United States District Court, N.D. Georgia, Gainesville Division
ORDER AND REPORT AND RECOMMENDATION
CLAY FULLER, UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendant's Motion To
Suppress Statements (Doc. 12), Motion To Suppress Evidence
Resulting From Warrantless Seizure (Doc. 13), Motion To
Suppress Evidence Resulting From Unlawful HIPAA Disclosures (Doc.
14), and Motion To Suppress Evidence (Doc. 26). For the
reasons discussed below, it is RECOMMENDED
that Defendant's motions be DENIED.
Indictment filed February 22, 2017 charges Defendant with
possession of ricin without obtaining the registration
required by section 351A(c) of the Public Service Act, in
violation of 18 U.S.C. § 175b(c). (Doc. 1). Defendant
filed a motion to suppress evidence and statements obtained
during a traffic stop on January 14, 2017 (Doc. 13); a motion
to suppress statements he made while he was at a hospital and
after he was arrested in February 2017 (Doc. 12); and a
motion to suppress evidence disclosed in violation of HIPAA
while he was seeking medical treatment in February 2017 (Doc.
Court conducted a hearing on Defendant's motions on
August 15, 2017 (see Doc. 20), and the Court
continued the hearing on September 1, 2017 (see Doc.
24). The Court granted Defendant leave to file a motion to
suppress evidence seized from his car located in the parking
lot of Fannin Regional Hospital on February 2, 2017
(see Doc. 24), and Defendant filed that motion on
September 7, 2017 (Doc. 26). The Court held an evidentiary
hearing on the motion on September 25, 2017. (See
Doc. 31). The transcript for the August 15th hearing was
filed on August 25, 2017 (Doc. 23); the transcript for the
September 1st hearing was filed on September 20, 2017 (Doc.
29); and the transcript for the September 25th hearing was
filed on October 11, 2017 (Doc. 32). Defendant filed a
post-hearing brief on December 2, 2017 (Doc. 36), the
Government submitted a response on January 23, 2018 (Doc.
40), and Defendant filed a reply on February 11, 2018 (Doc.
43). With briefing now complete, the Court considers the
merits of Defendant's motions.
Motion To Suppress Under HIPAA (Doc. 14)
filed a “preliminary motion to suppress evidence
unlawfully disclosed pursuant to HIP[A]A, ” and asserts
that he “went to the emergency room on February ,
2017 seeking medical attention” and as a result,
“the authorities were notified of the possibility of
criminal acts on the part of [Defendant].” (Doc. 14 at
1). As discussed below, the evidence at the hearing shows
that emergency room personnel at Fannin Regional Hospital
reported to law enforcement officers that Defendant had come
to the emergency room and reported possible exposure to
ricin, a potentially fatal toxin. Defendant indicated in his
motion that he was “simply seeking discovery of what
items were provided by medical professionals and further
which exception to HIP[A]A[']s nondisclosure requirements
were implicated” and asserted that “[a]fter
receiving this information, we will wish to further perfect
the motion to suppress.” (Id. at 2). Defendant
has not perfected his motion, he did not present any argument
or factual support for this motion in his post-hearing brief,
nor was evidence relevant to the motion developed during the
hearings that would support Defendant's motion. It
therefore appears that he has abandoned his HIPAA motion.
even if medical professionals provided information about
Defendant in violation of HIPAA, he has not shown that HIPAA
provides a suppression remedy. See, e.g., United
States v. Andrews, No. 1:12CR100-1, 2014 U.S. Dist.
LEXIS 56159, at *12-13 (N.D. W.Va. Apr. 23, 2014) (explaining
that “the weight of authority suggests that suppression
is not the appropriate remedy for evidence obtained in
violation of HIPAA” (collecting cases)). Moreover, the
undersigned notes that HIPAA's implementing regulations
provide that medical disclosures are permitted in a number of
circumstances potentially applicable here, including but not
limited to: disclosures by emergency health care providers in
response to a medical emergency to alert law enforcement
about the commission of a crime, 45 C.F.R. §
164.512(f)(6), and disclosures “necessary to prevent or
less a serious and imminent threat to the health or safety of
a person or the public, ” 45 C.F.R. §
164.512(j)(1)(i)(A) & (B). Defendant has not shown that
the challenged disclosures do not fall into one of the
enumerated disclosures authorized under 45 C.F.R. §
it is RECOMMENDED that Defendant's
motion to suppress evidence resulting from unlawful HIPAA
disclosures (Doc. 14) be DENIED.
