Order and Report and Recommendation — United States v. Ralph Haywood Jones, Jr. (N.D. Ga., Dkt. 67)

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Order and Report and Recommendation, Document 67, filed October 7, 2021, in United States v. Ralph Haywood Jones, Jr., No. 2:19-CR-00044, U.S. District Court for the Northern District of Georgia. It recommends granting the Motion To Dismiss Count Two (Doc. 28), which charges possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A)(i), because the Government cites Gillis and concedes. It recommends denying the Motion To Suppress (Doc. 41), which challenges evidence from cell phone "pinging" without a warrant, search warrants and statements, and finds that Jones knowingly and voluntarily waived Miranda rights. It certifies the case ready for trial, subject to a ruling by the District Judge on any objections, and is signed by J. Clay Fuller, United States Magistrate Judge.

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     Case 2:19-cr-00044-RWS-JCF Document 67 Filed 10/07/21 Page 1 of 45



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

UNITED STATES OF AMERICA,             :
                                      :
v.                                    :       CRIMINAL INDICTMENT NO.:
                                      :       2:19-CR-00044-RWS-JCF
RALPH HAYWOOD JONES, JR.              :

             ORDER and REPORT AND RECOMMENDATION

      This case is before the Court on Defendant’s Motion To Dismiss Count Two

Of The Indictment (Doc. 28) and Motion To Suppress (Doc. 41). For the reasons

discussed below, it is RECOMMENDED that Defendant’s motion to dismiss Count

Two (Doc. 28) be GRANTED and that his motion to suppress be DENIED.

                               Procedural History

      A Superseding Indictment filed December 17, 2019 (Doc. 14) charges

Defendant with kidnapping “B.P.” from Georgia to South Carolina on June 10, 2019,

in violation of 18 U.S.C. § 1201 (Count One) and possessing a firearm in furtherance

of a crime of violence, i.e., kidnapping, and discharging the firearm during the

commission of the kidnapping, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count

Two). Defendant moved to dismiss Count Two (Doc. 28) and moved to suppress

evidence seized by law enforcement officers as a result of “pinging” Defendant’s

cell phone without a warrant, evidence seized pursuant to search warrants, and

Defendants’ statements to law enforcement (Doc. 41). The Court conducted a

hearing on Defendant’s motion to suppress on April 16, 2021 (see Doc. 51), and the
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transcript was filed on May 11, 2021 (Doc. 58).1 Defendant filed a post-hearing

brief in support of his motion to suppress (Doc. 62); the Government responded to

Defendant’s motions to suppress and to dismiss (Doc. 65); and Defendant replied

(Doc. 66). With briefing complete, the Court now considers the merits of

Defendant’s motions.

                                       Discussion

I.       Motion To Dismiss Count Two (Doc. 28)

         Count Two charges Defendant with possessing a firearm in furtherance of a

crime of violence, i.e., kidnapping in violation of 18 U.S.C. § 1201, in violation of

18 U.S.C. § 924(c)(1)(A). (Doc. 14 at Count Two). Defendant argues that that Count

must be dismissed because in United States v. Gillis, 938 F.3d 1181, 1210 (11th Cir.

2019), the Eleventh Circuit held that kidnapping in violation of 18 U.S.C. § 1201 is

not a “crime of violence” for purposes of 18 U.S.C. § 924(c). (See generally Doc.

28). Citing Gillis, the Government “concedes that count two of the Superseding

Indictment should be dismissed per binding Eleventh Circuit,” which provides that

kidnapping in violation of 18 U.S.C § 1201 is not a “crime of violence” because

“parts of the federal kidnapping statute did not require an element of force to be

considered a ‘crime of violence.’ ” (Doc. 65 at 1, 8-9). It is therefore




1
    References to the transcript will be designated as “Tr. __.”
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RECOMMENDED that Defendant’s motion to dismiss Count Two (Doc. 28) be

GRANTED.

II.    Motion To Suppress (Doc. 41)

       A.    Facts2

       At 10:15 a.m. on June 10, 2019, Chris Compton, who was then a Patrol Officer

with the Winder Police Department3, responded to a 911 call about a shooting on

Sweet Gum Lane in Winder.4 (Tr. 8-9). Compton arrived within two to three minutes

and saw a woman, later identified as Destiny Jarrell (see Tr. 21), lying in the front

yard of the residence with at least one gunshot wound to her abdomen. (Tr. 9, 15).

There was a lot of blood, and the woman was saying, “Please don’t let me die, I’ve

got kids.” (Tr. 9). Officer Daniel Evans and other officers also arrived, and an

ambulance was on the scene as well. (Tr. 9-10). Compton approached the woman to

determine how severe her injuries were, and once Compton and Evans determined

the scene was safe, they allowed the ambulance to come in and then secured a

perimeter for the crime scene. (Tr. 10). After establishing the perimeter, Compton


2
  These facts are taken from the testimony of Chris Compton, formerly employed as
a patrol officer with the Winder Police Department; Wayne Manthe, a detective with
the Winder Police Department; Justin Pelfrey, a sergeant with the Oconee County,
South Carolina, Sheriff’s Office; and hearing exhibit (see Docs. 52, 54), including a
CD of 911 calls (Gov’t Ex. 2), a CD of telephone calls with Cavender Auto (Gov’t
Ex. 4), and a CD of body cam footage (Gov’t Ex. 6) and transcript of the body cam
footage (Gov’t Ex. 7 (see Doc. 56).
3
  Compton is now a Corporal with the Flowery Branch Police Department. (Tr. 8).
4
  The Government entered a CD of the relevant 911 calls into evidence at the hearing
and played the CD during the hearing. (Tr. 19-20; Gov’t Ex. 2).
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spoke to witnesses on the scene, and one witness told him that he saw a black man

in a dark-colored shirt run around to the passenger side of a nearby dark sedan, toss

something in the back of the car, run back around to the driver’s side, enter the

vehicle, and then flee the scene. (Tr. 10-11, 16-17). Ms. Jarrell said that a black male

named Ralph Jones, i.e., Defendant, shot her and that a woman, later identified as

Bridget Pounds (see Tr. 15, 18, 21-22), left with him and was “possibly somebody

involved in a custody dispute or something like that.” (Tr. 11-12, 15). Ms. Jarrell

was there to “mediate some type of a custody issue.” (Tr. 12). The officers did not

find a firearm on the scene or locate Ms. Pounds there. (Tr. 12).

      Winder Police Department Detective Wayne Manthe also responded to the

scene that day in response to the 911 calls. (Tr. 21). He was able to develop

Defendant as a suspect by searching a database for the residence where the shooting

occurred. (Tr. 21). The police had “some prior reports dealing with all the subjects”

and knew that Defendant was Ms. Pounds’ boyfriend. (Tr. 21-22). They began

“trying to develop phone numbers to ping him, ping the phone” by using the phone

numbers associated with his Georgia driver’s license and Winder Police Department

incident reports involving Defendant and Ms. Pounds such as domestic reports and

arrest reports. (Tr. 22-23, 26-27). They also tried to “ping” phone numbers

associated with Ms. Pounds because they “had reason to believe that her life was in

danger,” but they were not able to locate her based on her phone. (Tr. 23-24, 28).

Manthe explained that they “pinged” the numbers by having dispatch request the
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cell phone carriers provide a location for the phones, and “[t]he carrier has a law

enforcement division that . . . ascertains whether or not they will follow through with

that request based off their protocol and their thresholds for what is an emergency

and if it’s necessary.”5 (Tr. 23, 27). They had “nothing else to go on” because they

did not have information about where the car was going, “[s]o it’s typically the best

course of action to determine the location.” (Tr. 22). Dispatch did so, the carriers

complied with the requests, and the officers received “scattered” results across

multiple locations, but eventually they received locations in Fair Play, South

Carolina for a phone number the officers obtained from an April 2019 incident

report, 678-863-XXXX. (Tr. 23-24, 27-28, 31). An Exigent Request Form dispatch

sent to T-Mobile shows that dispatch requested the name address, and current

location (“One-Time Ping”) of a particular phone number (not the above-cited

number) and indicated that the “exigent circumstances” supporting the request was

“[i]mmediate danger of death or serious physical injury to any person,” i.e.,

“subj[ect] has a 9 mm gun with him and has already shot 1 person[,] poss[ibly] has

another [or hostage].”6 (Tr. 29-32; Gov’t Ex. 3). Manthe testified it was difficult to


5
  The Stored Communications Act authorizes cell phone providers “to divulge
information, including real time cell-site location information, ‘to a government
entity, if the provider, in good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclosure without delay of
information relating to the emergency.’ ” United States v. Andrews, No. 18-CR-149
(SRN/DTS), 2019 U.S. Dist. LEXIS 26283, at *17-18 (D. Minn. Feb. 19, 2019).
6
  The Stored Communications Act authorizes cell phone providers “to divulge
information, including real time cell-site location information, ‘to a government
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determine which carrier was associated with each phone number, so it was “very

difficult to attach the location that dispatchers [were] giving [the officers] to which

phone number they were giving information from.” (Tr. 41). He also explained that

there is often a delay in obtaining information from the carriers, and they might not

respond until an hour later. (Tr. 51). As of 12:30 p.m., law enforcement was still

working on trying to obtain location information from cell phone carriers. (Tr. 43).

