak] that there was a possible warrant out for [Cole Daniels]" for a probation violation. (Tr. 98:14-15; see also Tr. 81, 96). Officer Bak testified:
I detained him myself knowing that he had a possible warrant. That's when I put handcuffs on him and told him that he was being detained, he was not under arrest, that if the warrant did not come back to him and there was no - he was not a person we were looking for, then handcuffs would be taken off and he would be released.
(Tr. 97:15-20; see also Tr. 89:3-9). After placing Daniels in handcuffs, Officer Bak "patted him down for weapons, and at that time had a phone - cell phone, car keys, and a wallet on him, " which Officer Bak placed on the table next to where Daniels was standing. (Tr. 81:14-22; see also Tr. 89-90). Officer Bak did not open or search the phone. (Tr. 82-83).
After Officer Bak detained Daniels because of the possible probation violation warrant, the investigating officers told Officer Bak over the radio that Daniels was the suspect they were looking for and to detain him. (Tr. 89; see also Tr. 81, 87). Officer Bak stated that the investigating officers had been monitoring the records channel, and when he "ran the driver's license on [the police] records channel, they were monitoring that and let [him] know that that was who they were looking for." (Tr. 87:1-11). The investigating officers did not tell him why they were looking for Daniels, but Officer Bak testified that he "assumed it was a prostitution sting because [he was] coming to an extended stay [hotel]." (Tr. 87).
Within five (5) minutes after Officer Bak first detained Daniels and removed the items from his pockets, Lieutenant Holcomb arrived at the Burger King and told Officer Bak to place Daniels under arrest, saying "code 20, " which is the police signal for arrest. (Tr. 92:5-7, 98:22-24, 122). Lieutenant Holcomb told Daniels that he was under arrest for pimping. (Tr. 102:12-21, 103:15-24, 122-123, 127-128). Lieutenant Holcomb testified that he made an assessment based on what he knew - including that Daniels had dropped off D.G. at the hotel, that he was supposed to pick her up, and that he was listed as "Daddy" in her cell phone - that Daniels had met all the elements for the offense of pimping because the "code for pimping in the state of Georgia... discusses a person who transports another for the purpose of prostitution whether knowingly or if they should have known." (Tr. 122-123; see also Tr. 125-126, 130-132, 134). Officer Bak "patted [Daniels] down, searched him to make sure he didn't have any weapons or anything, illegal drugs, or anything on him. [Officer Bak] walked him outside to [his] patrol car and placed him in the rear of [the] patrol car." (Tr. 82:13-16). The car keys were left with Lieutenant Holcomb at the scene and Daniels's cell phone and wallet were placed in a bag and transported with Daniels to the Alpharetta Police Department. (Tr. 82, 99-100).
B. October 3, 2013, Vehicle Impound and Inventory Search
The Alpharetta Police Department has a policy regarding impound of vehicles (the "Impound Policy"), which provides:
If the driver of a motor vehicle has been arrested, the vehicle may be impounded when:
a. There is no one present who is authorized and capable of removing the vehicle.
b. The driver of the vehicle has been removed from the scene and is either physically or mentally unable to make a request for the disposition of his/her vehicle. An officer may impound a vehicle for the protection of the vehicle and its contents under the provisions above.
c. If the driver of a vehicle is arrested on private property, and the driver either owns, has control of, or has permission from the owner of the property, the vehicle should not be impounded except upon the request of the driver.
(Gov't Ex. 1 at 2; Tr. 22:3-8).
Detective Parton testified that, after he learned that Daniels had been located, his "primary concern" was to "ma[k]e sure that [Daniels's] vehicle was secured and remained on the scene until [he] was able to come down and process that part of the investigation." (Tr. 20:15-21). The Malibu was not parked illegally and Detective Parton testified that he did not have reason to believe that it had been improperly operated or was unable to be driven. (Tr. 53:23-54:5). Detective Parton testified that he decided to impound the Malibu because:
A. I mean, that it was in his possession based upon what officers were telling me, that is the vehicle he was driving, he had the keys for it, so, you know, we definitely weren't going to leave it there. It's a pretty high crime area. We didn't want the vehicle to be broken into or stolen.
Q. So, in other words, it was his arrest that authorized the impound; is that what you're saying?
Q. And what makes you believe it was a high crime area that that car was somehow susceptible to loss or damage?
A. It's an extended stay hotel.
Q. So what you're saying is anybody who's in an extended stay, if they're arrested outside of their car, outside of their room at a restaurant for something, that you can just go impound their car?
A. I mean, if the vehicle is used in the crime, that's typically what does it.
Q. Okay. So you're saying it has - because it was connected to the crime, you decided that you were ...