ORDER
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.
I. Background
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,
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.
II. Analysis
A. Legal Standard
A district judge has a duty to conduct a “careful and complete” review of a magistrate judge’s R & R. Williams v. Wainwright,
“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,
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,
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.
B. The Tampa Hotel Search, the Agents’ Seizure of the Gun, and Bushay’s Post-Arrest Statements 1. Judge Baverman’s Findings of Fact
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 Sheriffs 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 inter
Before we ask you any questions, you must understand that you have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. Do you understand? Are you willing to answer some questions?
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 Fair-field 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
2. Judge Baverman’s Conclusions of Law
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 Bush-ay 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.
3. Standing
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.
a. Bushay’s Expectation of Privacy in Room 308
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 testi
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 Bush-ay 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,
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 Bush-ay 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.
b. Bushay’s Possessory Rights in the Gun
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,
Soldal is distinguishable because that case did not involve Fourth Amendment standing or an expectation of privacy at all, but rather discussed whether the plaintiffs could bring a 42 U.S.C. § 1983 action against local law enforcement for the claimed unlawful seizure of their mobile home even if their privacy was not infringed under the Fourth Amendment. Soldal,506 U.S. at 72 ,113 S.Ct. 538 . While the Court there concluded that an improper seizure was actionable, that case did not address the question in the present ease: whether a defendant can assert an improper-seizure claim to property seized from a location in which he has no legitimate expectation of privacy; in Soldal, the plaintiffs were literally dispossessed from their property.
R & R at 26.
In Soldal, the Supreme Court described the issue before it as “whether the seizure and removal of the Soldáis’ trailer home implicated their Fourth Amendment rights.”
The Court then looked to its decisions in Jacobsen and United States v. Place,
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,
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,
In a footnote in United States v. Salvucci,
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,
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 evi
4. Seizure of the Gun
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.
5. Bushay’s Post-Arrest Statements
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. -,
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,
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. Bush-ay 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,
The Court will therefore adopt the R & R’s recommendation to deny Bushay’s motion to suppress his post-arrest statements.
C. The Searches of 943 Peachtree, Apt. 707 and 6746 Grey Rock Way
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 Peach-tree, 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.
III. Conclusion
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.
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
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,
Pursuant to 18 U.S.C. § 3161(h)(1)(H), the above-referenced fourteen (14) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act (“the Act”), whether or not objections are actually filed. If objections to this R & R are filed, the Clerk is DIRECTED to EXCLUDE from the computation of time all time between the filing of the R & R and the submission of the R & R, along with any objections, responses, and replies thereto, to the District Judge. 18 U.S.C. § 3161(h)(1)(D), (H); Henderson v. United States,
IT IS SO ORDERED and DIRECTED, this the 24th day of January, 2012.
UNITED STATES MAGISTRATE JUDGE’S ORDER AND FINAL REPORT AND RECOMMENDATION
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 RECOMMENDS that the all of the suppression motions be DENIED except that it is RECOMMENDED that the motion to
I. Motion to suppress statements, [Doc. 155]; motion to suppress evidence, [Doc. 156]; and motion to suppress search and seizure re: hotel room, [Doc. 280]:
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].
A. Facts
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. Til, 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. Tll-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. T1516. In searching Bushay, McConaughey found plastic credit-card type hotel room keys in a key sleeve. T 16. 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 Fair-field 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.
B. Issues
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 of the firearm from room 308 of the Fairfield Inn; if he has standing, whether the gun was properly seized; and whether his post-arrest statements were obtained in compliance with Miranda and were otherwise voluntary.
C. Discussion
1. Bushay’s Standing
a. Contentions of the Parties
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 Fair-field 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,
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 Bush-ay 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. [M].
