United States v. Hardwick
| Decision Date | 07 June 2019 |
| Docket Number | CRIMINAL CASE NO. 1:18-CR-398-AT-JFK |
| Parties | UNITED STATES OF AMERICA v. MONTAVIOUS HARDWICK, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Pending before the court are Defendant Montavious Hardwick's motion [Doc. 17] to suppress statements and motion [Doc. 18] and amended motion [Doc. 21] to suppress evidence seized pursuant to the execution of a state search warrant and a subsequent federal search warrant. Defendant contends that (1), with respect to the state search warrant, the executing officers seized electronic items and ammunition not authorized by the warrant; (2), with respect to the federal search warrant, the time frame allowed for seizure of information exceeded the scope of probable cause; and (3) his statements were initially made without Miranda warnings and, after warnings, were involuntary without a valid Miranda waiver. [Doc. 28]. The Government responds opposing the motion to suppress arguing that (1), with respect to the state search warrant, the items seized fell within the exigency exception or plain view doctrine; (2), with respect to the federal search warrant, the time frame authorized was supported by probable cause and was reasonable; and (3) Defendant's initial statements were non-custodial and subsequent statements followed a valid waiver of Miranda rights. [Doc. 19]. Plaintiff's reply brief in support of the motions to suppress opposes the Government's arguments. [Doc. 39]. After consideration of the arguments of the parties and the binding and persuasive legal authority, the court recommends that Defendant's motions to suppress be denied with the single exception of the pre-Miranda statement regarding his criminal history.
On September 19, 2018, City of Atlanta Police Department ("APD") Investigator ("Inv.") B. Ernest presented an affidavit for a search warrant to a Fulton County Superior Court Judge for the residence located at 1167 Fenwood Street, S.W., Atlanta, Georgia 30314. (Tr. at 14; Gov't Exh. 2 ("State Warrant")).1 The Superior Court Judge, "[b]ased upon the affidavit given under oath or affirmation . . . [was] satisfied that there is probable cause to believe that a crime is being committed or has been committed and that the property described above is presently located on theperson, premises, or property described above." (State Warrant). The premises "described above" is the residence located on Fenwood Street, and the "property described above" is: "Marijuana, Cocaine, and Ecstasy and any other illegal narcotics, weapons, money/assests [sic] derived from drug sales or which is defined as contraband under Georgia State law, notebooks, binders, or papers depicting pay-owe sheets or evidence of narcotics possession or distribution, packaging and measuring equipment used in the drug trade, and other tangible evidence being held in violation of Georgia state law." (Id.). Inv. Ernest also "request[ed] permission to seize any of the items in the 'items to be seized' section of the search warrant application . . . which is being held in violation of: 16-13-30 of the Georgia Controlled Substance Act." (Id.).
In support of the search warrant, Inv. Ernest first set forth his training and experience as a law enforcement officer, including his assignment to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") as a Task Force Officer ("TFO") since 2013 and his involvement in a number of investigations of drug trafficking organizations and individuals. (Tr. at 14; Gov't Exh. 2 ("State Affidavit")). On May 3, 2018, two ATF special agents debriefed a confidential informant ("CI"), who had previously provided information leading to the seizure of drugs and firearms, regarding drugs, heroin and marijuana, being sold throughout the day at the Southern Grocery("Grocery") located on Westview Drive, S.W., Atlanta. (State Affidavit). The CI advised that, in addition to drugs, a firearm might be purchased. (Id.).
On June 29, 2018, ATF agents and TFOs met with the CI to conduct an undercover purchase of drugs from the Grocery. The CI and his vehicle were searched for contraband - nothing being found, and he was provided funds for the purchase and equipped with a recording device. (Id.). The CI entered the Grocery, purchased two packs of cigaillos and was directed by the cashier to Lindell ("Lin") Jackson who sold the CI a quantity of marijuana for $62.00. Jackson advised the CI that he was at the Grocery "all day, every day" and provided the CI with telephone number (770) 885-0984. After the purchase, the CI turned over the evidence and recording equipment to ATF agents. (Id.). The substance tested positive for marijuana, and investigation revealed that the telephone number belonged to Lindell Jackson. (Id.). On July 13, 2018, the CI - after the same pre-purchase meeting with the agents - made a second controlled purchase from Jackson at the Grocery. Jackson, who had a pistol tucked in his waistband, asked the CI if he needed a "'throwaway' (street slang for a pistol)" and said, "'I got it' and . . . would charge the CI $250 for it." (Id.). Jackson sent another person, Sky, to get a pistol from a nearby apartment building. Jackson sold a Beretta PX4, 9mm, pistol to the CI for the $250. (Id.). Jackson also sold the CI a quantity ofmarijuana for $60.00, and he stated that "Boo" was on his way with cocaine. Jackson left to meet Boo. (Id.). Jackson and Boo arrived, and Boo removed a bag of cocaine from his pants pocket and sold the drugs to the CI for $100. Then Jackson instructed Sky to go get pills, and she left, returned shortly thereafter and sold the CI ecstasy pills for $40. (Id.). Again, the CI met with agents and turned over the pistol and drugs and recording equipment. (Id.). The drugs tested positive for controlled substances, and the Beretta was determined to have been stolen in Newton County, Georgia on January 3, 2018. (Id.).
