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United States v. Caldwell

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

December 11, 2017

UNITED STATES OF AMERICA
v.
DARIUS CALDWELL, Defendant.

          ORDER

          MARK H. COHEN UNITED STATES DISTRICT JUDGE

         On October 4, 2016, a four-count indictment was returned against Defendant, which included charges relating to an armed bank robbery he purportedly committed at a Bank of America branch in Smyrna, Georgia, on September 7, 2016. Criminal Indictment [Doc. 10]. This action comes before the Court on the Final Report and Recommendation ("R&R") of Magistrate Judge Justin S. Anand [Doc. 60] recommending that Defendant's Motion to Suppress Evidence [Doc. 20], Motion to Suppress Identification Testimony [Doc. 34], and Motion to Suppress Statements [Doc. 19] be denied. The Order for Service of the R&R [Doc. 61] provided notice that, in accordance with 28 U.S.C. § 636(b)(1) (2012), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. After obtaining an extension of time within which to file his objections, on November 2, 2017, Defendant filed his objections to only those portions of the R&R which recommend the denial of his Motion to Suppress Identification Testimony and Motion to Suppress Statements [Doc. 78] (Def. s Objs.").

         In reviewing a Magistrate Judge's R&R, the district court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Parties filing objections to a magistrate [judge]'s report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). If there are no specific objections to factual findings made by the Magistrate Judge, there is no requirement that those findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge], " 28 U.S.C. § 636(b)(1), and may accept the or recommendation if it is not clearly erroneous of contrary to the law. Fed. R. Crim. P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) and Rule 59 of the Federal Rules of Criminal Procedure, the Court has conducted a de novo review of those portions of the R&R to which Defendant objects and has reviewed the remainder of the R&R for plain error. See United States v. Slav, 714 F.2d 1093, 1095 (11th Cir. 1983).

         I. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY

         Defendant objects to the Magistrate Judge's finding that the single-person show-up was not unduly suggestive or unreasonable, arguing that it was unduly suggestive and unreasonable. Def.'s Objs. at 2. Defendant also claims that the show-up was unnecessary because the police already had probable cause to arrest Defendant prior to the show-up. Id.

         The evidence presented at the evidentiary hearing held over three days before the Magistrate Judge showed that: (1) on September 7, 2016, the police received a report that an African American male wearing blue jeans, a black shirt, black shoes, dreadlocks, and a blue bandana on his face was carrying a bag and hiding in the bushes outside a bank in Smyrna, Georgia; (2) shortly thereafter, a man generally matching this same description robbed the nearby Bank of America branch in Smyrna at approximately 10:07 a.m; (3) the bank teller at the bank who interacted with the robber later described the robber as an African American male, approximately five feet, nine inches tall with a slight to medium build, wearing a blue bandana over his face and something on his head, and carrying a black bag and handgun; (4) witnesses in the bank parking lot informed the police that they observed the individual who robbed the bank running from the bank and directed the police pursuit in the same direction; (5) one of the residents in the nearby neighborhood where the police were searching told the police that a suspicious person was hiding in his backyard; (6) Defendant was found hiding behind that resident's house (approximately one quarter of a mile from the bank) and placed in handcuffs approximately ten minutes after the robbery; (7) a bag containing the GPS tracking device placed in the bag by the bank teller during the robbery was found ten minutes later about five feet from where Defendant was hiding; and (8) inside the bag was the GPS tracker, the stolen money, a wig with dreadlocks, a blue bandana, and a firearm that matched the description of the one used by the robber. R&R at 2-5.

         Specifically with regard to the "show-up" which Defendant is challenging, the evidence presented at the evidentiary hearing showed that: (1) a detective went to the bank at 10:30 a.m. and inquired of the victim teller whether she thought she could identify the robber; (2) the teller responded affirmatively and the two traveled in the detective's vehicle to the location where Defendant was being detained approximately one quarter mile from the bank; (3) en route to the show-up, the teller expressed doubt that she would be able to identify the robber because he was wearing a bandana at the time of the robbery; (4) in response, the detective told the teller "well what I try to do to remember an occurrence, I think of the thing I was doing just prior to the occurrence, " and then assured the teller that it was fine" if she was unable to identify the robber and that the police only expected her to do what she could; (5) as the detective and teller arrived at the scene where Defendant was detained in the back of a police car, Defendant was removed with his hands cuffed behind his back; (6) the teller immediately upon seeing Defendant stated "yes, that's him"; and (7) when asked to explain the basis of her positive identification, the teller stated that the Defendant matched her recollection of the robber in terms of his height, build, and skin tone and mentioned that the Defendant wore the same distinctive t-shirt (a reversible Pittsburgh Steelers shirt). Id. at 7-8.

