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United States v. Brown

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

May 10, 2018

UNITED STATES OF AMERICA,
v.
WILLIAM GERARD BROWN, Defendant.

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

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE

         Pending 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 GRANTED.

         UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE PRETRIAL MOTIONS AND TO CONTINUE PRETRIAL CONFERENCE

         In 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).

         MOTION TO SUPPRESS STATEMENTS

         In 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).

         MOTION TO ADOPT AND AMEND DEFENDANT'S MOTION TO SUPPRESS

         Defendant 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).

         MOTION TO SUPPRESS EVIDENCE

         On 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).

         I. FACTUAL BACKGROUND

         A. The January 12, 2017 Stop

         On 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).

         Officer Barrientos' supervisor instructed Officer Barrientos and Officer Mayfield, [1]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. (Tr. 8).

         Officer 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).

         Officer 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).

         Officer 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).

         When 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. (Tr. 12).

         After 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. (Tr. 39).

         In her 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).

         Once 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).

         Officer 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).

         Seconds 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).

         Defendant 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 ...


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