      Manthe also called the lienholder for Defendant’s vehicle because he knew

that some dealers have GPS attached to the vehicles. (Tr. 32-33). Manthe identified

Defendant’s vehicle based on the description included in previous incident reports.

(Tr. 33). Once they had a tag number they were able to obtain the make and model

and lienholder. (Tr. 33). Manthe called the dealership, Cavender Auto Sales

(“Cavender”), at 1:32 p.m., explained the situation, and asked if they could provide

the information on the vehicle, including its location.7 (Tr. 33-34, 39-40). Manthe

recorded the call he made to the dealership.8 (Tr. 34; Gov’t Ex. 4). When he made

the call to Cavender, Manthe did not know the location of Plaintiff or Ms. Pounds




entity, if the provider, in good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclosure without delay of
information relating to the emergency.’ ” United States v. Andrews, No. 18-CR-149
(SRN/DTS), 2019 U.S. Dist. LEXIS 26283, at *17-18 (D. Minn. Feb. 19, 2019)
(quoting 18 U.S.C. § 2702(c)(4)).
7
  Manthe does not know whether Defendant knew there was a GPS monitor on his
car. (Tr. 49-50).
8
  The Government entered a CD of the recorded phone calls and played it at the
hearing. (Tr. 34-36; Gov’t Ex. 4).
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because the carriers had not yet responded to their location requests. (Tr. 35). The

GPS information Manthe received from Cavender helped law enforcement locate

the car at a Dollar General on Fairplay Boulevard in Fair Play, South Carolina. (Tr.

51; Gov’t Ex. 5). After that call, Manthe received information from dispatch that

AT&T9 responded that a phone associated with Defendant was in Fair Play, South

Carolina, so Manthe called Cavender at 1:44 p.m. to confirm that the car was still

there. (Tr. 39-41). Manthe also recorded that call. (Tr. 35-36; Gov’t Ex. 4).

      Manthe described the events of that morning as “chaotic” with respect to

trying to determine Defendant’s location based on the multiple locations they were

receiving from the cell phone carriers, and the officers were employing multiple

methods simultaneously to try to get information as to Defendant’s location,

including trying to get information from the cell phone carriers, talking to people

who had had contact with Defendant and Ms. Pounds, and trying to obtain

information based on the vehicle’s GPS. (Tr. 37-38). They had also put out a

“BOLO” (be-on-the-lookout) for the car, but that did not yield results. (Tr. 44). One

of the locations that was returned was in Jackson County, Georgia. (Tr. 25). Not all

of the phone numbers that were associated with Defendant ended up actually

belonging to him, including the number associated with his driver’s license. (Tr. 25-



9
 Manthe does not know what time law enforcement requested the information from
AT&T because “there were several people working on the case at that time.” (Tr.
41-42).
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26). That number “pinged” in Morgan County, Georgia and had different subscriber

information. (Tr. 26). The only reason they were able to find Defendant’s car was

because of the AT&T cell phone ping and the car GPS information. (Tr. 38, 44).

      Meanwhile, around 12:30 p.m. on June 10, 2019, Manthe obtained an arrest

warrant from a Barrow County Magistrate Judge, but he did not then ask for a search

warrant for pinging or GPS information even though they were then working on

obtaining that information. (Tr. 43-44, 46). Manthe testified he was not trying to

subvert getting a search warrant, but he believed “it was not required to get a search

warrant. So I was not going to take the necessary time that it would take if it was not

needed” because “time was of the essence[.]” (Tr. 44-45). Manthe explained that “a

warrant does take time to type up,” approximately 30 minutes, and they were faced

with exigent circumstances, i.e., they were looking for Defendant, who they believed

had shot one person and “possibly another. Time is of the essence. Bullet wounds,

we’re talking minutes.” (Tr. 46-48). Similarly with respect to his call to Cavender

for GPS location for the car, Manthe explained “I am on the hunt for somebody that

shot possibly two people. . . . I am going to call and go to the path of least resistance,

and that path of least resistance was that phone call,” which resulted in learning the

location of the car and saving someone’s life “as a result of that phone call.” (Tr.

49). Thus, Manthe did not believe that he needed to take the time to obtain a search

warrant to obtain the geolocation information for the phones and car due to the

exigencies they were facing. (Tr. 46-47, 49). He also explained that there are
                                            8
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“stopgaps” with the carriers, i.e., they could have denied the requests and told

dispatch that they required search warrants, but they did not do so. (Tr. 46-47). When

asked whether he could have obtained a search warrant from the same magistrate

judge who issued the arrest warrant, Manthe said he could not have done so because

in their circuit “requests for cell phone data . . . go[] through superior court, not

magistrate court.” (Tr. 48).

      Based on the officers’ belief that Defendant was in Fair Play, South Carolina,

Manthe contacted law enforcement in Oconee County, South Carolina. (Tr. 38).

Sometime between 1 and 2 p.m. on June 10, 2019, the Oconee County Sheriff’s

Office received a call informing them about the shooting incident in Georgia and

requesting that deputies try to “locate a black male and a white female,” i.e., Ralph

Jones and Bridget Pounds, “in a vehicle that was believed to be in [their]

jurisdiction.” (Tr. 54, 67-68). They received information that a cell phone ping

indicated Defendant’s location was a Dollar General off of Fair Play Boulevard in

Fair Play, so Deputy Justin Pelfrey then went to that location, where there were

already deputies on scene that had located the subject vehicle and white female. (Tr.

54, 67-69). The vehicle was parked in the Dollar General parking lot, and Ms.

Pounds was still in the car. (Tr. 55, 68). She was “speaking incoherently and had

blood coming from her mouth” and was vomiting, and the deputies did not know

whether she had been shot and had not found an entrance wound. (Tr. 55; Doc. 52-


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6 at 3-4). Emergency vehicles were on their way10, and the deputies were tasked with

trying to find the male passenger; they were advised that he had arrest warrants out

of Georgia. (Tr. 55, 68). Dispatch also provided a picture of the subject and a

description of what he was wearing, i.e., a black striped shirt. (Tr. 56; Doc. 52-6 at

2). Deputies began searching for him and received a “second ping on a cell phone,”

which gave them a location off of Durham Road, which was “fairly close” to the

Dollar General. (Tr. 56, 69, 84-85; Doc. 52-6 at 2). The deputies believed that

Defendant still had a gun (referred to as a “59”). (Tr. 60-61; Doc. 52-6 at 2).

         Deputy Pelfrey went down Fair Play Boulevard to Durham Road, then

Durham Road back toward Dollar General, and he saw someone matching

Defendant’s description about 200 yards away from the Dollar General behind a

flower shop off Fair Play Boulevard. (Tr. 56-57, 69-70; Doc. 52-6 at 4). Pelfrey was

wearing a body cam which recorded these events (Tr. 58), and at the hearing the

Government entered a CD of the bodycam footage (Ex. 6) and a transcript of that

footage (Ex. 7 (Doc. 52-6)). Pelfrey notified dispatch and then made contact with

Defendant. (Tr. 57; Doc. 52-6 at 4-5). Pelfrey was in uniform, and he pointed his

weapon at Defendant. (Tr. 71). Pelfrey told Defendant to put his hands up and turn

around and walk backwards to Pelfrey, and Defendant complied. (Tr. 57, 71-72, 77;

Doc. 52-6 at 5). He told Defendant to pull up his shirt and undershirt and asked if



10
     Ms. Pounds was eventually taken to the hospital. (Tr. 65).
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Defendant had any weapons. (Tr. 72-73; Doc. 52-6 at 5). Defendant responded that

he had “nothing on” him and had no weapon. (Tr. 72-73; Doc. 52-6 at 5). Pelfrey

told Defendant to go to his knees and then his stomach with his hands out by his

side. (Tr. 73-74; Doc. 52-6 at 6). Three or four other deputies had arrived at that

point, and they had their guns drawn on Defendant. (Tr. 73-74). Defendant repeated

that he had “nothing on him,” and Pelfrey handcuffed him and asked him, “You

know why you’re being detained?” and Defendant responded that it “was a big, big

misunderstanding.” (Tr. 75; Doc. 52-6 at 6). Pelfrey explained at the hearing that he

was “[j]ust trying to make sure that he knows what’s going on,” that they are trained

to tell someone why they are being detained, and Defendant confirmed that he knew

why. (Tr. 75, 80). Pelfrey had not advised Defendant of his Miranda rights at that

point, i.e., the right to remain silent or right to an attorney “or anything like that.”

