United States v. Peck
| Decision Date | 18 April 2014 |
| Docket Number | Criminal Indictment No. 1:13–CR–171. |
| Citation | 17 F.Supp.3d 1345 |
| Parties | UNITED STATES of America, v. Michael Alan PECK, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Brent A. Gray, U.S. Attorneys Office, Atlanta, GA, for United States of America.
Michael Alan Peck, Duluth, GA, pro se.
Whitman Matthew Dodge, Federal Defender Program Inc., Atlanta, GA, for Defendant.
Defendant's timely objections [Doc. 37] to the Magistrate Judge's Final Report and Recommendation (“R & R”) [Doc. 34] regarding Defendant's Motion to Suppress Statements are currently before the Court.
The R & R recommends the denial of Defendant's motion to suppress statements [Doc. 14]. It also recommends that Defendant's motion to return property [Doc. 16] be deemed moot based on the agreement of the parties regarding resolution of the property issues.
Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the R & R that is the subject of a proper objection on a de novo basis and any non-objected portion on a “clearly erroneous” standard. Defendant objected on numerous evidentiary and legal grounds to the Magistrate Judge's Report and Recommendation with respect to the motion to suppress. Accordingly, the Court has reviewed the record in this case on a de novo basis, including among other items, the audio recording of the Plaintiff's interview, photographs, and other exhibits introduced at the motion to suppress hearing before Magistrate Judge Alan Baverman, and the transcript of that hearing.1
The Court has conducted a thorough, independent review of the evidence and the parties' respective arguments in connection with Defendant's Motion to Suppress. Based upon this review, the Court finds the Magistrate Judge's findings and legal analysis are thorough and in all material respects correct. The Court recognizes the psychologically intimidating impact of the arrival of a squad of ICE officers at the doorstep of Defendant's home at dawn in combination with ICE officer Westall's restraint of Defendant's hands behind his back for four to five minutes prior to the squad's clearing of the house and the agents (other than Westfall) holding their weapons in a drawn position at the doorstep. If the coercive circumstances and treatment manifested in the first five minutes of the ICE squad's execution of the search warrant had continued, the Court would be inclined to grant Defendant's motion to suppress. However, the tenor of the agents' search and control of the house substantively eased once the house had been cleared for any dangers and Defendant and his family were seated in their living room approximately ten minutes later. After the initial five minutes of contact with Agent Westfall on the doorstep, Mr. Peck was not touched again by the agents. The display of drawn guns ceased. The agents maintained control of the home premises while executing the search and conducting the Defendant's interview. However, the totality of the evidence indicates that Defendant voluntarily agreed to be interviewed and voluntarily acquiesced to the interview questioning by Officer Westfall. Westfall's interview of the Defendant, while conducted in a small bedroom and in the presence of another agent,2 was not conducted in such a coercive manner or circumstances as to render this a custodial interrogation under prevailing legal standards properly set forth in the R & R.3
Accordingly, the Court ADOPTS the Magistrate Judge's Report and Recommendation [Doc. 34] and DENIES the Defendant's Motion to suppress evidence [Doc. 14] and DENIES AS MOOT Defendant's motion for return of seized property [Doc. 16].
Before the Court are two pretrial motions filed by Defendant Michael Alan Peck: (1) Defendant's Motion to Suppress Statements, [Doc. 14]; and (2) Defendant's Motion For Return of Seized Property, [Doc. 16]. For the following reasons, the undersigned RECOMMENDS that the motion to suppress statements be DENIED, and that the motion for return of property be DENIED AS MOOT.
On May 15, 2012, Department of Homeland Security (DHS) Special Agent David Westall was the lead case agent in a child pornography investigation of Defendant, and in connection with that investigation, Westall led the execution of a federal search warrant at Defendant's home. [Doc. 24 (hereinafter “T ___”) at 9–10]. The warrant was executed at 6:15 a.m. by nine DHS agents, a GBI agent, and a uniformed City of Duluth police officer, each of whom arrived in a separate vehicle. T10, 31, 32. It was just starting to get light outside. T11. Most of the agents were wearing raid gear, such as khaki pants, t-shirts that had “ICE” written on them, and vests identifying them as law enforcement agents, and were armed, although some of the DHS personnel were analysts (and thus may not have been armed). T36.
