United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.
is charged in a single count indictment with possessing a
firearm on June 1, 2016 after having been convicted of one or
more felony offenses, in violation of 18 U.S.C. §§
922(g) and 924(e)(1). [Doc. 1]. He moves to suppress several
statements that he is alleged to have made to Atlanta Police
Department (APD) officers at the time he was allegedly found
in possession of the weapon. [Doc. 15]. The Court held an
evidentiary hearing, [Doc. 25 (hereinafter “T”)],
after which the parties filed briefs. [Docs. 30 (Jackson), 34
(Govt.)]. For the following reasons, the undersigned
RECOMMENDS that the motion be DENIED
IN PART AND GRANTED IN PART AS MOOT.
1, 2016, between 7:00 and 7:30 a.m., then-APD Officer
Thompson, who was dressed in his APD uniform, responded to a
dispatch call placed to APD Officer Rosser about a person at
1898 Memorial Drive. T3-5, 16-17. The call reported a male
with red shoes laying on the front porch of this address, and
based on the description, Thompson believed that he knew the
individual-Defendant Jackson-and had prior dealings with him
a few days before that when Defendant was aggressive or irate
towards the officers' supervisor and Rosser. T5-6, 17,
29. Thompson arrived at the address within five minutes of
the call, and parked his patrol car at a business across the
street from the address. T6, 17-18. His blue lights were not
on. T18. He knew that the address was not Defendant's
home but that he was usually on that street. T29. From the
vantage point from where he parked his vehicle, Thompson
observed a black male with red shoes sitting on the steps of
the address, and upon approaching the individual, Thompson
recognized him as Defendant. T6-7, 18. From his previous
dealings with him, Thompson knew that Defendant was a
convicted felon. T8.
approached Defendant, Thompson saw that he was asleep and
roused him. T19. Defendant did not appear to Thompson to be
under the influence of alcohol or drugs. T29. Thompson told
him to get up and leave the property. T8, 19. Defendant
quickly complied, and they began walking together down the
driveway, with Thompson slightly trailing Defendant. T8-9,
20. Thompson did not remember whether he or Defendant carried
Defendant's bookbag. T8-9, 19-20. Since, as will be shown
in the next paragraph, Thompson placed the bookbag on top of
the firearm subsequently dropped by Defendant, the Court
concludes that Thompson was carrying Defendant's bookbag
down the driveway.
steps into their descent of the driveway, Thompson heard a
“clank” on the driveway's concrete, and when
he looked down towards the sound, he saw a revolver. T9, 20.
Thompson directed Defendant to step away from the gun and
placed Defendant's bookbag on top of it. T10-11, 22.
Defendant moved about five feet away. T15, 20, 21. Thompson
did not get on the radio to report these events because he
knew that Rosser was on her way. T21. Defendant was not
handcuffed because Thompson did not perceive Defendant as
dangerous at that point. T11, 23, 24.
told Thompson to “let it slide, ” which Thompson
interpreted as meaning to let him take the gun and leave, and
Thompson responded that he could not do that. T11-12,
Defendant also stated that the gun was not his, and that it
belonged to “Red.” T11.
Rosser arrived at that location
five to six minutes after the dispatch call. T13, 32. She
parked her police vehicle across the street where
Thompson's was parked. T13, 23-24, 39. She also did not
turn on her blue lights. T40. She saw Thompson and Defendant
standing in the driveway standing one to two feet from one
another. T32, 3340. She knew Defendant from a panhandling
call before June 1. T32. Thompson told Rosser what had
happened, that he had Defendant walk down the driveway and as
he was doing that, the firearm fell from Jackson's right
side. T14, 27. He told Rosser to remove the bookbag from
his foot and when she did so, underneath she saw a firearm
under Thompson's foot. T34, 41. Shortly after this
debrief, Defendant was walked across the street to the police
cars, where he was handcuffed. T14, 35. Prior to being
handcuffed, neither Thompson nor Rosser touched Defendant.
Thompson nor Rosser Mirandized Defendant. T15, 37.
At some point, the bookbag was inventoried and found to
contain Defendant's identification. T26.
testified that she was present when either she or Thompson
asked Defendant where he got the gun and Defendant replied
from Red. T36-37, 43, 44.
of the Parties
argues that he was in custody as soon as Thompson saw the
firearm in the driveway and directed him to move away and
wait for the other officer to arrive. [Doc. 30 at 5]. At a
minimum, he argues, he was in custody when he was taken
across the street by the officers. [Id.]. As a
result, he contends that he was entitled to Miranda
warnings, and since he was given the warnings, any statements
that he allegedly made cannot be admissible against him in
the government's case in chief. [Id. at 5-6].
response, the government argues that the statements that
Jackson made to Thompson-(1) let it slide, (2) the gun did
not belong to him, and (3) it belonged to Red-were
non-custodial statements, and even if he was in custody, they
were voluntary and spontaneous and not in response to
interrogation or its functional equivalent, and so
Miranda warnings were not required. [Doc. 34 at
9-10]. The government is not seeking to introduce
Jackson's statement made in response to inquiry ...