United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Alan J.
Baverman's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
deny Defendant William Calvin McCray's
(“Defendant” or “McCray”) Motions to
Suppress Evidence and Statements and for Return of Property
, , , . The R&R also recommends the Court
deny McCray's Motions to Dismiss , . Also before
the Court are McCray's Objections to the R&R .
2, 2015, McCray was indicted on charges of conspiracy to
commit sex trafficking of a minor, in violation of 18 U.S.C.
§ 1594(c) (Count One); the substantive offense of sex
trafficking of a minor, in violation of 18 U.S.C.
§§ 1591(a), (b)(1) and (b)(2) (Count Two); and
transportation of a minor for prostitution, in violation of
18 U.S.C. § 2423(a) (Count Three). On April 28, 2016,
the grand jury returned the first superseding indictment
against McCray, adding a charge of obstruction in violation
of 18 U.S.C. § 1591(d) as a result of prohibited contact
between him and his victim between August 2015 and February
2016. On December 13, 2016, the grand jury returned the
second superseding indictment against McCray, charging him in
Count Four with obstruction of Section 1591(d) as a result of
contact between him and his victim from August 2015 through
September 2015, and in Count Five with obstruction of Section
1591(d) as a result of contact with his victim in February
seeks to suppress the fruits of the search of a vehicle he
was operating at the time of his November 12, 2014, arrest.
The Government challenges his standing to contest the seizure
and search of the vehicle.
vehicle, a red 2013 Nissan Altima (the “Nissan”),
was rented from Hertz by Amanda Freeman, McCray's
fiancée and the mother of his child.
(T9-10). Freeman rented the Nissan, on a
week-to-week basis, three weeks before McCray's arrest;
only her name was on the rental contract, and she used the
car to go to and from work. (T10-11, 14, 17, 22). She paid
for the vehicle and personally renewed the term of the rental
period, though the Government suggests that the victim in
this case, known by the initials “A.B., ” may
have renewed it on Freeman's behalf on at least one
occasion. (T15, 23). Since May 2014, Freeman rented other
vehicles that she let McCray drive. (T30). Though McCray did
not contribute any money to Freeman to rent the Nissan, he
had in the past given her some money towards the rental of
other vehicles. (T31). He also contributed money to Freeman
when they lived together for general living expenses.
(T33).When Freeman let McCray use the rental car,
he dropped her off at her work and dropped their daughter off
at a babysitter's. (T17-18). Freeman knew that McCray
drove the Nissan from Nashville, Tennessee, where they lived,
to Atlanta, and that he had possession of the car on November
12, 2014. (T11-12, 32). When McCray had the car during this
trip, Freeman's friends helped her get to work and helped
her get her daughter to the babysitter's. (T18).
time she initially rented the Nissan, Freeman did not tell
Hertz that another person would be driving the vehicle
because she could not afford the increased cost. (T.18, 19).
She testified that, at the time of the rental, she told Hertz
only she was going to drive the car. (T18, 19). After
McCray's arrest, Freeman contacted Hertz to tell them
about a second driver. Hertz charged her for two drivers,
retroactive to the start of the rental period. (T12-13).
testified that, until McCray's mid-November trip to
Atlanta, Freeman allowed McCray to use the car locally to
look for a job. (T20). She believes he used it on five or six
occasions. (T20). When the vehicle was seized, McCray had
possessed the vehicle for two days and was scheduled to
return it to Freeman in Nashville by 2:00 p.m. on November
12, 2014, -the day that he was arrested-for her to use to get
to work. (T23, 26). When the vehicle was not returned by
November 12, 2014, Freeman did not go to work and did not
take her daughter to daycare. (T26).
McCray's Arrest, and the Seizure and Search of the
investigation in this case began as a result of a report of
suspicious people at an address in Tucker, Georgia in
Gwinnett County. (T37-38; Govt. Ex. 1). Gwinnett County
Police Department (“GCPD”) officers responded to
the Tucker location on October 26, 2014, and made contact
with “A.B.” McCray and Alfredo Lopez-Monzon were
also at the Tucker address. (T39; Govt. Ex. 1). A.B. at first
claimed her name was “Amanda Freeman, ” but
eventually told the investigating officers her real name. She
also told the investigators that Lopez had placed a pillow
over her face and attempted to rape her. The officer
suspected that McCray was A.B.'s pimp. (T39-40; Govt. Ex.
The investigation revealed that McCray had brought A.B. to
the location and was waiting for her to exit the house so
that they could leave together. (T40).
GCPD's investigation revealed that A.B. was a juvenile
runaway from Bibb County, Georgia, and that she was a ward of
the state living in foster care in Coweta County,
Georgia. From Tucker, Georgia, A.B. was returned to
her foster home in Coweta County. She quickly ran away from
that residence. When she did, on October 27, 2014, Coweta
County Sheriff's Office Criminal Investigator Ryan Foles
began his investigation. A.B.'s foster mother told Foles
that she saw from her telephone caller identification that
A.B. had made a telephone call from the foster home before
she disappeared from it. (T41-43). A.B.'s foster mother
further told Foles that she had received information that
A.B. was being advertised on Backpage.com for prostitution.
