United States District Court, N.D. Georgia, Rome Division
NON-FINAL REPORT AND RECOMMENDATION
E. JOHNSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion to Suppress Mr.
Barr's In-Custody Statements . Defendant Anthony
Michael Barr contends that his custodial statements of
September 1, 2017 must be suppressed because he had invoked
his right to counsel upon his arrest the day before. On
September 12, 2018, the Court conducted an evidentiary
hearing , which has been transcribed . The issue has
been briefed. (Gov't Br. ; Def. Barr Resp. .) For
the reasons explained below, the undersigned
RECOMMENDS that the Motion be
THE SUPERSEDING INDICTMENT
12, 2018, a grand jury in the Northern District of Georgia
returned an nine-count Superseding Indictment  against
defendant Barr, charging that he knowingly and willfully
conspired with co-defendant Nadya Diaz, in violation of 18
U.S.C. § 371, for Mr. Barr to possess firearms after
having been convicted of a felony, in violation of 18 U.S.C.
§§ 2 and 922(g)(1). In addition to charging Mr.
Barr as a felon in possession, the Superseding Indictment
charged him with possession of a silencer that was not
registered to him, in violation of 26 U.S.C. §§
5861(d), 5845(a)(7), and 5871, possessing a shotgun with a
barrel of less than 18 inches in length, in violation of 26
U.S.C. §§ 5861(d), 5845(a)(2), and 5871, possessing
a firearm while being an unlawful user of a controlled
substance, in violation of 18 U.S.C. § 922(g)(3), and
unlawfully using the identify of “C.F.” to obtain
a temporary motor vehicle registration in violation of
Georgia law O.C.G.A. § 16-10-71 and 8 U.S.C. §
1028(a)(7). The Superseding Indictment also contains a
STATEMENT OF FACTS
August 31, 2017, Mr. Barr was arrested at his home on
Mitchell Bridge Road in Whitefield County and taken to the
Whitefield County Sherriff's Office (“WCSO”).
(Tr. 11-12.) At the time of his arrest, Mr. Barr requested
that officers retrieve his cell phones from the home.
(Id. at 13; see also id. at 27-28.) That
evening, the lead investigator, Detective Rickey Dewayne
Holmes, approached Mr. Barr while he was in the jail booking
area to advise Mr. Barr of his charges. (Id. at 12,
16, 26-27.) Mr. Barr asked Detective Holmes if they could
talk. (Id. at 12, 15-16, 27-28.) Detective Holmes
reminded Mr. Barr that he had invoked his right to counsel
upon arrest and declined to speak with Mr. Barr that evening.
(Id. at 12, 27; see also id. at 23-24.)
Detective Holmes told Mr. Barr that he should think about
whether he wanted to speak without an attorney and said they
could meet the next day if Mr. Barr still wanted to talk.
(Id. at 12, 27-29.)
September 1, 2017, Detective Holmes asked the jailors to
bring Mr. Barr to the interview room in the WCSO criminal
investigation division. (Tr. 13.) Detective Holmes also asked
the evidence technician to bring Mr. Barr's cell phones
to the interview room. (Id. at 13.) Mr. Barr was in
the interview room when Detective Holmes entered.
(Id. at 14-15, 30.) Detective Holmes asked Mr. Barr
if he still wanted to talk without an attorney present.
(Id. at 14-15, 30.) Mr. Barr responded that it
depended on what Detective Holmes wanted to talk about.
(Id. at 15-16, 30-31.) Detective Holmes told Mr.
Barr he could decline to answer any question. (Id.
at 16, 31.) Detective Holmes then read Mr. Barr his
Miranda rights and again asked Mr. Barr if he wanted
to talk and Mr. Barr agreed to do so. (Id. at 16-18,
Holmes stated that the evidence technician would bring Mr.
Barr's cell phones, so he could get the numbers out of
them. (Tr. 18, 32-33.) Detective Holmes began asking Mr. Barr
identifying information when the cell phones were brought
into the interview room. (Id. at 19-20.) Detective
Holmes then asked Mr. Barr which cell phone he needed the
numbers from and Mr. Barr stated that he needed numbers from
the smaller cell phone. (Id. at 20.) Without further
questioning, Mr. Barr began speaking to Detective Holmes.
