United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER, FINAL REPORT AND
RECOMMENDATION AND ORDER CERTIFYING CASE READY FOR
T. WALKER UNITED STATES MAGISTRATE JUDGE
before this Court are Defendant William Brown's Unopposed
Motion for Extension of Time to File Pretrial Motions and to
Continue Pretrial Conference (Doc. 20), Motion to Suppress
Evidence (Doc. 24), Motion to Suppress Statements (Doc. 25),
Motion to Adopt and Amend Defendant's Motion to Suppress
(Doc. 35), and Post-Hearing Motion to Suppress Evidence (Doc.
39). For the reasons outlined below, Defendant's Motions
to Suppress Evidence should be GRANTED IN PART AND
DENIED IN PART (Doc. 24, 39), and Defendant's
Motion to Suppress Statements (Doc. 25) should be
DENIED. Defendant's Motion for Extension
of Time to File Pretrial Motions and to Continue Pretrial
Conference (Doc. 20) and Motion to Adopt and Amend
Defendant's Motion to Suppress (Doc. 35) are
MOTION FOR EXTENSION OF TIME TO FILE PRETRIAL MOTIONS AND TO
CONTINUE PRETRIAL CONFERENCE
Defendant's Unopposed Motion for Extension of Time to
File Pretrial Motions and to Continue Pretrial Conference,
Defendant sought an extension of the deadline for filing
pretrial motions in the case, through and including August
17, 2017. For good cause shown, Defendant's Motion is
GRANTED NUNC PRO TUNC. (Doc. 20).
TO SUPPRESS STATEMENTS
Defendant's Motion to Suppress Statements, Defendant
perfunctorily argues that all post-arrest statements he made
to law enforcement officers should be suppressed because any
statements by Brown were made involuntarily and without a
knowing waiver of his Miranda rights. (Doc. 25).
This Court held an evidentiary hearing on the matter on
October 25, 2017. (Doc. 37). Following the hearing, Defendant
prepared a post-hearing brief, but never addressed his former
argument that his statements should be suppressed. Because
Defendant never perfected his Motion to Suppress Statement as
to 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
Statements should be DENIED. (Doc. 25).
TO ADOPT AND AMEND DEFENDANT'S MOTION TO
points out in his Motion to Adopt and Amend Defendant's
Motion to Suppress (Doc. 35) that his previous counsel filed
a motion to suppress evidence which challenged evidence
seized during Defendant's January 12, 2017 arrest. With
the advent of new counsel, Defendant now seeks to suppress
evidence relating to his April 28, 2017 arrest as well. Thus,
in the Motion, Defendant seeks to permit his new counsel to
adopt the arguments within his initial Motion to Suppress and
amend the Motion to reflect that Brown seeks to suppress the
evidence obtained during his April 28, 2017 arrest. The
Government has not filed a brief in opposition to
Defendant's Motion, and in fact, Defendant indicates in
his brief that the AUSA assigned to the case indicated to him
that she was under the impression that his original Motion to
Suppress sought to suppress evidence collected in connection
with the April 28, 2017 arrest. For good cause shown,
Defendant's Motion to Adopt and Amend is
GRANTED. (Doc. 35).
TO SUPPRESS EVIDENCE
April 25, 2017, a grand jury in the Northern District of
Georgia returned an Indictment and the Indictment was
superseded on July 25, 2017. The superceding Indictment
charged Defendant with two counts of knowingly possessing a
firearm after having been convicted as a felon in violation
of 18 U.S.C. § 922(g)(1). (Doc. 14). In Defendant's
Motions to Suppress, Defendant argues physical evidence
collected when he was arrested on January 12, 2017, and on
April 28, 2017, such as firearms, should be suppressed
because the law enforcement officers conducting the search
stopped him without having reasonable suspicion that he had
committed a crime. (Doc. 24, 39).
The January 12, 2017 Stop
January 12, 2017, Virginia Pena Barrientos, who has served as
a City of Atlanta Peace Officer since August 26, 2013, was
patrolling in Zone 4, which is the West End area. (Tr. of
Oct. 25, 2017 Evid. Hr'g, hereinafter “Tr., ”
5-7). At that time, Officer Barrientos was part of the Crime
Suppression Unit or FIT (Field Investigative Trained
Officer). (Tr. 5-6). The Crime Suppression Unit's main
purpose is to be proactive instead of reactive and thus,
members of the unit patrol for suspicious activity instead of
responding to 911 calls. (Tr. 6-7). The Crime Suppression
Unit targets mostly Part 1 crimes, meaning crimes like
murder, rape, vehicle larcenies, carjackings, and armed
robberies. (Tr. 7).
