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United States v. Philpot

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

February 8, 2017




         This matter is before the Court on Magistrate Judge Linda T. Walker's Report and Recommendation [70] (“R&R”), Defendant Jason Philpot's Objections to the R&R [73], and Defendant Patrick Bernard Reese's Objections to the R&R [75]. The R&R addressed Defendant Philpot's Motion to Suppress Evidence and Statements [37], Defendant Reese's Motion to Suppress Statements and the Fruits Thereof [26], and Defendant Reese's Motion to Suppress Defendant's Unlawful Arrest and the Fruits Thereof [41].

         I. BACKGROUND

         A. Robbery and Arrest

         Defendants Philpot and Reese are charged with the Hobbs Act robbery of a Waffle House restaurant, in violation of 18 U.S.C. § 1951(a) and (2) (Count One); possessing and discharging a firearm during and in relation to the Waffle House robbery, in violation of 18 U.S.C. § 924(c)(1)(C) (Counts Two and Three); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts Four and Five). The charges arise from the robbery of a Waffle House restaurant in Tucker, Georgia on September 30, 2014.[1]

         DeKalb Police Officer Lynn Anderson responded to the report of a robbery at the Waffle House restaurant at about 9:00 p.m. on September 30, 2014. The dispatcher described the robbery suspects as two black males. Officer Anderson responded to the dispatch. When he arrived at the Waffle House, a bystander standing across the street from the restaurant pointed to the westbound traffic near the intersection of Lavista Road and Northlake Road and said “that's the guys over there.” The report Officer Anderson prepared of the events that night state that the bystander told him the suspects were in a van. At the evidentiary hearing on these motions, Officer Anderson said there were no vans and that when the bystander made his comments, he pointed and said the suspects were in a vehicle, noting there were no vans in the traffic.

         Officer Anderson moved his marked police car to block the six to eight cars in the westbound lanes that were waiting for the red light to change. He also activated his emergency blue lights so that those in the waiting cars would know they were not to move their vehicles. Officer Anderson noticed two black males in a car and moved toward it. As he did, a Maroon Chevrolet Lumina moved around the car in front of it in the westbound lane and turned left at a fast speed. Officer Anderson got into his patrol car and, with blue lights flashing, chased the Lumina. He believed the men in the car were the Waffle House robbers. The Lumina went through a gas station, behind a Target store, and then up an exit ramp where it hit a curb and flipped. The driver and passenger got out of the car. The driver fired either a semi-automatic or a black rifle at Officer Anderson. The passenger pointed his weapon at Officer Anderson.

         DeKalb County Police Officer Figueroa-Fred arrived at the scene and the driver and passenger fired at him. Officer Figueroa-Fred said one of the men from the car was dressed in black and the other in a striped shirt. The one with the striped shirt had a rifle and fired it at Officer Figueroa-Fred. Further gunfire was exchanged. The driver of the Lumina ran through a gas station and the passenger ran towards a rent-a-car store, then into the woods. Both were running toward an abandoned steakhouse.

         Officer Anderson got back into his car to help set up a perimeter.

         Officer Pitts then arrived also to help set up the perimeter. In doing so, he heard a noise in the bushes and called for backup. When backup arrived and heat sensing equipment showed a heat source in the bushes, Officer Pitts and other law enforcement officers identified themselves as police officers. The suspect dressed in black emerged from the bushes. This individual, later identified as Defendant Reese, was handcuffed and put in Officer Anderson's patrol car.

         While in the police car, driving to the police station, Officer Anderson said to Defendant Reese: “you bogus for shooting at me, trying to take me from my family.” Defendant Reese had not been read his Miranda rights when Officer Anderson made his comment. Defendant Reese responded: “Man, I messed up, my grandmother going to be, my grandmother going to be disappointed in me.”

         A K-9 picked up the scent of the other suspect, and later, officers received a report that a suspicious person was trying to break into a room at a nearby hotel. Police officers moved quickly to the hotel where they found a bald man wearing jeans and no shirt. He was detained and handcuffed.

         B. Post-Arrest Statements

         After Defendant Reese was transported to the interrogation room at the DeKalb County Police Department, he was interviewed by DeKalb County Detective Chris Tappan. Detective Tappan asked Defendant Reese background questions about his girlfriend, to which Defendant Reese volunteered that “the money” did not have anything to do with his girlfriend. Detective Tappan responded: “Okay, that may be true. I mean we can, well I'll investigate whatever you tell me to.” Defendant Reese replied: “I don't want to talk to nobody but the feds, man. I just got out the fed.” Detective Tappan said: “You don't want to talk to anybody but the feds.” Reese responded: “Yep.” Detective Tappan asked Defendant Reese a series of biographical questions regarding his phone number, address, height, and weight. After these questions, Detective Tappan read Defendant Reese his Miranda rights. After Defendant Reese acknowledged that he understood his rights, Detective ...

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