Motion To Suppress Evidence Obtained During Traffic Stop
moves to suppress evidence and statements obtained as a
result of a January 14, 2017 traffic stop. (Doc. 13 at 1).
approximately 2 p.m. on January 14, 2017, Fannin County
Sheriff's Deputy John Christopher David Kinser conducted
a traffic stop of a white Lincoln Town Car driven by
Defendant for running a stop sign. (Tr. 41-44, 52; Gov't
Ex. 3). After Deputy Kinser instructed Defendant to move the
car up so that Kinser's vehicle was not in the road,
Defendant moved a short distance and stopped as directed.
(Tr. 44). Defendant's passenger exited the vehicle and
started moving or throwing items out of the car and Defendant
exited the vehicle, which raised Kinser's suspicions that
there might be some kind of contraband in the car. (Tr. 44,
56; Gov't Ex. 3). Kinser told the passenger to go back to
the car and then approached Defendant, weapon holstered, and
asked him to come back to the rear of the vehicle. (Tr.
44-45, 57). Kinser was alone at that point, but a McCaysville
Police Officer and two deputy sheriffs arrived on the scene
later. (Tr. 45). Kinser was familiar with Defendant because
he “was a frequent inmate” when Kinser was a
Sergeant at the Fannin County Jail and viewed him as “a
troublemaker” because he “was always
insubordinate when he was an inmate.” (Tr. 51-52).
asked Defendant if he could search his car, and Defendant
responded, “You're going to do what you're
going to do, ” so Kinser asked him again, and Defendant
gave him consent to search the car. (Tr. 45). When Kinser
asked Defendant for consent to search the car, his voice was
not raised, his weapon was not drawn, he did not touch or
restrain Defendant, and he did not threaten Defendant or make
any promises to him to obtain his consent. (Tr. 45-46). The
other officers had not yet arrived at that point. (Tr. 46).
Kinser searched Defendant's car and found some seeds in a
bag in the glove compartment, asked Defendant what they were,
and he identified them as “white angel trumpet
seeds” and were “very dangerous poison
seeds.” (Tr. 46-47, 51, 53-54). Kinser set them to the
side and continued searching the car. (Tr. 47). Defendant
stood outside the car watching as Kinser searched it. (Tr.
54). Kinser asked a senior officer, Jacob Pless, if he could
identify the seeds, but Pless said he had never seen them
before. (Tr. 47). Kinser returned the seeds to Defendant.
(Tr. 51). After Kinser concluded the stop he gave Defendant a
verbal warning and let him go. (Tr. 48).
contends that “[t]he Government has not carried its
burden of demonstrating that the consent to search the white
Lincoln Town car on January 14, 2017 was knowing and
voluntary and not simply acquiescence to authority.”
(Doc. 36 at 9). The undersigned disagrees.
Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause . . . .” U.S. Const. amend. IV.
“The ‘ultimate touchstone of the Fourth Amendment
is reasonableness.' ” United States v.
Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (quoting
Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
Where a seizure is made without a warrant, as in this case,
the burden is on the government to “demonstrate that
the challenged action falls within one of the recognized
exceptions to the warrant requirement, thereby rendering it
reasonable within the meaning of the fourth amendment.”
United States v. Freire, 710 F.2d 1515, 1519 (11th
determine whether the search of Defendant's vehicle
violated the Fourth Amendment, the Court must ascertain the
legality of: (1) the initial stop; (2) Defendant's
detention; and (3) the warrantless search of his vehicle
pursuant to his consent. The Court must also determine the
admissibility of Defendant's statements made during the
The Traffic Stop
temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a ‘seizure' of
‘persons' within the meaning of [the Fourth
Amendment].” United States v. Allen,
274 Fed.Appx. 811, 817 (11th Cir. 2008) (unpublished
decision) (citing Whren v. United States, 517 U.S.
806, 809-10 (1996)). “Such an automobile stop is
reasonable and constitutional, however, if it is based on
either probable cause to believe that a traffic violation has
occurred or reasonable suspicion that a crime has been or
will be committed.” Allen, 274 Fed.Appx. at
817-18 (citing United States v. Chanthasouxat, 342
F.3d 1271, 1275 (11th Cir. 2003)); See also United States
v. Purcell, 236 F.3d 1274, 1276, n.5 (11th Cir. 2001)
(stating that “[a] law enforcement officer may legally
stop an automobile traveling on the highways if he has
probable cause to believe that a traffic violation has
occurred” and citing Whren, 517 U.S. at 810).