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],
b. Applicable Law
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,
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,
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,
c. Analysis
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,
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,
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,
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,
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,
As one commentator has stated, “[i]t may be significant ... that [the item seized] is a personal possession of the defendant and not something connected with the operation of the business.” 3 W. LaFave, Search and Seizure § 11.3, at 566 (1978). Indeed, it appears that, where the defendant’s possession was the object of the search, the defendant has standing to challenge the search even though he does not have an expectation of privacy in the premises searched. See United States v. Alewelt,532 F.2d 1165 , 1167 (7th Cir. [] 1976); see also Martinez [v. Nygaard, 831 F.2d [822,] 826 [ (9th Cir.1987) ] (court finds no standing based on fact that person had “no possessory interest in the place searched or things seized” (emphasis added)). We hold, therefore, that Escobar has standing to challenge the seizure of his shirt and the papers contained therein.
In Soldal, the Supreme Court held that seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place. See, e.g., Jacobsen, [466 U.S. at 120-25 ,104 S.Ct. 1652 ]; [United States v. Place,462 U.S. 696 , 706-07,103 S.Ct. 2637 ,77 L.Ed.2d 110 (1983) ]; Cardwell [v. Lewis,417 U.S. 583 , 588-89,94 S.Ct. 2464 ,41 L.Ed.2d 325 (1974) ]. [ ] More generally, an officer who happens to come across an individual’s property in a public area could seize it only if Fourth Amendment standards are satisfied — for example, if the items are evidence of a crime or contraband. Cf. Payton v. New York, [445 U.S. 573 , 587,100 S.Ct. 1371 ,63 L.Ed.2d 639 (1980) ].
Soldal,
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,
Moreover, even the commentator relied upon by the Delgado Court noted that “[assessment 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.
2. 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.
a. Contentions of the Parties
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].
b. Applicable Law
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,
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,
c. Analysis
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,
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,
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-the-fact written consent is akin to a mere submission to official authority rather than a voluntary consent. Although a post-search consent to search may constitute ratification of the search, see generally United States v. Reeh,
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.
“[Reasonableness is still the ultimate standard” under the Fourth Amendment. Camara v. Mun. Court of City and Cnty. of San Francisco,
[T]he Supreme Court has “long recognized an exigent-circumstances exception to the warrant requirement in the Fourth Amendment context.” [New York v. Quarles,467 U.S. 649 , 653 n. 3,104 S.Ct. 2626 ,81 L.Ed.2d 550 (1984) ]. Quarles holds that the warrantless seizure of a gun is “objectively reasonable” under the Fourth Amendment when there is a real concern for the safety of the officers present or the public at large. Id. (citations omitted); United States v. Antwine,873 F.2d 1144 , 1147 (8th Cir.1989).
Newsome,
had reason to believe that Newsome was with another person and “[i]t was not unreasonable for the officers to fear leaving a loaded gun, likely evidence of a crime (the alleged shooting of his wife and child), unattended in a motel room. Nor was it unlikely that a friend, possibly [the person in whose name the room was registered], would return to the room and remove the gun. We have held that officers can seize evidence where there is a fear that it might disappear or be destroyed.” United States v. Blasco,702 F.2d 1315 , 1325 (11th Cir. 1983), [] (“The exigent circumstances exception to the fourth amendment warrant requirement applies in ‘those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.’ ” (quoting Arkansas v. Sanders,442 U.S. 753 , 759,99 S.Ct. 2586 ,61 L.Ed.2d 235 [ ] (1979))). The exigent circumstances exception to the Fourth Amendment permitted locating and securing the weapon, making the seizure and subsequent admission of the gun proper.
Newsome,
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,
Exigent circumstances may permit a warrantless search of a home under the “public safety” exception, which permits an officer to search for or seize a dangerous weapon or instrumentality based on the officer’s legitimate concern for the safety of the public or themselves. United States v. Janis,387 F.3d 682 (8th Cir.2004) (holding that concern for safety of others allowed police to enter residence, where they discovered firearms in plain view); United States v. Vance,53 F.3d 220 , 222 (8th Cir.1995) (noting that a legitimate concern for safety of law enforcement officers or others constitutes exigent circumstances); United States v. Antwine,873 F.2d 1144 , 1147 (8th Cir.1989) (holding that search for firearm was permissible where officers witnessed defendant in possession of firearm and planned to leave children unattended in the home); ... Warden v. Hayden,387 U.S. 294 , 298-299,87 S.Ct. 1642 ,18 L.Ed.2d 782 (1967) (“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”).