(Tr. 76). Pelfrey and the other deputies holstered their weapons after Defendant was

handcuffed. (Tr. 83). A K-9 unit was present and searching in nearby bushes, and

Defendant asked them not to “bring the dog over here to me, please,” and a deputy

told him there were not going to do so. (Doc. 52-6 at 6-7). Pelfrey contacted dispatch

and advised “You can open up the channel. Show one investigate detention.” (Doc.

52-6 at 7). According to Pelfrey, at that point Defendant was not under arrest but

was detained until they identified him. (Tr. 62, 75).

      Defendant then asked if they could get him off the ground and repeated that

he had “nothing on [him]. Nothing’s in the car. No weapons, no drugs, no nothing.”
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(Doc. 52-6 at 7). Pelfrey checked Defendants pockets and told him to go to his knees

and then stand up, and in response Defendant said, “I haven’t done a crime, sir. I

haven’t done nothing wrong. I was just trying to get her the help.” (Tr. 75-77; Doc.

52-6 at 7). Pelfrey asked another deputy a question, and Defendant stated, “I’m from

Barrow County, sir. Winder, Georgia.” (Doc. 52-6 at 7-8). Pelfrey asked him, “Why

are you out here walking?” and Defendant responded, “I ain’t from here. She wanted

to come out here.” (Gov’t Ex. 6; Doc. 52-6 at 8). Pelfrey asked, “Why is she bleeding

and everything,” and Defendant said that she “shot herself . . . And that’s why we

ran out here.” (Doc. 52-6 at 8). Pelfrey asked Defendant where the gun was that the

woman shot herself with, and Defendant said that the woman in the car “threw it.”

(Doc. 52-6 at 8). Pelfrey repeated, “The girl in the car threw it?” and Defendant then

said, “I threw it after she shot herself ‘cause I didn’t want to get in trouble for it.”

(Doc. 52-6 at 8). Pelfrey asked where he threw the gun, and Defendant responded

“[i]n Barrow County.” (Doc. 52-6 at 8). Unprompted, Defendant continued, “We

was all struggling with the gun, sir. She accidentally shot her friend. We both got

scared. I took off running. Here we’re in there fighting over the gun. Will you take

me to Barrow County?” (Doc. 52-6 at 8). Before placing Defendant in his patrol car,

Pelfrey told Defendant, “We’re gonna stick around here first. Mind if I search you

real quick? Just make sure there’s nothing on you,” and Defendant responded that

he could, “[a]in’t nothing on me, officer.” (Doc. 52-6 at 9). Pelfrey did not find a


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weapon or cell phone. (Tr. 57, 72). He asked Defendant if keys he found were keys

to his car and Defendant responded that they were. (Doc. 52-6 at 9).

        Dispatch called to advise that the Georgia detainer for Defendant was going

to be changed to include surrounding states. (Tr. Tr. 64; Doc. 52-6 at 9). Defendant

then stated, “I need to get to Barrow County, sir . . . That’s where this thing happened

at.” (Doc. 52-6 at 9). Pelfrey responded, “Let me get everything sorted out here and

we’ll get you where you need to go, all right.” (Doc. 52-6 at 9). Defendant asked if

Pelfrey could loosen his handcuffs, and Pelfrey told him that he did not know if he

could loosen them, but he would make sure they did not get tighter. (Tr. 77-78; Doc.

52-6 at 10). After placing Defendant in his patrol car, Pelfrey called Manthe and told

him:

        I found him walking in the woods a short distance from his car where
        we located it. In the car there was a female with what appears to be a
        gunshot wound. We’ve got EMS checking on her now and I just got
        him in the back of my car. Okay. They did an[] in-state pickup, but you
        all were in the middle of changing it. Okay. Yeah. I mean I can do a
        fugitive from justice warrant right now to hold him[.]

(Tr. 57, 78; Doc. 52-6 at 11). After Pelfrey ended his phone call, Defendant told

Pelfrey (unprompted), “I was already in the process of trying to find my – me and

my girl was gonna turn ourselves in . . . . But due to the situation, what happened,

she got scared ‘cause we was gonna turn ourselves in and she’s like, well, I’m – I’m

just gonna go ahead and kill myself.” (Doc. 52-6 at 11). Defendant kept talking, and

Pelfrey simple responded, “Mm-hm” and “Okay,” but he asked no questions while

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Defendant talked. (Doc. 52-6 at 11-12). After Defendant finished talking, Pelfrey

asked him, “Do you have a problem with me searching the vehicle, make sure the

gun and everything --?” and Defendant responded, “I have no problem with you all

searching the vehicle. I just want you all to turn me in.” (Doc. 52-6 at 13). Pelfrey

told Defendant he would “take him back over there,” and then made a phone call

about an unrelated case. (Doc. 52-6 at 13-15). After that call Pelfrey confirmed with

Defendant that he had “no problem with us searching the car, right?” and Defendant

responded, “No problem.” (Doc. 52-6 at 15).

      Pelfrey then took Defendant back to the Dollar General. (Tr. 64, 79). Pelfrey

reported to another deputy that he had not found a gun, that Defendant told him that

he threw the gun out in Georgia, but that Defendant had consented to search the car,

and the deputy told Pelfrey that the woman was going to the hospital. (Doc. 52-6 at

16). Pelfrey also told the deputy that Defendant told him the woman shot herself,

and the deputy asked where on her body she had shot herself, so Pelfrey asked

Defendant, “Hey, where’d she shoot herself?” and Defendant responded, “In the

back of the head.” (Doc. 52-6 at 17). Pelfrey then asked Defendant, “This all

happened in Georgia?” and Defendant responded, “Yes, it – no, it happened in

Winder.” (Doc. 52-6 at 17-18). Pelfrey asked, “Where did you throw the gun out

at?” and Defendant responded, “In Winder,” and then made several more statements

about the woman shooting herself, turning himself in, the car breaking down, etc.

(Doc. 52-6 at 18). Pelfrey then stated, “Mr. Jones, before I ask you anymore
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questions or anything, I’m just gonna advise you of your rights, okay.” (Doc. 52-6

at 18). Pelfrey read Defendant his rights, i.e., “You have the right to remain silent.

Anything you say can and will be used against you in a court of law. You have the

right to speak with an attorney and have one present with you while you’re

questioned if you wish.” (Doc. 52-6 at 19). Defendant responded, “Yeah.” (Id.).

Pelfrey continued, “If you cannot afford to hire an attorney, one will be appointed to

represent you before any questioning.” (Id.). Defendant then asked, “Am I being

locked up here in Carolina or am I –” and Pelfrey responded, “You’re being detained

right here in South Carolina, but they do have an active warrant for you in Georgia,”

in Barrow County. (Id.). Defendant and Pelfrey discussed whether they were going

to take Defendant back to Barrow County and how that would occur, and another

deputy then asked Defendant “where she shot herself?” and Defendant responded,

“In the back of the head.” (Id. at 20). The deputy asked, “Do you know why?” and

Defendant responded, “Because she was suicidal. We both was.” (Id.). Pelfrey asked

Defendant, “you understand all those rights I told you?” and Defendant responded,

“Yes, sir.” (Id.). Pelfrey then asked him, “Having those rights in mind, you still wish

to talk to me?” and Defendant responded, “No, sir. I’ll wait for an attorney.” (Id.).

Pelfrey confirmed that he still gave his consent to search the vehicle, and Defendant

said, “Yes. That I don’t care about.” (Id.). Pelfrey asked him if he “need[ed] an

attorney present with you for that,” and Defendant responded, “No.” (Id.).


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Investigators later obtained search warrants to search the car, Defendant’s clothes,

and his cell phone. (See Doc. 41 at 11-30).

