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United States v. Maloch

United States District Court, N.D. Georgia, Gainesville Division

March 25, 2015

UNITED STATES OF AMERICA
v.
STACEY MALOCH

ORDER and REPORT AND RECOMMENDATION

J. CLAY FULLER, Magistrate Judge.

This case is before the Court on Defendant's Motion To Suppress Evidence (Doc. 17) and Motion To Suppress Statements (Doc. 18). For the reasons discussed below, it is RECOMMENDED that Defendant's motions be DENIED.

Background

An Indictment filed April 1, 2014 charges Defendant with possession with intent to distribute methamphetamine on March 13, 2013 and October 1, 2013 (Counts One and Two) and possession of a firearm by a convicted felon (Count Three). (Doc. 1). On May 12, 2014, Defendant filed the pending motions to suppress, seeking to suppress evidence seized during warrantless searches of Defendant's person and/or vehicle (Doc. 17) and statements made to law enforcement (Doc. 18). The Court conducted a hearing on Defendant's motions on July 25, 2014. ( See Doc. 25). The Government presented the testimony of Michael Stanifer, a deputy with the Jackson County Sheriff's Office, Trey McConnell, a narcotics investigator with the Jackson County Sheriff's Office, and Jeffrey Shull, a narcotics investigator with the Hall County Sheriff's Office assigned to the Multi-Agency Narcotics Squad ("MANS"), and Defendant presented the testimony of her sister Kelly Wymore. ( See Docs. 25, 29). At the hearing, Defendant challenged for the first time the October 1, 2013 search of her residence pursuant to a search warrant issued on that date, and she presented the testimony of Defendant's sister, Kelly Wymore, who testified that the search began prior to the officers obtaining the search warrant. At the end of the hearing, the Court indicated that it would keep the record open to allow the Government to submit a 9-1-1 dispatch log ("CAD report") to show what time the deputies and Ms. Wymore were at Defendant's residence and to allow Defendant to submit Ms. Wymore's cell phone records to support her testimony about what time she arrived at Defendant's residence. ( See Tr. 89). On August 27, 2014, the Government filed a supplemental report of Investigator McConnell and the CAD report. ( See Doc. 26). Defendant did not object to that filing, and she did not file Ms. Wymore's cell phone records. The transcript of the July 25, 2014 hearing was filed on October 9, 2014. (Doc. 29).[1] Defendant filed a post-hearing brief on November 26, 2014 (Doc. 33), and the Government filed a post-hearing brief on January 28, 2015 (Doc. 37). Although Defendant obtained an extension of time until February 25, 2015 to file a reply, she did not do so. With briefing complete, the undersigned now considers the merits of Defendant's motions.

Facts[2]

I. Events of March 13, 2013

On March 13, 2013, a confidential informant ("CI") told Hall County Sheriff's Office Investigator Jeffrey Shull that he knew where he could obtain methamphetamine. (Tr. 52). Shull brought the CI to the MANS unit and allowed him to make calls to order methamphetamine. (Id. ). The CI spoke to a man named "Travis" in Jackson County, and Travis told the CI that he would have "Jared" deliver the methamphetamine to the CI to a particular Waffle House. (Tr. 53). Shull and the CI went to the location Travis described, and the CI then spoke with "Jared" by phone; Jared said "he was going to be arriving in a black car and would be arriving within a few minutes." (Tr. 53-54). Six to eight officers waited while parked in undercover cars at the Waffle House parking lot and at nearby businesses. (Tr. 68-70). The officers were all dressed in plain clothes and armed with sidearms. (Tr. 69). A black car, driven by Defendant, then pulled into the parking lot. (Tr. 54). Mr. Mullins was in the front passenger seat, and Mr. McDougal was in the rear passenger seat. (Id. ). Mr. Mullins got out of the car and walked to the Waffle House, at which point the CI identified him as "Jared." (Id. ). Shull waited for Mr. Mullins to return to the vehicle, and he then initiated a "take down" of the car and its occupants. (Id. ). The agents, including Shull, moved in, blocked the vehicle and approached it while identifying themselves as law enforcement officers, removed the occupants and placed them on the ground, handcuffed them, patted them down, allowed them to stand up, and then detained them for investigation. (Tr. 54-55, 70-71). The occupants of the vehicle were not under arrest at that point, but they were not free to leave while the deputies conducted their investigation. (Tr. 55).