         In order to succeed on his motion to suppress the identification evidence produced as a result of this show-up, Defendant must show that (1) the law enforcement's identification procedure was unduly suggestive and (2) that the identification under the totality of circumstances was not reliable. Blanco v. Singletary, 943 F.2d 1477, 1508 (11thCir. 1991) (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). "Factors considered in determining reliability include the opportunity to view the witness at the time of the crime, the witness degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'" Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987) (quoting Biggers, 409 U.S. at 199).

         Defendant argues that the show-up at issue here was unduly suggestive because the teller identified Defendant after he was removed from a police car while Defendant's hands were cuffed and while he was surrounded by policemen and police cars. Def.'s Objs. at 3. Defendant does not cite to any controlling case in which a show-up under similar circumstances has been found to be unduly suggestive. In fact, in the case cited by Defendant for the proposition that an unduly suggestive show-up is "one engineered by the police and made to suggest to the witness that the person to be viewed is a suspect, " the court found that the show-up was not unduly suggestive. See Id. at 4 (citing Key v. McNeil, 4:08CV379-WS WCS, 2010 WL 5811481, at *6 (N.D. Fla. Dec. 27, 2010), R&R adopted, No.4:08CV379-WS/WCS, 2011 WL 587353 (N.D. Fla. Feb. 10, 2011) (finding the "the police did nothing to suggest that Petitioner was a suspect.")). The cases cited by Defendant involving single photograph identifications are in apposite. Id. at 4.

         The R&R cites an Eleventh Circuit case involving accused bank robbers who were identified by eyewitnesses to a robbery shortly after it occurred. See Dugger, 817 F.2d at 729. In Dugger, the eyewitness was driven in a patrol car to where the suspects were being detained in the back of a police car. Id. The court denied the motion to suppress the positive identification of the robbers, holding that the circumstances surrounding it were not unduly suggestive because the "police . . . did not aggravate the suggestiveness and thus the confrontation was not impermissible." Id.

         The Court finds that Judge Anand's conclusion in this case (based on facts similar to those presented in Dugger), that the show-up was not unduly suggestive is supported by the record. Moreover, the Court agrees with Judge Anand's conclusion that if the Court were to consider the second prong of the test-whether the identification under the totality of circumstances was reliable-the Court would conclude that the identification was reliable in this case. See R&R at 18 n.8. The teller viewed Defendant during the robbery, she accurately described the Defendant to police and that description was confirmed during the show-up, the show-up occurred soon after the robbery, and the teller provided a detailed explanation of her identification based on Defendant's height, build, skin tone, and the distinctive shirt he was wearing. Therefore, Defendant's objections to Judge Anand's rulings on his motion to suppress identification testimony are OVERRULED.

         II. MOTION TO SUPPRESS STATEMENTS

         Defendant objects to Judge Anand's conclusion that Defendant s Motion to Suppress Statements should be denied, arguing that Judge Anand erroneously concluded that the government met its burden to demonstrate that the Defendant "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Def.'s Objs. at 11-12 (citing Miranda v. Arizona, 384 U.S. 436, 475 (1966)).

         As it relates to Defendant's Motion to Suppress Statements, the evidence presented at the evidentiary hearing showed that: (1) Defendant was transported to the City of Smyrna jail and police department at approximately 11:20 a.m. on September 7, 2016; (2) Defendant invoked his right to be silent to the City of Smyrna detectives; (3) two FBI special agents arrived at the City of Smyrna jail and police department at 12:00 p.m.; (4) upon arrival, the FBI special agents were informed by the City of Smyrna detectives that Defendant had requested a lawyer; (5) immediately upon encountering the FBI special agents at the City of Smyrna jail, Defendant again requested an attorney; (6) at 1:40 p.m., Defendant was transported by one of the FBI special agents from the City of Smyrna jail to the Atlanta police department for processing; (7) during the thirty-minute drive, the FBI special agent asked Defendant personal, family-related questions unrelated to the case, which the agent described as "small-talk" and "rapport building"; (8) during the drive the special agent also generally explained to Defendant the booking process that was going to take place at the Atlanta Police Department and the initial appearance that was going to take place the next day; (9) Defendant did not make any inculpatory statements during the thirty-minute drive to the Atlanta police department; (10) Upon arrival at the Atlanta police department, the FBI agent and Defendant were rejoined by the second FBI agent and ...


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