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United States v. Liverman

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

June 8, 2018

UNITED STATES OF AMERICA,
v.
DAYNA JOY LIVERMAN Defendant.

          ORDER

          AMY TOTENBERG UNITED STATES DISTRICT JUDGE

         Magistrate Judge John Larkins' Final Report and Recommendation (“R&R”)[Doc. 345] is currently before the Court. The R&R recommends the denial of Defendant's Motion to Suppress Statements [Doc. 300]. The Defendant has filed objections to the Magistrate Judge's R&R that challenge the Magistrate Judge's mixed factual and legal findings that 1) there was a lawful stop of Ms. Liverman and 2) that Ms. Liverman's statements were not given in response to interrogation [Doc. 349].

         A district judge has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the R&R that is the subject of a proper objection on a de novo basis and any non-objected portion on a “clearly erroneous” standard. Accordingly, the Court has reviewed the Defendant's motion on a de novo basis as Defendant's objections go to the essence of the Magistrate Judge's evidentiary and legal analysis.

         A. The traffic stop

         Defendant was arrested on July 29, 2016 by the Southfield Police Department in Southfield, Michigan after a traffic stop. (Doc. 336, Ev. Hearing at 4-5.) The Southfield police allegedly conducted this traffic stop pursuant to an outstanding federal arrest warrant out of Atlanta, which local FBI had informed them of prior to the stop. (Id. at 11, 19.) Defendant argues that the government has failed to “establish that the initial stop of the vehicle and arrest of Ms. Liverman were lawful.” (Doc. 349) (citing United States v. Harris, 928 F.2d 1113, 1116 (11th Cir. 1991), “in order for the initial stop to be constitutionally firm, there must have been at least reasonable suspicion of criminal conduct.”) Defendant argues that there is no evidence that the stopping officer was aware of the Atlanta warrant before he stopped her, and thus her statements, as “fruits” of the stop, should be excluded. Segura v. United States, 1468 U.S. 796, 804 (1984).

         Agent Nevala's testimony at the evidentiary hearing indicates that the FBI in Detroit forwarded information of Ms. Liverman's outstanding warrant to the local Southfield Police Department prior to the stop and arrest. (Doc. 336 at 11, 19). Defendant argues that this testimony from the evidentiary hearing is not enough; that is, that the government needs to produce the arresting Southfield officer to establish that the basis for the stop was the arrest warrant out of Atlanta or evidence amounting to reasonable suspicion or probable cause to stop. (Doc. 349 at 2-3.)

         In addition to accepting Agent Nevala's testimony as credible evidence that Southfield had been made aware of the Atlanta warrant prior to the stop, the Magistrate Judge found that the statements were admissible even if the Southfield officer had not known of the Atlanta warrant before the stop. (Doc. 345 at 5.) He found that, because the Southfield officers were aware of the warrant at some point during the stop[1], the attenuation doctrine applies. See Utah v. Strieff, 136 S.Ct. 2056, 2064 (2016).[2]

         The attenuation doctrine discussed in Strieff treats otherwise inadmissible evidence as admissible when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance. Id. at 2061. The Supreme Court discusses three factors that guide an attenuation doctrine analysis: 1) the temporal proximity between unconstitutional conduct and discovery of evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of official misconduct. Id. at 2062 (citing Brown v. Illinois, 422 U.S. 590 (1975)). In Strieff, the defendant was stopped after leaving a suspected drug house, and then arrested after the officer learned of an outstanding traffic warrant. Strieff, 136 S.Ct. at 2060. The officer then searched Strieff incident to the arrest, and found drugs. Id. In analyzing the situation under the factors established in Brown, the Supreme Court found that, even though the temporal proximity factor weighed in favor of suppression, the intervening circumstance of the valid warrant and the lack of flagrant misconduct outweighed temporal concerns. Id. at 2057.

         Defendant Liverman seeks to distinguish the facts of her case based on an analysis of the third factor, arguing that the government has failed to show that the Southfield officers' stop was not the result of purposeful or flagrant misconduct. (Doc. 349 at 3-4.)

         Here, there is nothing in the record to suggest that the Southfield officers' behavior constituted misconduct, let alone flagrant misconduct. “For a violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure.” Id. at 2064 (citing Kaupp v. Texas, 538 U.S. 626, 628 (2003)).[3] In addition, the first two factors of the attenuation analysis, the temporal proximity and the intervening circumstances, weigh in favor of admissibility. Ms. Liverman's statements were given at least an hour, very possibly more, after the stop[4]. (Doc. 336 at 16.) The warrant “discovery, ” the arrest, the temporary detention at Southfield police department, and the transfer of custody constitute sufficient intervening circumstances under Strieff. (Doc. 336 at 16, 18, 28.)

         The record before the Court suggests that the Southfield officers arrested Ms. Liverman with knowledge of the Atlanta warrant. (Doc. 336 at 11, 19.) Thus, the Court agrees with the interpretation and analysis of the Magistrate Judge in finding that the arrest was conducted pursuant to the Atlanta warrant; and arguendo, if not, the evidence is still admissible under the “attenuation doctrine” detailed in Strieff.

         B. Statements made to, and in front of, Agents Nevala and Pennisi

         On the afternoon of July 29, 2016, FBI Agents Zane Nevala and Chris Pennisi transported Ms. Liverman from the Southfield police station to the Federal Courthouse in Detroit. (Doc. 336 at 3-5.) At various points before and during this transportation, Defendant made incriminating statements to the agents. (Id. at 6, 14.) Defendant also made statements in a phone call to her father while in en route to the Federal Courthouse, using a cell phone belonging to one of the agents. (Doc. 336 at 16-17.) These statements to her father were overheard by Agent Nevala. (Id.) Ms. Liverman argues that all statements should be suppressed because she was in custody, was subject to interrogation, and had not been afforded Miranda warnings. (Doc 300 at 2, citing Endress v. Drugger, 880 F.2d 1244, 1248 (11th Cir. 1988), “It is well-settled that Miranda warnings are required before the government may offer a statement into evidence that was elicited through interrogation from someone in custody.”)

         The government does not seem to dispute that Ms. Liverman was in custody or that she had not been afforded her Miranda warnings. The dispute concerns whether or not Ms. Liverman's statements were given ...


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