      B.    Analysis

      Defendant argues that: (1) he “was subjected to an unreasonable search in

violation of the Fourth Amendment when Detective Manthe and Barrow County 911

harvested Defendant’s real-time CSLI [cell-site location information] and GPS

[global positioning system] location information without a warrant,” and therefore

all evidence seized as a result should be suppressed; (2) he “was subjected to a

coercive custodial interrogation led by Officer Pelfrey at the time of the arrest”

which “resulted in the Defendant making incriminating custodial statements,” and

therefore such statements should be suppressed; and (3) none of the search warrants

issued on June 10, 2019, June 13, 2019, July 17, 2019, and July 22, 201911 were

“supported by probable cause once unconstitutionally obtained evidence is excised

from the supporting affidavits,” and therefore any evidence obtained pursuant to

those warrants should be suppressed. (Doc. 62 at 2-3).

            1.     Defendant’s CSLI And GPS Location Data

      Defendant argues that law enforcement violated the Fourth Amendment by

“illegally track[ing]” him “by ‘pinging’ his cellular telephone and collecting GPS



11
  As discussed below, the search warrant Defendant references as being issued on
July 22, 2019 was actually issued on August 22, 2019. (See Doc. 65 at 26 n.8; Doc.
41 at 27-30).
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information on his car” without a warrant. (Doc. 62 at 5). The Fourth Amendment

provides that “[t]he right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause . . . .” U.S. Const. amend. IV. “The

‘ultimate touchstone of the Fourth Amendment is reasonableness.’ ” United States

v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (quoting Brigham City v. Stuart,

547 U.S. 398, 403 (2006)). Where a search is made without a warrant the burden is

on the government to “demonstrate that the challenged action falls within one of the

recognized exceptions to the warrant requirement, thereby rendering it reasonable

within the meaning of the fourth amendment.” United States v. Freire, 710 F.2d

1515, 1519 (11th Cir. 1983). Thus, the Court must consider two questions: (1) were

the acquisition of cellphone and car location data “searches” within the meaning of

the Fourth Amendment, and if so (2) has the Government proven a recognized

exception to the warrant requirement?

      As to the first question, Defendant concedes that “[i]n the Eleventh Circuit,

the law is unsettled as to whether the acquisition of real-time CSLI or GPS tracking

dat[a] is a ‘search’ under the Fourth Amendment.” (Doc. 62 at 5 (emphasis in

original)). In Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court

considered the question of “whether the Government conducts a search under the

Fourth Amendment when it accesses historical cell phone records that provide a

comprehensive chronicle of the user’s past movements,” and the Court held that such
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access constitutes a search under the Fourth Amendment generally requiring a search

warrant to acquire such records. Id. at 2211, 2220-21, 2223. The Court cautioned

however, “Our decision today is a narrow one. We do not express a view on matters

not before us,” including “real-time CSLI” such as that at issue in this case. Id. at

2220. As Defendant acknowledges, “[t]o date, the Eleventh Circuit has not addressed

the Fourth Amendment implications of the law enforcement obtaining real-time

CSLI or GPS tracking data.” (Doc. 62 at 6 (citing United States v. Green, 981 F.3d

945 (11th Cir. 2020) (“The question of acquiring such information constitutes a

search was unanswered in 2013 and remains unanswered today.”)). Defendant urges

the Court to find that the acquisition of real-time CSLI is also a search requiring a

warrant because “[h]istorical CSLI is just a series of real-time CSLI and both can

reveal very personal information,” and “GPS monitoring—by making available at a

relatively low cost such a substantial quantum of intimate information about any

person whom the government, in its unfettered discretion, chooses to track—may

‘alter the relationship between citizen and government in a way that is inimical to

democratic society.’ ” (Doc. 62 at 7-8).

      In response, the Government also points out that neither the Supreme Court

nor the Eleventh Circuit have decided whether “real-time tracking is a search under

the Fourth Amendment.” (Doc. 65 at 9). The Government contends that because the

Government did not install the GSP tracker on Defendant’s car, the facts of this case

“are more akin to the facts in United States v. Knotts, 460 U.S. 276 (1983) and United
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States v. Karo, 468 U.S. 705 (1984) in which cases “the tracking device was placed

in a container before it came into the defendant’s possession and with the consent of

the owner of the container, without defendant’s knowledge,” like the GSP tracking

device Cavender Auto Sales, the lienholder, installed on Defendant’s car “because

they owned, and still own, the car.” (Doc. 65 at 10). Thus, the Government asserts,

“this Court should find that asking Cavender Auto for the present location of Jones’s

car on public thoroughfares does not constitute an unreasonable search under the

Fourth Amendment.” (Id. at 11). The Government also argues that the request for

real-time geo-location information of the cell phone did not implicate the Fourth

Amendment because “[t]he physical location of the phone should not be considered

personal information, like a photograph or text message, but more akin to the car

tracking situation, especially when third parties are constantly gathering such

information, as the phone travels through a public thoroughfare.” (Id. at 12). The

Government points out that the Supreme Court explained in Carpenter that that case

was “not about ‘using a phone’ or a person’s movement at a particular time. It is

about a detailed chronicle of a person’s physical presence compiled every day, every

moment, over several years.” (Id. (quoting Carpenter, 138 S. Ct. at 2220)). The

Government distinguishes the facts in this case from those in Carpenter because law

enforcement did not obtain such a “detailed chronicle” of Defendant’s presence in

this case; instead, the officers “requested a one-time, real-time ping of [Defendant’s]

cell phone.” (Id. at 13).
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      The Court need not decide whether the acquisition of real-time CSLI and GPS

information in this case constituted searches (or seizures) under the Fourth

Amendment because even if they were, the Court finds that the Government has

proven that the purported searches were reasonable under the exigent circumstances

exception to the warrant requirement. The Supreme Court explained in Carpenter

that “even though the Government will generally need a warrant to access CSLI,

case-specific exceptions may support a warrantless search of an individual’s cell-

site records under certain circumstances,” such as when exigent circumstances exist

which make a warrantless search objectively reasonable, “including the need to

pursue a fleeing suspect, protect individuals who are threatened with imminent harm,

or prevent the imminent destruction of evidence.” 138 S.Ct. at 2222-23. “As a result,

if law enforcement is confronted with an urgent situation, such fact-specific threats

will likely justify the warrantless collection of CSLI. Lower courts, for instance,

have approved warrantless searches related to bomb threats, active shootings, and

child abductions. Our decision does not call into doubt warrantless access to CSLI

in such circumstances. While police must get a warrant when collecting CSLI to

assist in the mine-run criminal investigation, the rule we set forth does not limit their

ability to respond to an ongoing emergency.” Id. at 2223.

      “The most urgent emergency situation excusing police compliance with the

warrant requirement is, of course, the need to protect or preserve life.” United States

v. Holloway, 290 F.3d 1331, 1335 (11th Cir. 2002). “In emergencies . . . law
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enforcement officers re not motivated by an expectation of seizing evidence of a

crime. Rather, the officers are compelled to search by a desire to locate victims and

the need to ensure their own safety and that of the public.” Id. at 1337. “[O]fficers

‘do not need ironclad proof of a likely serious, life-threatening injury to invoke the

emergency aid exception.’ ” United States v. Evans, 958 F.3d 1102, 1106 (11th Cir.

2020) (quoting Michigan v. Fisher, 558 U.S. 45, 49 (2009) and citing Holloway, 290

F.3d at 1340 (“People could well die in emergencies if police tried to act with the

calm deliberation associated with the judicial process.”)). “Instead, [the courts] look

to the entirety of the circumstances to see whether a reasonable officer, confronted

with those circumstances, could have objectively believed that an immediate search

was necessary to safeguard potential victims.” Id. “The exigency umbrella

‘encompasses several common situations where resort to a magistrate for a search

warrant is not feasible or advisable, including: danger of flight or escape, loss or

destruction of evidence, risk of harm to the public or the police, mobility of a vehicle,

and hot pursuit.’ ” United States v. Cooks, 920 F.3d 735, 741-42 (11th Cir. 2019)

(quoting Holloway, 290 F.3d at 1334). “In order to justify an exigent-circumstances

search, the government bears the burden of ‘demonstrat[ing] both exigency and

probable cause.’ ” Id. (quoting Holloway, 290 F.3d at 1337). “[I]n an emergency,

the probable cause element may be satisfied where officers reasonably believe a

person is in danger.” Holloway, 290 F.3d at 1338. “Separately, the government must

also demonstrate that the resulting search was ‘strictly circumscribed by the nature
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of the exigency that authorized it’ and ‘limited to the areas where a person

reasonably could be found.’ ” Cooks, 920 F.3d at 742. Having considered the totality

of the circumstances, the Court finds that the Government has met its burden of

demonstrating that “a reasonable officer, confronted with those circumstances, could

have objectively believed that an immediate search was necessary to safeguard

potential victims.” Evans, 958 F.3d at 1106.