(Id. at 20-21.) During the two-hour interview, Mr.
Barr did most of the talking and determined the topics of
conversation for the most part. (Id. at 21.) Mr.
Barr also asked to speak with federal agents. (Id.
at. 23.) The conversation was relaxed, and no law enforcement
officer threatened Mr. Barr. (Id. at 21.) Mr. Barr
did not mention that he needed a lawyer during the interview
and, while Mr. Barr declined to answer some questions, he did
not ask to end the interview. (Id. at 16, 24.)
MOTIONS TO SUPPRESS EVIDENCE
right to counsel recognized in Miranda is
sufficiently important to suspects in criminal investigations
. . . that it ‘requir[es] the special protection of the
knowing and intelligent waiver standard.'”
Davis v. United States, 512 U.S. 542, 458 (1994)
(quoting Edwards v. Arizona, 451 U.S. 477, 483
(1981)). When a person in law enforcement custody invokes the
right to counsel, he may not be interrogated “unless
the accused himself initiates further communication,
exchanges, or conversations with the police.”
Edwards, 451 U.S. at 485. That rule is
“designed to prevent police from badgering a defendant
into waiving his previously asserted Miranda
rights.” Michigan v. Harvey, 494 U.S. 344, 350
after invoking his right to counsel, the defendant initiates
a conversation with police about the pending investigation,
the Government must prove that waiver of the previously
asserted right is knowing and voluntary. See Oregon v.
Bradshaw, 462 U.S. 1039, 1046 (1983). Courts assess the
validity of a defendant's waiver of the Fifth Amendment
right to counsel with a two-step inquiry. First, the Court
must determine if the defendant's choice was “the
product of a free and deliberate choice rather than
intimidation, coercion, or deception.” United
States v. Lall, 607 F.3d 1277, 1283 (11th Cir. 2010)
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)
(internal quotation marks omitted)). Second, courts assess
whether the waiver was knowing and intelligent based on the
defendant's “awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it.” United States v. Barbour, 70 F.3d
580, 585 (11th Cir. 1995) (quoting Moran, 475 U.S.
at 421) (internal quotation marks omitted).
the Government concedes that Mr. Barr invoked the right to
counsel upon his arrest. (Gov't Br. 7.) However, the
Government has established that Mr. Barr initiated the
September 1, 2017 interview with Detective Holmes. At the
September 12, 2018 hearing, Detective Holmes testified that
Mr. Barr asked to speak with him the night of Mr. Barr's
August 31, 2017 arrest. Mr. Barr also may have asked for
numbers from his cell phone at that time. Regardless of
whether Mr. Barr made one or both requests, Detective Holmes
reminded Mr. Barr that he had invoked his right to counsel
and declined to speak with him that night, so that Mr. Barr
could have time to reconsider whether he indeed wanted to
speak without an attorney present. Not until the next day did
Detective Holmes meet with Mr. Barr and, before engaging in
meaningful conversation, Detective Holmes again asked Mr.
Barr if he wanted to speak without an attorney present. Thus,
law enforcement clearly did not badger Mr. Barr into speaking
despite invoking his right to counsel earlier.
the Government has established that Mr. Barr waived his right
to counsel voluntarily and did so knowing the consequences of
his decision. Mr. Barr not only initiated the conversation
with Detective Holmes but he also had time to reconsider his
request and confirmed his desire to speak with Detective
Holmes a second time. There is no evidence that Detective
Holmes deceived Mr. Barr or used Mr. Barr's desire for
his phone contacts to coerce him into speaking without an
attorney. Indeed, after Detective Holmes Mirandized
Mr. Barr and asked which of the cell phone's numbers he
needed, Mr. Barr began discussing the investigation without
further questioning by Detective Holmes. During the two-hour
interview, Mr. Barr declined to answer some of Detective
Holmes's questions and he asked Detective Holmes to
facilitate an interview with federal law enforcement
officials. Based on the totality of the circumstances, Mr.
Barr was aware of his right to an attorney, aware of the
consequences of speaking to law enforcement without counsel,
and voluntarily abandoned his Fifth Amendment right.
Accordingly, the undersigned RECOMMENDS that
Mr. Barr's Motion be DENIED.