TIMOTHY C. BATTEN, SR., District Judge.
This matter is before the Court on Defendant Jerome Bushay's objections [489] to Magistrate Judge Baverman's Report and Recommendation (the "R & R") [476], which recommends that the Court deny Bushay's motion to suppress statements [155]; motion to suppress evidence [156]; motion to suppress search and seizure re: 6746 Grey Rock Way [279 & 327]; motion to suppress search and seizure re: 943 Peachtree Apt. 707 [278 & 326]; and motion to suppress search and seizure re: hotel room [280]. The R & R further recommends that Bushay's motion to suppress search and seizure re: traffic stop [282] be granted as moot and defers his motion to sever defendant re: Bruton problem [283] to this Court for determination.
On December 14, 2010, the grand jury returned an indictment against Bushay
Bushay filed the motions currently before the Court seeking to suppress the seizure of a firearm from a hotel room in Tampa, Florida; his statements made to police following his arrest in Florida; evidence gained through the searches of two residences in Georgia; and evidence gained through a traffic stop. Additionally, Bushay seeks a severance pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), from any of his co-Defendants who made statements implicating him.
On September 22, 2011, Magistrate Judge Baverman held an evidentiary hearing on Bushay's motions to suppress evidence from the search of the Tampa hotel room and his post-arrest statements.
On February 7, 2012, Judge Baverman issued an R & R setting forth his findings of fact from the evidentiary hearing and recommending that all of Bushay's motions to suppress, except his motion to suppress evidence from an October 4, 2010 traffic stop in Lamar County, Georgia, be denied. As to the traffic stop, Judge Baverman recommended that this motion be granted as moot because the Government announced at the evidentiary hearing that it did not intend to introduce any evidence from the traffic stop at trial. Bushay timely filed objections to the R & R challenging Judge Baverman's findings of fact and conclusions of law made in response to his motions to suppress.
A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's R & R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir.1982)).
"Parties filing objections must specifically identify those findings objected
The district judge also has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.2009). Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir.2000)).
After conducting a complete and careful review of the R & R, the district judge may accept, reject or modify the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).
The Court has conducted a careful, de novo review of the report and recommendation and Bushay's objections thereto. Having done so, the Court finds that Magistrate Judge Baverman's factual and legal conclusions were correct and that Bushay's objections have no merit.
Based on the evidence presented by the parties at the September 22 hearing, Judge Baverman made the following findings of fact regarding the search of the Tampa hotel room, the seizure of a gun from that room, and Bushay's post-arrest statements to police.
On December 15, 2010, Drug Enforcement Administration ("DEA") Atlanta Task Force Officer ("TFO") T.K. Gordon called TFO Jeff McConaughey of the Pinellas County, Florida Sheriff's Office to advise him that several individuals who had been indicted in Atlanta, and for whom arrest warrants had been issued, were in the Tampa area. At the time of the call, McConaughey had been conducting an investigation of one of Bushay's co-Defendants, Christopher Williams. McConaughey assembled a team of DEA agents and TFOs and went to an area northeast of Tampa near the fairgrounds, where there are several hotels. The agents did not know which hotel the individuals were staying in, but had learned through Title III wire intercepts that the subjects were in room 308 of one of the hotels in that area. Agents then observed Bushay and Williams leaving the Fairfield Inn in a van and followed them to an IHOP restaurant near downtown Tampa.
Agents continued to surveille the suspects while they were inside the IHOP. When the men went to leave the restaurant, agents arrested them. In searching Bushay, McConaughey found two plastic credit-card-type hotel room keys. Agents placed Bushay in the back of a marked police car, but did not advise him of his Miranda rights at that time because they did not intend to question him at the scene.
Once at the DEA office, McConaughey took Bushay to the processing and interview
Bushay replied, "Yes, I'll talk to you." McConaughey did not present Bushay with a written waiver form. McConaughey began questioning Bushay and asked him whether he had left any property at the hotel. Bushay responded that he had left a gun in the hotel nightstand.
DEA Task Force Agents Nicholas Marolda and Dexter McGee went to the Fairfield Inn with the plastic keys that agent McConaughey had found on Bushay in order to retrieve the gun. They knocked on the door of room 308, and after a few seconds Keisean Scarlett opened the door. When Marolda identified himself as a law-enforcement agent, Scarlett tried to shut the door; however, Marolda stuck his foot in the door. Scarlett turned around and moved towards the bed. The agents drew their weapons but did not enter the room. Instead, they verbally commanded Scarlett to return to the door while showing his hands and then to get on the floor. Scarlett complied, and the agents handcuffed him.
Scarlett told the agents, and they observed, that another person, subsequently identified as Chadwick Williams, was in the room sleeping. The agents told Williams to show his hands, and after several requests he complied and the agents secured him. The agents then placed Scarlett and Williams in the hallway inside the hotel room and conducted a sweep of the room for the presence of any other persons.
After sweeping the room, the agents brought Scarlett and Williams back into the room and seated one on a chair and the other on a bed. Marolda explained that the agents were there to search the room for a firearm. Marolda asked Scarlett if there was a gun in the room, and he replied that it was in the nightstand between the beds. Scarlett told Marolda that he was going to call "Jerome" to ask why he left the gun in the room. Marolda seized the firearm from the nightstand, and gave it to McGee, who cleared it and secured it.
At approximately 12:35 p.m., Scarlett and Williams signed a consent-to-search form for the room, but Marolda could not say whether the form was signed before or after the firearm was seized. He also testified that he "had consent to search the room — verbal consent to search the room and then we had written — and then we received written consent as well."
Meanwhile, back at the Tampa DEA office, Gordon called McConaughey on his cell phone around 1:17 p.m. McConaughey handed the phone to Bushay in order for Gordon to record a voice exemplar. Although McConaughey could not hear Gordon's side of that conversation, Bushay did not invoke his right to an attorney while speaking with Gordon, nor did he invoke his right to remain silent. After Bushay spoke with Gordon, McConaughey began questioning Bushay about the Atlanta case, particularly whether Williams was involved in the Atlanta case with him. At that point, Bushay responded, "I better
In evaluating Bushay's motions to suppress the search of the hotel room, the seizure of the gun, and Bushay's post-arrest statements, the magistrate judge concluded the following.
First, Judge Baverman concluded that Bushay lacked standing to challenge the agents' search of the hotel room because he did not establish that he had a subjective or objective expectation of privacy in the hotel room. As to Bushay's subjective expectation of privacy, the magistrate judge concluded that Bushay did not show that he had an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee. Specifically, Bushay failed to establish that the room was rented in his name, that he paid for the room, or that he was the registered additional guest.
In reaching this conclusion, Judge Baverman found significant that Bushay described his presence in the area as having "met friends"; referred to "the" hotel room rather than "his" hotel room; never proved that the two plastic keys were in fact the keys to room 308; did not prove that the vehicle he was operating at the time of his arrest was a vehicle registered for room 308; was not using the hotel for lodging; and kept no personal items in the room other than the gun. Although Bushay argued that the fact that the agents believed that he was staying in the room helped prove his standing, Judge Baverman found this argument unpersuasive because a defendant may not establish standing by relying on the government's theory of the case. Because he could not establish that the hotel room was his, nor could he establish that he was an overnight guest, Judge Baverman found that Bushay had not established that he had a subjective expectation of privacy. Further, he concluded that Bushay had also failed to establish an objective expectation of privacy in the hotel room because at most he was only a casual visitor.
Second, Judge Baverman considered whether Bushay had standing to challenge the agents' seizure of the firearm even though he had no standing to challenge the agents' search of the hotel room. He concluded that a defendant cannot assert standing to challenge a seizure based on a possessory interest in the item seized when has no expectation of privacy in the area searched. Further, he found that even if Bushay could establish standing on such a basis, he had failed to show that he had a possessory interest in the handgun sufficient to establish an expectation of privacy in the gun itself. He based this conclusion on his findings that Bushay left the gun unsecured in a hotel room in which he had no cognizable expectation of privacy; Bushay did not leave the gun in a personal belonging such as a coat or case; the gun was not registered in Bushay's name; Bushay did not tell Scarlett that he left the gun in the nightstand; and Bushay did not prove that the keys removed from him at the time of the arrest were keys to room 308 and therefore had no way to retrieve the gun except through Scarlett.
Third, Judge Baverman addressed whether, in the event the Court were to find that Bushay does in fact have standing to challenge the agents' warrantless search of the hotel room and the subsequent seizure of the gun, the search and seizure was proper. He concluded that the Government did not prove that Scarlett or Williams voluntarily consented to a search of the hotel room, either through oral or written consent. However, he concluded that the agents' seizure of the gun was nevertheless reasonable under
Fourth, the magistrate judge considered whether Bushay's post-arrest statements were lawfully obtained, i.e., whether the Government proved that the agents satisfied the Miranda requirements and that Bushay's statements were obtained freely and voluntarily. He found that McConaughey read Bushay his Miranda rights from a DEA Form 13A, so Bushay was made aware of his rights, and Bushay responded by saying that he was willing to talk with McConaughey. Furthermore, Bushay's statements were voluntary because there was no evidence that McConaughey promised him any benefit or threatened him, the questioning was not prolonged, and the fact that Bushay exercised his right to stop answering questions during the interview demonstrated that he recognized that he had a choice not to answer any questions.
