Final Report and Recommendation — United States v. Telly Montana Jackson (N.D. Ga., February 20, 2018)

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This is a United States Magistrate Judge's Final Report and Recommendation filed February 20, 2018, in the United States District Court for the Northern District of Georgia, in case 1:17-CR-00065-LMM-AJB against Telly Montana Jackson. The defendant is charged in a single count indictment with possessing a firearm on June 1, 2016, after having been convicted of one or more felony offenses, and moves to suppress statements he is alleged to have made to Atlanta Police Department officers [Doc. 15]. The report finds that Jackson was not interrogated and was not in custody for Fifth Amendment purposes when he made them. It recommends that the motion be DENIED IN PART AND GRANTED IN PART AS MOOT, and certifies the case ready for trial.

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“Final Report and Recommendation — United States v. Telly Montana Jackson (N.D. Ga., February 20, 2018).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-17-cr-00065-dkt-37-n-d-ga-6da73b2dd9/, SHA-256 dc8ccc9403eeadd8709d6e03f5632caf3aaa3c2bf2f02ba8b8632269ab7552e2.

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Case 1:17-cr-00065-LMM-AJB Document 37 Filed 02/20/18 Page 1 of 15

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

UNITED STATES OF AMERICA :
:
v. : CRIMINAL ACTION FILE NO.
:
TELLY MONTANA JACKSON, : 1:17-CR-00065-LMM-AJB
a/k/a Telly Pritchett, :
:
Defendant. :

UNITED STATES MAGISTRATE JUDGE’S
FINAL REPORT AND RECOMMENDATION

Defendant is charged in a single count indictment with possessing a firearm on

June 1, 2016 after having been convicted of one or more felony offenses, in violation

of 18 U.S.C. §§ 922(g) and 924(e)(1). [Doc. 1]. He moves to suppress several

statements that he is alleged to have made to Atlanta Police Department (APD) officers

at the time he was allegedly found in possession of the weapon. [Doc. 15]. The Court

held an evidentiary hearing, [Doc. 25 (hereinafter “T_”)], after which the parties filed

briefs. [Docs. 30 (Jackson), 34 (Govt.)].1 For the following reasons, the undersigned

RECOMMENDS that the motion be DENIED IN PART AND GRANTED IN

PART AS MOOT.

1
Defendant did not file a reply brief. (See Dkt.).

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Facts

On June 1, 2016, between 7:00 and 7:30 a.m., then-APD Officer Thompson, who

was dressed in his APD uniform, responded to a dispatch call placed to APD Officer

Rosser2 about a person at 1898 Memorial Drive. T3-5, 16-17.3 The call reported a

male with red shoes laying on the front porch of this address, and based on the

description, Thompson believed that he knew the individual–Defendant Jackson–and

had prior dealings with him a few days before that when Defendant was aggressive or

irate towards the officers’ supervisor and Rosser. T5-6, 17, 29. Thompson arrived at

the address within five minutes of the call, and parked his patrol car at a business across

the street from the address. T6, 17-18. His blue lights were not on. T18. He knew that

the address was not Defendant’s home but that he was usually on that street. T29.

From the vantage point from where he parked his vehicle, Thompson observed a black

male with red shoes sitting on the steps of the address, and upon approaching the

individual, Thompson recognized him as Defendant. T6-7, 18. From his previous

dealings with him, Thompson knew that Defendant was a convicted felon. T8.

2
As of June 1, 2016, Rosser was known by her maiden name of Welch.
T31. The Court refers to her current name in this R&R.
3
Thompson was Rosser’s beat partner, and they backed up each other. T17.

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Once he approached Defendant, Thompson saw that he was asleep and roused

him. T19. Defendant did not appear to Thompson to be under the influence of alcohol

or drugs. T29. Thompson told him to get up and leave the property. T8, 19.

