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United States v. Copeland

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

January 22, 2018

UNITED STATES, Plaintiff,
v.
KENNETH COPELAND, Defendant.

          ORDER

          Amy Totenberg United States District Judge.

         Presently before the Court is Magistrate Judge Russell G. Vineyard's Report and Recommendation (“R&R”) [Doc. 62] recommending that the Court deny Defendant Kenneth Copeland's motions to suppress evidence and statements [Docs. 32, 35, 37, and 56]. Copeland's motions seek to suppress evidence and statements that he allegedly made as fruit of his allegedly unlawful detention while playing basketball on April 28, 2015, at the City of Atlanta Dunbar Recreation Center (the “Dunbar Center”) as well as evidence in connection with the police officers' allegedly unlawful search and seizure of an H&M shopping bag found at the basketball court. Copeland's motions also seek to suppress evidence obtained and statements made following his arrest on June 10, 2015, as fruit of the allegedly unlawful detention and earlier search in April.

         Defendant filed objections to the R&R (Doc. 64). A district judge has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the R&R that is the subject of a proper objection on a de novo basis and any non-objected portion on a “clearly erroneous” standard.

         Defendant's objections focus on numerous critical factual and legal grounds for the Magistrate Judge's R&R. Defendant also challenges the credibility and inconsistency of the testimony of Mason Mercure, the principal Atlanta Police Department Officer who testified regarding the search and detention in the hearing conducted by the Magistrate Judge. Based on Defendant's objections, the Court has conducted a de novo review of the record and motions to suppress. The Court additionally held a supplemental hearing on September 28, 2016, to consider further testimony from Officers Mercure and A.C. Hayes as well as Investigator Lakea Gaither. Officer Hayes was directly involved with Officer Mercure in Defendant's detention and search but did not testify at the hearing before the Magistrate Judge. Investigator Gaither talked with or interviewed Copeland on the afternoon of his original detention and when he was ultimately arrested on June 10, 2015. She testified at the hearing before the Magistrate Judge but was not available to testify at the supplemental hearing conducted by the Court. The Court also considered counsel's letter briefs submitted after this supplemental hearing as well as their legal argument at the hearing. (Docs. 73, 74.)

         The R&R provides a detailed description of the evidence presented at the original hearing conducted by the Magistrate Judge. Although Defendant objects to a substantial range of findings and inferences made by the Magistrate Judge, he does not appear to object to specific portions of the Magistrate Judge's summary of the testimony given at the original motion to suppress hearing on December 10, 2015. Nor does Defendant object to the Magistrate Judge's description of the partial video's depiction of relevant events at the Dunbar Center indoor basketball court on April 28, 2015, although he does expressly object to the inferences and findings drawn in connection with these events. To the extent that the Magistrate Judge's account of the hearing testimony and video tape has not been disputed directly, whether in the Defendant's original objections or in his supplemental post hearing brief (Doc. 73), the Court adopts the R&R factual findings and description. That said, the Court recognizes that significant factual disputes remain at issue.

         I. THE SEARCH OF THE H&M BAG AND DEFENDANT'S STATEMENT ALLEGEDLY MADE AT THE DUNBAR CENTER

         A. Discussion of Evidence

         On April 28, 2001, two Atlanta Police Department (“APD”) Officers from APD Zone 3 - Mason Mercure and A.C. Hayes - were dispatched to the Dunbar Center to follow up on an anonymous 911 phone call of concern. According to Officer Mercure's May 21, 2015 incident report, the Dispatcher stated, “‘There is a black male inside the recreation center in the gym, wearing Tru[e] Religion jeans, armed with a machine gun. The machine gun is inside of a white and red H&M Bag.'”[1] (Magistrate Judge's Hearing on December 10, 2015, Ex. D-2.) Both Officers testified that they understood the bag to be a white plastic bag with red H&M letters on the front of it. Officer Hayes also testified that he understood from dispatch that the black male was wearing a True Religion t-shirt.

         As detailed more fully in the Magistrate Judge's R&R, the Officers met up at the Dunbar Center gym and soon thereafter spotted the only basketball player in the gymnasium wearing True Religion jeans.[2] Officer Mercure instantly identified this person as Kenneth Copeland. He knew Copeland from his beat to be a young man with a felony record who had been involved in a neighborhood gang and whom he viewed as on the top of the police radar, though not a threat to him that day or ever a threat to law enforcement other than in previously fleeing.[3](Doc. 51, Tr. at 50-51; Supplemental Hearing.[4]) Mercure testified that he knew Copeland to carry a gun and that his “senses are kind of heightened” when he sees Copeland. (Doc. 51, Tr. at 47, 51.) At the supplemental hearing, Mercure testified that once he saw Copeland on the basketball court in True Religion jeans, he “kind of fixated” on it. (Supplemental Hearing.) Hayes had heard of Copeland's name before but had never previously personally encountered him. Id.

         Officer Hayes first spotted the white H&M bag in the bleachers and pointed it out to Mercure. In the course of Mercure and Hayes's follow-up on the 911 call, one or both officers handcuffed and detained Kenneth Copeland, inspected or looked into the contents of the H&M bag, and ultimately searched the H&M bag. After detaining Copeland on the basketball court, either one or both of the Officers looked into the H&M bag. They then together walked Copeland out of the gym, with Mercure taking the lead in accompanying Copeland. Mercure placed Copeland (still handcuffed) in the backseat of his police vehicle. Mercure then placed the white H&M bag in the car trunk and looked into the bag. This viewing in the car trunk is the first time that Mercure's police incident report reflects his having noticed the buttstock of a weapon in the bag.