Bushay first objects to Judge Baverman's conclusion that he lacked standing to challenge the search of the Tampa hotel room and the seizure of the firearm. He contends that he has demonstrated a subjective expectation of privacy in the premises because the evidence shows that he was staying in room 308 of the Fairfield Inn. Additionally, Bushay argues that contrary to the R & R's conclusion, he has standing to challenge the agents' seizure of the gun because the seizure infringed upon his possessory rights.
Bushay objects to several of the R & R's factual findings and legal conclusions regarding his subjective expectation of privacy in the hotel room. First, he argues that Judge Baverman incorrectly concluded that "while Bushay possessed two hotel room keys, he never proved that these keys in fact were the keys to room 308." Bushay contends that the fact that the agents went immediately to room 308 of the Fairfield Inn and seized the firearm from inside the nightstand proves that the keys belonged to that room. The Court disagrees.
The facts show that upon searching Bushay the agents confiscated two plastic keys. They also knew from the Title III wire communication that he was staying in room 308 of a local hotel. Based on their surveillance, they believed that Bushay was staying at the Fairfield Inn. When Bushay was arrested, he had two plastic key cards in his sleeve. During his post-arrest questioning, he told the agents that he had left his gun in the nightstand of the hotel room. Thus, there was an inference that the plastic cards went with the hotel room. However, the agents never used the keys to enter the room. Instead, they knocked on the door and Scarlett opened it. Therefore, the fact that the agents went to the hotel room and seized the gun does not prove that the keys belonged to room 308. The Court agrees with the R & R that under the facts, Bushay failed to prove that the keys belonged to room 308.
Bushay next disagrees with the magistrate judge's conclusion that he relied upon the Government's theory of the case in proving his standing. He contends that he relied upon the direct and circumstantial evidence proved by the agents to meet his burden. In support of his contention, he points to McConaughey's testimony
Bushay also contends that the magistrate judge erroneously concluded that he was merely a casual visitor who was briefly present with the consent of the room holder. He asserts that the evidence establishes that he was actually staying in room 308. In support of his argument, Bushay points to five facts: (1) he announced on the phone that the men were staying in room 308; (2) agents saw Bushay getting into his car in the parking lot of the hotel; (3) when arrested, he had two keys to room 308; (4) after his arrest, he informed agents that he had left his gun back at his hotel room in the nightstand; and (5) Scarlett informed agents that Bushay left his gun in the nightstand.
The Court does not find this argument persuasive. As explained above, Bushay never proved that the keys belonged to room 308. Additionally, neither the agents seeing Bushay get into his car outside the hotel room, Bushay informing the agents that his gun was back at the hotel room, nor Scarlett informing the agents that Bushay left his gun in the nightstand makes it more probable that the hotel room was Bushay's as opposed to its being Scarlett's and Bushay having simply been a casual visitor who left his gun there.
The fact that on the phone call Bushay said that the men were staying in the room is more helpful to Bushay. However, Bushay did not show that he had an unrestricted right of occupancy or custody and control of the room as distinguished from occasional presence in the room as a mere guest or invitee. Afterall, Bushay had no personal belongings in the room other than the gun and did not stay in the room overnight. The magistrate judge correctly found that Bushay did not show that the room was rented in his name, that he paid for the room, that the van he was driving was registered to the room, or that he was registered as an additional guest. Thus, the Court agrees with the magistrate judge's conclusion that in light of the totality of the evidence presented, Bushay did not carry his burden of establishing that the room was his.
As to his objective expectation of privacy, Bushay contends that according to the Supreme Court's holding in Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), he was a social guest with a reasonable expectation of privacy because there is no evidence that men were using the room predominantly to engage in narcotics trafficking. Bushay's reliance on Carter is misplaced. There, the Court held that based on the "purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between [defendants] and the householder," defendants did not have a subjective expectation of privacy. However, the absence of a purely business or illegal purpose does not compel the opposite conclusion, i.e., that the defendant does have standing.
As the Court explained in Carter, "an overnight guest in a home may claim
Bushay also argues that he demonstrated an objective expectation of privacy by being the sole possessor of the room keys. As set forth above, Bushay has failed to prove that the keys belonged to room 308. Moreover, Bushay has not submitted any evidence demonstrating that there were only two keys to the room. Even if Bushay had proved that the two keys in his possession were the keys to room 308, since Scarlett and Williams were in the room when the agents arrived, it seems reasonable that the hotel could have issued more than two plastic keys to the room.
The Court will therefore adopt the R & R's conclusion that Bushay did not have a subjective or objective expectation of privacy in the hotel room.
Bushay also contends that, contrary to Judge Baverman's conclusion, he established standing based upon his possession and property interests in the gun. In support of his argument, he relies on Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), for the proposition that a defendant need only establish that a seizure interfered with his possessory rights in order to challenge the seizure. The R & R considered Soldal's application to the facts of this case and concluded,
R & R at 26.
In Soldal, the Supreme Court described the issue before it as "whether the seizure and removal of the Soldals' trailer home implicated their Fourth Amendment rights." 506 U.S. at 61, 113 S.Ct. 538. The Seventh Circuit had held that the Soldals' Fourth Amendment rights had not been violated because the officers who facilitated the removal of their mobile home had not violated the Soldals' privacy or liberty interests because they
The Court then looked to its decisions in Jacobsen and United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and explained that in those cases, because there was an invasion of the property owners' possessory interests, i.e., a seizure, regardless of whether the owners' privacy interests had been violated through a search, the issue was whether the seizures were reasonable under the Fourth Amendment. The Soldal Court made clear that "[a]lthough lacking a privacy component, the property rights in both [Jacobsen and Soldal] nonetheless were not disregarded, but rather were afforded Fourth Amendment protection." 506 U.S. at 65, 113 S.Ct. 538. Thus, the Court in Soldal seemed to imply that a person may challenge a seizure of his property based on his property interest, even when he lacks a privacy interest.
However, as Judge Baverman noted, Soldal was not about a criminal defendant's standing to challenge the seizure of personalty in a criminal proceeding. In fact, in considering the potential implications of its decision, the Court commented on how its holding might affect "routine repossessions, negligent actions of public employees that interfere with individuals' right to enjoy their homes, and the like." Id. at 71, 113 S.Ct. 538. Nowhere did the Court even mention the case's effect on standing in criminal cases.
In his reasoning, Judge Baverman also noted that he "has not been directed to any cases, and has found none, where a court permitted someone like Bushay — at most a casual visitor — to invoke the Fourth Amendment to challenge the seizure of his own property when the visitor was not present at the time of the search and seizure." Indeed, such cases are extremely limited, but this Court has found two on point.
First, in 1975, when Justice Stevens was a Circuit Judge for the Seventh Circuit, he wrote the opinion in United States v. Lisk, 522 F.2d 228 (7th Cir.1975), which considered whether a defendant could establish standing to challenge a seizure based solely on his property interest in a bomb. The defendant had stored a bomb in the trunk of a friend's car, and police searched the car and seized the bomb. The defendant was not in the car at the time of the seizure. Thus, like Bushay, the defendant had no expectation of privacy in the area searched and was not present for the search. The court held that the defendant clearly lacked standing to object to the search of the car because he had no expectation of privacy in the third party's car. In determining whether the defendant had standing to challenge the seizure, the court began its analysis by noting, "Although the issue seems simple and clear-cut, and certainly the problem must be one that frequently arises, we have been surprised to find no authority directly on point." Id. at 230. The court then explained, "There is a difference between a search and a seizure. A search involves an invasion of privacy; a seizure is a taking of property. The owner of a chattel which has been seized certainly has standing to seek its return." Id. Setting forth little other reasoning for its decision, the court held that based on the defendant's property interest in the bomb,
In a footnote in United States v. Salvucci, 448 U.S. 83, 91 n. 6, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Supreme Court seemingly endorsed the Seventh Circuit's holding in Lisk when citing to it for the proposition that "[l]egal possession of the seized good may be sufficient in some circumstances to entitle a defendant to seek the return of the seized property if the seizure, as opposed to the search, was illegal." But, importantly, the Court did not say that a defendant's legal possession of an item would be sufficient to confer standing upon him to seek suppression of the seized good in a legal proceeding against him — only that it would entitle him to seek the return of his seized property. The Court did not explore the issue in depth because the defendants did not challenge the constitutionality of the seizure, only the search.
