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United States v. Jackson

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

February 20, 2018

UNITED STATES OF AMERICA
v.
TELLY MONTANA JACKSON, a/k/a Telly Pritchett, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.

         Defendant 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.)].[1] For the following reasons, the undersigned RECOMMENDS that the motion be DENIED IN PART AND GRANTED IN PART AS MOOT.

         Facts

         On June 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[2] about a person at 1898 Memorial Drive. T3-5, 16-17.[3] 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.

         Once he 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.

         A few 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.

         Defendant 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, 22.[4] Defendant also stated that the gun was not his, and that it belonged to “Red.” T11.

         Rosser[5] 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.[6] 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.[7] 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. T28, 38.

         Neither Thompson nor Rosser Mirandized Defendant. T15, 37. At some point, the bookbag was inventoried and found to contain Defendant's identification. T26.

         Rosser 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.

         Arguments of the Parties

         Defendant 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].

         In 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 ...


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