Peck's residence was located in a cul-de-sac in a suburban neighborhood in Duluth, Georgia. T33, 81. Initially, the executing officers parked their vehicles up the street from Peck's home and approached the house on foot, and they only brought the vehicles closer to Defendant's home after the house was cleared. T34, 36. At that point, the flashing lights of the police vehicles were visible inside the house. T85. A police car was parked at the foot of the driveway. T91.
Westall was first in a line of agents (referred to at the hearing as a “stack”) that approached the front door of the residence. T 10. DHS Special Agent Michael Ashley was directly behind Westall with a door ram. T60. The stacked agents, but not Westall, had their weapons drawn. T11, 61. Westall banged loudly on the door, announcing “Police,” stating that they had a search warrant, and directing the occupants to open the door. T11, 83, 86.
Defendant answered the door. He was wearing a bathrobe (with underwear underneath) but no shoes, and it appeared he had just woken up. T43, 67, 83, 90. He did not have his car keys or wallet with him. T43. Westall asked him to step outside, and as he complied, Westall grabbed him by the hands and pulled him outside and to the side, onto the front concrete pad or immediately off of it so that the stack of agents could get by and enter the residence.1 In the presence of the uniformed police officer, Westall continued to hold Defendant's hands behind his back for four to five minutes, until the entry team cleared the house. T12, 13, 39, 42, 61, 70, 87. Peck was not handcuffed, however. T13.
Westall explained to Peck that they were there to execute a search warrant for child pornography because an IP address led them to his house. T11, 14. He further explained that the search would take a few hours and that Westall knew who he was from a photograph. T14. Peck told Westall that his wife and children were also in the home. T15–16. Peck's request to enter the house and get his daughter, who had sprained her ankle, was refused. T89. Peck's wife, Danita—who was dressed in pajamas and a bathrobe and was coming down the stairs as her husband was taken outside—and their two children (a boy, age eleven at the time, and a girl, age fourteen at the time, T108) were located and also brought outside. T39–40, 81, 87. Ms. Peck and the children stood by her car in the driveway, with an agent about four feet away from them. T88, 89.
Westall also told Defendant that he was not required to stay at the house if he did not want to stay, nor did he have to come back into the house. T14, 43–44.2 He also told Peck that if he elected to stay, he would be restricted to the living room and would not have free run of his house. T14, 45. Westall did not mention arrest, nor did he advise Peck whether he was subject to arrest. T15.
Peck elected to stay, and once the house was cleared by the entry team, DHS Special Agent Ashley escorted Defendant into the house. T16, 61. Like Defendant, Ms. Peck was directed into the house but not touched by the agents. T91. Defendant, his wife, and their two children were directed to the living room, which contained a large brown sofa, an arm chair, and a television, and they were told to be seated. T45, 91, 92; Deft. Exs. 7–9. The living room was the most comfortable room in the house for seating more than a few people. T102. The television was turned on for the children, and an agent stood by the door leading to the backyard patio. T93. None of the Pecks asked to sit elsewhere in the home. T102. Although Ms. Peck described the agents' knocking on the door as “forceful,” she also testified that the agents were “very respectful at all times.” T104. Defendant was not searched or patted down. T104. Although the agents possessed “raid gear,” they never used it. T104.3 The agents used the kitchen table area, which adjoined the living room, to collect and inventory seized evidence. T112. The front door to the house stayed open, and an officer stood inside the front door, another was outside the front door, and a third was beside the closed back door leading to the patio. T108.
Approximately ten minutes after the agents arrived, while Defendant was seated in the living room with his family, Westall asked Defendant if he would like to speak with the agents, and Defendant replied that he would. T16–17, 48, 71, 77.4 There were no threats or promises, nor did the agents discuss criminal charges with Defendant. T17–18. The agents wanted to hold the interview in a more private part of the house. T48–49.5 Westall asked if there was a more private place away from Defendant's family, and Defendant, Westall, and Ashley went upstairs to one of the children's bedrooms. T18, 62. Westall led the way upstairs followed by Defendant and Ashley. T18. Defendant did not indicate that he did not want to go upstairs, nor was there any resistance on his part. T19. Neither agent touched Defendant as they went...
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