Court finds that Deputy Kinser had probable cause to stop
Defendant's vehicle based on his observation of Defendant
running a stop sign, which is a violation of O.C.G.A. §
40-6-72(b). See, e.g., United States v.
Miller, 326 Fed.Appx. 513, 516 (11th Cir. 2009)
(unpublished decision) (“Here, the police testified
that they observed Miller drive recklessly and ignore a stop
sign. Thus, they had probable cause to stop the car.”);
United States v. Garcia, 284 Fed.Appx. 791, 793
(11th Cir. 2008) (unpublished decision) (the officer's
observation of the defendant's failure to maintain his
lane provided probable cause for the stop). Accordingly, the
Court finds that the traffic stop did not violate the Fourth
Deputy Kinser had stopped Defendant's vehicle, he was
authorized to detain Defendant to investigate the
circumstances justifying his decision to stop and to continue
the detention to investigate circumstances that give rise to
articulable suspicion of other illegal activity. See
Garcia, 284 Fed.Appx. at 794 (“ ‘An
officer's actions during a traffic stop must be
reasonably related in scope to the circumstances which
justified the interference in the first place, ' and the
stop ‘may not last any longer than necessary to process
the traffic violation unless there is articulable suspicion
of other illegal activity.' ” (quoting United
States v. Purcell, 236 F.3d 1274, 1277 (11th Cir.
2001)). Here, Deputy Kinser had a reasonable and articulable
suspicion that there was contraband in the vehicle based on
his observation of the traffic violation, i.e.,
Defendant's failure to stop at the stop sign, the
occupants exiting the vehicle upon stopping, and the
passenger tossing items out of the car, actions which raised
Kinser's suspicion that there was contraband in the car.
(Tr. 44, 56). Kinser also knew that Defendant had a criminal
history and had been a “frequent inmate” in the
Fannin County Jail. (Tr. 51-52). Therefore, the undersigned
finds that Kinser's request for consent to search the car
and subsequent search did not impermissibly extend the
traffic stop. See United States v. DeJesus, 435
Fed.Appx. 895, 900 (11th Cir. 2011) (unpublished decision)
(“[A] traffic stop may last longer than the purpose of
the stop would ordinarily permit if an officer, based on
specific facts and rational inferences drawn from those facts
in light of his training and experience, has an objectively
reasonable and articulable suspicion that illegal activity
has occurred or is occurring.”).
Consent To Search
enforcement officers may search an individual's property
without a warrant, as long as the individual voluntarily
consents to the search.” United States v.
Brumfield, 352 Fed.Appx. 366, 367 (11th Cir. 2009)
(unpublished decision) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219-22 (1973)). “Whether
consent is voluntary is a fact question determined according
to the totality of the circumstances, ”
Brumfield, 352 Fed.Appx. at 367 (quotation omitted),
and the government bears the burden of proving the existence
and voluntariness of the consent. United States v.
Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004). The
non-exclusive list of factors the court must consider in
determining whether a consent was voluntary includes
“[the] voluntariness of the defendant's custodial
status, the presence of coercive police procedure, the extent
and level of the defendant's cooperation with police, the
defendant's awareness of his right to refuse to consent
to the search, the defendant's education and
intelligence, and, significantly, the defendant's belief
that no incriminating evidence will be found.”
United States v. Chemaly, 741 F.2d 1346, 1352 (11th
Cir. 1984) (quoting United States v. Phillips, 664
F.2d 971, 1023-24 (5th Cir. Unit B 1981)); see also
United States v. Gonzalez, 71 F.3d 819, 828 (11th Cir.
1996). In Gonzalez, the Eleventh Circuit explained
that “the absence of official coercion is a sine
qua non of effective consent, as it is axiomatic that
‘where there is coercion, there cannot be consent.'
" 71 F.3d at 828 (quoting Bumper v. North
Carolina, 391 U.S. 543, 550 (1968)).
Government has met its burden of demonstrating that Defendant
voluntarily consented to the search of his vehicle. The
evidence shows that when Deputy Kinser asked Defendant for
his consent, Defendant was not restrained, and Kinser, who
was the sole law enforcement officer on the scene at the
time, did not raise his voice, threaten Defendant, or point
his weapon at him, nor did he make any promises to Defendant
to obtain his consent. (Tr. 45-46). Moreover, although
Defendant initially responded to Kinser's request for
consent by stating, “You're going to do what
you're going to do” (Tr. 45), Kinser did not then
begin searching his car. Instead, Kinser again asked for
Defendant's consent (id.), thus indicating that
the deputy did not intend to search the car without