Defendant quickly complied, and they began walking together down the driveway, with

Thompson slightly trailing Defendant. T8-9, 20. Thompson did not remember whether

he or Defendant carried Defendant’s bookbag. T8-9, 19-20. Since, as will be shown

in the next paragraph, Thompson placed the bookbag on top of the firearm subsequently

dropped by Defendant, the Court concludes that Thompson was carrying Defendant’s

bookbag down the driveway.

A few steps into their descent of the driveway, Thompson heard a “clank” on the

driveway’s concrete, and when he looked down towards the sound, he saw a revolver.

T9, 20. Thompson directed Defendant to step away from the gun and placed

Defendant’s bookbag on top of it. T10-11, 22. Defendant moved about five feet away.

T15, 20, 21. Thompson did not get on the radio to report these events because he knew

that Rosser was on her way. T21. Defendant was not handcuffed because Thompson

did not perceive Defendant as dangerous at that point. T11, 23, 24.

Defendant told Thompson to “let it slide,” which Thompson interpreted as

meaning to let him take the gun and leave, and Thompson responded that he could not

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do that. T11-12, 22.4 Defendant also stated that the gun was not his, and that it

belonged to “Red.” T11.

Rosser5 arrived at that location five to six minutes after the dispatch call. T13,

32. She parked her police vehicle across the street where Thompson’s was parked.

T13, 23-24, 39. She also did not turn on her blue lights. T40.6 She saw Thompson and

Defendant standing in the driveway standing one to two feet from one another. T32,

33 40. She knew Defendant from a panhandling call before June 1. T32. Thompson

told Rosser what had happened, that he had Defendant walk down the driveway and as

he was doing that, the firearm fell from Jackson’s right side. T14, 27.7 He told Rosser

4
Defendant argues that Thompson’s testimony that Defendant asked to “let
it slide” is not credible. [Doc. 30 at 2 n.4]. At stated at the evidentiary hearing, the
issue for the undersigned is whether the statements that the government claims
Defendant made are subject to suppression on Fifth or Sixth Amendment grounds.
T53. Whether he made those statements is for the jury to decide at Defendant’s trial
if the statements are deemed by the District Judge to have been constitutionally
obtained.
5
At the time of the evidentiary hearing, Rosser was retired from the APD.
T30-31.
6
Neither police vehicle was parked in a way that allowed the encounter with
Defendant to be recorded by a dashboard camera. T25, 39-40
7
Rosser testified that Thompson did not tell her what had transpired before
her arrival until they were escorting across the street. T42, 44. The timing of the
debrief is irrelevant to resolution of the issue presented by Defendant’s motion.

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to remove the bookbag from his foot and when she did so, underneath she saw a firearm

under Thompson’s foot. T34, 41. Shortly after this debrief, Defendant was walked

across the street to the police cars, where he was handcuffed. T14, 35. Prior to being

handcuffed, neither Thompson nor Rosser touched Defendant. T28, 38.

Neither Thompson nor Rosser Mirandized Defendant. T15, 37. At some point,

the bookbag was inventoried and found to contain Defendant’s identification. T26.

Rosser testified that she was present when either she or Thompson asked

Defendant where he got the gun and Defendant replied from Red. T36-37, 43, 44.

Arguments of the Parties

Defendant argues that he was in custody as soon as Thompson saw the firearm

in the driveway and directed him to move away and wait for the other officer to

arrive. [Doc. 30 at 5]. At a minimum, he argues, he was in custody when he was taken

across the street by the officers. [Id.]. As a result, he contends that he was entitled to

Miranda warnings, and since he was given the warnings, any statements that he

allegedly made cannot be admissible against him in the government’s case in

chief. [Id. at 5-6].

