Final Report and Recommendation — United States v. Dayna Joy Liverman (N.D. Ga., October 23, 2017)

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This is a Final Report and Recommendation filed October 23, 2017, in the United States District Court for the Northern District of Georgia, Atlanta Division, in case 1:15-CR-284-AT-JKL-5 against Dayna Joy Liverman. It states that on July 12, 2016, a federal grand jury returned a fifteen count superseding indictment, and that Liverman is charged with a single count of Hobbs Act Robbery. It addresses her Motion to Suppress Statements [Doc. 300], covering statements to FBI agents after her July 29, 2016 arrest in Southfield, Michigan, with an evidentiary hearing on August 30, 2017. Magistrate Judge John K. Larkins III recommends that the motion be DENIED and certifies the matter ready for trial.

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Case 1:15-cr-00284-AT-JKL Document 345 Filed 10/23/17 Page 1 of 11




                IN THE UNITED STATES DISTRICT COURT
               FOR THE NORTHERN DISTRICT OF GEORGIA
                         ATLANTA DIVISION

UNITED STATES OF AMERICA
                                            CRIMINAL ACTION FILE NO.
v.
                                            1:15-CR-284-AT-JKL-5
DAYNA JOY LIVERMAN


                FINAL REPORT AND RECOMMENDATION

      On July 12, 2016, a federal grand jury in the Northern District of Georgia

returned a fifteen count superseding indictment against six defendants arising out

of a series of alleged home invasions and kidnappings in Atlanta, Georgia. [See

Doc. 134.] Defendant Dayna Joy Liverman, one of those defendants, is charged

with a single count of Hobbs Act Robbery in violation of 18 U.S.C. §§ 1951(a) and

2. [Id. at 2-3 (Count Five).]

      Pending before the Court is Liverman’s Motion to Suppress Statements

[Doc. 300], in which she seeks to suppress statements that she made to FBI agents

following her arrest in Southfield, Michigan, on July 29, 2016. On August 30,

2017, I held an evidentiary hearing on this motion. [Doc. 334 (hearing); Doc. 336

(transcript).] Following the evidentiary hearing, the government filed a brief in

opposition to the motion [Doc. 339], and Liverman filed a reply in support [Doc.
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340]. The deadline for the government to file an additional reply brief has passed.

The motion is therefore ripe for consideration and for the reasons that follow, I

RECOMMEND that Liverman’s motion be DENIED.

I.    FACTS

      Liverman was arrested on the morning of July 29, 2016, in Southfield,

Michigan, where she was living at the time. [Doc. 336 at 19-20.] Prior to her

arrest, the FBI advised the Southfield, Michigan, police department that there was

an outstanding federal warrant for her arrest. [Id. at 11, 19.] On the morning of

July 29, 2016, an FBI task force officer who lived across the street from Liverman’s

residence reported that he saw Liverman at the residence, and the FBI forwarded

that information to the Southfield police department, advising them that the FBI

“were looking to pick her up.” [Id. at 11.] Later that morning, Southfield police

officers arrested Liverman during a traffic stop and transported her to the Southfield

police station. [Id. at 4-5.] It is unclear whether Southfield police stopped her for

a separate traffic violation, or simply on the basis of the federal arrest warrant. [See

id. at 11, 25-26.] Nonetheless, during the course of the traffic stop, the police

informed her that they had a warrant for her arrest out of Atlanta. [Id. at 26.]

      Later that day, FBI Special Agents Zane Nevala and Chris Pennisi arrived at

the Southfield police station to take custody of Liverman and transport her to the
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Federal Courthouse in Detroit. [Doc. 336 at 3-5.] Liverman was brought to them

from her holding cell, and the two agents walked Liverman out the front of the

station and onto the curb. [Id. at 6.] SA Pennisi left to get the agents’ car, while

SA Nevala and Liverman stood alone in front of the building. [Id.] While SA

Nevala and Liverman were waiting for SA Pennisi to return, Liverman asked SA

Nevala “what the arrest was about,” and he responded that he did not know

anything about the case, but that there was an arrest warrant for her out of Atlanta.

[Id. at 6, 14.] Liverman then indicated that she knew that the arrest was about a

robbery. [Id. at 6-7, 14.] Liverman did not make any other statements to SA Nevala

while they waited for SA Pennisi to return. [Id. at 14.]