      Here, the officers had information that Defendant had shot Ms. Jarrell, who

was at the scene to try to mediate a custody dispute between Defendant and his

girlfriend Ms. Pounds; the officers had incident reports of prior domestic disputes

involving Defendant and Ms. Pounds; Defendant and Ms. Pounds had left the scene

and the gun used to shoot Ms. Jarrell was not found there, thus raising a concern that

Defendant was armed and that Ms. Pounds was in danger; and they did not have

information about where Defendant and Ms. Pounds were going. (See Tr. 8-12, 15-

18, 21-24, 26-28). The officers reasonably believed that Ms. Pounds was in danger,

thus satisfying the probable cause element for application of the exigent

circumstances exception. The officers immediately began using multiple,

simultaneous investigative methods to try to find Defendant and Ms. Pounds,

including issuing a BOLO which did not yield any information, requesting cell

phone location information from cell phone providers for phone numbers associated

with Defendant and Ms. Pounds, and requesting GPS information from the

lienholder for Defendant’s vehicle, and within 3 hours of responding to the 911
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shooting call, the officers had information about Defendant’s phone and car being

in Fair Play, South Carolina where Defendant and an injured Ms. Pounds were then

located. (Tr. 22-24, 26-28, 31-35, 37-41, 44, 51). The officers limited their requests

to real-time pings of cell phone numbers associated with Defendant and Ms. Pounds

and only requested the current location of Defendant’s car from Cavendar Auto, thus

demonstrating that their requests were “strictly circumscribed by the nature of the

exigency that authorized [them].” Cooks, 920 F.3d at 742.

      It was not unreasonable for the officers to have sought real-time cell phone

location information and GPS information for the car without seeking a search

warrant given the exigencies they faced with having a gunshot victim and a potential

victim having left with Defendant who appeared to still have the gun with him, the

complex and chaotic events of the morning, the efforts by multiple officers to

quickly find Defendant and Ms. Pounds after Ms. Jarrell was shot, and the time it

would have taken an investigator to prepare search warrant applications for each of

the cell phone numbers under consideration and GPS tracking through Cavender

before pursuing the geo-location data from the cell phone providers and from

Cavender. The undersigned finds the officers’ warrantless acquisition of “real-time”

geo-location information about Defendant’s cell phone and car was objectively

reasonable given the exigencies of the circumstances they faced. See, e.g., United

States v. Rosario, No. 20-2330, 2021 U.S. App. LEXIS 21234, at *11-12 (7th Cir.

2021) (finding that exigent circumstances supported warrantless requests to cell
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phone carriers for location information based on the number of handguns stolen

during a burglary which “presented a significant threat to public safety”); United

States v. Caraballo, 831 F.3d 95, 104-05 (2d Cir. 2016) (finding that warrantless

pinging of defendant’s cell phone was reasonable and based on exigent

circumstances where the defendant was suspected of shooting and killing the victim,

the defendant had access to guns, and the officers “had good reason to believe that

Caraballo was armed” and that “Caraballo would commit acts of violence against

undercover agents and confidential informants”); United States v. Karmo, No. 20-

CR-170, 2021 U.S. Dist. LEXIS 84356, at *18-19 (E.D. Wisc. Feb. 5, 2021) (finding

that exigent circumstances supported warrantless collection of cell phone location

data where “the FBI received information that Karmo and another man were

traveling to Kenosha to loot and pick people off” and “had two long guns concealed

in their car”); United States v. Andrews, No. 18-CR-149 (SRN/DTS), 2019 U.S. Dist.

LEXIS 26283, at *17-20 (D. Minn. Feb. 19, 2019) (finding that warrantless request

for cell-site location information was justified by exigent circumstances where the

suspect was “linked to two different shootings with multiple victims,” and as far as

the officer knew, “the suspect was still armed and dangerous”).

      Defendant argues, however, that “the actual circumstances of the situation did

not justify the government’s warrantless collection of CSLI/GPS evidence” because

Detective Manthe sought an arrest warrant from a magistrate judge at 12:30 that day

but did not seek a search warrant at the same time. (Doc. 62 at 10-19). Defendant
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argues that “[e]ven if the warrantless collection of location data might have been

justified at the outset of Detective Manthe’s investigation due to the exigent

circumstances exception, the continued collection of location information after he

appeared in front of a Magistrate Judge to get an arrest warrant effectively terminates

that justification. Once the Detective met with Magistrate, the required showing of

‘inevitable delay associated with getting a search warrant’ evaporated.” (Id. at 18).

The undersigned disagrees. As Manthe testified, it would have taken additional time

to prepare a search warrant application, which he did not believe he needed to do

given the exigencies of the situation. (Tr. 43-49). As the morning went on, the

officers were not receiving information based on their BOLO and were receiving

ongoing information from multiple cell phone carriers which lead to multiple

locations and unsuccessful results in their efforts to find Defendant and Ms. Pounds;

they only received information about the Fair Play, South Carolina location after

Manthe called Cavender Auto at 1:30 p.m. (Tr. 33-36, 39-40, 51). Given the

potential danger to Ms. Pounds and need to quickly find her and Defendant as well

as the dynamic and changing location information the officers were receiving, the

undersigned finds that they reasonably continued trying to find them by requesting

the carriers to ping the different phone numbers they were finding and requesting

GPS information from Cavender Auto rather than stopping those efforts and waiting

until they sought and obtained a warrant (or warrants) for each of those numbers and

GPS information.
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      Accordingly, to the extent that Defendant moves to suppress evidence seized

as fruits of law enforcement acquiring CSLI and GSP geo-location data on June 10,

2019, it is RECOMMENDED that Defendant’s motion be DENIED.

             2.    Search Warrants

      Following Defendant’s arrest on June 10, 2019, officers obtained search

warrants to search his car, clothes, and cell phone on June 10, 2019 (Doc. 41 at 11-

15 (car)); June 13, 2019 (id. at 16-19 (clothes)); June 13, 2019 (id. at 20-23 (car));

July 17, 2019 (id. at 24-26 (car)); and August 22, 2019 (id. at 27-30 (cell phone)).

Defendant argues that evidence seized pursuant to those warrants must be

suppressed because the search warrants are tainted by evidence illegally seized as a

result of the allegedly unlawfully obtained CSLI and GSP location information as

discussed above. (Doc. 62 at 30). Defendant contends that once that location

information is excised from the search warrant affidavits, the warrants are not

supported by probable cause. (Id.). Because the undersigned finds that the officers

did not unlawfully obtain that location information, the Court need not excise that

information from the search warrant affidavits. With that information included, the

affidavits sufficiently set forth probable cause to support the issuance of each

warrant.

      “Where a search is conducted under the authority of a warrant, the defendant

challenging the search carries the burden of showing the warrant to be invalid.”

United States v. Kilgore, 2012 U.S. Dist. LEXIS 154148, at *14 (N.D. Ga. Sept. 13,
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2012) (internal quotation omitted), adopted by 2012 U.S. Dist. LEXIS 153867 (N.D.

Ga. Oct. 26, 2012). “It is not easy for a Defendant to meet this burden, and a judicial

preference is accorded searches under a warrant.” United States v. Teague, No. 2:10-

CR-006-RWS-SSC, 2010 U.S. Dist. LEXIS 142717, at *86 (N.D. Ga. Nov. 22,

2010) (internal quotation omitted), adopted by 2011 U.S. Dist. LEXIS 42260 (N.D.

Ga. Nov. 22, 2010). “The Fourth Amendment allows warrants to issue on probable

cause, a standard well short of absolute certainty.” L.A. County v. Rettele, 550 U.S.

609, 615 (2007). The task of a magistrate judge, when issuing a warrant, “ ‘is simply

to make a practical, commonsense decision whether, given all the circumstances set

forth in the affidavit . . . , there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’ ” United States v. Miller, 24 F.3d 1357,

1361 (11th Cir. 1994) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The

Miller court explained the role of a court reviewing a search warrant:

      Courts reviewing the legitimacy of search warrants should not interpret
      supporting affidavits in a hypertechnical manner; rather, a realistic and
      commonsense approach should be employed so as to encourage
      recourse to the warrant process and to promote the high level of
      deference traditionally given to magistrate[ judges] in their probable
      cause determinations.

Miller, 24 F.3d at 1361 (citing Gates, 462 U.S. at 236-37).