The second case concluding that a criminal defendant has standing to contest a seizure based on his property interest in the item seized is the District of Massachusetts's decision in United States v. Battle, 400 F.Supp.2d 355 (D.Mass.2005). In Battle, the defendant contested the seizure of a handgun and ammunition from a bureau drawer in a third party's apartment. The court found that the defendant did not have standing to challenge the search because he had no expectation of privacy in the third party's home, but that under Lisk and Salvucci he was not foreclosed from challenging the seizure of the handgun and ammunition.
Because Battle is dicta, in thirty-five years only one case — Lisk — has adopted the proposition Bushay maintains: that a criminal defendant has standing to challenge the seizure of a chattel based solely on his property interests therein. In the face of such scant authority, the Court refuses to recognize such broad standing rights. The Court will therefore adopt Judge Baverman's conclusion of law that Bushay cannot establish standing to challenge the seizure of the gun based on his alleged property right in the gun.
Additionally, the Court will adopt Judge Baverman's conclusion that even if Bushay had standing to assert that evidence
Bushay agrees with Judge Baverman's conclusion that the agents did not gain Scarlett's or Williams's consent before searching the room. However, he objects to the magistrate judge's conclusion that the warrantless search was nonetheless proper under the exigent-circumstances exception to the warrant requirement. Bushay contends that because he was in custody miles away from the hotel, Scarlett and Williams were not convicted felons, and there was no evidence that the gun was the evidence of a crime or shooting, no exigent circumstances existed.
This objection is meritless. Based on the danger that the gun presented to the public, the agents reasonably seized it from the hotel room. The Court will therefore adopt the magistrate's conclusion that the seizure of the gun was reasonable.
Bushay also objects to Judge Baverman's conclusion that Bushay's statements complied with Miranda and were voluntary. He argues that the agents failed to obtain a written waiver and that under the "traumatic" circumstances of his arrest and detention, his statements were not voluntary.
First, the agents' failure to obtain Bushay's written waiver is not determinative of whether Bushay effectively waived his Miranda rights. The government "does not need to show that a waiver of Miranda rights was express," and an "implicit waiver" of Miranda rights is sufficient. Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010); Hall v. Thomas, 611 F.3d 1259, 1285 (11th Cir.2010). Indeed, the Eleventh Circuit has held that a defendant may impliedly waive his Miranda rights by voluntarily making statements, even when he has explicitly refused to sign a written waiver. United States v. Dowd, 451 F.3d 1244, 1250-51 (11th Cir.2006) (where defendant "continued talking immediately after declining to sign the waiver" and "did not suggest even equivocally that he wished to cease questioning," he impliedly waived his Miranda rights, notwithstanding his failure to sign the waiver form).
As Judge Baverman explained, an accused effectively waives his Miranda rights if he (1) voluntarily relinquishes them as the product of a free and deliberate choice, rather than through intimidation, coercion, or deception; and (2) makes his decision with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. United States v. Wright, 300 Fed.Appx. 627, 630 (11th Cir. 2008) (citing United States v. Barbour, 70 F.3d 580, 585 (11th Cir.1995)). A waiver is effective where the totality of the circumstances reveal both an uncoerced choice and the requisite level of comprehension. Id.
Here, McConaughey read Bushay his Miranda rights from a DEA Form 13A, thus making him aware of his rights. And when McConaughey asked Bushay whether he was willing to answer questions, Bushay said that he was willing to talk. McConaughey did not promise Bushay any benefit or threaten him in any
Nonetheless, Bushay contends that his waiver was not voluntary. He claims that "like an arrest scene out of so many movies, he was stormed by ten to fifteen armed agents who had their guns drawn, their badges flashing and their raid gear on display." According to Bushay, he was then "dragged from the driver's seat and thrown to the ground face-first," handcuffed, "and then whisked away to an unfamiliar place, the bowels of a DEA office" where agents questioned him in a twelve-by-twelve-foot interrogation room. Bushay insists that the "average person would be traumatized by the arrest process to which [he] was subjected."
Indeed, many people would likely find being arrested to be a traumatic event, and any arrest involves a certain degree of duress. But the issue is not whether the "average person" would be "traumatized" by the arrest process to which a defendant is subjected. Instead, the Court must consider whether the defendant voluntarily relinquished his right by making a free and deliberate choice, i.e., a choice that was not the product of intimidation, coercion or deception. As set forth in the R & R, sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession. See Colorado v. Connelly, 479 U.S. 157, 163 n. 1, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir.1988); United States v. Castaneda-Castaneda, 729 F.2d 1360, 1362-63 (11th Cir.1984). Although the agents used physical force to secure Bushay's arrest, they did not use force after Bushay was restrained. Once inside the interrogation room, the agents did not subject Bushay to a long interrogation, apply any physical force, or make any promises. Thus, despite Bushay's dramatic characterization of his arrest and questioning, the Court agrees with Magistrate Judge Baverman that the agents did not coerce, deceive or intimidate Bushay into waiving his rights.
The Court will therefore adopt the R & R's recommendation to deny Bushay's motion to suppress his post-arrest statements.
Finally, Bushay objects to Judge Baverman's conclusion that Bushay's motion to suppress evidence seized as the result of two federal search warrants for 943 Peachtree, Apt. 707 and 6746 Grey Rock Way. In his objections, Bushay states that he "reiterates" that "probable cause was lacking on the face of the warrant affidavits, and the information in the affidavits [supporting the warrant applications] was stale." This reiteration basically mirrors the arguments he raised in his supplemental motions to suppress these searches [326 & 327]. Because Judge Baverman addressed each of Bushay's arguments in the R & R, and the Court agrees with the R & R's thorough reasoning and conclusions, the Court sees no need to provide additional analysis on this issue.
The Court has also reviewed those sections of the R & R to which Bushay did not object and finds no clear error.
Accordingly, the Court ADOPTS AS ITS ORDER the Report and Recommendation. The Court DENIES Bushay's motion to suppress statements [155]; motion to suppress evidence [156]; motion to suppress search and seizure re: 6746 Grey Rock Way [279 & 327]; motion to suppress search and seizure re: 943 Peachtree Apt.
Bushay's motion to suppress search and seizure re: traffic stop [282] is DENIED AS MOOT.
Additionally, Bushay is DIRECTED to supplement his motion to sever defendant re: Bruton problem [283] within twenty-one days from the issuance of this order. The Government will then have fourteen days to respond to his supplemented motion, and Bushay may then file a reply within fourteen days of the Government's filing of its response brief. If Bushay does not file a supplemental brief within this period, the Court will deem the motion abandoned.
ALAN J. BAVERMAN, United States Magistrate Judge.
Attached is the Report and Recommendation ("R & R") of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and N.D. Ga. CrR. 58.1(A)(3)(a), (b). Let the same be filed, and a copy of the R & R, together with a copy of this Order, shall be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections to the R & R within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and be served upon the opposing party. See United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir.1990). The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. Failure to object in accordance with this rule waives a party's right to review. Fed.R.Crim.P. 59(b)(2).
Pursuant to 18 U.S.C. § 3161(h)(1)(H), the above-referenced fourteen (14) days allowed for filing objections is
Before the Court are the following pretrial motions filed by Defendant Jerome Bushay: (1) motion to suppress statements, [Doc. 155]; (2) motion to suppress evidence, [Doc. 156]; (3) first motion to suppress search and seizure re: 943 Peachtree, Apt. 707, [Doc. 278], supplemented by Document 326; (4) first motion to suppress search and seizure re: 6746 Grey Rock Way, [Doc. 279], supplemented by Document 327; (5) motion to suppress search and seizure re: hotel room, [Doc. 280]; (6) motion to suppress search and seizure re: traffic stop, [Doc. 282]; and (7) motion to sever defendant re: Bruton problem, [Doc. 283]. For the following reasons, the undersigned
These motions concern Bushay's arrest on December 15, 2010, in Tampa, Florida, the search of a hotel room, and statements made by Bushay. The Court held an evidentiary hearing on the motions. [Doc. 449].
On the morning of December 15, 2010, Pinellas County Sheriffs Office Detective/DEA Task Force Officer ("TFO") Jeff McConaughey was called by DEA Atlanta TFO T.K. Gordon, who advised that several individuals indicted in Atlanta, and for whom arrest warrants had issued, were in the Tampa area. Transcript ("T") 11 [Doc. 449]. Gordon identified the subjects and told McConaughey where these individuals supposedly were located. T11, 30. At the time of Gordon's call, McConaughey was independently conducting an investigation in Tampa of one of Bushay's co-defendants, Christopher Williams. T31. McConaughey assembled a team of DEA agents and TFOs and went to an area northeast of Tampa near the fairgrounds, where there were several hotels. T11-12. At first, the agents did not know the specific hotel where the subjects were staying, but they knew through Title III wire intercepts that the subjects were located in room 308 of one of the hotels in that area. T12, 31. Surveilling agents observed two subjects, identified as Bushay and Williams, leave the Fairfield Inn in a silver or light blue Honda van,
McConaughey arrived at the IHOP at noon and saw Williams walking back towards the van. Agents already on the scene told McConaughey that the van's other occupant (Bushay, in the driver's seat) was still in the vehicle. T14, 34.
