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United States v. Spence

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

April 20, 2018

UNITED STATES OF AMERICA,
v.
KEOLA SPENCE, Defendant.

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION AND ORDER CERTIFYING CASE READY FOR TRIAL

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE.

         Pending before this Court are Defendant Keola Spence's Motion to Suppress Evidence (Doc. 14), Motion to Suppress Statement (Doc. 15), and Motion for Extension of Time for File Post-Hearing Brief (Doc. 22). For the reasons outlined belowi Defendant's Motions to Suppress Evidence should be DENIED (Doc. 14, 15), and Defendant's Motion for Extension of Time to File Post-Hearing Brief (Doc. 22) is DEEMED MOOT.

         MOTION FOR EXTENSION OF TIME TO FILE POST-HEARING BRIEF

         In Defendant's Motion for Extension of Time to File Post-Hearing Brief (Doc. 22), Defendant seeks a two-week extension of time to file his post-hearing brief in connection with his Motions to Suppress. Defendant requests that the deadline for filing his post-hearing briefbe extended to December 12, 2017. Thereafter, on December 13, 2017, Defendant filed a second Motion for Extension of Time to File a Post-Hearing Brief (Doc. 23), requesting through and including December 15, 2017, for filing his post-hearing brief. This Court granted Defendant's second motion for extension of time on December 13, 2017. (Doc. 24). Accordingly, Defendant's first motion to extend the deadline for filing his post-hearing brief is now MOOT. (Doc. 22).

         MOTION TO SUPPRESS STATEMENT

         In Defendant's Motion to Suppress Statement, Defendant perfunctorily argues that at some point, the Government obtained custodial and/or recorded statements from him. (Doc. 15, at 2). Defendant argues the Court must hold an evidentiary hearing in order to determine whether his statements were made freely and voluntarily and were lawfully recorded. This Court held an evidentiary hearing on the matter on October 4, 2017. (Doc. 20). Following the hearing, Defendant prepared a post-hearing brief, but never addressed his former arguments that his statements should be suppressed. Because Defendant never perfected his Motion to Suppress Statement as to any of his original arguments for suppression raised in his opening brief, they have been abandoned. See United States v. Rosso, No. 3:14-CR-00014-TCB, 2015 WL 7115860, at *28 n.26 (N.D.Ga. Nov. 12, 2015); United States v. Cadet, No. 1:11-CR-00522-WBH, 2013 WL 504892, at *9 (N.D.Ga. Jan. 16, 2013), R. & R. adopted. No. 1:11-CR-113-WBH-2, 2013 WL 504815 (N.D.Ga. Feb. 8, 2013); United States v. Chappell, No. 1:10-CR-513-WSD-ECS, 2011 WL 5353016, at *5 (N.D.Ga. May 25, 2011) (deeming argument defendant raised in pre-hearing motion, but did not expound upon in post-hearing briefs, to be waived and abandoned); United States v. Shorr, No. 1:07-CR-182-1-TWT, 2008 WL 655994, at* 1 (N.D.Ga. Mar. 10, 2008) (same). Accordingly, Defendant's Motion to Suppress Statement should be DENIED. (Doc. 15).

         MOTION TO SUPPRESS EVIDENCE

         On April 18, 2017, a grand jury in the Northern District of Georgia returned an Indictment charging Defendant with knowingly possessing a firearm after having been convicted as a felon in violation of 18 U.S.C. § 922(g)(l). (Doc. 1). Defendant, who is a parolee, argues physical evidence obtained during a search of his apartment on December 7, 2016, should be suppressed because the officers completing the search did not have reasonable suspicion to conduct the search. (Doc. 26).

         I. FACTUAL BACKGROUND

         On April 20, 2016, Defendant's parole relating to prior offenses of aggravated assault, possession of a firearm by a convicted felon, and possession of marijuana with intent to distribute, became effective. (Gov't's Ex. 1, at 1). On April 27, 2016, Defendant was processed by the Department of Community Supervision ("DCS") in Cobb County. (Tr. of Oct. 4, 2017 Evid. Hr'g, hereinafter "Tr.," 5-6). At that time, Tyriqe Williams ("Williams"), who is a DCS supervision officer, performed intake fnctions for Defendant. (Tr. 5). During intake, parolees or probationers visit the supervision office where they are advised of the terms and conditions of their supervision, they sign necessary documents to complete supervision, they are drug screened, their addresses and contact information are verified, and their photos are taken. (Tr. 6). During intake, Defendant indicated that upon being released from a custodial sentence in the Georgia Department of Corrections, he would reside at 304 Westwood Parkway, Apartment 5, in Austell, Georgia. (Tr. 7-8). During intake, Williams also discussed with Defendant a document entitled "Standard Conditions Under Which This Parole Is Granted." (Tr. 7; Gov't's Ex. 1, at 2). The document sets frth six standard conditions of parole, including a search provision entitled "Law/Immediate Notification/Searches." (Id. at 2). The search provision provides:

I will not violate the law of any governmental unit. I will immediately notify my parole officer ifl am arrested for any offense, including a traffic offense. My parole officer or any other parole officer may, at any time, conduct a warrantless search of my person, papers, and place of residence, automobile, or any other property under my control.

(Id.). Williams specifically went over the search provision with Defendant. (Tr. 7). At the end of the same page, Defendant signed the document indicating that he fully understood the preceding standard parole conditions and that he agreed to comply with them. (Gov't's Ex. 1, at 2). Additionally, Defendant's parole certificate indicated that he was subject to voice recognition monitoring, substance abuse assessments, and $30.00 monthly payments to the Georgia crime victim's compensation fund. (Gov't's Ex. 1, at 1).

         Between May and November 2016, DCS conducted monthly compliance checks at Dfendant's residence. (Tr. 33-34; Gov't's Post-Hr'g Br. 3-4 n.4). No. searches occurred on any of those occasions. (Tr. 33; Gov't's Post-Hr'g Br. 3-4 n.4). On December 7, 2016, Williams, other DCS officers, federal agents, and officers from the Cobb County Sheriffs Office Viper Unit arrived at Defendant's residence on Westwood Parkway to conduct a "compliance check," including a search of the residence. (Tr. 8, 10, 23-24, 26). Approximately eight to ten officers were present at the time. (Tr. 25). Williams had no indication Defendant had violated any of the conditions of his parole or that he was engaged in criminal conduct. (Tr. 26-27).

         DCS Officers Williams and Hunter encountered Defendant with a group of other individuals outside his apartment building. (Tr. 10, 11). The officers approached Defendant and advised him they were there to conduct a compliance check. (Tr. 10-11). Initially, Defendant refused to allow the officers into his apartment. (Tr. 12). Defendant relented, however, after the officers told him he did not have the option of refusing the search of his residence under the terms ...


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