United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION
S. ANAND, UNITED STATES MAGISTRATE JUDGE.
is facing narcotics distribution and firearms possession
charges, based in whole or in part on evidence obtained
during his arrest by Atlanta Police Department
(“APD”) officers on March 17, 2016. The case is
before the Court on Defendant's Motions to Suppress that
evidence , which argues that the officers lacked
probable cause to arrest and search him, as well as his
Motion to Suppress Statements , which argues that his
post-arrest statements to the officers were made
involuntarily. Defendant has also submitted a Motion to
Dismiss the Indictment , which argues that this federal
prosecution (which follows a state prosecution for the same
conduct) violates his right against double jeopardy. After
convening an evidentiary hearing and considering the
parties' legal briefs, Court RECOMMENDS
that Defendant's motions all be DENIED.
The Evidentiary Hearing
Court convened an evidentiary hearing on October 12, 2017, at
which the Government called APD Officer C. McGhee III . A
transcript of that hearing [“Tr.”] is in the
record at docket number 32. The following facts are derived
from that transcript.
McGhee was patrolling in his squad car at approximately 6:25
pm on March 17, 2006, in the area of Garnett and Forsyth
streets in Atlanta, GA. Tr. at 8. He was with his partner,
Officer Morrison. Id. While driving, Officer McGhee
observed a man and a woman “walking southbound on
Forsyth Street participating in what I believed to be was a
hand-to-hand transaction of illegal narcotics.” Tr. at
8-9. Specifically, Officer McGhee saw the man reach his hand
out to the woman and the woman place her hand on top of the
man's hand, in what appeared to be consistent with a
method used to “pass something off discretely.”
Tr. at 9, 18. Officer McGhee concluded that the specific
nature of this gesture suggested an illicit transaction,
based on his training and five years of experience handling
street-level drug violations. Id. at 8. Officer
McGhee, who was driving, did not specifically see the
object(s) being passed, but Officer Morrison reported that he
saw the man carrying marijuana. Id. at 9, 19.
(Morrison did not testify at the hearing).
point, Officer McGhee stopped the car, and the officers (who
were in full uniform) exited onto the sidewalk. Id.
at 9-10. The woman immediately stopped when she saw the
officers, but the man (later identified as the Defendant)
continued walking away. Id. When asked to stop, he
did not. Id. After several commands to stop, the
Defendant eventually stopped, and Officer Morrison walked him
back to where Officer McGhee and the woman were standing.
Id. at 10. According to Officer McGhee, “Mr.
Hughes seemed very fidgety, he seemed very nervous, he never
made direct eye contact, he seemed to be looking around as if
he was looking for a way out, as if he might have been a
flight risk.” Id. at 10.
the officers pulled out handcuffs to attempt to restrain the
Defendant. Id. Before they could restrain the
Defendant, however, he pushed and attempted to punch Officer
Morrison, and the Defendant took off running. Id. at
10-11. Officer McGhee chased the Defendant on foot, and
Officer Morrison chased in the car. Id. Officer
McGhee saw the Defendant discard various items as he ran,
including what Officer McGhee believed were drugs and a gun.
Id. at 12. Upon seeing that the Defendant had been
carrying a gun, Officer McGhee discharged his taser, which
stopped the Defendant. Id. at 12. After a small
struggle, Officer McGhee was able to detain and handcuff the
personnel arrived and removed the taser prongs from the
Defendant, but he otherwise refused treatment. Id.
at 12-13. The officers searched Defendant incident to arrest
and recovered ammunition, and substances that they believed
were methamphetamine, prescription pills, cash and heroin.
Id. at 13. After Defendant was detained, Officer
McGhee retraced his steps and found marijuana that the
Defendant had apparently discarded while running along with
the discarded firearm. Id. at 13-14.
he was detained, the Defendant exclaimed “I know I
fucked up. I know I'm going to jail.” Id.
at 14. This statement was not made in response to any
questions. Id. The Defendant did not appear to be
under the influence of any drugs or alcohol or mental
illness. Id. The officers had made no promises to
him, had not threatened him, and other than having
administered a taser during the chase, had not drawn any
his arrest by APD, Defendant was indicted by a grand jury in
Fulton County, Georgia for possession of heroin, possession
of a controlled substance (Schedule II), willful obstruction
of a law enforcement officer, possession of a firearm during
a felony and possession of a firearm by a convicted felon.
See Fulton County Indictment [17-1]. Thereafter, on
April 14, 2016, Defendant entered a nolo contendre
Alford-style plea to the firearms possession charge
and a traditional guilty plea to the remaining charges.
See Fulton County Conviction [17-2]. He was
sentenced to various custodial sentences on the counts, all
of which were either suspended or commuted to time served.
Id. More than eight months later, on December 21,
2016, a federal grand jury issued this indictment, which
charges Defendant with possession with intent to distribute
various controlled substances, possessing a firearm in
furtherance of a drug trafficking crime, and being a felon in
possession of a firearm. See Indictment .