      Liverman, SA Nevala, and SA Pennisi then drove from Southfield to

Detroit—a thirty- to forty-minute drive. [Doc. 336 at 5, 7.] While it is undisputed

that Liverman continued to talk during the drive, the parties have offered

conflicting testimony concerning SA Nevala’s interactions with her. [Id. at 15-16,

23, 29-30.] According to SA Nevala, he did not ask her any questions during the

drive, and the conversation was “pretty one-sided . . . with her talking pretty much

the whole way.” [Id. at 15.] SA Nevala testified that he told her that he did not

know anything about the case and that the case agents in Atlanta would probably

be willing to talk to her once she got there. [Id. at 16.]
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        By contrast, Liverman testified that during the drive, SA Nevala asked her

two to four times if she knew “what this is about.” [Doc. 336 at 23-24.] She also

testified that she was in “shock” following the arrest, and that it was not until she

was in the car with SA Nevala and SA Pennisi that she realized that the arrest

related to a robbery in Atlanta. [Id. at 24-25, 29-30.] According to Liverman, SA

Nevala’s questions prompted her to recall that the arrest was in connection with a

robbery in Atlanta. [Id. at 29-30.]

        During the drive she also called her father using a cell phone that belonged

to one of the agents. [Doc. 336 at 16-17.] During the call, SA Nevala overheard

Liverman tell her father that she had been arrested for a robbery in Atlanta, but that

she was going to court and would “straighten things out or clear things up.” [Id. at

7-8.]

II.     DISCUSSION

        A.    The Arrest Warrant Gave the Arresting Officers Probable Cause
              to Arrest Liverman.
        Liverman first argues that her statements should be suppressed as the fruit of

a poisonous tree because her arrest was unlawful. [Doc. 300 at 4; Doc. 340 at 2-

3.] Specifically, Liverman contends that the Southfield police lacked probable




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cause to effect the traffic stop, and points out that the government did not present

any evidence at the hearing regarding the basis for the stop. [Doc. 340 at 2-3.]

      At time of Liverman’s arrest, however, there was an outstanding federal

arrest warrant, and police were therefore authorized to arrest her, regardless of

whether probable cause existed to stop her for a traffic violation. See Utah v.

Strieff, __ U.S. __, 136 S. Ct. 2056, 2063 (2016) (concluding that an officer’s

discovery of outstanding arrest warrant rendered otherwise unconstitutional stop

lawful). Although Liverman asserts in passing that the arresting officer was not

aware of the warrant before pulling her over [Doc. 340 at 3], the record indicates

otherwise, as it appears that the FBI advised Southfield police of the warrant and

instructed the police to apprehend her on July 29 [id. at 11]. In any event, even if

the arresting officer was not personally aware of the warrant at the time of the traffic

stop, it is undisputed that the officer became aware of it during the stop, as

Liverman admitted that the arresting officer told her that there was a warrant out

for her arrest. [See Doc. 336 at 26.] These facts are analogous to those in Strieff¸

where the Supreme Court held that a valid arrest warrant precludes the suppression

of evidence seized during an arrest, even if the arresting officers lacked probable

cause or knowledge of the warrant before the arrest. Strieff, 136 S. Ct. at 2063.


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Accordingly, Liverman’s challenge to the constitutionality of the arrest is without

merit.

         B.    Liverman Was Not Under Interrogation

         Liverman next argues that the statements should be suppressed because she

made the statements while in custody, in response to interrogation, and without

receiving Miranda warnings. [Doc. 300 at 1-3.]

         A person who is arrested and detained must be given full Miranda warnings

before any statements made in response to interrogation by a law enforcement

officer may be used against her in court. Miranda v. Arizona, 384 U.S. 436 (1966).

Miranda applies only to statements given in response to interrogation—i.e., express

questioning or its functional equivalent. United States v. Roberts, 888 F. Supp. 2d

1316, 1334 (N.D. Ga. 2012) (citing Rhode Island v. Innis, 446 U.S. 291 (1980)).

The “functional equivalent” of express questioning occurs when officers use “any

words or actions (other than those normally attendant to arrest and custody) that

the police should know are reasonably likely to elicit an incriminating response

from the suspect.” Innis, 446 U.S. at 301. “The focus is primarily on the

perceptions of the suspect, rather than the intent of the police.” United States v.

Durrah, 384 F. App’x 970, 972 (11th Cir. 2010) (citing Innis). Volunteered


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statements are, by contrast admissible if not made in response to government

questioning. Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991).

      The government does not appear to dispute that at the time that she made the

statements at issue in this motion Liverman was in custody and had not received

her Miranda warnings. The government instead argues that Liverman was not

subject to interrogation, either when she was outside the police station or while she

was transported to the courthouse in Detroit, and that she made the statements

voluntarily and spontaneously. [Doc. 339 at 5.] The government further argues

that even if SA Nevala posed questions to Liverman, they were not an interrogation

because they were not designed to deliberately elicit incriminating responses. [Id.

at 7.] Additionally, with respect to the conversation between Liverman and her

father, the government argues that her statements are not subject to suppression

because the agents did not encourage her to speak to her father and the statements

were not made in response to questioning by the agents. [Id. at 8.]

