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United States v. Benanti

United States District Court, E.D. Tennessee

November 30, 2016




         This criminal matter is before the Court for consideration of the Report and Recommendation entered by United States Magistrate Judge C. Clifford Shirley, Jr. (the “R&R”) [Doc. 58]. The R&R addresses two of the defendant's motions to suppress evidence [Docs. 32, 35]. The government responded to the motions [Doc. 46], and Magistrate Judge Shirley held a hearing on the motions on June 2, 2016 [Doc. 87]. Magistrate Judge Shirley then issued the R&R, recommending that the Court deny the defendant's Motion to Suppress Based on the Illegal Arrest, November 25, 2015 [Doc. 32] and grant in part and deny in part the Motion to Suppress Oral Statements Made by Defendant [Doc. 35]. The defendant filed objections to the R&R [Doc. 73], and the government responded to those objections [Doc. 80]. For the reasons that follow, the Court will overrule the defendant's objection and accept the R&R.[1] Thus, the defendant's Motion to Suppress Based on the Illegal Arrest, November 25, 2015 [Doc. 32] will be denied, and the defendant's Motion to Suppress Oral Statements Made by Defendant [Doc. 35] will be granted in part and denied in part.

         I. Background[2]

         On September 3, 2015, North Carolina State Highway Patrol (“NCSHP”) Troopers Shelton and Hooper attempted to stop a dark-colored Ford Edge SUV traveling on I-40 westbound in North Carolina, close to the Tennessee state line.[3] The troopers were in separate vehicles and had their lights and sirens activated. The SUV pulled onto the shoulder twice, with one of the troopers stopping behind it each time, then sped back onto the road. The second time the SUV pulled onto the shoulder, the driver's side wheels were not fully over the line delineating the roadway, and the passenger door opened briefly before the vehicle sped away. As the pursuit continued, the Ford Edge intentionally struck three vehicles, crashed into a barrier, and spun around one-hundred-and-eighty degrees. As soon as the Ford Edge came to a stop, two white males, each holding black duffle bags, exited the SUV and ran across three lanes of traffic and into the woods on the opposite side of the Interstate. The driver had a slender build, and the passenger was heavy-set with dark hair and a bald spot on the back of his head. Troopers Shelton and Hooper pursued the men across the road but did not follow them into the woods. The NCSHP subsequently determined that the Ford Edge was stolen and had a stolen out-of-state license plate.

         On October 21, 2015, two masked white males attempted to rob the Northeast Community Credit Union in Elizabethton, Tennessee, by kidnapping a bank employee and her son. These crimes resembled two other bank robberies that occurred on April 28, 2015, in Oak Ridge, Tennessee, and July 7, 2015, in Knoxville, Tennessee.[4] Special Federal Bureau of Investigation (“FBI”) Agent Jeff Blanton, who testified before Magistrate Judge Shirley on June 2, 2016, headed the investigation of the crimes involving Northeast Community Credit Union.

         On the same day of the attempted robbery of the Northeast Community Credit Union, Agent Blanton learned of the September 3 car chase in North Carolina and that the occupants of that vehicle fled carrying large bags. Agent Blanton subsequently spoke with the NCSHP and learned that the Ford Edge, abandoned by the perpetrators in the September 3 chase, contained a Global Positioning System (“GPS”) unit. Agent Blanton obtained that GPS unit, had the FBI's digital processing laboratory extract the data from the unit, and reviewed the data. The GPS data revealed that the GPS unit was used three times: First, to travel from northern Virginia to 124 Rebel Ridge Road, Maggie Valley, North Carolina, on August 1, 2015; Second, the users had traveled from a location near 124 Rebel Ridge Road to west Knoxville and back to 124 Rebel Ridge Road on September 2, 2015; and Third, the unit was activated on September 3, 2015, at 124 Rebel Ridge Road and terminated at the crash site on that day. The “waypoint, ” labeled as “home” on the GPS track, was a strip mall in Waynesville, North Carolina, which contained a property rental business.[5]