The date of the advertisement was October 24, 2014. The phone
number listed to call had the same 615 area code that A.B.
dialed from the foster home. The investigation revealed this
was the telephone number used by McCray. (T46-47; Govt. Ex.
reviewed A.B.'s Facebook page and saw a reference to
Jasmine Dillard. A.B.'s foster mother knew Dillard, and
Foles asked the foster mother to call Dillard. During the
call, Dillard reported that A.B. had run away from her foster
home and may be in the company of “Will.” The
telephone number that Dillard provided for “Will”
was the same telephone number listed in the Backpage.com ad.
November 3, 2014, A.B. was found in DeKalb County. (T48).
Foles interviewed her, and she told him that she was taken by
“Will” to Tennessee for prostitution. (T48; Govt.
Ex. 4). A.B. told Foles that she had met McCray weeks before
the interview and that she ended up in an apartment with him
one night, where they discussed that she would be a
prostitute. She told Foles that McCray threatened violence to
force her into prostitution. (T49-50). She stated that she
and McCray traveled around Atlanta to various locations where
she was prostituted, which she called “doing
plays.” After being prostituted, she stated that McCray
raped her in an apartment in DeKalb County. She said they
traveled around Atlanta in a red Nissan.
explained she initially ran away from her foster home in
Coweta County, and that she used the utility bill from that
location to tell McCray where to pick her up. She already had
memorized McCray's phone number. After he picked her up,
they went to an Atlanta nightclub where she used
Freeman's identification to buy drinks. They then drove
to Tennessee for about a week, where she performed three acts
of prostitution. (T50-51). A.B. reported that she used
Freeman's name and her identification to rent cars for
McCray. (T154). A.B. stated that she got sick while in
Tennessee and wanted to go home, but McCray wanted to take
her to Miami or New Orleans for prostitution. When he dropped
her off at a DeKalb County apartment complex, she called her
mother. A.B. was apprehended on a runaway juvenile warrant.
searched the Backpage.com ads in the Nashville, Tennessee,
area, and found an ad almost identical to the one containing
A.B.'s photograph that had run in the Atlanta edition,
except for the telephone number. (T52-53). Foles conducted a
computer search and located other escort ads tied to the
telephone number in the Nashville Backpage.com ad. (T53). He
found a YouTube account linked to the telephone number on
which “Skrill Will” rap music videos were posted.
Foles had a copy of McCray's driver's license photo,
and was able to identify “Skrill Will” as McCray.
(T54). On November 7, 2014, Foles applied for and was issued
an arrest warrant charging McCray with violating O.C.G.A.
§ 16-15-46, trafficking persons for sexual servitude.
(T54; Govt. Ex. 5).
Foles's investigation, A.B. identified various addresses
associated with McCray, including a unit at the Clifton Glen
Apartments in Stone Mountain, Georgia (504 Three Oaks Bend,
Apt. 4), where she alleged that McCray raped her. Police also
received information that the red Nissan was observed at that
apartment complex. (T55-56, 151-52). Coweta County Deputy
Sheriffs could make arrests in DeKalb County, but Foles
decided to enlist the DeKalb County Police Department to help
him locate and arrest McCray. Foles was concerned that there
were more people involved than just McCray, and because A.B.
had reported that she was raped in DeKalb County it made
sense to ask DeKalb police for help. (T56, 77, 99,
149). Officers obtained a search warrant for the
Clifton Glen apartment unit. (See T84). Officers
also applied for a search warrant for the red Nissan, but the
DeKalb County magistrate judge denied the application. (T102,
106, 107-08; Govt. Ex. 8).
after police roll call on November 12, 2014, DeKalb Police
Officer Grier located the red Nissan with New York license
plates at the Clifton Glen Apartments in DeKalb County.
(T78). DeKalb County police, including a SWAT unit, went to
the complex and set up a perimeter around the apartment and
the red Nissan parked in front of the apartment. (T80, 100,
101, 129). The police knocked on the door to Apartment 4 but
no one answered. (T101). A detective saw someone peeking out
the window. (T101). The police texted McCray that they were
outside and that he should surrender. McCray initially
responded that he was not present at the apartment but at a
studio in downtown Atlanta. (T85- 86). A resident at the
complex stated that McCray was present and, having seen
someone peeking out of the window, police executed the search
warrant issued for the apartment. (T80, 86-87, 101; Govt. Ex.
8). McCray was not found inside, but later was found hiding
inside a utility closet in the breezeway right outside the
apartment, and he was arrested. (T81, 86, 103-104). McCray
was searched incident to his arrest, and his wallet and other
items were seized. (T88-89; Govt. Ex. 11). McCray and these
seized items were turned over to Coweta County authorities.
