US v. Harrold

• Decision Date: 17 December 2009
• Docket Number: Criminal File No. 1:09-CR-19-TWT.
• Parties: UNITED STATES of America, v. William Berk HARROLD, III, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

679 F.Supp.2d 1336

UNITED STATES of America, v. William Berk HARROLD, III, et al., Defendants.

Criminal File No. 1:09-CR-19-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

December 17, 2009.

Katherine Monahan Hoffer, Matthew Turner Jackson, U.S. Attorney's Office, Atlanta, GA, for Plaintiff.

Jay Lester Strongwater, Law Office of Jay L. Strongwater, Colin M. Garrett, Federal Defender Program, Atlanta, GA, David Ross MacKusick, Office of David R. MacKusick, Stockbridge, GA, for Defendants.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is a criminal case. It is before the Court on the Report and Recommendation Doc. 125 of the Magistrate Judge recommending that the Motions to Suppress Statements Doc. 74, 83 should be granted in part and denied in part and that the Supplemental Motion to Suppress Statements Doc. 103 should be denied. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Motions to Suppress Statements Doc. 74, 83 are GRANTED in part and DENIED in part. The Supplemental Motion to Suppress Statements Doc. 103 is DENIED.

ORDER FOR SERVICE OF MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' PRETRIAL MOTIONS

RUSSELL G. VINEYARD, United States Magistrate Judge.

Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Criminal Rule 58.1(A)(3)(a) and (b). Let the same be filed and a copy, with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of receipt 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 of applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983).

Pursuant to Title 18, U.S.C. § 3161(h)(1)(F), the above-referenced ten (10) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act, whether or not objections are actually filed. The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this 3rd day of November, 2009.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' PRETRIAL MOTIONS

Defendants Zachery Harris ("Harris"), Shantavia Glass ("Glass"), and William Berk Harrold, III ("Harrold") have been indicted on charges of bank robbery in violation of 18 U.S.C. § 2113(a), (d) and using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Doc. 28. Harris and Glass have filed motions to suppress evidence.¹ Docs. 74, 83, & 103. After evidentiary hearings on the motions,² the parties filed post-hearing briefs. Docs. 106, 110, 113, & 118. For the following reasons, the undersigned RECOMMENDS that Harris' motion, Doc 103, be DENIED, and that Glass' motion Docs. 74 & 83 be GRANTED IN PART and DENIED IN PART.

I. STATEMENT OF FACTS

A. Facts Relating to Glass' Motion to Suppress, Docs. 74 & 83

On December 17, 2008, a Bank of America branch on Panola Road was robbed. Doc. 105 at 5. Federal Bureau of Investigation ("FBI") agents who were investigating the robbery obtained surveillance photographs from a sports store located next to the bank branch. Id.. The photographs were taken just prior to the bank robbery and showed four individuals, including a female later identified as Glass. Id. at 5-6, 12. The surveillance photographs were shown on the evening news on December 17, 2008. Id. at 6.

Glass and members of her family saw her picture on the news. Doc. 104 at 10-11, 23. Glass contacted a DeKalb County Police Department ("DCPD") officer about the bank robbery that evening, and he told Glass that he did not have any information about the case and that she would need to speak with the detective investigating the robbery. Id. at 7. Glass agreed and said that she would come to the DCPD station, but she encountered car trouble. Id. at 6-7. The DCPD officer with whom Glass had spoken picked Glass up and brought her to the station. Id. at 7.

FBI Special Agent Cynthia Myers ("Agent Myers") was at the DCPD station when Glass arrived there between 8:30 and 9:00 p.m. on December 17, 2008. Doc. 105 at 6-7. The DCPD officer escorted Glass to the detective division. Id. at 30. Glass was not handcuffed, but she was placed in a locked interview room while Agent Myers spoke with the other detectives and the officer who escorted Glass to the station. Id. at 30-31. According to Agent Myers, the DCPD officer had no conversation with Glass regarding the case, apart from telling her that he had no knowledge of the case and she would need to speak with the detectives. Id. at 7-8. At some point before Agent Myers and another FBI agent, Special Agent Perry Meador ("Agent Meador"), began their interview of Glass, her wallet and identification were taken and placed on a table located just outside of the interview room. Id. at 31-32.