McConaughey was dressed in street clothes but was wearing a tactical vest clearly identifying him as a police officer, along with a gun belt and his badge. T15-16. In searching Bushay, McConaughey found plastic credit-card type hotel room keys in a key sleeve. T16. He told Bushay that there were warrants for his arrest, but did not tell him the nature of the charges. T17.
Once at the DEA office, McConaughey took Bushay to the processing and interview room.
DEA Task Force Agents Nicholas Marolda and Dexter McGee went to the Fairfield Inn at about noon to seize the firearm left in room 308. T47, 48, 49.
Scarlett told the agents, and they observed, that another person, subsequently identified as Chadwick Williams, was in the room sleeping. T49, 50, 70-71. He was told to show his hands, and after several requests, he complied and was secured. T49, 50, 71. Scarlett and Chadwick Williams were placed in the hallway inside the hotel room. T72. Securing both subjects took about 45 seconds. T72. The room was swept for the presence of any other persons. T72, 73.
After sweeping the room, the agents brought Scarlett and Williams back into the room. T73.
Scarlett told Marolda that he had gotten into the room, took a shower and fell asleep, and that is why he was slow in answering the door. T54. Marolda asked him if there was a gun in the room, and he replied that it was in the night stand between the beds. T54. Marolda asked him if he knew the gun was there and if he touched it; Scarlett responded he knew it was there, he touched it and was going to call "Jerome" to ask why he left the gun in the room. T54, 76.
Marolda seized the firearm from the night stand, and gave it to McGee, who cleared it and secured it. T54, 76-77. A warrants-and-criminal-history check was run (to see if Scarlett or Williams were convicted felons), with negative results. T77, 78.
At approximately 12:35 p.m., Scarlett and Williams signed a consent-to-search form for the room, Gov't Exh. 3; T52-53, but Marolda could not say whether the form was signed before or after the firearm was seized. T78. He also testified that he "had consent to search the room — verbal consent to search the room and then we had written — and then we received written consent as well." T81; see also T83.
The questioning of Scarlett and Williams took approximately 30 minutes. T77. They were then uncuffed and walked downstairs to the manager's office, where Scarlett and Williams were asked by the management to leave the hotel. T77.
Meanwhile, back at the DEA office, Gordon called McConaughey on his cell phone around 1:17 p.m. T24, 25, 41. McConaughey handed the phone to Bushay in order for Gordon to record a voice exemplar. T24-25. Although McConaughey could not hear Gordon's side of that conversation, Bushay did not invoke his right to an attorney while speaking with Gordon, T28, nor did he invoke his right to remain silent. T29.
The evidence at the hearing and the parties' post-hearing briefs raise three issues to be decided: Bushay's standing to challenge the search and seizure cf the firearm from room 308 of the Fairfield Inn; if he has standing, whether the gun was properly seized; and whether his postarrest statements were obtained in compliance with Miranda and were otherwise voluntary.
Bushay argues that he has standing to challenge the search of the hotel room and the seizure of the firearm. [Doc. 461 at 7]. He contends that the record demonstrates that he had a privacy interest in the room as a social guest at room 308 of the Fairfield Inn, since (1) the wire intercept disclosed he was staying in room 308; (2) he was observed leaving from the Fairfield Inn; (3) he was found to be in possession of plastic room keys from the hotel (although he recognizes that possession of the keys alone does not establish standing); (4) the record contains no other evidence of keys to room 308, [id. at 8]; (5) the hotel registry lists one guest in addition to Scarlett in the room, [id. at 8-9]; (6) there is no evidence in the record to suggest that Bushay's presence in the hotel room was for an illegal purpose, and thus as a social guest, he had the same expectation of privacy as he would have in his own home, [id. at 9-10]; (7) his possession of two keys reflects the hotel management's recognition that more than one person was staying in room 308, [id. at 10]; (8) the occupants of the room had not checked out, nor had they abandoned the room, [id.]
Bushay also argues that he had a possessory interest in the firearm seized which, he contends, was interfered with even if he does not have a privacy interest in the placed searched. [Id. at 12].
In response, the government argues that Bushay has failed to allege sufficient facts to establish standing to challenge the search of room 308. It argues, based on the four-factor test set out in United States v. Carter, 854 F.2d 1102, 1105 (8th Cir.1988), which the government asserts was approved by the Eleventh Circuit in United States v. Cooper, 203 F.3d 1279 (11th Cir.2000), first, that Bushay was not in the room at the time of the search. It contends that there is no testimony that Bushay was ever inside the room, but only that he was in the parking lot of the hotel premises. [Doc. 465 at 8]. It further claims that Bushay never told McConaughey
Next, the government contends that the evidence demonstrates that Bushay did not pay, check in, or register for the room. It asserts that the keys taken off Bushay were never described as fitting room 308. [Id. at 9]. The government then argues that there is no evidence that Bushay had any personal belongings in the hotel room, other than the firearm. As to the firearm, the government argues that Bushay is not entitled to the inference that he was a guest in the hotel room because the firearm was found there, contending that it is equally plausible that Bushay never entered the room and gave the gun to Scarlett for safekeeping. [Id. at 10]. It further argues that, because Scarlett and Chadwick Williams were in the room, Bushay had no ability to exclude others from it. [Id. at 11].
The government also argues that Bushay has failed to demonstrate that he fit within the definition of a "social guest" in the hotel room because he did not establish that he was a guest for personal, rather than commercial purposes, as required by Eleventh Circuit precedent. [Id.].
Fourth, the government argues that Bushay has not properly asserted a possessory interest in the firearm apart from a privacy interest in the hotel room, because while he knew of the gun's location, he was not present when the firearm was seized, it was not registered in his name, and he lacked exclusive control over it. [Id. at 13-14].
In his reply, Bushay argues that his and Scarlett's statements and the presence of the firearm clearly demonstrate that he was present in the room, contrary to the government's contention. [Doc. 468 at 2]. He argues that Scarlett's comments and call to him evidenced Bushay's belief that the firearm would be safe in the room and that he had not abandoned it. He argues that placing the firearm in the night stand or some other private place in the room demonstrates his level of authority, access, and control. [Id. at 3]. He also argues that McConaughey did not ask him directly whether he was staying in room 308 because it was obvious that he was. [Id. at 4-5].
He next argues that the Cooper and Carter cases upon which the government relies actually support his arguments. He contends that Carter is distinguishable because none of that defendant's personal belongings were left in the room, but in the present case, Bushay left an expensive firearm in the hotel room. As for the factors discussed in Carter, Bushay argues that he had been in the room and left property in the room; and while he concedes that the record does not reflect that he paid for the room, he contends that others could be excluded by his possession of the two room keys. [Id. at 7]. He further argues that a hotel guest that takes the keys with him demonstrates his
Bushay also distinguishes Cooper, where the registered guest had abandoned the room. In this case, Bushay argues, guests of the room were still sleeping inside the room. As to the government's argument that Bushay was arrested far from the room, Bushay argues that there is nothing unusual about an out-of-town guest going out to eat at lunchtime, and to accept the government's argument would be to find that a hotel guest cannot venture from his room. [Id. at 9-10]. He further contends that Cooper is different from this case because here there is no allegation that the hotel occupants used the room for unlawful purposes. [Id. at 10-11].
Finally, Bushay argues that contrary to the government's argument that he did not demonstrate a possessory interest in the firearm, his and Scarlett's statements and his placement of the firearm in the night stand establish his possessory interest. [Id. at 11-12].
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. To challenge a seizure as violating the Fourth Amendment, a defendant must have "standing,"
An individual has standing to challenge a search if "(1) he has a subjective expectation of privacy, and (2) society is prepared to recognize that expectation as objectively reasonable." United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008). That is, a defendant must establish
Courts assess on a case-by-case basis the standing of a particular person to challenge an intrusion by government officials into an area over which that person lacked primary control. Oliver v. United States, 466 U.S. 170, 191 n. 13, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). No one circumstance is dispositive in this inquiry. "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, property rights are neither the beginning nor the end of ... [the] inquiry." United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) (citation omitted). Other factors to be weighed include whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy, and whether he was legitimately on the premises. United States v. Pitt, 717 F.2d 1334, 1337 (11th Cir.1983); United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir. Unit A July 8, 1981)
Finally, the burden is on the defendant to show by a preponderance of the evidence that he had a legitimate expectation of privacy in the area searched. Harris, 526 F.3d at 1338; United States v. Brazel, 102 F.3d 1120, 1147 (11th Cir. 1997); United States v. Golphin, No. 6:10cr-291-Orl-28GJK, 2011 WL 2446561, at
The Court concludes that Bushay has failed to establish a legitimate expectation of privacy in room 308 of the Fairfield Inn. First, he did not establish a subjective expectation of privacy since he did not show that he had an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee. He has failed to establish that the hotel room was rented in his name, that he paid for the room, or that he was the registered additional guest. See Brazel, 102 F.3d at 1147-48 (holding that defendant lacked a subjective expectation of privacy in an apartment because he had failed to show that "he was the tenant or had an unrestricted right of occupancy or control in the apartment at the time of the search"). The evidence shows that Scarlett was the registered lessee of the room by virtue of paying the rental fee and having his name on the hotel registry. Gov't Exh. 5. Although Bushay argues that he was the person referred to on the hotel registry as "guest," it is more likely that that term refers to the hotel's understanding that only one person was staying in the room. In any event, in light of the fact that Chadwick Williams was asleep in the room at the time that law enforcement arrived (and at least one other person, Christopher Williams, also could be said to have been an invited guest of the registrant), there is no evidence that Bushay was the "guest," as suggested by Bushay.