In response, the government argues that the statements that Jackson made to

Thompson–(1) let it slide, (2) the gun did not belong to him, and (3) it belonged to

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Red–were non-custodial statements, and even if he was in custody, they were voluntary

and spontaneous and not in response to interrogation or its functional equivalent, and

so Miranda warnings were not required. [Doc. 34 at 9-10]. The government is not

seeking to introduce Jackson’s statement made in response to inquiry from either

Thompson or Rosser, that is, where did he get the gun and his response,

“Red.” [Id. at 2 & n.1].8

Discussion

The procedural safeguards of Miranda v. Arizona, 384 U.S. 436 (1966), are

required only in instances of custodial interrogation. United States v. Moody,

977 F.2d 1425, 1434 (11th Cir. 1992); see also Endress v. Dugger, 880 F.2d 1244, 1248

(11th Cir. 1989) (Miranda warnings are required only in the situation of a custodial

interrogation). Therefore, the Court must determine if Jackson was in custody and

being questioned at any time when he made the statements that the government intends

to introduce at trial. United States v. Adams, 1 F.3d 1566, 1575 (11th Cir. 1993) (“Since

the warnings are required only in the situation of a custodial interrogation, many courts

have addressed the issues of when a person is in ‘custody’ or has been ‘interrogated’

8
Defendant did not move to suppress any evidence on Fourth Amendment
grounds. (See Dkt.).

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for the purposes of Miranda.”) (quoting Endress, id.).

Jackson was not interrogated

“Interrogation” under Miranda refers not only to express questioning, but also

to any words or actions on the part of the police (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. Rhode Island v. Innis, 446 U.S. 291, 300-01

(1980) (“Miranda safeguards come into play whenever a person in custody is subjected

to either express questioning or its functional equivalent.”). “ ‘Voluntary and

spontaneous comments by an accused . . . are admissible evidence if the comments

were not made in response to government questioning.” ’ United States v. Sanders,

315 Fed. Appx. 819, 823 (11th Cir. Feb. 24, 2009) (quoting Cannady v. Dugger,

931 F.2d 752, 754 (11th Cir. 1991)); see also Miranda, 384 U.S. at 478. Defendant

bears the burden to show that he was in custody and subjected to governmental

questioning. See United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977) (“[I]f

a defendant shows that a confession was obtained while he was under custodial

interrogation, the government then has the burden of proving that the defendant

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voluntarily waived his privilege against self-incrimination.”)9; United States v. Peck,

17 F. Supp. 3d 1345, 1353-54 (N.D. Ga. 2014) (Totenberg, J.) (gathering authority).

In the present case, there is no evidence that Thompson questioned Jackson or

engaged in the functional equivalent of questioning when Jackson voluntarily and

spontaneously asked Thompson to let him slide, and stated that it was not his gun but

Red’s. The record reveals that the only statements that Thompson arguably made to

Jackson was that he needed to get up and leave the premises, and, after the firearm was

discovered, that Thompson could not let it slide and directing Jackson to walk away

from the firearm and wait for the other officer to arrive. These statements do not

demonstrate questioning or its functional equivalent under Innis required to mandate

that Miranda warnings be given. Accordingly, the motion to suppress as to the

statements that the government intends to introduce at trial should be denied.

Jackson was not in custody

Even if Thompson’s statements to Jackson constituted questioning or the

functional equivalent thereof, Jackson was not in custody for Miranda purposes at least

until he was walked across the street by Thompson and Rosser to their police cars. The

9
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc) (adopting as binding precedent all decisions rendered by the United States
Court of Appeals for the Fifth Circuit prior to September 30, 1981).

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Supreme Court in Miranda held that the Fifth Amendment requires “the exclusion of

incriminating statements obtained during custodial interrogation unless the suspect fails

to claim the Fifth Amendment privilege after being suitably warned of his right to

remain silent and of the consequences of his failure to assert it.” Minnesota v. Murphy,

465 U.S. 420, 430 (1984). Miranda does not apply, however, “outside the context of

the inherently coercive custodial interrogations for which it was designed.” Id. (internal

quotation marks omitted).