McCray was arrested, the red Nissan was parked in front of
the apartment, about twenty yards away, and inside the scene
perimeter set up by the police. Looking in the car window,
investigators saw male and female clothing in the backseat,
making it appear that people were living out of the car. They
also saw thumb drives, a cell phone, and the GPS device
supplied by the rental car company. (T59- 60, 130-31, 133-35,
155; Govt. Exs. 20, 21). Law enforcement already knew the
Nissan was a rental car, that it was the same car that was at
the residence when the Gwinnett County officials first
encountered A.B. and McCray. (T154). A Coweta County Deputy
Sheriff sealed the vehicle with tamper-proof evidence tape.
(T131, 138). The vehicle was seized by Coweta County law
enforcement and taken to Coweta County. (T143). The vehicle
was placed in a secure lot in Coweta County and photographed.
During the impoundment process, a box of condoms was observed
in plain view inside the vehicle. (T136; Govt. Exs. 25, 26).
Search warrants were sought and obtained from a Coweta County
judge for the vehicle and for laptop computers and cell
phones in the vehicle. (Govt. Exs. 9. 10; T59-60, 70,
81-82, 104, 110; Def. Ex. 1). The Coweta County judge who
issued the search warrant for the car was not told that a
DeKalb County judge refused to issue the search warrant for
the red Nissan when the warrant for McCray's arrest was
requested and issued. The DeKalb judge did not believe there
was at that time sufficient probable cause to issue the
his arrest, McCray insisted on speaking to DeKalb Police
Department Sergeant Torrey Kennedy. In response to his
request, McCray was transported to DeKalb County Police
headquarters. (T92). There, he was placed in an interview
room and interviewed. The interview was audio- and
video-recorded. (T93; Govt. Exs. 18, 19). At the interview,
Sgt. Kennedy gave McCray a bottle of water. (T93). Kennedy
identified himself, and was not armed. The interview lasted
less than two hours. (T94; Govt. Exs. 18, 19). During the was
rented by Freeman, and that it interview, McCray was lucid
and did not appear to be under the influence of alcohol or
drugs. Kennedy did not make any promises or threats to
McCray. (T94). He read McCray his Miranda rights
from a preprinted form. (T95; Govt. Ex. 17). McCray initialed
each right read, waived each one orally and in writing, and
signed the waiver form. (T96-97; Govt. Ex. 17). McCray stated
that he could read, that he completed the twelfth grade, and
that he was not under the influence of drugs or alcohol.
(T97; see also Govt. Exs. 18, 19). During
questioning, McCray did not ask for a lawyer, did not refuse
to answer questions, and did not ask the questioning to stop.
Double Jeopardy Claim
2, 2015, McCray was indicted on charges of conspiracy, sex
trafficking of a minor, and transportation of a minor for
prostitution . On September 21, 2015, McCray, who was
detained pending trial, was ordered by the Magistrate Judge
not to have further contact with A.B. The Court ordered
McCray as follows:
I will order you not to have any contact, direct or indirect,
with any witness or victim in this case. Direct contact means
your having telephone calls or physical or voice
communication with those persons or electronic
communications. And indirect means you are causing someone
else to have contact with victims or witnesses. . . . I will
also prohibit you from having any three-way calling in
violation of both this order and the rules of any facility
that you are in.
( at 6-7).
April 28, 2016, the grand jury returned the first superseding
indictment against McCray, charging him with obstruction in
violation of Section 1591(d) as a result of contact between
him and A.B. between August 2015 and February 2016, after he
was ordered not to have contact with victims. On May 12,
2016, the Government filed a motion for a hearing on
McCray's contempt of the Court's September 21, 2015,
order and to request modification of pretrial detention
conditions. (). The Government's motion requesting a
finding of contempt provided:
In February 2016, the FBI learned that McCray had once again
contacted A.B. from jail using a three-way call feature. The
FBI conducted some investigation and eventually discovered
that on February 12, 2016, McCray used another Deyton
detainee's PIN to make a three-way call to A.B.'s new
cell phone number.  In that call, McCray asked A.B. whether
she planned to come to court to testify at McCray's
trial, and he advised her that she should “tell them
the truth.”  McCray then conveyed to A.B. what he
meant by “the truth”:
So, I don't know man, you just need to tell them the
truth and be real man like, man I, you know we went, I rolled
with him in Tennessee because the car and and [sic] I had and
I had nothing and even, even the pictures or whatever is
posted but I didn't even see nobody and nothing really
McCray further attempted to influence A.B.'s testimony by
encouraging her not to come to court, albeit through veiled
references. [ ] (“I am pretty sure they are going to
try and make it go to court, I don't know, I mean I
don't know if it would be better if you don't or
don't, I don't know what you think?”) But later
in the conversation McCray made his point clear by
instructing A.B. to avoid the FBI and the prosecutors:
“Just, just, just keep going on the low though you know
what I mean?”  McCray closed the conversation with
A.B. by suggesting that he would write to her at her address,
and by referencing a “bootleg” message he had
previously sent to A.B .....
( at 5-7 (citations to exhibits omitted)). After setting
forth Count Four of the first superseding indictment, the
Government then wrote:
Shortly after the return of the superseding indictment, the
undersigned AUSA contacted this Court to request a status
conference. This Court asked that the government file a
motion spelling out the relief requested. ...