United States v. Mitchell
| Decision Date | 24 June 2019 |
| Docket Number | CRIMINAL CASE NO. 1:17-CR-122-LMM-LTW |
| Parties | UNITED STATES OF AMERICA, v. TEVIN MITCHELL, TYVONNE WILEY, and TOREY STARLING, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Defendants Tevin Mitchell, Torey Starling, and Tyvonne Wiley are charged with several counts of Hobbs Act robbery, brandishing a firearm during a crime of violence, and conspiracy to commit Hobbs Act robbery. The Defendants' charges stem from seven robberies of GameStops and Hibbett Sports in Oklahoma, Texas, and Georgia. (Doc. 69). Each Defendant has filed motions, which are now pending before the Court. (Docs. 47-48, 58-64, 85, 91). Defendant Tevin Mitchell ("Mitchell") has moved to suppress evidence and statements obtained from him on the grounds that police officers unlawfully arrested him without probable cause, and unlawfully interrogated him during the period of arrest. (Docs. 63-64).
Defendant Starling has moved to dismiss Count One of the original Indictment on the grounds that Count One charges him and his co-defendants with conspiracy to commit Hobbs Act robbery in Oklahoma, Texas, and Georgia even though there was no evidence showing his involvement in any of the crimes in Texas or Oklahoma. (Doc. 47). Defendant Starling also moved to dismiss Count Two of the original Indictment for aiding and abetting a robbery which occurred at the Cobb Parkway GameStop, because there was no evidence showing his involvement in that particular robbery. (Doc. 47). Starling also seeks to dismiss both counts of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts Seven and Nine) from the Superseding Indictment because an agent of the United States admitted that Starling "ain't pulled no gun on nobody." (Doc. 69, 91).
Defendant Wiley argues the charges in the Indictment against him should be dismissed because he has been improperly joined and because each of the three Defendants is alleged to have conspired in separate conspiracies with multiple offenses occurring in Oklahoma, Texas, and Georgia. (Doc. 58). Defendant Wiley has also moved to suppress evidence seized as a result of his arrest on the grounds that neither the Texas warrant for his arrest nor his arrest in Cobb County on October 28, 2016, was based upon probable cause. (Docs. 60, 85). Additionally, Defendant Wiley argues the November 1, 2016 search warrant permitting Detective Raissi to take pictures of his tattoos should also be suppressed on the grounds that the warrant was not supported by probable cause since none of the robberies had been connected to him at the time the warrant issued. (Id.).
For the reasons outlined below, this Court concludes as follows:
(1) Defendant Torey Starling's Motion to Dismiss Counts 1 and 2 of the Indictment should be DENIED. (Doc. 47).
(2) Defendant Torey Starling's Motion to Sever Parties is DEFERRED TO THE
DISTRICT COURT. (Doc. 48).
(3) Defendant Tyvonne Wiley's Motion to Dismiss or, in the Alternative, Motion to Sever Defendant should be DENIED as to the Motion to Dismiss, but DEFERRED TO THE DISTRICT COURT as to the Alternative Motion to Sever. (Doc. 58, 61).
(4) Defendant Tyvonne Wiley's Motion to Supress Defendant's Statements should be DEFERRED TO THE DISTRICT COURT. (Doc. 59).
(5) Defendant Tyvonne Wiley's Motion to Suppress any Evidence Pursuant to His Arrest and Evidence Obtained Pursuant to a Search Warrant of His Person and Supplemental or Particularized Motion to Suppress Evidence should be DENIED. (Docs. 60, 85).
(6) Defendant Tevin Mitchell's Motion for a Bill of Particulars is GRANTED IN PART AND DENIED IN PART. (Doc. 62).
(7) Defendant Tevin Mitchell's Motion to Suppress Search and Seizure should be GRANTED. (Doc. 63).
(8) Defendant Tevin Mitchell's Motion to Suppress Statements should be GRANTED. (Doc. 64).
(9) Defendant Torey Starling's Motion to Dismiss Count 7 and Count 9 of the Superseding Indictment should be DENIED. (Doc. 91).
On October 3, 2017, a grand jury in the Northern District of Georgia returned an Superseding Indictment charging Defendant Tevin Mitchell ("Defendant" or "Mitchell") with (1) conspiring to commit Hobbs Act Robbery in violation of 18 U.S.C. § 1951(a); (2) three counts of Hobbs Act Robbery and aiding and abetting his codefendants in the robberies in violation of 18 U.S.C. §§ 2 and 1951(a); and (3) three counts of brandishing a firearm during a crime of violence and aiding and abetting his co-defendants in doingso in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii). (Doc. 69). In Mitchell's Motions to Suppress, he argues police officers unlawfully arrested him without an arrest warrant and without probable cause, and unlawfully interrogated him during the period of arrest. (Docs. 63-64). Mitchell argues all evidence obtained and statements he made as a result of the officers' unconstitutional actions should be suppressed. (Id.).