Glass sat in the interview room until approximately 9:15 p.m., when Agents Myers and Meador began to interview her. Id. at 33. The agents were dressed in plain clothes and were not armed. Id. at 9. Glass was not handcuffed, and the door was closed but not locked during the interview. Id. at 9-10, 34-35. The agents identified themselves and told Glass that they wanted to show her some pictures and discuss what had happened earlier that day. Id. at 11. The agents first asked Glass questions regarding her address, employment history, and other biographical information. Id. at 12. Agent Myers then showed Glass a photograph from the sports store surveillance camera that depicted only three men. Id.. Glass told the agents "a little bit about her encounter with those three men earlier that day." Id. at 13. Agent Myers showed Glass a photograph of the female from the sports store surveillance camera, and Glass identified herself. Id. at 12. At that point, the agents decided to read Glass her Miranda³ warnings. Id. at 13.

Before reading the Miranda warnings, Agent Myers went through her usual procedure of verifying that the suspect can understand, read, and speak English, asking about the suspect's educational background, and asking whether the suspect is under the influence of any drugs. Id. at 13-14. Glass verified that she had graduated from high school and could read, speak, and understand English. Id. at 14. Glass also stated that she was not under the influence of any drugs, but that she was diabetic. Id.. The agents asked if Glass felt okay and could continue with the interview, and Glass stated that she was fine. Id. at 15. Agent Myers told Glass that they could get her something to eat or drink during a break, and Glass said that would be fine. Id..

The agents read Glass the Miranda warnings at 9:44 p.m. Id. at 18-19. Glass stated that she understood her rights and consented to answering questions without a lawyer present. Id.. The agents took a break shortly after reading the Miranda warnings and asked Glass if she wanted anything to eat, which she did. Id. at 21-22. Agent Meador brought Glass a soda and chips. Id. at 22. At another point during the interview, Glass asked to use the restroom and was escorted there by a DCPD officer. Id.. At no time during the interview did Agent Myers or Agent Meador threaten Glass, promise her anything in exchange for continued cooperation, yell at her, or attempt to physically intimidate her. Id. at 23-24. Glass never asked to speak with an attorney or for the interview to end. Id. at 24-25. The interview concluded sometime between 11:30 p.m. and midnight, and at its conclusion, Glass was arrested and transferred to the DeKalb County jail. Id. at 15, 42-43.

At the evidentiary hearing on Glass' motion to suppress, her mother, Estelle Glass, testified about Glass' diabetes. Doc. 104 at 3. Glass was diagnosed with Type II diabetes when she was ten years old, and has to take insulin shots to control her diabetes. Id.. From the time that Glass was eighteen years old, her supply of insulin has been irregular because she is no longer covered under her mother's health insurance, and the family has not always been able to afford Glass' insulin. Id. at 4-5. When Glass is unable to take insulin, she will sometimes have a seizure and have to be hospitalized. Id. at 6. Insufficient insulin combined with an improper diet will cause Glass to be tired and sleepy. Id. at 10. Glass' mother testified that the indicators of Glass' seizures were foaming at the mouth and "talking out of her head," by which she meant that Glass would say things and not recall them later or "talk crazy." Id. at 6-7, 16.

Glass' mother testified that for the week prior to December 17, 2008, she had not been able to afford Glass' insulin. Id. at 11-12. She had no personal knowledge of Glass' blood sugar levels as reported by a meter during this time. Id. at 12. However, she testified that Glass' behavior on the afternoon and evening of December 17, 2008, was consistent with her behavior when her blood sugar levels are high. Id. at 12-14.

Specifically, Glass' mother testified that around 3:45 p.m. on December 17, 2008, Glass picked her up from work to give her a ride home. Id. at 13, 21. During the ride, Glass started talking to her mother inappropriately and yelling at her. She testified that Glass was "talking crazy" and "talking out of her head," and...