      Here, the affidavits in support of each of the warrants set forth facts sufficient

to show that probable cause to believe that evidence of a crime would be found in

the location or object to be searched. The affidavit in support of the June 10, 2019

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car search warrant included facts concerning the Oconee County Sheriff’s Office

receipt of information from Barrow County, Georgia about a vehicle that was

involved in a shooting and that a cell phone ping tracked the vehicle to Fair Play,

South Carolina; that deputies found the vehicle with Ms. Pounds inside “covered in

blood”; that Defendant was identified as the suspect and located near the vehicle;

and that the vehicle was towed to a location where the search warrant would be

executed. (See Doc. 41 at 14). The affidavits in support of the June 10, 2019 clothes

search warrant, June 13, 2019 car search warrant, July 17, 2019 car warrant, and the

August 22, 2019 cell phone warrant provided information about the Winder Police

Department’s response to the shooting; the identification of Defendant as the

shooter; the discovery of the vehicle in Fair Play, S.C. with Ms. Pounds inside

bleeding; and the discovery and apprehension of Defendant in Fair Play. (Id. at 17,

21, 25, 28).

      Because the affidavits provided probable cause to support the issuance of the

above-listed search warrants, it is RECOMMENDED that Defendant’s motion to

suppress evidence seized during the execution of those warrants be DENIED.12


12
   The Government also argues that if the Court “believes references to Jones’s
location should be excised from the warrants, this Court should still deny Jones’s
motion to suppress evidence from the car” because he “knowingly and voluntarily
consented to the search of the car three times”; because Defendant abandoned the
car and therefore did not have an expectation of privacy in it; and because the officers
would have inevitably discovered the evidence found in the car because the officers
would have searched the car as an inventory search of the impounded vehicle. (Doc.
65 at 27-28). Because the Court finds that the location information is properly in the
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              3.     Defendant’s Statements

        Defendant argues that “the statements made to Officer Pelfrey should not be

admitted because the statements were made while [he] was in custody and being

interrogated by Officer Pelfrey prior to being read his Miranda rights.” (Doc. 62 at

19).

        “No person . . . shall be compelled in any criminal case to be a witness against

himself . . . .” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966),

the Supreme Court held that the Government “may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination.” 384 U.S. at 444. Specifically, before a person

in custody is interrogated, he must be advised that he has the right to remain silent;

that anything he says can and will be used against him in court; that he has the right

to consult with a lawyer and to have the lawyer with him during interrogation; and

that if he cannot afford a lawyer, a lawyer will be appointed to represent him. Id. at

467-73. “By custodial interrogation, we mean questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Id. at 444. Thus, the Court




warrant affidavits and the affidavits otherwise provide probable cause to support
issuance of the warrants, it need not reach the Government’s alternative arguments.
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must consider whether Defendant was in custody when he made the challenged

statements and whether he made the statements in response to interrogation.

                   a.     Was Defendant In Custody?

      It is well-settled that “[p]re-custodial questioning does not require Miranda

warnings.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006) (original

formatting altered) (citing United States v. Brown, 441 F.3d 1330, 1347-49 (11th

Cir. 2006)). “A defendant is in custody for the purposes of Miranda when there has

been a ‘formal arrest or restraint on freedom of movement of the degree associated

with a formal arrest.’ ” Street, 472 F.3d at 1309 (original formatting altered)

(quoting Brown, 441 F.3d at 1347). In Street, the Eleventh Circuit explained that the

definition of “custody” for Miranda purposes is not the same as the definition of

“seizure” for Fourth Amendment purposes:

      [A] seizure does not necessarily constitute custody for
      Miranda purposes. The standards are different. The Fourth Amendment
      seizure analysis uses the “free to leave” test: a person is “seized” when
      a reasonable person would not feel free to terminate the encounter with
      the police. By contrast, a person is in “custody” for Miranda purposes
      only when there is a formal arrest or restraint on freedom of movement
      of the degree associated with a formal arrest.

Street, 472 F.3d at 1309-10 (internal citations omitted) (quotation marks omitted);

see also United States v. Luna-Encinas, 603 F.3d 876, 881 (11th Cir. 2010) (“We

previously have explained, however, that although a reasonable person in the

defendant’s position may feel constrained not to leave the scene of a police encounter

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at a particular moment -- and thus may be deemed to have been ‘seized’ by law

enforcement -- he will not necessarily be considered in ‘custody’ for Fifth

Amendment purposes.” (citing Street, 472 F.3d at 1310)). The court in Street

explained further that the test for whether a person is “in custody” is a “totality of

the circumstances determination,” and it is objective, as viewed from the perspective

of “a reasonable innocent person.” 472 F.3d at 1309. Thus, “the actual, subjective

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

free to leave are irrelevant.” Id. (quoting United States v. Moya, 74 F.3d 1117, 1119

(11th Cir. 1996)).

      When applying this test, the court should consider several factors, “including

whether ‘the officers brandished weapons, touched the suspect, or used language or

a tone that indicated that compliance with the officers could be compelled.’ ” Id.

(quoting United States v. Long, 866 F.2d 402, 405 (11th Cir. 1989)); see also United

States v. Dix, No. 3:12-cr-00007-TCB-RGV, 2013 U.S. Dist. LEXIS 22476, at *12

(N.D. Ga. Jan. 29, 2013) (“[F]actors relevant to this determination include, but are

not limited to, the location of the interview, the existence of any physical restraints

such as handcuffs or drawn weapons, whether the suspect asked to leave, the

officers’ demeanor, the degree of pressure applied to the suspect, and whether the

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

indicated that compliance with the officers could be compelled.”), adopted by 2013

U.S. Dist. LEXIS 21902 (N.D. Ga. Feb. 19, 2013); United States v. Johnson, No.
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2:12-cr-92-FtM-29DNF, 2013 U.S. Dist. LEXIS 108849, at *58 (M.D. Fla. Feb. 8,

2013) (“Some factors to consider include the location of the questioning, its duration,

the types of statements made during the questioning, the presence of physical

restraints, and the release of the suspect at the end of the questioning.”), adopted by

2013 U.S. Dist. LEXIS 108850 (M.D. Fla. Aug. 2, 2013). “No one fact is

determinative of the issue of whether the interview was custodial or not.” Id. at *59.

It is the defendant’s burden to establish that he was in custody for purposes of

Miranda. See United States v. Asher, No. 1:09-CR-414-JOB/AJB, 2010 U.S. Dist.

LEXIS 112783, at *22-23 (N.D. Ga. Feb. 25, 2010) (“[A] defendant bears the burden

of establishing that he was in custody and that his statements were made in response

to government questioning.”), adopted by 2010 U.S. Dist. LEXIS 112823 (N.D. Ga.

Oct. 21, 2010).

      Defendant asserts that he “was obviously in custody at the time Officer Pelfrey

asked him questions” because he was “deprived of his freedom of action in a

significant way where “Officer Pelfrey and numerous other South Carolina officers

executed a felony arrest of [Defendant] at gunpoint: they forced him to put his hands

up and walk backwards towards them, forced him to get on the ground face first,

cuffed his hands behind his back, checked Jones for weapons, suggested a dog might

be brought out to the scene, and put him in the back of the patrol car.” (Doc. 62 at

20-23). The Government did not address the issue of whether Defendant was in

custody for purposes of Miranda, but instead focused on whether Defendant’s
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statements were made in response to interrogation, as discussed below. When

Deputy Pelfrey stopped and restrained Defendant, he asked Defendant if he knew

why he was being “detained” (Tr. 75; Doc. 52-6 at 6), and Pelfrey explained at the

hearing that at that point Defendant was not under arrest but was detained until they

identified him. (Tr. 62, 75). Pelfrey also contacted dispatch and advised “You can

open up the channel. Show one investigate detention” (Doc. 52-6 at 7), thus

indicating at that point that Pelfrey was holding Defendant pursuant to an

investigative detention, not an arrest. Although the officers had pointed their

weapons at Defendant, ordered Plaintiff to lie face down on the ground, handcuffed

him, eventually placed him in the back of Pelfrey’s patrol car, “an investigatory stop

does not necessarily ripen into an arrest because an officer draws his weapon,[]

handcuffs a suspect,[] orders a suspect to lie face down on the ground,[] or secures

a suspect in the back of a patrol car[].” United States v. Acosta, 363 F.3d 1141, 1147

(11th Cir. 2004) (citations omitted); see also United States v. Blackman, 66 F.3d

1572, 1576 (11th Cir. 1995) (stating that “the fact that police handcuff the person or

draw their weapons does not, as a matter of course, transform an investigatory

detention into an arrest”). Those actions were reasonable in this case given that

Defendant was suspected of shooting a person in Georgia, and a woman was found

in his vehicle in Fair Play, bleeding from her mouth and incoherent. “The Supreme

Court has stated that officers may take reasonable steps to ensure their safety so long

as the possess ‘an articulable and objectively reasonable belief that the suspect is
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potentially dangerous.’ ” Acosta, 363 F.3d at 1146-47 (quoting Michigan v. Long,

463 U.S. 1032, 1051 (1983)). Thus, the undersigned is not convinced that Defendant

has met his burden of establishing that he was in custody for purposes of Miranda

when Pelfrey placed him in handcuffs and asked him “You know why you’re being

detained?” Nevertheless, assuming for the sake of discussion that Defendant was

then in custody, the undersigned finds that Defendant’s statements are not subject to

suppression for the reasons discussed below.

                   b.     Was Defendant Interrogated For Purposes Of Miranda

      “An ‘interrogation’ for Miranda purposes is defined as ‘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.’ ” United States v. Williams, 784 Fed. Appx. 707, 708 (11th Cir.

