United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION
GERRILYN G. BRILL, Magistrate Judge.
Defendant Nigel Gordon ("Defendant") is charged with firearms and cocaine trafficking offenses. He moves to suppress statements he made to law enforcement officers. (Doc. 14). Evidentiary hearings on Defendant's motion were held before the undersigned magistrate judge on December 8, 2014 (Doc. 38, Vol. 1, pages 1-101) and February 5, 2015 (Doc. 40, Vol. 2, pages 101-127) (referenced hereinafter collectively as "Tr. ___"). For the reasons discussed below, I RECOMMEND that Defendant's Motion to Suppress Statements (Doc. 14) be DENIED.
In May 2014, managers at the Mosaic Apartments at 5675 Roswell Road, Sandy Springs, Georgia informed the Sandy Springs Police about suspected drug trafficking in Apartment 10A in their complex. (Tr. 4-5). The managers told the police that numerous residents had reported seeing individuals pull into the parking lot of Building 10, walk to the back door of Apartment 10A, go inside briefly, return to their vehicles, and use drugs while still in the parking lot. (Tr. 5, 20, 22-24). The managers said that they believed that a black male who drove a silver Chevrolet HHR lived in that apartment. (Tr. 5).
Sandy Springs police officers began watching Apartment 10A at about 2:30 p.m. on May 7, 2014. (Tr. 4, 6). They saw that a man parked near Building 10, walked to the back door of Apartment 10A, made a call on his cell phone, and was admitted into that apartment. (Tr. 7, 25). A short time later, the man returned to his car and sat in the driver's seat. (Tr. 7). Detective Derek Williams approached the car and recognized the man, Bobby Boonyapat, from a previous arrest. (Tr. 7-8). Boonyapat told the detective that he had just purchased cocaine in Apartment 10A. (Tr. 8-9). Detective Keith Smith entered Boonyapat's car and found rocks of crack cocaine on the floor and in a cup holder. (Tr. 9). Det. Williams then arrested Boonyapat. (Tr. 9).
As Boonyapat was being arrested, police saw a black man walking from Building 10 toward a silver Chevrolet HHR in the parking lot. (Tr. 9, 27-28). Boonyapat told Det. Williams that he had just purchased his cocaine from that man. (Tr. 9, 27-28). Det. Williams gave this information to Sergeant Scott Laughman who then drove his unmarked police car toward the man (later identified as Defendant Nigel Gordon) with his blue lights flashing. (Tr. 9-10, 66-67, 75). Defendant was entering his car as Sgt. Laughman arrived and introduced himself. (Tr. 66-67). Sgt. Laughman had a badge hanging from his neck, and his firearm was not displayed. (Tr. 67-68). He told Gordon that he was investigating drug trafficking in the apartment complex. (Tr. 67, 75-76). He asked Gordon to identify himself and where he had been. (Tr. 67-68, 76). Gordon first said he had just visited his girlfriend in Apartment 10E. Upon further questioning, he said that he had come from Apartment 10A. (Tr. 68).
Sgt. Laughman asked Gordon for consent to search his vehicle, and Gordon gave consent. Officers conducted a search of the vehicle, but found nothing. (Tr. 68-69).
Sgt. Laughman then requested that canine ("K-9") officer Michael DeWald come to the apartment complex. (Tr. 69). Officer DeWald arrived soon thereafter with his dog "Rock, " who is certified in drug detection. (Tr. 69, 50-51). Sgt. Laughman provided some details of the investigation to Officer DeWald and explained what he wanted DeWald to do. They talked about deploying the dog to conduct a sniff outside the apartment. Gordon was close enough to hear their conversation. (Tr. 62-63). As Officer DeWald was preparing to release Rock, Gordon, who was still in the parking lot, told DeWald that he smokes marijuana and there was a small amount of marijuana in Apartment 10A. (Tr. 53-55). DeWald had not asked Gordon any questions and was not speaking with Gordon when Gordon made this statement. (Tr. 53-54, 56). DeWald then asked Gordon to repeat what he had said to Det. Williams, and Gordon repeated his statement to Williams. (Tr. 10-11, 54-55). Officer DeWald then released Rock in front of Building 10 and the dog alerted to the presence of controlled substances at the front door of Apartment 10A. (Tr. 55).
Detective Williams and Officer DeWald then went to the back door of Apartment 10A where they both smelled a strong odor of marijuana. (Tr. 11-12, 36-37, 55-56). Sergeant Laughman stood at the front door. (Tr. 12, 84). As he stood there, Kayla Powell opened the door and began to leave the apartment. (Tr. 84). As she opened the door, Sgt. Laughman smelled burnt marijuana coming from the apartment. (Tr. 84-85). Det. Williams then left to apply for a search warrant for the apartment from a Fulton County magistrate judge. When the warrant was approved, the officers began searching the apartment. (Tr. 12-13). Det. Williams returned to Apartment 10A with the warrant at about 6:00 p.m. while the search was being conducted. (Tr. 12-13, 38, 83).
While Det. Williams was applying for the warrant, the other officers waited in the apartment parking lot with Gordon. (Tr. 82). At some point during the wait, Gordon approached Sgt. Laughman and asked if he could ask him a question. (Tr. 69, 81, 83-84). Sgt. Laughman responded that he could. (Tr. 69). Gordon then said that he liked to tinker with firearms, such as putting grips and sights on them. (Tr. 69-70, 81). He wondered if he was prohibited from doing that because he is a convicted felon. (Tr. 69-70, 81). Sgt. Laughman told Gordon that it was illegal for a convicted felon to possess a firearm for any reason. Gordon then ended the conversation. (Tr. 70).
When Det. Williams returned from getting the warrant, he searched Gordon's bedroom, where he found a vacuum-sealed bag containing two ounces of marijuana. (Tr. 13, 41-42). Williams brought the bag out to the living room to show the other officers and Gordon what he had found. (Tr. 41). After he did so, Gordon said that Williams had found the marijuana that he (Gordon) had mentioned earlier. (Tr. 13-14, 42). Officers also found two safes in the kitchen. (Tr. 14). When Williams asked the other officers if they had found the keys to the safes, Gordon spoke up and said that he had the keys in his pocket, and there was nothing illegal in the safes. (Tr. 15, 42-43). Det. Williams did not expect Gordon to respond, as he was asking the question to his fellow officers. (Tr. 15, 43). The detective then took a key from Gordon's pocket and opened the safes. (Tr. 43-44).
During the search of the apartment, Gordon and Powell sat on a sofa in the living room while about five officers searched the apartment. (Tr. 39-40). About thirty minutes into the search, Det. Jeff Byrd found five pistols in the living room, and Gordon was handcuffed and formally arrested. (Tr. 14, 44-45, 87-88).
While conducting the search, Sgt. Laughman opened a kitchen cabinet and found a glass bowl that contained a white, paste-like substance. (Tr. 71). Laughman and another officer commented in Gordon's presence something to the effect of "that's how they make crack cocaine." (Tr. 41). Laughman asked Gordon what the substance was, and then remembering that Gordon had not been Mirandized, he told Gordon, "never mind, I don't want to know the answer, I'll find out what it is." (Tr. 71-72, 86). Sgt. Laughman then left the apartment and retrieved a drug test kit from his car. (Tr. 72). He was gone ...