Shull confirmed with Defendant that the vehicle was hers, asked whether there were any drugs or weapons in the vehicle, and asked for consent to search it, which she gave.[3] (Tr. 55, 71-72; see also Gov't Ex. 5). Shull used a calm, "regular tone of voice" in requesting Defendant's consent. (Tr. 73). Although the officers had initially drawn their weapons when approaching the car, they had holstered their weapons by the time Shull asked for Defendant's consent. (Tr. 73-74). The deputies then searched the car. (Tr. 58). They did not find any methamphetamine, but they did find $502 in a woman's purse found behind the driver's seat, a cell phone between the two front seats, and a bag in the backseat that contained five cell phones. (Tr. 59). The deputies seized the cell phones. (Id. ). Defendant, who remained standing near the car during the search, did not indicate that she withdrew her consent or tell the deputies to stop the search or limit the scope of the search. (Id. ).

Shull also asked Mr. Mullins if he had any drugs or weapons on his person and asked for consent to search his person, which he gave. (Tr. 60). Shull then searched him and found two bags of methamphetamine in his right front pocket, which Shull seized. (Tr. 60-61). Shull did not threaten or coerce Mr. Mullins to give his consent or tell him he would be arrested if he did not consent. (Id. ). Shull questioned Mr. Mullins, who told him that he was going to Atlanta with Defendant, and they were supposed to pick up two ounces of methamphetamine. (Tr. 62). Mr. Mullins also told Shull that Defendant had handed him the methamphetamine before pulling in to the parking lot or as they were pulling in, and her phone was used during the transaction. (Tr. 63, 72). Shull then decided to arrest Defendant. (Tr. 63).

Shull read Defendant her Miranda [4] rights from a card and asked her if she understood her rights; she said she did, although she also indicated she did not understand why she was being arrested. (Tr. 63-65; Gov't Ex. 5). Shull explained that they had evidence of her involvement in a drug deal, and he started asking her questions, which she answered.[5] (Tr. 65; Gov't Ex. 5). Shull did not threaten Defendant or coerce her into responding to his questions, he did not make any promises in exchange for agreeing to be interviewed, and none of the officers had their weapons out while he advised her of her Miranda rights and questioned her. (Tr. 65-66, 74).

II. Events of October 1, 2013

Around midday on October 1, 2013, Jackson County Sheriff's Deputy Michael Stanifer was patrolling the area of Defendant's residence in Jackson County after receiving complaints of possible drug activity at her residence and of vehicles frequently traveling to that location throughout the day and night. (Tr. 10-11). He observed a car backing out of Defendant's driveway and pulling up to a stop sign, at which point he observed that the left brake light was out, in violation of Georgia traffic laws.[6] (Tr. 12). Stanifer observed two people in the car; he did not know that Defendant was driving the vehicle at that time. (Tr. 13-14). Stanifer decided to pull the driver over due to the broken tail light, so he followed the car to find a safe location to pull it over. (Tr. 14-15). He also activated his video recording equipment. (Id. ; see also Gov't Ex. 3). He observed the passenger hanging out of the window, pointing to the top of the car and then pointing to the side of the road, so Stanifer turned on his blue lights to pull the car over. (Tr. 15).

The vehicle pulled over to the right, partially out of the roadway, and the passenger, identified as Mr. Fricky, got out of the car and approached Stanifer, at which point Stanifer instructed him to go back to the vehicle. (Tr. 16, 18). Stanifer notified dispatch that he had initiated a traffic stop and gave his location. (Tr. 16). Stanifer then exited the vehicle, and the driver, identified as Defendant, also got out of her car. (Tr. 16-17). Stanifer knew that the driver was Ms. Maloch from taking a report from her the year before. (Tr. 27). She and the passenger appeared to be arguing, and Stanifer heard Defendant tell the passenger, "Don't say anything, just don't say anything." (Tr. 16-17). Stanifer asked them what was going on, and the passenger said he wanted to get out of the vehicle, which was why he had been signaling to Stanifer to stop them. (Tr. 17).

Stanifer asked Defendant for her driver's license, but after looking in her car for it, she said she did not have it with her.[7] (Id. ). Because Stanifer observed tension between Defendant and Mr. Fricky, he put Mr. Fricky in his patrol car for their safety as well as his own, and Stanifer also had Defendant move her vehicle out of the road. (Tr. 18). He asked her if there was "anything" in the vehicle, and she said "she didn't know, it wasn't her vehicle." (Id. ). He asked her if she would allow the deputies to search it, and she said, "Yes, it is not my vehicle." (Id. ). Deputy Herbert, who had arrived to assist Deputy Stanifer, began searching on the passenger side, and Stanifer began searching on the driver's side. (Tr. 18-20). Defendant never withdrew her consent to search ...


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