Other facts confirm that Bushay failed to prove a subjective expectation of privacy in room 308. Bushay described his presence in the area as having "met friends," T23, as opposed to, for example, directly stating that he was staying at the hotel. Also, he points to no evidence in the record showing that he referred to the room as "his" as opposed to "the" or "a" hotel room, which points to a conclusion that it was not his hotel room. And, while Bushay possessed two hotel room keys, he never proved that these keys in fact were the keys to room 308. In any event, as he concedes, possession of a key to a hotel room, without more, does not establish a reasonable expectation of privacy in the room. Cooper, 203 F.3d at 1286 n. 7 (citing United States v. Conway, 73 F.3d 975, 980 (10th Cir.1995)). Nor did Bushay prove that the vehicle he was operating was a vehicle that was "registered" for room 308.
Recognizing these facts, Bushay attempts to come under the rubric established in cases addressing "overnight guests." Even there, Bushay refers to his situation as that of a "social guest." In any event, Bushay did not demonstrate that he qualified as an overnight guest, as in Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), nor was he using the hotel for lodging, as found in United States v. Ramos, 12 F.3d 1019 (11th Cir.1994). Other than the firearm, Bushay produced no evidence that his personal belongings (such as suitcases or clothing) were in the hotel room. He only told McConaughey he was there to meet friends, not stay overnight in the hotel room. In short, in order to agree with his theory that he qualifies as an overnight guest with standing to contest the search, the Court would have to take the minimal evidence produced and stack inference upon inference in order to conclude that he had a legitimate expectation of privacy in the hotel room.
In addition, Bushay has failed to establish an objective expectation of privacy in room 308 because at most he was only a casual visitor. See Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (making important distinction between overnight guests and casual guests, holding that "an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not"); see also United States v. Larios, 593 F.3d 82, 93 (1st Cir.2010) (no objective expectation of privacy where defendant, who did not rent hotel room nor have key, stayed for a few minutes); United States v. Rodriguez-Lozada, 558 F.3d 29, 37 (1st Cir.2009) (holding that a defendant who was "a casual visitor for a brief period" in another person's apartment had no reasonable expectation of privacy in the apartment); United States v. Agapito, 620 F.2d 324, 334 (2d Cir.1980) (holding that a casual visitor to a hotel room does not have a legitimate expectation of privacy).
Next, the Court considers whether Bushay has standing to challenge the seizure of the firearm despite the fact that he has no standing to challenge the search of the hotel room or the night stand therein. At first blush, there is language in caselaw supporting this argument. In one case, the Eleventh Circuit appears to have recognized that a person may possess standing when he has a reasonable expectation of privacy from governmental intrusion in the items seized. United States v. Delgado, 903 F.2d 1495, 1501 (11th Cir.1990) (citing Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968)). In the context of an employee's right to challenge the seizure of personal items when his employer's premises were searched, the Delgado Court concluded as follows:
Soldal, 506 U.S. at 68-69, 113 S.Ct. 538 (footnote omitted).
Despite this facially applicable language,
Even if a bare possessory interest allowed Bushay to challenge the seizure of the firearm, the Court concludes that no possessory interest of Bushay's in the firearm has been established. Summarizing the evidence as to the firearm, Bushay told McConaughey that he had a gun and that it was in the night stand at the hotel, T22; he left it there, T33; Scarlett acknowledged that there was a firearm in the night stand between the beds and that he had touched it and was going to call "Jerome" and ask him why he left it there, T54, or he called and did not get an answer. T76.
From these facts, the Court concludes that Bushay has proven neither a subjective nor objective interference with his possessory rights to the firearm sufficient to allow him to challenge the warrantless seizure of the firearm. First, Bushay did not possess the firearm when it was seized. He left it unsecured in a hotel room in which he had no cognizable legitimate expectation of privacy. Second, the firearm was not registered in his name. Third, he left what he refers to as an expensive item in the night stand of a hotel room for which he neither paid nor was a registered guest. Compare King, 509 F.3d at 1341 (defendant exhibited subjective expectation of privacy by taking affirmative steps to install security settings on computer); cf. Robinson, 62 F.3d at 1329 (defendant had no subjective expectation of privacy where he took no affirmative steps to prevent
Moreover, even the commentator relied upon by the Delgado Court noted that "[a]ssessment of [a] defendant's privacy expectation vis-a-vis the item may also be aided by considering if he dealt with that item in a fashion which reflects an effort on his part to maintain privacy." 6 W. LaFave, Search and Seizure, § 11.3(d) (4th ed. 2004), at 184. Bushay did not take steps to maintain his privacy or possession of the firearm by leaving it in the night stand of a hotel room in which he had no more than a fleeting interest.
As a result, the undersigned concludes that Bushay does not have standing to challenge the seizure of the firearm.
In the event that the District Court concludes that the undersigned is wrong in concluding that Bushay lacks standing to challenge the search of room 308 or seizure of the firearm, the Court addresses the propriety of the warrantless search and seizure.
The government asserts that the firearm was properly seized because the third parties in the room, Scarlett and Chadwick Williams, voluntarily consented. [Doc. 465 at 14-16].
A search conducted pursuant to consent is a recognized exception to the requirements of probable cause and a
The Eleventh Circuit has, on prior occasions, identified a non-exhaustive list of relevant factors to consider when making the assessment of whether consent to a warrantless search is voluntary: voluntariness of the consenting person's custodial status, the presence of coercive police procedures, the extent and level of the subject's cooperation with police, the subject's awareness of his right to refuse to consent to the search, his education and intelligence, and, significantly, his belief that no incriminating evidence will be found. Blake, 888 F.2d at 798-99. However, the failure to advise one asked to consent that he has a right to refuse to consent will not invalidate an otherwise valid consent to search. United States v. Pineiro, 389 F.3d 1359, 1366 n. 4 (11th Cir.2004); United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir.1999).
A search is permissible if an officer obtains the voluntary consent of either the person whose property is searched or of a third party who possesses common authority over the premises. United States v. Bone, 433 Fed.Appx. 831, 833 (11th Cir.2011) (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). "A third party with common authority over the premises [or effects] sought to be searched may provide such consent. Common authority is based upon mutual use of property by persons generally having joint access or control." United States v. Aghedo, 159 F.3d 308, 310 (11th Cir.1998) (citation omitted). As noted by the Supreme Court, "[c]ommon authority is, of course, not to be implied from the mere property interest a third party has in the property ... but rests rather on the mutual use of the property by persons generally having joint access or control for most purposes...." United States v. Matlock, 415 U.S. 164, 171-72 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Furthermore, "a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of entry, reasonably believed possessed common authority over the premises, even if the third party does not in fact possess such authority." United States v. Fernandez, 58 F.3d 593, 597 (11th Cir.1995); see also Brazel, 102 F.3d at 1148. "As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment ... warrant a man of reasonable
The Court concludes that, while the record contains more than enough evidence that Scarlett was authorized to consent to a search of the hotel room for the firearm, the government did not prove that Scarlett (or Williams) voluntarily consented to a search of the room. Marolda testified that he had voluntary consent, yet he did not testify as to the "form of words, gesture or conduct" that would allow the Court to conclude that either of the occupants of room 308 voluntarily consented. See Bumper, 391 U.S. at 548-50, 88 S.Ct. 1788; United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (holding that consent to search "may be in the form of words, gesture or conduct") (citing United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976)); see also United States v. Williams, 650 F.Supp.2d 633, 672 (W.D.Ky.2009) (finding that officer's conclusory testimony about consent insufficient to carry government's burden); United States v. Wing, No. A05-042 CR (JWS), 2005 WL 1410844, at *8 (D.Alaska) (R & R) (same).