Barrientos' supervisor instructed Officer Barrientos and
Officer Mayfield, her partner for the day, to perform a
directed patrol of the West End area, specifically the area
around 837 Lee Street, because of its high crime statistics.
(Tr. 29). Performing a directed patrol meant that the
officers targeted the West End area and looked for suspicious
activity. (Tr. 29). While patrolling, Officer Barrientos rode
in the passenger seat while Officer Mayfield drove the car.
Barrientos testified that while driving on West Whitehall
Street Southwest, the officers viewed an “overabundance
of vehicles” parked at 837 Lee Street where a food mart
and a recording studio were located. (Tr. 9-10). According to
Officer Barrientos, the parking lot was full and some of the
vehicles were not parked in parking spaces. (Tr. 9). Officer
Barrientos states that she also observed the presence of
“a high amount of males” in the parking lot. (Tr.
10). Based on her training and experience, Officer Barrientos
testified that the presence of a large number of individuals
in a parking lot for a food mart can indicate that the
individuals are loitering because typically, patrons of a
food mart make their purchases and leave, but do not
congregate there for an extended period of time. (Tr. 11).
Mayfield pulled the patrol car into the parking lot, but did
not activate the vehicle's blue lights or dash camera.
(Tr. 65). According to Officer Barrientos, when the patrol
car pulled into the parking lot, the majority of the males
congregating in the parking lot scattered in different
directions. (Tr. 10). Although Officer Barrientos' body
camera was active when the officers drove into the parking
lot, the body camera did not capture images of individuals
dispersing through the parking lot upon the arrival of the
patrol car. (Gov't's Ex. 1). In fact, the body camera
footage showed an environment where it appeared that people
were not scurrying in different directions. (Gov't's
Ex. 1). Likewise, the body camera footage did not depict the
presence of “a high amount of males” or cars
parked where there were no parking spaces. (Gov't's
Ex. 1). It appears, however, that when the patrol car was
initially traveling through the parking lot, the camera must
have been pointed upwards because the footage did not reflect
what was happening at eye level. (Gov't's Ex. 1).
Barrientos testified that she observed Defendant Brown, who
had been standing outside the door of the food mart, make a
beeline straight into the food mart after Officer Mayfield
pulled the patrol car into the parking lot. (Tr. 11, 41-42).
Officer Barrientos defines “beeline” as going
directly from point A to point B without any pauses in
between. (Tr. 41). According to Officer Barrientos, at that
time, Defendant proceeded directly into the store and did not
stop and talk to anyone. (Tr. 41). Officer Barrientos
testified that Defendant entered the food mart while she was
still sitting in her vehicle. (Tr. 36).
Officer Barrientos opened the door of the patrol car, she
could smell raw marijuana. (Tr. 10, 36). Officer Barrientos
proceeded towards the entry door of the store so that she
could talk with Defendant. (Gov't's Ex. 1; Tr. 44).
Officer Barrientos admits that the smell of marijuana was not
what motivated her to talk with Defendant, and she did not
believe that the smell of raw marijuana emanated from him.
(Tr. 36, 38). Officer Barrientos believes that she had a
reasonable articulable suspicion to stop and talk to
Defendant at that point because he made a beeline into the
food mart upon her arrival, that appeared suspicious to her,
and because she wanted to investigate further and speak with
him. (Tr. 44). Officer Barrientos also noted that although
she could not attribute the odor of marijuana traveling
through the parking to Defendant, she wanted to confirm or
dispel whether he was involved in the criminal activity
occurring in the parking lot. (Tr. 46). Officer Barrientos
admits she did not believe the smell of marijuana in the
parking lot came from Defendant's person, that she had no
basis to draw a conclusion that he had marijuana on his
person, but she suspected that he had marijuana. (Tr. 38-39,
48-49). Officers Barrientos and Mayfield approached the store
from the front. (Tr. 12-13). Officers Maldonado and Owen, who
were patrolling in another patrol car, viewed the activity at
the same location, 837 Lee Street, and agreed that it was
worth looking into and went around to the back of the store.
Officer Barrientos exited the patrol car, she activated her
department-issued body camera, which she was wearing on her
chest. (Tr. 13-14). Officer Barrientos headed for and entered
the store. (Tr. 16-18; Gov't's Ex. 1). Officer
Barrientos testified that Defendant was free to leave until
she entered the store. (Tr. 43). On the way to the store,
Barrientos passed three other people. (Tr. 39). During the
evidentiary hearing, Officer Barrientos was asked to explain
why she passed other individuals and instead followed
Defendant. (Tr. 39). Officer Barrientos testified that the
three other people did not run and did not dodge into
somewhere else. (Tr. 39). Barrientos also testified that
three other officers were already addressing other persons.
police report, Officer Barrientos indicated that when she
entered into the store, Defendant's back was to her, but
admitted on cross-examination after having seen the body-cam
video that Defendant's back was not facing her. Tr. 62).