United States v. Lawrence, No. CRIM. 05-333(MJD/RLE),
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 RECOMMENDS that Bushay’s motion to suppress the firearm be DENIED because he does not have standing to challenge its search or seizure.
a. Contentions of the parties
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 confínes 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],
b. Applicable Law
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,
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,
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,
c. Analysis
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,
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 RECOMMENDS that Bushay’s motions to suppress evidence and statements related to his arrest and the search of the hotel room, [Docs. 155, 156, 280], be DENIED.
II. Motion to suppress search and seizure re: traffic stop, [Doc. 282]:
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 RECOMMENDS that the motion to suppress regarding the traffic stop, [Doc. 282], be GRANTED AS MOOT.
III. Motions to suppress searches of 943 Peachtree Street, Apt. 707, [Docs. 278, 326], and 6746 Grey Rock Way, [Docs. 279, 327]
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.
A. 943 Peachtree Street, Apartment 707, Atlanta, Ga.
1. Facts
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 L10-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 three-room 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 cell-site 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].
2. Bushay’s contentions
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 unsup
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].
3. Legal Standards
Search warrants are presumed to be validly issued. Franks v. Delaware,
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,
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,
The Eleventh Circuit has framed as follows the issue of staleness:
When reviewing staleness challenges we do not apply some talismanic rule which establishes arbitrary time limitations for presenting information to a magistrate, rather, we review each case based on the unique facts presented. Bascaro,742 F.2d at 1345 ; Domme,753 F.2d at 953 ; Sgro,287 U.S. at 210 ,53 S.Ct. 138 . In this case-by-case determination we may consider the maturity of the information, nature of the suspected crime (discrete crimes or ongoing conspiracy), habits of the accused, character of the items sought, and nature and function of the premises to be searched. See United States v. Hooshmand,931 F.2d 725 , 735-36 (11th Cir.1991); Bascaro,742 F.2d at 1345 ; Cauchon v. United States,824 F.2d 908 , 911 (11th Cir.1987); United States v. Pless,982 F.2d 1118 , 1126 (7th Cir.1992); United States v. Bucuvalas,970 F.2d 937 , 940 (1st Cir.1992); and United States v. Rugh,968 F.2d 750 , 754 (8th Cir.1992). Ultimately, however, even stale information is not fatal if the government affidavit updates, substantiates, or corroborates the stale material. See Bascaro,742 F.2d at 1346 (additional circumstantial evidence coupled with defendant’s preexisting involvement with conspiracy supported probable cause determination). See also Bucuvalas,970 F.2d at 940 .
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,
Further, an affidavit in support of a search warrant for a suspect’s residence “should establish a connection between the defendant and the residence
“[t]he justification for allowing a search of a person’s residence when that person is suspected of criminal activity is the common-sense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations, few places are more convenient than one’s residence for use in planning criminal activities and hiding fruits of a crime.”
Kapordelis,
There need not be an allegation that the illegal activity occurred at the location to be searched, for example the home, but “the affidavit should establish a connection between the defendant and the residence to be searched and a link between the residence and any criminal activity.” [] Martin, 297 F.3d [at] 1314[ ]; see United States v. Anton,546 F.3d 1355 , 1358 (11th Cir.2008) (evidence of possession of contraband of type normally expected to be hidden in residence will support search); United States v. Jenkins,901 F.2d 1075 , 1080-81 (11th Cir.1990) (nexus between items to be seized and defendant’s home can be established circumstantially where contraband is capable of being hidden in residence). But see Green,634 F.2d at 226 (convenience of defendant’s residence “for use as a place to plan and hide fruits of the crime [was] thus diminished, if not eliminated” where alleged obstruction of justice, suborning of perjury, and violations of citizen’s civil rights took place thousands of miles from home in absence of other evidence linking residence and the criminal activity).