This lack of detail about what was asked of Scarlett or Williams about consenting, or how they responded, is compounded by the fact that the only evidence about what either of the room occupants was told about the police presence was that they "were there to search the room to look for a firearm in the room." T49. As such, the subsequent warrantless search ran afoul of Bumper's dictate that voluntary consent requires more than mere acquiescence to lawful authority. Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788. The Court therefore concludes that the government has not proven that the occupants of room 308 voluntarily consented to a search of the room.
Nor did the government prove voluntary consent due to Scarlett and Williams's execution of the written consent-to-search form. To his credit, Marolda testified that he could not recall whether the written consent forms were executed before or after the search had been conducted. Under such circumstances, then, an after-thefact written consent is akin to a mere submission to official authority rather than a voluntary consent. Although a postsearch consent to search may constitute ratification of the search, see generally United States v. Reeh, 780 F.2d 1541, 1547 (11th Cir.1986), the record in this case does not support a conclusion that Scarlett and Williams voluntarily consented and then ratified their consent by signing the consent-to-search form.
That does not end the Court's analysis, however, because despite the failure of the government to prove voluntary consent, the seizure of the weapon was otherwise reasonable under the Fourth Amendment.
"[R]easonableness is still the ultimate standard" under the Fourth Amendment. Camara v. Mun. Court of City and Cnty. of San Francisco, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Viewed objectively, see Horton v. California, 496 U.S. 128, 138, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (noting that "evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer"), the firearm was properly seized under the exigent-circumstances exception to the warrant requirement.
Newsome, 475 F.3d at 1226. The Newsome Court found exigent circumstances warranted the seizure of the firearm because the officers
Newsome, 475 F.3d at 1226-27.
In this case, it was reasonable for the agents to seize the firearm under the exigent-circumstances exception. "A warrantless search is allowed ... where both probable cause and exigent circumstances exist." United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.1991). First, the agents had probable cause to believe that the firearm was in the night stand of room 308 because both Bushay and Scarlett told them it was there. In addition, there were exigent circumstances. "Recognized situations in which exigent circumstances exist include: `danger of flight or escape; danger of harm to police officers or the general public; risk of loss, destruction, removal, or concealment of evidence; and hot pursuit of a fleeing suspect.'" United States v. Reid, 69 F.3d 1109, 1113
United States v. Lawrence, No. CRIM. 05-333(MJD/RLE), 2006 WL 752920, at *1 (D.Minn. Mar. 26, 2006).
Based on Newsome and Lawrence, the Court agrees that the firearm presented a danger to the public that the agents were authorized to mitigate by seizing the weapon. The agents were aware that Bushay had been indicted for a drug crime in Atlanta, and that he was arrested and in custody in Tampa pending removal to this District. Bushay claimed to have left the gun in the hotel night stand, which was confirmed by Scarlett. Scarlett's reaction to Marolda was such that a reasonable officer would conclude that Scarlett was attempting to distance himself from the firearm when he stated that he had called, or was going to call, Bushay to determine why Bushay had left the firearm in the hotel night stand. As a result, there was no one present who claimed the firearm or who could provide for its safekeeping. It would have been unreasonable for the agents to have simply left the firearm in the night stand where it could pose significant danger to hotel employees or future guests of room 308. As a result, the firearm was properly seized, even if Bushay has standing to challenge its warrantless seizure.
In conclusion, the Court
Bushay argues that his statements were unlawfully obtained because the government failed to obtain a written waiver of his Miranda rights and failed to prove that they were obtained freely and voluntarily. He argues that any waiver was involuntary given the violence of his arrest and his being whisked away to the unfamiliar confines of the DEA office. [Id. at 14]. The government responds that the requirements of Miranda were satisfied and that Bushay's subsequent invocation of his right to stop the questioning when it became more pointed demonstrated his understanding of his rights. [Doc. 465 at 17-18]. The government also contends that his statements were voluntary. [Id. at 18]. In response, Bushay merely relies upon his motion and opening brief. [Doc. 468 at 18].
The government bears the burden of showing that the defendant's in-custody statements were obtained in compliance with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and were otherwise voluntary. Missouri v. Seibert, 542 U.S. 600, 608 n. 1, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004); Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Miranda, 384 U.S. at 475, 86 S.Ct. 1602.
Under Miranda, "evidence obtained as a result of a custodial interrogation is inadmissible unless the defendant had first been warned of his rights and knowingly waived those rights." United States v. Parr, 716 F.2d 796, 817 (11th Cir.1983).
The focus of the voluntariness inquiry is on whether the defendant was coerced by the government into making the statement: "The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception." Connelly, 479 U.S. at 170, 107 S.Ct. 515 (alteration and internal quotation marks omitted). The Court must consider the totality of the circumstances in assessing whether any police conduct was "causally related" to the confession. Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir.1988). This totality-of-the-circumstances test directs the Court ultimately to determine whether a defendant's statement was the product of "an essentially free and unconstrained choice." United States v. Garcia, 890 F.2d 355, 360 (11th Cir.1989). Among the factors the Court must consider are the defendant's intelligence, the length of his detention, the nature of the interrogation, the use of any physical force against him, or the use of any promises or inducements by police. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Gonzalez, 71 F.3d at 828. However, while the Eleventh Circuit has "enumerated a number of (nonexclusive) factors that may bear on the issue of voluntariness, the absence of official coercion is a sine qua non of effective consent...." Gonzalez, 71 F.3d at 828 (citations omitted). Sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession. See Connelly, 479 U.S. at 163 n. 1, 107 S.Ct. 515; Miller, 838 F.2d at 1536; United States v. Castaneda-Castaneda, 729 F.2d 1360, 1362-63 (11th Cir.1984). In addition, in any arrest there is present a degree of duress. The question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain the statements. Cf. United States v. Jones, 475 F.2d 723, 730 (5th Cir.1973) (discussing consent to search following arrest).
The Court concludes that the government established that Bushay's statements were obtained in compliance with Miranda and were otherwise voluntary.
First, as to compliance with Miranda, McConaughey read Bushay his Miranda rights from a DEA Form 13A, so Bushay was made aware of his rights. In response to McConaughey's question as to whether he was willing to answer questions, Bushay responded that he was willing to talk to him. In addition, the record is clear that that Bushay did not waive his rights and agree to answer questions due to any police coercion, deception, or intimidation. Although he argues that the circumstances of his arrest constituted coercive and intimidating conduct, the mere fact that he was arrested does not prevent a voluntary relinquishment of his Miranda rights, since the Miranda decision presupposes a defendant's custodial status, United States v. Gay, 774 F.2d 368, 379 & n. 18
Second, the Court reaches the same conclusion as to the voluntariness of Bushay's statements. The questioning began shortly after Bushay's arrival at the DEA offices. He was not promised any benefit nor was he otherwise threatened. The questioning by McConaughey and then by Gordon was not prolonged. It is significant that Bushay exercised his right to stop answering questions after McConaughey began questioning him about his Atlanta activities (following Bushay's conversation with Gordon), as that action demonstrates that Bushay recognized that he had a choice whether to answer any questions.
As a result, the undersigned
At the evidentiary hearing, the government announced that it was not going to introduce in its case-in-chief any evidence from an October 4, 2010, traffic stop in Lamar County, Ga. T5-9.
Accordingly, the undersigned
In these motions, Bushay seeks to suppress evidence seized as a result of the execution of two federal search warrants on December 15, 2010, at two locations.
On December 15, 2010, Gordon applied for a federal search warrant from Magistrate Judge Brill to search the above-described target address. [Doc. 326-1 (application and affidavit for search warrant, case number 1:10-MJ-1911-GGB (N.D.Ga. Dec. 15, 2010)) ]. In his attached affidavit, Gordon averred that in addition to his experience as a local police officer in Georgia, including as of that time 6 years as a local narcotics detective, he had been a DEA TFO since 1996. [Id. at 2]. Gordon stated that he had participated in hundreds of narcotics investigations, including those involving money laundering, and had been involved in numerous investigations where Title III court-approved electronic surveillance was used. [Id.]. He further related that through his training and experience, discussions with other law-enforcement officers and debriefings of cooperating defendants, cooperating sources, and other witnesses, he was familiar with the methods of operation typically used by drug traffickers, including the types and amounts of profits they make, their methods, language, and terms used to disguise the source and nature of their drug dealings, and the methods they use to thwart detection, arrest, and lawful proof of their activities, including the use of nominees to
Gordon continued that the target premises was a nearly 700-square-foot threeroom condominium in the Metropolis condominium building in Atlanta, which has a 24-hour on-duty concierge, limited-access elevators, and private parking, and is accessible only via key card or access codes. [Id. at 3 & n. 1].