         The property at 124 Rebel Ridge Road, where the GPS unit was activated on September 3, 2015, is a rental cabin, managed by Premier Vacation Rentals (“PVR”). On November 12, 2015, Melissa Pless, an employee of PVR, related to law enforcement that she rented a series of PVR cabins to two white males, whom she knew as Ron Bradford and Craig. Ms. Pless described Ron as a tall, slender, bald, white male with glasses, and she said that Craig, who conducted most of the business for the two, was a stout, white male. She said that Ron and Craig, who told her that they were in Maggie Valley to ghostwrite a book, rented a cabin at Highview Drive from June 19 to July 26, 2015, and paid $3, 106 in cash. Ms. Pless said that Ron and Craig rented the cabin at 124 Rebel Ridge Road from July 17, to October 25, 2015, for $5, 200, and from October 25 to November 15, 2015, for $6, 475.[6] Ms. Pless stated that the men then moved to the cabin at 380 Allison Drive and paid a $500 deposit. Agent Blanton shared all of this information with the NCSHP. Ms. Pless also stated that Ron and Craig initially drove a black Lexus SUV but that she had not seen that vehicle in the last few months and that Ron and Craig were currently driving a gold SUV. Agent Blanton knew that the perpetrators of the April 28, 2015, attempted robbery of the Y-12 Federal Credit Union drove a black Lexus SUV and that, following that robbery, law enforcement found a stolen black Lexus SUV, which had been burned to the extent that the frame was damaged.

         Agent Blanton testified that Ms. Pless provided the officers with Craig's email address, telephone number, and his address of 713 Chestnut Street, Philadelphia, Pennsylvania. Agent Blanton said that this address resolved to a public parking lot. Agent Blanton stated that the information from Ms. Pless, including the fact that Ron and Craig paid in cash, further added to his suspicions that these two men were involved in the East Tennessee bank robberies and related crimes. He testified that he provided the information from Ms. Pless to the NCSHP before November 25, 2015.

         The FBI and North Carolina law enforcement officers conducted surveillance of the cabin at 380 Allison Drive on November 19, 23, 24, and 25, 2015. On November 19, officers observed three vehicles at the cabin, including an SUV. They also saw a white male, who was bald, of athletic build, and around six feet tall. Later that day, officers observed a white female and a white male leave the cabin in a vehicle with a Vermont license tag. The white female drove the pair to a CVS Pharmacy, and the bald, white male passenger went in the store. On November 23, 2015, the officers observed two men standing in front of two vehicles at the cabin. Later that morning, the officers saw two men leaving the residence in a silver minivan. On November 24, officers saw a white male leave the cabin in a maroon Toyota Highlander with a license plate that was registered to a GMC Yukon. The man got gas and then vacuumed the Highlander at a car wash, before going back in the direction of the cabin. Later on November 24, officers saw a third vehicle-a silver SUV-at the cabin and also saw two white males outside the residence at different times. At 11:05 a.m., on November 25, 2015, surveilling officers saw a silver Nissan Pathfinder with a Maryland license tag leave the cabin. A records check on the license tag revealed that it was stolen.

         At 11:23 a.m. that same day, the surveilling officers followed the Pathfinder eastbound on I-40 and remained in contact with local law enforcement, which in turn was in contact with the FBI. The officers followed the Pathfinder onto I-26 eastbound and continued to follow it until the NCSHP attempted to stop the Pathfinder near mile marker 36.

         NCSHP Trooper Gregg Reynolds-who also testified before Magistrate Judge Shirley at the June 2 hearing-was on a meal break on November 25, 2015, when he received a call from his supervisor directing him to stop a gray Nissan Pathfinder, with a stolen license plate, which would be traveling through his jurisdiction that morning. The supervisor related that the two white men in the Pathfinder were believed to be the perpetrators of the September 3 car chase and of several bank robberies. Trooper Reynolds, a training officer for the NCSHP, was familiar with the September 3 car chase because he had reviewed the video recordings from the in-car cameras of Troopers Shelton and Hooper between five and ten times, had interviewed Troopers Shelton and Hooper about the chase, and had used the videos in his training sessions.[7] The NCSHP supervisor told Trooper Reynolds that he was to stop the Pathfinder “whatever it took.” Trooper Reynolds testified that this was the first time he had ever received such an instruction in his sixteen years with the NCSHP. Thus, Trooper Reynolds donned protective gear, got his AR-15, and set up on I-26 with two other troopers in separate patrol cars.