         Defendant's objections focus both on the R&R's legal analysis and its related factual underpinnings. In particular, the objections challenge the inconsistencies and credibility issues posed by the testimony given by Officer Mercure, the primary APD officer who testified at the December 10, 2015 motion to suppress hearing before the Magistrate Judge.[5] Officers Mercure and Hayes both worked in the same APD field operations zone. Officer Hayes, who testified at the hearing before the undersigned but not before the Magistrate Judge, is a veteran APD line officer who, as of the events in 2015, had approximately 26 years of law enforcement experience and had seen thousands of guns. (Officer Mercure had worked with APD since approximately 2008.) (Supplemental Hearing.) Officer Hayes's testimony was consistent with significant parts of Officer Mercure's description of their appearance at the Dunbar Center and detention of Copeland and the overall sequence of events. However, material, relevant portions of Officer Hayes's testimony conflicted with the testimony provided by Officer Mercure. These material conflicts and related factual points are summarized below:

• Both Mercure and Hayes stood virtually adjacent to each other, with Copeland lodged between them once he was detained on the basketball court. The H&M bag sat on the bleachers nearby. Mercure testified that he could plainly view the contents of the H&M bag through its open top, when he stood nearby it after detaining Copeland. In contrast, Hayes testified that the H&M bag was not open at the top but instead that the top of the bag was folded over and its contents were neither clear nor visible. According to Hayes, nothing from how the bag sat on the bleachers indicated what was in the bag. Like Mercure, Hayes mentioned that when he walked closer to the bag, he could observe a shape to it because of its contents. Specifically, Hayes stated that a point was protruding towards the sides of the bag. However, Hayes testified that he could not identify the item as a gun from his visual observation of the bag. The Court notes that Hayes stood in the same proximity to the bag as Mercure, or closer at some juncture.
• Hayes stated that after Copeland was detained, he (Hayes) personally recovered the H&M bag himself and opened the bag and took a quick glimpse of what was inside. But even at that point, he said he could not definitively identify as a gun the item with a piece of black rubber handle and tan metal that he could then see. At that point, Hayes stated he could principally view the Christmas ornaments stuffed in the bag and did not have a full view of what was later ultimately identified as the gun.
• Mercure testified that when he inspected the bag on the bleachers prior to exiting the gym, it was already open and that he “could lean over the bag and see inside the bag” and that it “was loaded with Christmas ornaments, and the gun was just kind of sitting straight up in and you could see the weapon.” (Doc. 51, Tr. at 74.)
• Mercure testified that he (Mercure) was the one who collected the H&M bag and that he then proceeded to take the bag to his police vehicle. By contrast, Hayes testified that once Copeland had been detained and was standing with Mercure in front of the bleachers, Hayes himself went into the bleachers in front of them, recovered the H&M bag, opened and took a quick peek into the bag and then closed the bag anew before they left the gym together. Hayes testified that he himself took the gun out of the gymnasium. (Supplemental Hearing.) Hayes testified that as best he could recall, Mercure had not looked at the bag before Hayes had physically presented him with the bag outside the Dunbar Center, except to the extent that Hayes had confirmed the bag's presence to Mercure as they had stood in front of the bleachers as they scanned the basketball area to identify a player wearing the True Religion jeans identified by the 911 tip call.
• If Hayes's testimony is accurate, then Mercure's testimony that he stood over the bag and could see its contents when he collected the bag to take it outside is obviously less likely to be true or accurate and vice versa.
• Mercure testified at the initial hearing that when Hayes and he were standing next to Copeland and in front of the bleachers, he asked the crowd in the bleachers “pretty loudly . . . in a sarcastic kind of way” whether the bag belonged to any of them. (Doc. 51 at 29.) Mercure testified that while a few people “shook their head no, ” Copeland provided no response. Id. On the other hand, Hayes testified that he could not recall hearing any conversation about the H&M bag that occurred between the officers and the people in the bleachers and basketball area. (Supplemental Hearing.)
• As noted above, Hayes testified that he personally carried the bag out of the gym, while Mercure testified he carried the bag out of the gym.

(Supplemental Hearing.)

         The conflicts in testimony discussed above give the Court serious pause, as Officer Mercure's police incident report prepared close in time to the April 28th events, if read alone by itself literally, would indicate that Officer Mercure first viewed the contents of the H&M bag when he placed it in the trunk of his car. (Magistrate Judge's Hearing, Ex. D-2.) The Magistrate Judge credited the credibility of Officer Mercure's testimony that referenced his viewing the actual contents of the bag earlier in the Dunbar Center based on his testimony given at the hearing he conducted. But the Magistrate Judge did not have the benefit of hearing Officer Hayes's testimony in reaching this finding.[6]

         Finally, the Court was disturbed that although the police department collected the videotape of the events at the Dunbar Center on a timely basis when the entire tape was available, officers only secured - for whatever reason - a videotape that cuts off precisely prior to the search of the H&M bag conducted by one or the other of the officers and the officers' removal of both Copeland and the H&M bag from the Center. One of the last video images, showing Officer Mercure holding Copeland by his pants, does not reflect Officer Mercure looking at the H&M bag. (Supplemental Hearing, Testimony of Officer Mercure regarding the video after it was projected in the Court.) While the Court understands that the video was obtained first and foremost as proof of the identity of the individual who brought the H&M bag into the recreation center, the police officers involved in the investigation knew this ...


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