The Eleventh Circuit has explained that “although a reasonable person in the

defendant’s position may feel constrained not to leave . . . —and thus may be deemed

to have been ‘seized’ by law enforcement—he will not necessarily be considered in

‘custody’ for Fifth Amendment purposes.” United States v. Luna-Encinas,

603 F.3d 876, 881 (11th Cir. 2010). Rather, Miranda warnings are required only where

the totality of the circumstances shows that a reasonable person in the defendant’s

position “would have understood his freedom of action to have been curtailed to a

degree associated with formal arrest.” Id. (internal quotation marks omitted); see also

California v. Beheler, 463 U.S. 1121, 1125 (1983) (recognizing that an individual is

considered to be “in custody” for purposes of receiving Miranda protection where

“there is a formal arrest or restraint on freedom of movement of the degree associated

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with a formal arrest.”) (quotation marks omitted); United States v. Lopez-Garcia,

565 F.3d 1306, 1316 (11th Cir. 2009) (same). “The test is objective: the actual,

subjective beliefs of the defendant and the interviewing officer on whether the

defendant was free to leave are irrelevant,” United States v. Moya, 74 F.3d 1117, 1119

(11th Cir. 1996); and “ ‘the reasonable person from whose perspective “custody” is

defined is a reasonable innocent person.’ ” United States v. Jayyousi, 657 F.3d 1085,

1109 (11th Cir. 2011) (quoting Moya, id.).

Several factors guide the determination of whether an environment is coercive

enough to be custodial. For instance, “courts are much less likely to find the

circumstances custodial when the interrogation occurs in familiar or at least neutral

surroundings, such as the [defendant]’s home.” United States v. Brown, 441 F.3d 1330,

1348 (11th Cir. 2006) (alteration and internal quotation marks omitted); see also Luna-

Encinas, 603 F.3d at 882 (same). Whether a defendant was “[u]nambiguously

advis[ed] . . . that he [wa]s free to leave and [wa]s not in custody” is another “powerful

factor” that “generally will lead to the conclusion that the defendant [wa]s not in

custody.” Brown, 441 F.3d at 1347. Other relevant factors include “whether the

officers brandished weapons, touched the suspect, or used language or a tone that

indicated that compliance with the officers could be compelled,” United States v. Street,

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472 F.3d 1298, 1309 (11th Cir. 2006) (internal quotation marks omitted); as well as

whether the defendant was physically restrained and the duration of the interview. See

Luna-Encinas, 603 F.3d at 881; Brown, 441 F.3d at 1349. “An interviewee’s ‘status

as a suspect, and the coercive environment that exists in virtually every interview by

a police officer of a crime suspect,’ does not automatically create a custodial situation.”

United States v. Matcovich, 522 Fed. Appx. 850, 851 (11th Cir. July 3, 2013) (quoting

United States v. Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000) (quotation marks

omitted)). Again, the defendant bears the burden of establishing that he was in custody.

de la Fuente, 548 F.2d at 533 (holding that “if a defendant shows that a confession was

obtained while he was under custodial interrogation, the government then has the

burden of proving that the defendant voluntarily waived his privilege against

self-incrimination.”); United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984),

overruled on other grounds, United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988).

In this case, Jackson was not in custody when he was detained on the driveway

prior to being walked across the street by the officers. Although the residence that he

was told he had to leave was not his home, it was on the street where he had previously

been present, and more importantly, his encounter with Thomson was in public and in

the daytime. Cf. United States v. Crawford, 294 Fed. Appx. 466, 474

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(11th Cir. Sept. 19, 2008) (holding defendant was not in custody during traffic stop

where, inter alia, the questioning occurred in public, there were no physical restraints,

and the officers did not draw their guns); see also Berkemer v. McCarty, 468 U.S. 420,

438 (1984) (mentioning that a motorist in a “typical traffic stop” does not “feel[ ]

completely at the mercy of the police” due in part to being in public as one reason

among others to illustrate why such a stop does not normally render a person “in

custody”); United States v. Beltran, 367 Fed. Appx. 984, 988 (11th Cir. Mar. 4, 2010)

(holding that defendant not in custody for Miranda purposes, when he was questioned

by police officers regarding contents of his pocket and vehicle parked in driveway;

although suspect was handcuffed, there were no significant pressures during questions

that would have sufficiently impaired his ability to exercise his privilege against

self-incrimination), cert. granted, judgment vacated on other grounds, 562 U.S. 1128

(2011); United States v. Parker, No. 1:10-cr-176, 2010 WL 5313758, at *10

(N.D. Ga. Nov. 18, 2010) (King, M.J., adopted by 2010 WL 5313449

(N.D. Ga. Dec. 17, 2010) (Carnes, J.) (concluding defendant was not “in custody”

where law enforcement had firearms drawn briefly, handcuffed defendant, questioned

the defendant in public, and used a laid back tone).