2019) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). “[T]he Miranda

rule ‘does not reach a situation . . . where the statements were unsolicited,

spontaneous and freely made prior to any attempted interrogation.’ ” Sullivan v.

Alabama, 666 F.2d 478, 482 (11th Cir. 1982) (quoting United States v. Savell, 546

F.2d 43, 46 (5th Cir. 1997)13).

                          (1)     Pre-Miranda Statements


13
   Decisions of the Fifth Circuit handed down before Oct. 1, 1981 are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981)(en banc).

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      As set forth in the facts section and reflected in the bodycam video (Gov’t Ex.

6) and the transcript of Pelfrey’s encounter with Defendant (Gov’t Ex. 7 (Doc. 52-

6)), Defendant made numerous statements following his apprehension, most of

which were not made in response to any questioning by Pelfrey, but instead were

unsolicited and spontaneous. Others statements were made in response to

questioning that did not constitute interrogation or was subject to an exception to the

Miranda rule. Specifically, as Pelfrey handcuffed Defendant, he asked him, “You

know why you’re being detained?” and Defendant responded that it “was a big, big

misunderstanding.” (Tr. 75; Doc. 52-6 at 6). That was Defendant’s only response to

Pelfrey’s question, which satisfied Pelfrey’s intent to make sure that Defendant knew

why he was being detained. Pelfrey explained at the hearing that he was “[j]ust trying

to make sure that he knows what’s going on,” that they are trained to tell someone

why they are being detained, and Defendant told him why he was being detained, “it

was what I knew at the time.” (Tr. 75, 80). The undersigned finds that Pelfrey’s

question did not constitute interrogation as it was akin to the types of questions

“normally attendant to arrest and custody.” Innis, 446 U.S. at 301. Pelfrey did not

follow up or ask any additional questions of Defendant at that time. Instead,

Defendant asked them not to bring the K-9 unit over to him, Pelfrey notified dispatch

that he had “one investigate detention,” Defendant asked if the deputies could get

him off the ground, and Defendant volunteered that he had “nothing on [him].

Nothing’s in the car. No weapons, no drugs, no nothing.” (Doc. 52-6 at 7).
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      Pelfrey then told Defendant to stand up, to which Defendant said, “I haven’t

done a crime, sir. I haven’t done nothing wrong. I was just trying to get her the help.”

(Tr. 75-77; Doc. 52-6 at 7). That unsolicited statement was not made in response to

questioning; Pelfrey had simply instructed Defendant to stand up. Several minutes

had elapsed and other conversation and actions had occurred since Pelfrey had

initially asked Defendant if he knew why he was being detained. Thus, the

undersigned finds that that statement was not made in response to interrogation.

Defendant also stated without prompting, “I’m from Barrow County, sir. Winder,

Georgia.” (Doc. 52-6 at 7-8). Pelfrey then responded to that statement by asking,

“Why are you out here walking?” and Defendant responded, “I ain’t from here. She

wanted to come out here.” (Gov’t Ex. 6; Doc. 52-6 at 8). At that point, Pelfrey had

not asked Defendant about the woman in Defendant’s vehicle, but because

Defendant spontaneously brought her up, Pelfrey asked, “Why is she bleeding and

everything,” and Defendant said that she “shot herself . . . And that’s why we ran

out here.” (Doc. 52-6 at 8). Pelfrey then asked Defendant where the gun was that the

woman shot herself with, and Defendant said that the woman in the car “threw it.”

(Doc. 52-6 at 8). Pelfrey repeated, “The girl in the car threw it?” and Defendant

responded, “I threw it after she shot herself ‘cause I didn’t want to get in trouble for

it.” (Doc. 52-6 at 8). Pelfrey asked where he threw the gun, and Defendant responded

“[i]n Barrow County.” (Doc. 52-6 at 8). Pelfrey did not then ask another question

about the gun beyond asking where Defendant threw it, but Defendant continued
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talking about it: “We was all struggling with the gun, sir. She accidentally shot her

friend. We both got scared. I took off running. Here we’re in there fighting over the

gun. Will you take me to Barrow County?” (Doc. 52-6 at 8). The undersigned finds

that Defendant initiated this conversation with Pelfrey by volunteering that he was

from Barrow County, Georgia, which naturally prompted Pelfrey to inquire as to

why he was walking in Fair Play, South Carolina. Once Defendant began

spontaneously discussing Ms. Pounds, Pelfrey simply continued the conversation by

asking follow-up or clarifying questions to Defendant’s unsolicited statements,

which did not constitute interrogation for purposes of Miranda. See, e.g., United

States v. Villegos-Tello, 319 Fed. Appx. 871, 875-76 (11th Cir. 2009) (finding that

law enforcement questions seeking to clarify defendant’s unsolicited statements did

not constitute interrogation requiring Miranda warnings where the defendant said

“the green’s not mine” and the officer asked if he meant marijuana and to whom the

marijuana belonged); United States v. Jules, 244 Fed. Appx. 964, 972-73 (11th Cir.

2007) (district court’s finding not clearly erroneous “that the agent’s query as to what

Jules was laughing about was a normal natural inquiry that did not rise to the level

of interrogation, and therefore, Jules’s response, which the court equated to a

spontaneous statement, was admissible”); United States v. Gonzalez, 121 F.3d 928,

939-40 (5th Cir. 1997) (finding no Miranda violation where the defendant

“voluntarily initiated the colloquy” by boasting about his crimes, thus “eliciting a

response from [the officer]” and explaining that the officer’s “request for
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clarification was not a ‘custodial interrogation’ for purposes of the Miranda

doctrine”); United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir. 1985) (finding

that officer’s question “why” in response to the defendant’s statement that he could

not take defendant’s notebook was not interrogation where defendant had initiated

the conversation and that defendant’s response to the question was spontaneous and

not the product of interrogation); Anderson v. Thieret, 903 F.2d 526, 532 (7th Cir.

1990) (finding that the defendant voluntarily stated, “I stabbed her” and that “the

police officer’s responsive question, ‘Who?,’ did not require full Miranda warning

before its utterance” because it “was a neutral response, intended to clarify

Anderson’s puzzling declaration; it was not coercive interrogation that Mirands

seeks to prevent”).

      Moreover, as the Government points out, “questions related to public safety

are exempted from the Miranda requirements.” (Doc. 65 at 24). In New York v.

Quarles, 467 U.S. 649 (1984), the Supreme Court held that an officer was not

required to give the defendant Miranda warnings before asking about the location

of a gun because “overriding considerations of public safety justify the officer’s

failure to provide Miranda warnings before he asked questions devoted to locating

the abandoned weapon.” Id. at 651; see also United States v. Williams, 784 Fed.

Appx. 707, 710 (11th Cir. 2019) (explaining that the officers “questions as to the

location of the firearm were proper to protect himself, his fellow officer, and the

other individuals on the scene, and thus feel within the public safety exception” to
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Miranda). Here, the officers had received information that Defendant had shot

someone in Georgia, they discovered a woman bleeding from her mouth in

Defendant’s car thus indicating the possibility that she had been shot, and Deputy

Pelfrey had not found a gun on Defendant’s person, thus raising reasonable concerns

about public safety due to the missing gun.

      Defendant’s statements about struggling with Ms. Pounds over the gun, Ms.

Pounds shooting Ms. Jarrell, and taking “off running” were unprompted by Pelfrey’s

question, which simply asked where Defendant threw the gun. (See Doc. 52-6 at 8).