Gordon also stated that various consensual and court-authorized intercepted telephone calls were recorded and that many of the calls were in Jamaican Patois
Gordon also advised that Samuels was the target of three sting operations involving the transportation of currency and firearms through the Atlanta airport. On November 3, 2010, an undercover officer posing as a drug dealer gave Samuels $22,000 in purported drug proceeds. With Tomlinson's assistance, and by using his badge to avoid security screening, Samuels smuggled the money to Jamaica, where it was delivered to a Jamaican undercover agent posing as a drug trafficker. On November 19, 2010, Samuels and his wife (who worked for Delta Airlines) smuggled $50,000 in supposed drug proceeds to Jamaica, turning them over to undercover Jamaican police officers. Finally, on November 30, 2010, Samuels smuggled $20,000 in purported drug money and 5 guns he received from an undercover police officer into the Atlanta airport and turned them over to another undercover officer who claimed he was going to a meeting with Mexican drug traffickers in Arizona. [Id. at 8].
Gordon then stated that the investigation led agents to identify Bushay and Otis LNU as leaders of an MDMA and marijuana distribution investigation who used various distributors, brokers and couriers, including Tomlinson, Damian Aarons, Curtis Hernandez, Christopher Dixon, Ricardo Duncan and Roshaun Hood, to facilitate their operations. In April 2010, they intercepted a series of calls where Tomlinson was discussing the return of low-grade marijuana, which resulted in the seizure of $101,000 in currency found following a traffic stop. [Id. at 9]. Later in April and in May, intercepted telephone calls of Dixon led to the search of three packages of marijuana which had been mailed, resulting in the seizure of 45 pounds of marijuana. Later in May 2010, Dixon sold 3000 MDMA pills to a confidential source. [Id. at 9-10].
The affidavit continued that on October 4, 2010, Bushay and others were stopped for an observed traffic violation while driving from Atlanta to Florida, and Bushay provided the target address as his residence, and he registered that address with the Georgia driver's-license authorities. Also, in August 2010, Bushay was intercepted telling Christopher Williams (referred to as "Washington") to meet him at that location, referred to as "the condo." [Id. at 11]. On August 11, 2010, Bushay's phone call with Washington was intercepted, in which Bushay asked Washington if he was planning on using the condo that weekend, and when Washington replied that he was not, Bushay told him that was good because "I have paper and something in there ... and a stash there that I want to show you." [Id.]. Gordon believed that "paper" and "something" were code for drug proceeds and controlled substances. [Id.]. On the same day, intercepted calls led agents to believe that Bushay was headed to the condo to meet Hood, and cell-site data reflected that Bushay was in the vicinity of the condo. On the same date in another intercepted conversation, this time with an individual named "Sugar," who law enforcement also believed was involved in the drug trade, Bushay acknowledged (albeit in code) that it was his condo, that drug proceeds were stored there, and that he was going to install a safe. [Id. at 12-13].
Then, on August 14, 2010, Bushay and Washington were intercepted discussing what the agents interpreted as meaning that there were drugs stored there in the safe. [Id. at 13]. On September 27, 2010, Bushay and Washington were intercepted discussing what the agents believed was Bushay asking whether drugs or proceeds were put away ("is everything put up") because Bushay was planning on bringing a female to the condo. [Id.].
Gordon then related that on October 6, 2010, in an intercepted telephone call, Bushay asked Washington, "did you leave anything in the room ... the thing that I saw you counting?", which agents believed was a reference to counting drug proceeds. At the time of the conversation, Bushay was in the lobby of the condo while cellsite data indicated that Washington was nearby or at the condo. [Id. at 14].
In a call between Bushay and Hood intercepted on November 18, 2010, Bushay asked Hood whether he wanted any "keisha" (code for marijuana). After Hood asked about price, Bushay stated he was getting it "for 45" ($450 per pound) and could sell it "for 5" ($500 per pound). Visual surveillance showed Hood walking into the lobby of the condo building, and Hood was observed not carrying anything. Bushay was intercepted telling Hood to advise the person at the front desk to let him come up to the seventh floor, and they confirmed that he would go to the condo unit. Forty minutes later, Hood was observed leaving carrying a red bag, which led agents to believe that he had just bought marijuana. [Id. at 14-15].
Bushay first contends that the warrant was not supported by probable cause. In support, he argues that paragraphs 8 through 11 of the affidavit either did not pertain to Bushay at all, contained unsupported
Next, as to paragraphs 12 through 20, he first claims that the reference in ¶ 18 about "is everything put up" being inferred to hiding contraband or currency is an unsupported inference. He then argues that the October 6 conversation referenced in ¶ 16, which showed that no money was in the condo, does not support the existence of probable cause for December 15, 2010. [Id. at 4]. He then argues that the conclusion that Bushay sold marijuana to Hood on November 18, 2010, is speculative, since there was no stop or seizure of any marijuana from Hood. [Id.].
He next argues that the information was stale because the affidavit at best showed drugs or money at the location in August, over four months before the search warrant was issued. [Id. at 5]. He also argues that there was too little information in paragraphs 12 through 20 to establish that contraband or evidence would be located in the residence. He also contends that Gordon's interpolations of telephone calls are insufficient to support a finding of probable cause as to the residence. [Id. at 6-7].
Search warrants are presumed to be validly issued. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The burden of establishing that the warrants in this case were defective is upon the defendant. Id.; United States v. Van Horn, 789 F.2d 1492, 1500 (11th Cir.1986); United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B 1981); United States v. Osborne, 630 F.2d 374, 377 (5th Cir.1980).
Probable cause to support the issuance of a search warrant exists when the totality of the circumstances allow a conclusion that there is a fair probability of finding contraband or evidence at a particular location. See United States v. Gonzalez, 940 F.2d 1413, 1419 (11th Cir. 1991). "[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts[.]" Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the issuing magistrate judge in determining whether to issue a warrant "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id.; United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.2000). To avoid "rigid" legal rules, Gates changed the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), into a totality-of-the-circumstances test. See Gates, 462 U.S. at 230-35, 103 S.Ct. 2317. Under the Gates totality-of-the-circumstances test, the "veracity" and "basis of knowledge" prongs of Aguilar for assessing the usefulness of an informant's tips are not independent. Rather, "they are better understood as relevant considerations in the totality of the circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for... by a strong showing as to the other[.]" Gates, 462 U.S. at 233, 103 S.Ct. 2317. That is, "[w]hen there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant." United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.2002) (citing United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)).
In deciding whether to issue a search warrant, the issuing judge may rely upon the opinions and conclusions of an experienced law-enforcement agent-affiant,
To satisfy the probable-cause standard, the government "must reveal facts that make it likely that the items being sought are in that place when the warrant issues." United States v. Harris, 20 F.3d 445, 450 (11th Cir.1994); United States v. Domme, 753 F.2d 950, 953 (11th Cir.1985). Thus, for probable cause to exist, the information supporting the government's application for a search warrant must be timely, for probable cause must exist when the magistrate judge issues the search warrant. Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932) ("[I]t is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."); Domme, 753 F.2d at 953; United States v. Bascaro, 742 F.2d 1335, 1345 (11th Cir.1984). Warrant applications based upon stale information generally fail to establish probable cause that similar or other improper conduct is continuing. Harris, id.; Bascaro, 742 F.2d at 1345.
The Eleventh Circuit has framed as follows the issue of staleness:
Harris, id. Thus, "[i]n general, the basic criterion as to the duration of probable cause is the inherent nature of the crime." United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir.1983) (internal quotation marks and citation omitted). "[W]here an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance." Bascaro, 742 F.2d at 1345-46 (quoting Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973)); see also United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir.2000) ("When criminal activity is protracted and continuous, it is more likely that the passage of time will not dissipate probable cause." (quoting Domme, 753 F.2d at 953)).
Further, an affidavit in support of a search warrant for a suspect's residence "should establish a connection between the defendant and the residence
Kapordelis, 569 F.3d at 1310 (quoting United States v. Green, 634 F.2d 222, 226 (5th Cir. Unit B Jan.1981)). The Kapordelis Court continued:
Kapordelis, 569 F.3d at 1310.
Then, the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate judge's decision to issue the warrant, Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). The reviewing court "should not interpret supporting affidavits in a hypertechnical manner; rather, a realistic and commonsense approach should be employed so as to encourage recourse to the warrant process and to promote the high level of deference traditionally given to magistrates in their probable cause determinations." United States v. Miller, 24 F.3d 1357, 1361 (11th Cir.1994); see also Robinson, 62 F.3d at 1331 (requiring reviewer to afford "great deference to judicial determination of probable cause to issue a search warrant") (citing Gonzalez, 940 F.2d at 1419).