Second, although he was not told that he was free to leave or not under arrest, he

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also was not told that he was under arrest. At most, he was told to remain a safe

distance from the firearm until another officer arrived. This “restraint,” such as it was,

falls far short of restraints on a suspect’s freedom of movement found in other cases

where the suspects were deemed to be not in custody. See Luna-Encinas,

603 F.3d at 881-82 (defendant not in custody for Miranda purposes when he was

detained for approximately five minutes in a neutral outdoor location, no handcuffs

were employed, no guns were drawn, and defendant did not ask to leave or tell the

officers he did not want to comply with their requests); United States v. Acosta,

363 F.3d 1141, 1148-50 (11th Cir. 2004) (defendant not in custody for Miranda

purposes where officers retained defendant’s license to check his identity; took and

retained defendant’s keys during the stop; blocked defendant’s vehicle with their patrol

cars, which defendant did not ask them to move; and momentarily drew one or more

weapons on defendant when he exited his car); United States v. Zellner, Criminal

Indictment No. 1:09-CR-320-TCB-GGB, 2011 WL 530718, at *7-8

(N.D. Ga. Jan. 14, 2011), adopted by United States v. Chester, Criminal Action File

No. 1:09-cr-320-TCB-GGB, 2011 WL 529952, at *1 (N.D. Ga. Feb. 4, 2011)

(defendants not in custody for Miranda purposes during a 30-45 minute encounter in

a parking lot where there were multiple armed officers in “battle dress uniforms” with

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dogs, the officers blocked defendants’ vehicle from exiting the parking lot, the officers

drew but never pointed their guns at defendants, the defendants were never handcuffed,

the officers did not raise their voices and engaged defendants in a conversational tone,

and the officers only touched defendants to perform a brief pat down for weapons).

The remaining factors also strongly support a conclusion that Jackson was not

in custody. Thompson did not brandish his weapon, touch Jackson, or use language or

a tone that indicated that compliance with him could be compelled. See Street,

472 F.3d at 1309. He was not physically restrained and the entire encounter was of

very short duration. Although Thompson apparently possessed Jackson’s bookbag, it

was not searched prior to Jackson making his spontaneous statements. Jackson also

was not personally searched. Thus, the totality of circumstances demonstrate that a

reasonable innocent person in Jackson’s position would not have understood his

freedom of action to have been curtailed to a degree associated with formal arrest, and

thus, Jackson was not “in custody” for Fifth Amendment purposes. Luna-Encinas,

603 F.3d at 881-82.

Accordingly, because he was not “in custody,” Jackson was not entitled to

Miranda warnings, and as a result, any statements that he allegedly made to Thompson

only are not rendered inadmissible under Miranda.

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Conclusion

For all of the above reasons, the undersigned RECOMMENDS that Defendant

Jackson’s motion to suppress statements, [Doc. 15], be DENIED IN PART AND

GRANTED IN PART AS MOOT. Specifically, the motion should be DENIED as

to the statements the government claims that Jackson made to Thompson alone–to the

effect of “let it slide,” it was not his gun, and it was Red’s gun–and GRANTED AS

MOOT as to his response to the question from either Thompson or Rosser as to where

he got the firearm, which answer the government intends not to admit at trial.

The undersigned has now ruled upon all matters referred to it under Standing

Order 14-02 (N.D. Ga. Aug. 15, 2014) that have not been deferred to the District Judge,

and there has not been any report of any impediment to the scheduling of a trial.

Therefore, this case is CERTIFIED READY FOR TRIAL.

IT IS SO RECOMMENDED AND CERTIFIED, this the 20th day of February,

2018.

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