United States District Court, N.D. Georgia, Atlanta Division
TOTENBERG UNITED STATES DISTRICT JUDGE
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].
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
The traffic stop
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).
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.)
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, the attenuation doctrine applies. See
Utah v. Strieff, 136 S.Ct. 2056, 2064
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.
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.)
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)). 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. (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.)
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.
Statements made to, and in front of, Agents Nevala and
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
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 ...