Thus, those statements were not the product of interrogation. Later, after Pelfrey

searched Defendant, placed him in the patrol car, and spoke with dispatch about the

detainer, Defendant stated, “I need to get to Barrow County, sir . . . That’s where

this thing happened at,” again without Pelfrey asking him any questions. (Doc. 52-6

at 9). Pelfrey did not then respond to Defendant’s statement or question him about

it. (Id.). It was after Pelfrey called Detective Manthe that Defendant told Pelfrey—

without being asked—“I was already in the process of trying to find my – me and

my girl was gonna turn ourselves in . . . . But due to the situation, what happened,

she got scared ‘cause we was gonna turn ourselves in and she’s like, well, I’m – I’m

just gonna go ahead and kill myself.” (Doc. 52-6 at 11). Defendant kept talking, and

Pelfrey simple responded, “Mm-hm” and “Okay,” but he asked no questions while

Defendant talked. (Doc. 52-6 at 11-12). The undersigned finds that these volunteered


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statements, made spontaneously and without prompting or questioning by Pelfrey,

were not the product of interrogation for purposes of Miranda.

      When back at Dollar General with Defendant, Pelfrey and another deputy

discussed the injured woman, Ms. Pounds, who was being taken to the hospital, and

Pelfrey asked Defendant where on her body she had shot herself, and Defendant

responded, “In the back of the head.” (Doc. 52-6 at 16-17). Pelfrey then asked

Defendant, “This all happened in Georgia?” and Defendant responded, “Yes, it – no,

it happened in Winder.” (Doc. 52-6 at 17-18). Pelfrey again asked, “Where did you

throw the gun out at?” and Defendant responded, “In Winder,” and then made

several more statements about the woman shooting herself, turning himself in, the

car breaking down, etc. (Doc. 52-6 at 18). At that point Pelfrey advised Defendant

of his Miranda rights. (Doc. 52-6 at 18-19). The undersigned finds that Pelfrey’s

questioning of Defendant at Dollar General about the location of the gun did not run

afoul of Miranda under the public safety exemption as discussed above. Pelfrey’s

question about where Ms. Pounds shot herself is a closer question, however, as the

Government concedes. (Doc. 65 at 25). The undersigned agrees with the

Government that Pelfrey’s question about where Ms. Pounds shot herself “should

fall under the public safety exemption.” (Id.). The record shows that Pelfrey asked

Defendant this question as Ms. Pounds was receiving treatment because she was

bleeding profusely from her mouth and vomiting, yet she was speaking incoherently

and therefore unable to describe what happened or how she was injured, and the
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deputies initially did not know whether she had been shot and had not found an

entrance wound. (Tr. 55; Doc. 52-6 at 3-4). Thus, the exigencies of the situation and

need to obtain information for her safety and protection justified questioning

Defendant about her injury even though Miranda warnings had not been given.

Moreover, as discussed below, Defendant repeated that Ms. Pounds had shot herself

in the head after he was advised of his Miranda rights, thus his statement that she

shot herself in the head need not be suppressed.

      Accordingly, the undersigned finds that Defendant’s pre-Miranda statements

were not the product of unlawful custodial interrogation and therefore need not be

suppressed.

                           (2)    Post-Miranda Statements

      “Even absent the accused’s invocation of the right to remain silent, the

accused’s statement during a custodial interrogation is inadmissible at trial unless

the prosecution can establish that the accused ‘in fact knowingly and voluntarily

waived [Miranda] rights’ when making the statement.” Berghuis v. Thompkins, 560

U.S. 370, 382 (2010); see also United States v. Bernal-Benitez, 594 F.3d 1303, 1318

(11th Cir. 2010 (explaining that a defendant may waive his Miranda rights, “but only

if ‘the waiver is made voluntarily, knowingly and intelligently.’ ” (quoting Miranda,

384 U.S. at 444)). “The waiver inquiry ‘has two distinct dimensions’: waiver must

be ‘voluntary in the sense that it was the product of a free and deliberate choice rather

than intimidation, coercion, or deception,’ and ‘made with a full awareness of both
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the nature of the right being abandoned and the consequences of the decision to

abandon it.’ ” Thompkins, 560 U.S. at 382-83 (quoting Moran v. Burbine, 475 U.S.

412, 421 (1986)). The Government bears the burden of proving both “dimensions”

by a preponderance of the evidence. United States v. Bushay, 859 F. Supp. 2d 1335,

1372 (N.D. Ga. 2012) (citing Thompkins, 560 U.S. at 384); see also Bernal-Benitez,

594 F.3d at 1318 (“The Government must prove by a preponderance of the evidence

that the defendant voluntarily, knowingly, and intelligently waived his Miranda

rights.”). “Only if the ‘totality of the circumstances surrounding the interrogation’

reveals both an uncoerced choice and the requisite level of comprehension may a

court properly conclude that the Miranda rights have been waived.” Moran, 475

U.S. at 421 (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)); see also Bushay,

859 F. Supp. 2d at 1373 (“A waiver is effective where the totality of the

circumstances reveal both an uncoerced choice and the requisite level of

comprehension.”). “The prosecution . . . does not need to show that a waiver of

Miranda rights was express,” however. Thompkins, 560 U.S. at 384. “An ‘implicit

waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect’s statement into

evidence.”

      Here, Pelfrey advised Defendant of his Miranda rights after Defendant made

the statements discussed above when they returned to Dollar General. Pelfrey told

him, “Mr. Jones, before I ask you anymore questions or anything, I’m just gonna

advise you of your rights, okay.” (Doc. 52-6 at 18). Pelfrey then read Defendant his
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rights, i.e., “You have the right to remain silent. Anything you say can and will be

used against you in a court of law. You have the right to speak with an attorney and

have one present with you while you’re questioned if you wish.” (Doc. 52-6 at 19).

Defendant responded, “Yeah.” (Id.). Pelfrey continued, “If you cannot afford to hire

an attorney, one will be appointed to represent you before any questioning.” (Id.).

Defendant did not ask Pelfrey about those rights, but asked Pelfrey, “Am I being

locked up here in Carolina or am I –” and Pelfrey responded, “You’re being detained

right here in South Carolina, but they do have an active warrant for you in Georgia,”

in Barrow County. (Doc. 52-6 at 19). Defendant and Pelfrey then discussed whether

they were going to take Defendant back to Barrow County and how that would occur.

(Id. at 20). Another deputy then asked Defendant “where she shot herself?” and

Defendant responded, “In the back of the head.” (Id. at 20). The deputy asked, “Do

you know why?” and Defendant responded, “Because she was suicidal. We both

was.” (Id.). Pelfrey asked Defendant, “you understand all those rights I told you?”

and Defendant responded, “Yes, sir.” (Id.). Pelfrey then asked him, “Having those

rights in mind, you still wish to talk to me?” and Defendant responded, “No, sir. I’ll

wait for an attorney.” (Id.). Pelfrey confirmed that he still gave his consent to search

the vehicle, and Defendant said, “Yes. That I don’t care about.” (Id.). Pelfrey asked

him if he “need[ed] an attorney present with you for that,” and Defendant responded,

“No.” (Id.).


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      The undersigned finds that the Government has met its burden of proving that

Defendant knowingly and voluntarily waived his Miranda rights. Pelfrey advised

Defendant of his rights; he said “Yeah” as Pelfrey read them thus indicating his

acknowledgement of them; he asked no clarifying questions about them; and he at

least implicitly waived those rights when he voluntarily responded to the other

deputy’s questions without an attorney present. Moreover, he told Pelfrey that he

understood the rights Pelfrey had read him, and he then chose not to continue

answering questions until an attorney was present, thus indicating that he understood

that he had the right not to answer questions and to have an attorney present and that

he did not feel so coerced by the deputies’ actions that he simply acquiesced to their

show of authority. The undersigned therefore finds that Defendant voluntarily and

knowingly waived his rights under Miranda and that any statements Defendant made

after Pelfrey advised him of his Miranda rights were made voluntarily.

      It is therefore RECOMMENDED that Defendant’s motion to suppress his

June 10, 2019 statements to law enforcement be DENIED.

                                     Summary

      For the reasons discussed above, it is RECOMMENDED that Defendant’s

Motion To Dismiss Count Two Of The Indictment (Doc. 28) be GRANTED and his

Motion To Suppress (Doc. 41) be DENIED.

      IT IS FURTHER ORDERED that, subject to a ruling by the District Judge

on any objections to orders or recommendations of the undersigned Magistrate
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Judge, this case is CERTIFIED READY FOR TRIAL.

        IT IS SO REPORTED AND RECOMMENDED this 7th day of October,

2021.

                                  /s/ J. Clay Fuller
                                  J. Clay Fuller
                                  United States Magistrate Judge




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