Kapordelis,
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,
4. Analysis
The Court concludes that Bush-ay’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 OS’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. Bush-ay 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 érror of “not considering an officer’s] affidavit in its entirety” and “judging bits and pieces of information in isolation.” Upton,
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 RECOMMENDS that Bushay’s motion to suppress evidence at 943 Peachtree Street, Unit 707, [Docs. 278, 326], be DENIED without an evidentiary hearing.
B. 6746 Grey Rock Way, Lithonia, GA
1. Facts
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-MJ-1905-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.” Tomlin-son 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. [/<£].
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],
2. Bushay’s contentions
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].
3. Analysis
The Grey Rock warrant was supported by probable cause. The evidence shows that Bushay and Tomlinson were using the residence to facilitate their drug-dealing 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 RECOMMENDS that Bushay’s motion to suppress evidence seized as a result of the search warrant at 6746 Grey Rock Way, Lithonia, Ga., be DENIED without an evidentiary hearing.
In this motion, Bushay seeks a severance from any of his co-defendants who made statements implicating him, pursuant to Bruton v. United States,
As a result, the undersigned DEFERS the motion for severance, [Doc. 283], to the District Court.
V. Conclusion
For all of the above reasons, the undersigned RECOMMENDS that the following motions filed by Defendant Jerome Bushay be DENIED:
(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 RECOMMENDS that the motion to suppress search and seizure re: traffic stop, [Doc. 282], be GRANTED AS MOOT. The motion to sever defendant re: Bruton problem, [Doc. 283], is DEFERRED TO THE DISTRICT COURT.
The Court has now ruled on all of this Defendant’s pretrial motions. As a result, the case is CERTIFIED READY FOR TRIAL AS TO THIS DEFENDANT.
IT IS SO RECOMMENDED, ORDERED and CERTIFIED, this the 24th day of January, 2012.
Notes
. The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec., Inc.,
. Macort dealt only with the standard of review to be applied to a magistrate’s factual findings, but the Supreme Court has held that there is no reason for the district court to apply a different standard to a magistrate's legal conclusions. Thomas v. Arn,
. Although the court found that the defendant had standing to challenge the seizure, it nevertheless found the seizure legal, explaining that "[i]f the seized item was contraband or the product of criminal activity, it was clearly subject to seizure.” Id.
. In Salvucci, the Court considered whether to uphold its decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725,
. The court ultimately concluded that the seizure was reasonable because the third party who lived at the apartment had consented to the seizure.
. Even if the Court were to find that Bushay had a property interest in the gun and applied Lisk to hold that he has standing to contest the seizure of the firearm, the seizure did not violate the Fourth Amendment because, as explained below, the search was reasonable.
. Another individual, a Mr. Lobban, was in a separate van. T35, 40.
. McConaughey knew who Williams was because he was investigating him. He did not know Bushay, nor had he seen a photograph of him prior to the arrests. T36.
. McConaughey did not tell Bushay the nature of the charges because he did not want to compromise the investigation in Atlanta since other persons were being arrested that day. T17.
. Bushay was placed briefly in a cell. T19.
. Williams was also processed. After being detained, Lobban was released. T40.
. Those rights were as follows:
Before we ask you any questions, you must understand you have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. Do you understand? Are you willing to answer some questions?
T21.
. Based on wire intercepts, the agents already knew in what hotel room the subjects were staying. T23. Seeing Bushay, Williams, and Lobban leave the Fairfield Inn, together with the plastic keys seized from Bushay when he was arrested, confirmed for the agents that room 308 was at the Fairfield Inn.
. The hotel was a 30-minute drive from the DEA’s office. T67.
. Marolda did not use the plastic key seized from Bushay to gain entry into the room. T80.
. Scarlett was the registrant for room 308, but at the time of their initial approach to the room, the agents did not know that. Gov't Exh. 5; T51, 70. The registration form reflected that cash was paid for the one-night room rental and there was to be one guest in the room. Gov't Exh. 5; T51-52.
