United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S FINAL REPORT AND
RECOMMENDATION AND ORDER CERTIFYING CASE READY FOR
T. WALKER UNITED STATES MAGISTRATE JUDGE.
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.
FOR EXTENSION OF TIME TO FILE POST-HEARING BRIEF
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.
TO SUPPRESS STATEMENT
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).
TO SUPPRESS EVIDENCE
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).
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
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
(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).
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.
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 ...