         The Pathfinder passed Trooper Reynolds heading eastbound on I-26. Trooper Reynolds followed it and confirmed that the Maryland license plate was stolen. He then attempted to stop the Pathfinder. The Pathfinder pulled onto the shoulder, with its wheels touching the fog line, the passenger's side door opened, and a white male got out. The Pathfinder then sped away. Troopers Smith and Shelton pursued the Pathfinder, while Trooper Reynolds remained with the passenger. After the Pathfinder fled, Trooper Reynolds saw that the passenger was a heavy-set, white male with a bald spot on the back of his head and that he held a black duffle bag. Trooper Reynolds testified that the passenger's physical characteristics were very similar to the September 3 passenger, which led him to believe that they were the same person [Doc. 87 p. 63 ll.3-12].[8] Trooper Reynolds and a second officer approached the defendant, pointing guns at him and yelling at him to get on the ground. The officers handcuffed him and frisked him, while he was still on the ground. Then, the second officer left to pursue the Pathfinder. After asking the defendant to rise to his knees, Trooper Reynolds told the defendant, “F**k around, I'll kill you, ” to which the defendant responded, “I know, you should” [Doc. 46-1 p. 1]. Trooper Reynolds testified that he believed he had probable cause to arrest the defendant for the stolen license tag on the Pathfinder and because he was a passenger in the September 3 car chase. Trooper Reynolds said that he believed the defendant was in possession of the stolen license plate because he was a passenger in the vehicle.

         Trooper Reynolds helped the defendant stand and walked him to the patrol car, where Reynolds turned off the siren. The defendant asked whether he was being arrested. Trooper Reynolds affirmed that the defendant was being arrested, radioed the other troopers, and ordered the defendant to stop moving around. The defendant explained that he was trying to straighten his wrists in the handcuffs. Trooper Reynolds asked the defendant if he had any weapons and if he knew what was going on. The defendant declined to comment. Trooper Reynolds told the defendant that he was under arrest and attempted to advise the defendant of the Miranda warnings, but the defendant interrupted him, asking Trooper Reynolds to loosen his handcuffs. Reynolds admits that he did not provide the full Miranda warnings to the defendant. At this point, the defendant stated that he had no weapons on his person.

         Another officer radioed Trooper Reynolds and asked him to bring the defendant and his bag to the location where the Pathfinder had been stopped. The defendant again asked that his handcuffs be loosened, but Trooper Reynolds deferred to the FBI, then said that he would loosen them in five minutes. Trooper Reynolds seated the defendant in his patrol car, directed him to sit on his hands and not move, and asked the defendant his name and where he was from. The defendant identified himself and said that he was from Pennsylvania. Trooper Reynolds transported the defendant to a location approximately one mile away, at which other officers had stopped the Pathfinder.

         Upon reaching the second location, Trooper Reynolds assisted the defendant out of the patrol car and loosened the handcuffs. The defendant told Trooper Reynolds that he had been in prison for sixteen years, so he was familiar with wearing handcuffs. Trooper Reynolds asked the defendant why and where he had been in prison, to which the defendant responded that he went to prison in Lewisberg over money when he was nineteen and that he had been out for seven or eight years. Trooper Reynolds then asked the defendant a series of identifying questions: name, birthdate, address, telephone number, height, weight, hair color, eye color, and whether he had any tattoos or scars. Trooper Reynolds wrote down the defendant's answers, and the defendant spontaneously added his social security number. Trooper Reynolds again asked where the defendant had been imprisoned, and the defendant responded Lewisburg, Pennsylvania. Trooper Reynolds asked the defendant to identify the driver of the Pathfinder, what their plan was, and where they were headed, but the defendant declined to provide any of this information.

         For the remainder of the time, until the defendant was transported to the Asheville Police Department, the defendant questioned Trooper Reynolds about his charges and about the driver of the Pathfinder. Trooper Reynolds told the defendant that he was under arrest but that his charges were not from the NCSHP and that the FBI would talk to him about his charges. The defendant spontaneously told Trooper Reynolds that he had been in the Bahamas the previous week, distributing his girlfriend's ashes, after she committed suicide. The defendant stated that whatever is going on had nothing to do with him, and Trooper Reynolds continued to respond that they had to wait for the other law enforcement officers to join them. The defendant told Trooper Reynolds that he wanted to make sure that Trooper Reynolds knew that he had cooperated and been truthful in giving his name. Twice during the time that the defendant was in Trooper Reynolds's custody, Trooper Reynolds mentioned that his body microphone was still recording.