On September 20, 2016, Detective David Grubbs, who was a robbery detective with the police department in Dallas, Texas, obtained arrest warrants for Defendants Tevin Mitchell and Tyvonne Wiley from State District Judge Bennett in Dallas County, Texas. (Tr. 106-07, Gov't's Ex. 5). Defendants Wiley and Mitchell were wanted in connection with the armed robbery of a GameStop in Dallas. (Tr. 106-07). Detective Grubbs explained to Judge Bennett that prior to obtaining the arrest warrants, he had security video footage of the robbery from the GameStop and body camera footage from a police officer who subsequently detained Wiley and Mitchell at a parking deck. (Tr. 109, 115, 117-18, 132). Grubbs explained that a tracker within the money stolen had been activated following the robbery. (Tr. 109, 115, 122). An officer was nearby at the time and stayed in proximity with the area where the tracker was giving updates. (Tr. 119; Gov't's Ex. 5). After a Ford Fiesta turn into a parking lot, the signal went dead. (Tr. 119). Around that time, officers observed individuals later identified as DefendantsTevin Mitchell and Tyvonne Wiley walking out of the parking garage1 with an unknown female. (Tr. 109, 119; Gov't's Ex. 5). The officers detained the three individuals. (Tr. 119-20, 126-27). Law enforcement officers discovered that the female had a large quantity of money in her back pack, but she explained that she received the cash as a dancer. (Tr. 126-27, Ex. 5). The tracker was not found in the female's bag. (Tr. 127). The officers returned the money to the female and released her as well as Mitchell and Wiley. (Tr. 127; Gov't's Ex. 5).
The officers subsequently found the Ford Fiesta in the parking deck. (Tr. 120; Gov't's Ex. 5). Officers observed a rifle wrapped in a light-colored pillow case in plain view on the back seat of the Ford Fiesta. (Tr. 121, Gov't's Ex. 5). The rifle appeared to be the same weapon used in the armed robbery. (Tr. 121). The officers also saw latex gloves in the front of the vehicle. (Gov't's Ex. 5). Officers later learned the Ford Fiesta was registered to Defendant Mitchell. (Tr. 109, 115, 124; Gov't's Ex. 5).
Detective Grubbs testified that Wiley and Mitchell's heights and weights matched those of the robbers. (Tr. 120). Detective Grubbs indicated in his affidavit submitted in support of the search warrant that Defendant Mitchell was suspected to be one of the robbers who had been wearing black Nike shorts, black Nike crew socks, black sneakers, a tan t-shirt, a grey hoodie, a bandana over his face, and latex gloves. (Gov't's Ex. 5).At the time police intercepted Mitchell and Wiley, Mitchell was wearing similar clothing, except that he was not wearing a hoodie, a face covering, or latex gloves. (Tr. 120).
Based on surveillance video from the GameStop, the suspect in the video later believed to be Defendant Wiley was wearing a black hoodie, mask, latex gloves, black pants, and orange sneakers, and was carrying a long rifle concealed in a light-colored pillow case. (Tr. 118). When Wiley was intercepted at the parking garage, Wiley was wearing black zipper pants which had zippers in the same locations as those of the suspect in the GameStop video, but the rest of his clothing was different. (Tr. 119-20, 125, 129).
Detective Grubbs indicated in his search warrant affidavit that he had confirmed the identities of Mitchell and Wiley. (Gov't's Ex. 5). Grubbs testified that he based his identification of Defendant Wiley on the fact that his height, build, and weight and the zipper pants he was wearing when intercepted by the police matched the suspect believed to be Wiley depicted in the video evidence. (Tr. 118, 128-29). Judge Bennett approved the arrest warrant, and the warrant information was placed in the NCIC system. (Tr. 110, Ex. 5).
David Raissi, who was a Detective with the Cobb County Police Department, became involved in the investigation of Defendants Wiley, Mitchell, and Starling in connection with armed robberies of GameStops in the Cobb County area. (Tr. 7, 143-44). Detective Raissi involved the Violent Incident Prevention and Early Response Unit("VIPER Unit") and Sergeant Darren Hull, who is the Sergeant over the homicide and robbery unit, in the investigation. (Tr. 7). Detective Raissi gave Sergeant Hull descriptions of a white Hyundai Sonata and a blue Acura believed to be getaway vehicles in the Cobb County robberies and asked Sergeant Hull to have the VIPER unit locate the vehicles and begin surveillance. (Tr. 8-10).
Mobile surveillance of the white Hyundai Sonata led the officers to a residence at 2604 Favor Road. (Tr. 9). The Officers observed black males exit the residence and make contact with the driver of the Hyundai. (Tr. 26-27). The men also removed black clothing and a bag out of the car. (Tr. 9-10). After the Hyundai...
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