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United States v. Gordon

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

July 9, 2015

UNITED STATES OF AMERICA,
v.
NIGEL MARC GORDON, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Gerrilyn G. Brill's Report and Recommendation (the "R&R") [47] on Defendant Gordon's Motion to Suppress Statements [14]. The Magistrate Judge recommends that the motion be denied on the grounds that the challenged statements were not made during an interrogation and otherwise were volunteered by Defendant.

I. BACKGROUND

Defendant is charged with unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count One); receipt and possession of a firearm not registered to him, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count Two); and possession with the intent to distribute a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Second Superseding Indictment [26]). He moves to suppress statements he made to law enforcement officers on May 7, 2014, prior to his arrest.[1]

On May 7, 2014, investigating officers were called to the Mosaic Apartments in Sandy Springs, Georgia by apartment managers who reported drug trafficking in Apartment 10A at the complex. The managers reported this suspected drug activity based on their observation of people driving into the apartment complex parking area, then walking to Apartment 10A's back door, entering the apartment, and a very short time later, exiting the apartment and leaving the complex. The managers reported that a black male who drove a silver Chevrolet HHR lived in Apartment 10A.

After this call, Sandy Springs police officers conducted surveillance of Apartment 10A. They observed a man being allowed to enter the apartment after they saw him engage in a brief telephone conversation. A short time after entering, the man departed the apartment, returned to his car, and sat in the driver's seat. While sitting in the car, he was approached by Detective Derek Williams ("Williams"), who recognized the individual as Bobby Boonyapat, a person who had been arrested previously. Boonyapat stated he had purchased cocaine in Apartment 10A.

When Boonyapat was being arrested, officers noticed a black man walking from Apartment 10A. Boonyapat identified the man as the person from whom he had just purchased cocaine. The man, later identified as Defendant, entered a silver Chevrolet HHR. Sergeant Laughman ("Laughman"), in his unmarked police car, approached the HHR with his blue lights flashing. Laughman got out of his car, his police badge hanging around his neck, and approached Defendant. Laughman told Defendant he was investigating drug trafficking in the complex. He asked Defendant to identify himself and where he had been. Defendant acknowledged he had come from Apartment 10A. Defendant gave Laughman consent to search his car. The search did not disclose any contraband in the vehicle.

Laughman then requested canine Officer DeWald ("DeWald") to bring his dog to the apartment complex. Defendant overheard a conversation between DeWald and Laughman about deploying the dog to sniff outside of Apartment 10A. After overhearing the conversation, Defendant stated to DeWald that he smokes marijuana and that there was a small amount of marijuana in the apartment. This comment was not offered in response to any questions posed by DeWald or Laughman. DeWald asked Defendant to repeat to Laughman what he had said to DeWald. Defendant repeated his remark.

Thereafter, Williams and DeWald released the drug dog in front of building 10 at the complex, and the dog alerted on Apartment 10A. Williams and DeWald went to the back door of the apartment. Kayla Powell opened the back door to leave the apartment and when she did, Laughman smelled burned marijuana coming from the apartment. Based on these observations, Williams departed the complex to apply for a warrant to search the apartment.

While waiting for the warrant to be issued, Defendant approached Laughman. Defendant asked Laughman if he could ask him a question. Laughman stated that he could. Defendant said that he liked to work with firearms, such as by putting sights and grips on them, and wondered if that conduct was prohibited since he was a convicted felon. Laughman responded that it was illegal for convicted felons to possess a firearm for any reason. Defendant and Laughman did not talk further.

After the warrant to search Apartment 10A was issued, a search of Apartment 10A was conducted. Officers seized a small volume of marijuana, five weapons in the living room, and a white, paste-like substance that Defendant first claimed was caffeine paste. It was later determined to be cocaine.[2] After the search was conducted, Defendant said he wanted again to speak with Laughman. Defendant asked if there was anything Laughman could do to help him with the firearms charges, stating that the firearms seized during the search belonged to someone else, and he did not realize that they were still in the apartment.

On October 21, 2015, Defendant moved to suppress his statements (i) to DeWald, that he smoked marijuana and had it in his apartment; (ii) to Laughman, that he first stated that the paste was caffeine; and (iii) to Laughman, that he liked to work on firearms, wondered if that was a problem, and whether Laughman could help him with the firearms charges, claiming the weapons found belonged to someone else. Defendant claims these statements were made without having been given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), or were elicited in violation of Rhode Island v. Innis, 446 U.S. 291 (1980), and thus the statements are required to be suppressed. The Magistrate Judge found the statements were not in violation of Miranda or Innis and recommended they are not required to be suppressed.

On June 22, 2015, Defendant filed his objections to the R&R, again claiming that the statements he made are required to be suppressed because the statements were ...


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