The video footage depicts Defendant facing the front door as
Officer Barrientos enters into the food mart.
(Gov't's Ex. 1). When the body-cam video footage
inside the food mart begins, Defendant is heading towards the
front door and Officer Barrientos. (Gov't's Ex. 1).
Based on the video footage, it is difficult to discern
whether Defendant was already walking towards the front door
when Officer Barrientos entered the food mart or whether he
began walking to the front door after Officer Barrientos
entered. (Gov't's Ex. 1).
inside the food mart, Officer Barrientos said to Defendant,
“Hey partner, what's up? Let me talk to you.”
(Tr. 17-18). Defendant responded, “What?”
(Gov't's Ex. 1). Officer Barrientos also asked
Defendant if he had identification on him. (Gov't's
Ex. 1). Defendant responded, “Yes, Ma'am, ”
but continued to walk towards the doors behind Officer
Barrientos. (Gov't's Ex. 1; Tr. 51-52, 54). At the
time, Officer Barrientos was standing about a foot inside the
two glass door entryway at the front of the store. (Tr. 17,
50-51). Only one of the doors was operational and Officer
Barrientos stood with her back directly in front of the
operational door. (Tr. 17, 50-51). There was no other exit
door for the store. (Tr. 55).
Barrientos stated to Defendant in an annoyed tone,
“Don't try to walk away.” (Gov't's
Ex. 1). Defendant attempted to continue towards the front
doorway, and said, “Hold on. What's going
on?” (Gov't's Ex. 1). As Defendant headed
towards Officer Barrientos and the front door, Officer
Barrientos did not yield the path to the doorway, but instead
performed a hand check on Defendant's chest to push him
away from her once he approached her. (Tr. 19, 51-52).
Officer Barrientos states that she touched Defendant before
he touched her when she “hand-checked” him on his
chest. (Tr. 19, 52; Gov't's Ex. 1). Officer
Barrientos states that she hand-checked Defendant
“because he [was] pushing his body weight against
[hers] to get out the door.” (Tr. 19, 51-52). Officer
Barrientos testified that she was not going to allow
Defendant to pass because he was going to be detained. (Tr.
55-56). Officer Barrientos also testified, “My purpose
was not to let him get away.” (Tr. 55). Officer
Barrientos further testified that if Defendant had said,
“Ma'am, excuse me, you're in the middle of the
door, can you please get out of my way so I can go about my
business, ” she still would not have allowed him to
leave the building. (Tr. 56).
after Defendant tried to push by and exit the front door,
Officer Mayfield shoved Defendant, and Defendant flew back
about six or seven feet. (Gov't's Ex. 1; Tr. 19).
After being pushed back, Defendant responded, “Hey,
what did I do?” (Gov't's Ex. 1). Officer
Mayfield proceeded to violently force Defendant to the
ground, saying “Get the fuck down!”
(Gov't's Ex. 1). Defendant plaintively asked several
times, “What did I do, sir? What did I do?”
(Gov't's Ex. 1). Officer Mayfield responded each time
with, “Get the fuck down!” (Gov't's Ex.
1). The body-camera video did not clearly depict all of the
altercation and it is not apparent from the video whether or
in what way Defendant was resisting the officers'
attempts to immobilize him. (Gov't's Ex. 1). It did
appear, based on the footage, that Defendant was at or near
the ground most of the time during the altercation.
(Gov't's Ex. 1).
asked a few more times what he had he done and Officer
Mayfield repeatedly responded that he was going to
“taze the fuck out of” Defendant.
(Gov't's Ex. 1). Another couple of officers began
assisting Officers Mayfield and Barrientos. (Gov't's
Ex. 1). Officer Mayfield used his taser on Defendant while
telling Defendant to “get the fuck down.” (Tr.
20; Gov't's Ex. 1). After feeling the effects of the
taser, Defendant yelled in pain and then exclaimed,
“Yes sir! Yes sir! Yes sir!” (Gov't's Ex.
1). The officers placed Defendant in handcuffs while he was
face down on the ground. (Gov't's Ex. 1). Officer
Barrientos then asked the Defendant, “Did I say you did
something?” (Gov't's Ex. 1). Defendant