. The agents also called the Hillsborough County Sheriff's Office for backup and uniformed presence. T77, 79.
. A subsequent Firearms Trace Summary reflected that the firearm was not registered to Bushay. Gov't Exh. 6; T58.
. Williams also signed a consent-to-search form for his vehicle after he was back in his vehicle. Gov’t Exh. 4; T54, 79. The record does not reflect either the time the consent-to-search form was signed nor the results of that search. See Gov’t Exh. 4; T79.
. The audio recording and transcript of the telephone conversation between Bushay and Gordon were marked as exhibits but not admitted at the hearing. Gov’t Exhs. 1, 2; T2526.
. Curiously, he then argues that "the registered guest was still in Room 308, in bed,” [Doc. 461 at 10], presumably referring to Chadwick Williams. Such an argument cuts against his claim of having an expectation of privacy in the hotel room as a result of there being one registered guest, assuming that that reference on the hotel bill is to a guest in addition to the person who registered for the room, Scarlett.
. In arguing this point, the government referenced the Eleventh Circuit's Cooper decision,
. The undersigned recognizes that the Supreme Court disapproves of the use of the word "standing” in this context. See Rakas v. Illinois,
. The Eleventh Circuit has adopted as binding precedent decisions of the Fifth Circuit, including Unit A panel decisions of that circuit, rendered prior to October 1, 1981. See United States v. Todd,
. As discussed in the text supra, the Court recognizes the language in Delgado but notes that in more recent cases, the Eleventh Circuit has steadfastly held that a " 'legitimate expectation of privacy [must] be proven by factors beyond mere possession, such as a right to exclude or a right to privacy.' " United States v. Harris,
. The Court also has considered sua sponte whether the Supreme Court's decision in United States v. Jones, -U.S.-,
. The government faults Bushay for not addressing the propriety of consent in his opening brief, thus depriving them of an opportunity to respond to his arguments [Doc. 465 at 14 n. 3]. However, Bushay was only directed to address standing and his statements in his brief. T86. This is because the government, and not a defendant, bears the burden of establishing that a warrantless search and seizure were reasonable based upon a recognized exception to the warrant requirement. United States v. Bachner,
. The government also argues that public policy warrants favors denial of the motion to suppress because if the officers had delayed their search and seizure of the weapon there could have been serious consequences for the safety of the community. [Doc. 465 at 19]. This argument is a variation on the exigent-circumstances discussion adopted by the Court, although the government never raised the exigent circumstances doctrine expressly. Instead, it argues that the costs of leaving the weapon outweighed the benefits of suppressing the firearm from Bushay's trial. In support it argues that at least one individual knew the weapon was there and had handled it. It then argues that since hotel rooms are temporary, the weapon could not simply have been left there. Finally the government argues that suppressing the evidence in this case would deter officers in the future from seizing known weapons in the most timely and efficient manner to safeguard the community. [Id.].
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 excep
. The Supreme Court in Miranda held that in order fully to apprise a person interrogated of the extent of his rights,
it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.
Miranda,
The Supreme Court has held that Miranda warnings that convey the substance of the suspect's rights are sufficient. See Duckworth v. Eagan,
. The affidavit stated that Jamaican Patois is an English-African Creole language principally spoken in Jamaica or communities with strong ties to Jamaica. [Doc. 326 at 7 n.3].
. In Bruton, the Supreme Court held that post-arrest statements made by non-testifying co-defendants that facially incriminate other defendants are inadmissible into evidence because such statements violate the other defendants’ Sixth Amendment rights to confront and cross-examine adverse witnesses. The Supreme Court concluded that "where the powerfully incriminating extra-judicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial,” limiting instructions by the court will not suffice to eliminate the prejudicial effect of the introduction of such statements. Bruton,
. Since matters pertaining to Defendant's codefendants are still pending, the District Court is not required to place this Defendant’s case on the trial calendar at this time. 18 U.S.C. § 3161(h)(6).