      Liverman argues that SA Nevala’s testimony about his interactions with her

are not credible. [Doc. 340 at 4-5.] She points out that SA Nevala took no

contemporaneous notes to memorialize the events; that he omitted from his FBI

Form 302 report the admissions that Liverman purportedly made outside the police

station; and that it is illogical for someone to volunteer twice, “I know what this is
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about” unless she was being asked questions designed to elicit such a response.

[Doc. 340 at 4-5.] Liverman further argues that her account of the facts is more

credible and that her testimony at the evidentiary hearing appeared truthful. [Id. at

5-6.]

        The analysis of Liverman’s statements depends on the context in which she

made them, and here, there are three separate circumstances in which she made

statements: (1) statements made outside the police station to SA Nevala while

waiting for SA Pennisi to pull the car around; (2) statements made to the agents

while being transported to Detroit; and (3) statements made on the telephone call

to her father that the agents overhead. The last category—statements to her

father—are not suppressible because there is no evidence that those statements

were elicited through the agents’ questioning or the functional equivalent of

questioning. There is no evidence that either agent encouraged her to speak to her

father or prompted her to make any specific statement to him. Accordingly, I

readily conclude that the statements that agents overheard her make to her father

are not suppressible.

        With respect to the first two categories, I also conclude that the statements

are not suppressible because I find the SA Nevala’s account of his interactions with

Liverman outside the station and during the drive to Detroit credible, and I am
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persuaded that the statements were not made in response to express questioning or

its functional equivalent. By the same token, I find that Liverman’s account of her

interactions with SAs Nevala and Pennisi to be less than fully credible. I do not

doubt that Liverman testified to her best recollection regarding the events following

her arrest, but she also readily conceded that she was confused and in a state of

shock following her arrest. [See Doc. 336 at 24 (During the car ride, “I’m blacked

out in a state of shock . . . just shocked.”), 25 (During the traffic stop, “I was in a

state of shock.”), 26 (Upon being informed of the warrant, “My mind was

completely removed from this entire situation. . . . I just was shocked all the way

around like I didn’t even know . . . what literally was taking place.”), 27 (“I was

shocked. I was confused.”), 29 (During the car ride, “I’m still in a state of

shock.”).] Given the record before me, I find it more believable that Liverman

asked SA Nevala what the arrest related to, realized that it related to an alleged

robbery in Atlanta, and continued to talk because she felt that she could explain it

away. This conclusion is bolstered by the statements she made to her father over

the phone to the effect that she had been arrested for a robbery in Atlanta in which

she was an unwilling participant, but that she was going to “straighten things out

or clear things up.” [Id. at 8.]


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      I also find Liverman’s arguments for discounting SA Nevala’s testimony

unconvincing. The fact that he did not take contemporaneous notes while standing

alone on a curb with a suspect or while traveling in the car does not tend to

undermine his credibility, as I am not persuaded that he should have been expected

to take notes at those times. Likewise, the fact that he omitted any mention of

statements she made outside the police station does not undermine his credibility

because his testimony at the hearing only supplements his report with additional

information. Liverman does not point to any testimony that contradicted his Form

302 report. Finally, Liverman’s contention—that it is illogical to think that without

questioning, a person would twice volunteer “I know what this is about”—is not

persuasive. As explained above, it is more likely that Liverman repeatedly made

such statements because she believed that she would be able to clear things up, just

as she told her father on the telephone.

      In sum, the evidence establishes that the statements Liverman made in the

presence of government agents were not made in response to questioning or the

functional equivalent of questioning. As a result, there is no basis to suppress the

statements.




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III.    CONCLUSION

        For reasons discussed above, I RECOMMEND that Liverman’s Motion to

Suppress Statements [Doc. 300] be DENIED.

        This Report and Recommendation resolves all matters pending before me

relating to Liverman. I have not been advised of any impediments to the scheduling

of a trial as to Liverman. Accordingly, this matter as to Liverman is CERTIFIED

READY FOR TRIAL.1

        IT IS SO RECOMMENDED and CERTIFIED this 23rd day of October,

2017.



                                   ____________________________________
                                   JOHN K. LARKINS III
                                   United States Magistrate Judge




1
  This matters as to Liverman’s codefendants have all previously been certified
ready for trial.
                                       11


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