The Court concludes that Bushay's arguments about the deficiencies of the 943 Peachtree Street condo should be rejected. First, the information was not
Second, the affidavit established probable cause to believe that Bushay was trafficking in drugs. The CS's information that Samuels was violating the law and his oath of office, including his improper use of the TECS computer, was corroborated by the undercover transactions and verification of his misuse of TECS by querying Bushay. Moreover, Bushay's telephone conversations, during which he used cryptic language reasonably interpreted by the experienced law-enforcement agent-affiant as pertaining to an ongoing drug trafficking, established that he was using the condo to facilitate his drug trafficking. Bushay asks the Court to interpret the affidavit in a hypertechnical manner, evaluating each fact in isolation, but the Court's task is otherwise. The Supreme Court, in fact, has warned lower courts of the error of "not consider[ing an officer's] affidavit in its entirety" and "judging bits and pieces of information in isolation." Upton, 466 U.S. at 732, 104 S.Ct. 2085. In addition, the issuing judge was authorized to issue the warrant based on the affiant's reasonable interpretation of the intercepted telephone calls. United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir.2006); United States v. Flores, No. 1:05-cr-558-WSJFK, 2007 WL 2904109, at *48 (N.D.Ga. Sept. 27, 2007) (concluding that in determining existence of probable cause to issue warrant, Magistrate Judge properly relied on affiant's interpretation of seemingly innocuous words and conversations intercepted over wire intercepts). The same rationale applies to defeat Bushay's argument about the lack of corroboration of Gordon's conclusion that Hood purchased marijuana from Bushay on November 18. Also, the issuing judge could rely on Gordon's statement in the affidavit of his familiarity with drug traffickers' practices as a result of his training and experience, including commonly keeps records and proceeds of their illicit activities in private and secure locations such as their residences. [See Doc. 326-1 at 3-5].
Finally, there was a sufficient nexus between Bushay, his criminal activity, and the condo. The affidavit sets forth multiple events demonstrating that Bushay was using the condo to facilitate his drug dealing, and the issuing Magistrate Judge was
As a result, the undersigned
On December 15, 2010, Gordon applied for a federal search warrant from Magistrate Judge Brill to search the above-described target address. No. 1: 1 0-M1905-GGB (N.D.Ga. Dec. 15, 2010). [Doc. 327-1]. The affidavit contained the same preamble as to Gordon's training and experience, drug-trafficking practices, and information relating to Samuels and others in paragraphs 8 through 10, as contained in the condo search-warrant application. [See id. at 1-5].
In addition, on April 9, 2010, Tomlinson was observed arriving at the Grey Rock location in a vehicle registered to Samuels. A short time later, a vehicle registered to Aarons arrived at the location, and stayed for 15 minutes. After the Aarons vehicle left, Tomlinson was intercepted calling Hargreaves, and Tomlinson told her to meet him at the location. The context of the conversation indicated that Hargreaves and Tomlinson had previously met at Grey Rock. Hargreaves was seen arriving at the location and meeting with Tomlinson, although the surveilling agents could not tell if Tomlinson gave anything to Hargreaves. Shortly after this meeting, Hargreaves' vehicle was stopped, resulting in the seizure of over $101,000. [Id. at 10].
On October 5, 2010, following the 153 kilograms of MDMA seizure from Otis on October 1, Bushay and Tomlinson were intercepted. Tomlinson stated that "the whole situation makes me nervous" and Bushay stated that "I need to take out those things over by me." In a later call, Bushay told Tomlinson to "go over to my place and take everything out." Tomlinson updated Bushay on his status of arriving at Grey Rock. [Id. at 11]. A subsequent phone call indicated that Bushay's girlfriend (who was using the location as her residence) was at Grey Rock. [Id.].
Geo-location data further indicated that Tomlinson was near the Grey Rock residence when he told Bushay that there was a van in the garage, with Bushay directing Tomlinson to "to use the van in the garage to take the product and it will be easier to move, transport the product." Bushay also told Tomlinson to "place the product in the van by taking off the top a halfway and place the product in there and place the top back down, everything should fit." [Id. at 11-12]. Gordon interpreted these calls to mean that while Tomlinson was at Grey Rock, Bushay was directing him to place the narcotics in a hidden compartment in the van. Gordon represented that using hidden compartments in vehicles was a routine practice of drug traffickers. [Id. at 12].
On November 22, 2010, Bushay was intercepted speaking with his brother (Roger Yee), who told Bushay that he had a firearm that he took from underneath the bed. Bushay instructed Yee to give the firearm to Bushay's girlfriend, but because the girlfriend was sleeping, Yee put it under his mattress. A subsequent telephone call between Bushay and his girlfriend confirmed that she knew the gun was under Yee's mattress. [Id. at 12]. Gordon had included in his affidavit a statement that based on his training and experience, drug traffickers very often possess firearms for the purpose of protecting their drug trafficking enterprise from the efforts of law enforcement and those who
Gordon also related that law enforcement was unable to conduct trash pulls at the location, concluding that because drug traffickers are aware that law enforcement commonly conducts trash pulls at drug dealers' residences, Bushay and Tomlinson did not put trash outside the residence in an effort to thwart law enforcement's efforts. [Id. at 13]. Gordon also stated that since September 2010, Bushay, Tomlinson, and "Club Intrigue" received six UPS packages at Grey Rock. Finally, Gordon opined that based on geo-location data, Bushay was using Grey Rock as his principal residence. [id. at 13-14].
Bushay first argues that the evidence at best demonstrates that there was contraband at the residence no later than October 5, 2010, when the residence was cleaned out, and thus the December 15 warrant application was stale and untimely. He argues that experience indicates that drug dealers change residences and "drop" cell phones in order to evade detection, and thus it was highly improbable that drugs or currency would be at the Grey Rock on December 15. [Doc. 327 at 5]. He also argues that the affidavit failed to establish a nexus between the crimes under investigation and the location to be searched. [Id. at 6-7].
The Grey Rock warrant was supported by probable cause. The evidence shows that Bushay and Tomlinson were using the residence to facilitate their drugdealing activities. Contrary to Bushay's argument, the information in the affidavit was not stale. From April through October, the residence was used to further their drug-trafficking activities. Unlike the example given by Bushay in his motion, however, Bushay did not abandon the residence, but instead continued to use it as his residence. He and Tomlinson continued to use it to receive UPS packages, Bushay frequently slept there, his girlfriend and brother stayed there, and at least one firearm was kept under a mattress at that location. Notably, there is indication that the occupants avoided placing their trash outside for pickup in order to thwart a law-enforcement trash pull. The affidavit did not state that the trash was inspected yet no evidence was found; instead, the affidavit relates that the occupants did not put the trash outside. An experienced law-enforcement officer could reasonably find this behavior very suspicious, and the issuing Magistrate Judge was justified in considering this evidence as probative of the continuation of Bushay and Tomlinson's use of the premises in their drug dealing. Thus, based on the nature of the crime under investigation, the issuing magistrate judge was authorized to conclude that the supporting affidavit was not stale and that probable cause existed.
As for the required nexus, the affidavit demonstrated that Bushay and Tomlinson used the premises to facilitate their narcotics trafficking, first — at a minimum — as a meeting point between Tomlinson and Hargreaves before Hargreaves was stopped with over $101,000 in her vehicle, and second as a place to store controlled substances and a van with a secret compartment. Also, since Grey Rock was used as Bushay's principal residence, it was reasonable for the issuing judge to infer that records, currency, firearms and other evidence of Bushay's narcotic trafficking would be stored at that location.
As a result, the undersigned
In this motion, Bushay seeks a severance from any of his co-defendants who made statements implicating him, pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
As a result, the undersigned
For all of the above reasons, the undersigned
(1) motion to suppress statements, [Doc. 155];
(2) motion to suppress evidence, [Doc. 156];
(3) first motion to suppress search and seizure re: 943 Peachtree, Apt. 707, [Doc. 278];
(4) supplemental motion to suppress search and seizure re: 943 Peachtree, Apt. 707, [Doc. 326];
(5) first motion to suppress search and seizure re: 6746 Grey Rock Way, [Doc. 279];
(6) supplemental motion to suppress search and seizure re: 6746 Grey Rock Way, [Doc. 327]; and
(7) motion to suppress search and seizure re: hotel room, [Doc. 280].
The Court further
The Court has now ruled on all of this Defendant's pretrial motions. As a result, the case is
T21.
Having recommended that the motion to suppress be denied, the Court does not need to discuss these arguments in detail. However, given the obvious exigent circumstances, the Court is unsure why the government chose to invoke a general cost-benefit exception to the exclusionary rule without citing to a single Supreme Court or Eleventh Circuit case supporting such an argument. Further, the deficiency in the government's showing on Scarlett's consent-to-search could likely have been remedied by more detailed questioning.
Miranda, 384 U.S. at 473, 86 S.Ct. 1602 (footnotes omitted)
The Supreme Court has held that Miranda warnings that convey the substance of the suspect's rights are sufficient. See Duckworth v. Eagan, 492 U.S. 195, 210-15, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989); see also California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). However, the advice given the suspect cannot contradict the warnings required by Miranda. United States v. Lall, 607 F.3d 1277, 1283-84 (11th Cir. 2010); Hart v. Attorney Gen. of Florida, 323 F.3d 884, 894 (11th Cir.2003).