On July 31, 2018, the CI contacted Jackson via text message and negotiated the purchase of $100 in cocaine, $40 in ecstasy pills, and $40 in marijuana. (Id.). On August 1, 2018, the agents and officers again met with the CI, searched him, provided government funds and recording equipment. The CI traveled to and entered the Grocery and saw Jackson. Jackson sold the CI marijuana $40 and then called Boo, his brother, who instructed Jackson to bring the CI to "the house." (Id.). Jackson and the CI traveled to 1167 Fenwood Street, S.W., Atlanta, where Jackson exited the vehicle and walked to the back door, exiting the house a few minutes later. He sold the CI cocaine for $100 and advised that "his brother" had pills. (Id.). The CI, after returningto the Grocery briefly, met with the agents who secured the drugs and recording equipment. The drugs tested positive for controlled substances. (Id.).
On September 14, 2018, after meeting with the agents and officers as before, the CI traveled to the Grocery where he met with Jackson who sold the CI marijuana for $40. The CI asked if Jackson had a gun and powder (cocaine) to sell, and Jackson responded, yes, but that they would have to go the house (1167 Fenwood Street) for the cocaine because "'Boo' was babysitting at the house." (Id.). Another unidentified man provided a firearm, a Taurus model PT 111 Millennium G2, 9mm pistol, to Jackson who ejected the magazine and chambered round. He sold the pistol to the CI for $300. The male also provided Jackson with Percocet pills which Jackson sold to the CI for $50. (Id.). Jackson and the CI then traveled to 1167 Fenwood Street where Jackson exited the vehicle and entered the residence. Jackson returned to the vehicle and sold the CI cocaine for $100. They returned to the Grocery. The CI departed and again met with the agents to surrender the drugs, firearm and recording equipment. (Id.). The drugs tested positive for controlled substances. (Id.).
Based on this information, in the affidavit, Inv. Ernest asserted that in the residence there is: "Marijuana, Cocaine, Ecstasy and other illegal narcotics, weapons, ammunition, money/assests [sic] derived from drug sales or which is defined ascontraband under Georgia State law, notebooks, binders, or papers depicting pay-owe sheets or evidence of narcotic possession or distribution, packaging and measuring equipment used in the drug trade, and other tangible evidence, such as cell phones in the possession of those inside the residence, being held in violation of Georgia state law." (Id.).
On September 26, 2018, ATF agents and local law enforcement officers executed the search warrant for 1167 Fenwood Street. (Tr. at 4-5, 25, 41). Approximately seven agents approached the front door of the residence and knocked and announced that they were police officers.2 When no one answered the door, a ram was used to force open the door, and the agents entered the residence. (Tr. at 5, 27-28). Upon entering, with their weapons drawn, the agents and officers again identified themselves as police officers and ordered the occupants to come out with their hands up. (Tr. at 5, 28). Defendant Hardwick and a female, Ms. Nicholson, with a small child, exited from the rear of the residence and walked down the hallway with their hands up. (Tr. at 5, 28-29). Defendant and Ms. Nicholson, with the child, were directed out of the residence, and Defendant was handcuffed behind his back andplaced in the rear seat of a APD SUV located on the street in front of the residence.3 (Tr. at 6, 29).
After the residence was secured, about twenty minutes after Defendant was placed in the vehicle, the agents and officers holstered their firearms and ATF Agents Quinton Marable and Alan McLeod spoke to Defendant as he remained partially seated in the back of the SUV with the door open. (Tr. at 6-7, 29-30). During the two interviews with Defendant, who remained handcuffed, the agents never drew their weapons, never threatened Defendant, used a conversational tone, and did...
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