         At 3:07 p.m., on November 25, 2015, Agent Blanton and FBI Task Force Officer Matt Gryder interviewed the defendant at the Asheville Police Department. The agents produced a Miranda rights waiver form, and Agent Blanton asked the defendant if anyone had read him his rights yet. The defendant replied that they had started but had not really read them to him and that he was familiar with the Miranda rights. The defendant asked if there was an indictment on him. The agents responded that there was no indictment at that time. The defendant asked if they could speak informally first. The agents left after a fifteen to eighteen-minute conversation, during which the defendant repeatedly asked for an immunity agreement and declined to answer any questions without one.

         At 4:00 p.m., Agents Blanton and Gryder again spoke with the defendant at the Asheville Police Department. Agent Blanton told the defendant that he had spoken with the Assistant United States Attorney (“AUSA”) but that he did not have an immunity agreement for the defendant. Agent Blanton told the defendant that the NCSHP was going to charge him with possession of a stolen vehicle and that the federal authorities were going to seek a criminal complaint charging him with the interstate transportation of a stolen vehicle. The conversation continued for thirty-four minutes, ending with Agent Blanton reiterating that the United States Attorney's Office would not give the defendant immunity “up front.” At one point in the conversation, Agent Blanton told the defendant that the room had a recording device and that their conversation was being recorded. After the agents left, the defendant asked Asheville Police Department Officer Shelton to allow him to make a telephone call to his family. Officer Shelton gave the defendant a cellular telephone, which the defendant used to call his sister. The defendant's side of this telephone conversation was recorded.

         At 9:14 p.m. on November 25, 2015, Agent Blanton, FBI Agent Mick Nocera, and AUSA David Lewen spoke with the defendant at the Buncombe County Jail in Asheville, North Carolina. The room in which they met was a little larger than a standard interview room. Although the defendant said he understood his rights and asked if they could just talk, Agent Blanton reviewed each of the lines on the Advice of Rights form with the defendant. The defendant then signed the Advice of Rights form. After the defendant executed the rights waiver, [9] the agents and AUSA Lewen spoke with him for five to ten minutes. The meeting ended with AUSA Lewen saying, “We're done.” Then, AUSA Lewen and the agents left the room. After AUSA Lewen had walked out and as Agent Blanton was walking out, the defendant said, “There are two types of people, those who go in harm's way and do things and those that plan.” The defendant is charged with conspiring to obstruct, delay, or affect commerce by committing robbery and extortion with regard to commercial entities in Pennsylvania, Connecticut, Tennessee, North Carolina, South Carolina, and Georgia (Count One), and with possession of a firearm in furtherance of a crime of violence in relation to this conspiracy (Count Two) [Doc. 30]. He is also charged with three sets of the following offenses: bank robbery by extortion with use of a dangerous weapon (Counts Three, Ten, and Seventeen); use of a firearm in relation to the bank robbery by extortion (Counts Four, Eleven, and Eighteen); carjacking (Counts Five, Twelve, and Nineteen); use of a firearm in furtherance of carjacking (Counts Six, Thirteen, and Twenty); kidnapping (Counts Seven, Fourteen, and Twenty-One); using a firearm in furtherance of kidnapping (Counts Eight, Fifteen, and Twenty-Two); and being a felon in possession of a firearm (Counts Nine, Sixteen, and Twenty-Three) [Id.].

         The defendant asks the Court to suppress all evidence stemming from his November 25, 2015 arrest, including a series of oral statements he gave on that day, because law enforcement lacked probable cause to arrest him and because his statements were made while he was in custody, without the benefit of the Miranda warnings, and during plea negotiations. In this regard, the defendant filed two motions to suppress evidence-a Motion to Suppress Based on the Illegal Arrest, November 25, 2015 [Doc. 32] and a Motion to Suppress Oral Statements Made by Defendant [Doc. 35].

         In the R&R, Magistrate Judge Shirley recommends that the Court find that: (1) the defendant was properly arrested based upon probable cause; (2) the majority of the defendant's statements should be suppressed because they were unwarned or occurred during plea negotiations; (3) some of the defendant's statements were not, however, the product of interrogation and may be admitted at trial; and (4) all of the defendant's unwarned statements may be used to impeach him, if he chooses to testify [Doc. 58]. Thus, Magistrate Judge Shirley recommends that the defendant's Motion to Suppress Based on the Illegal Arrest, November 25, 2015 [Doc. 32] be denied and his Motion to Suppress Oral Statements Made by Defendant [Doc. 35] be granted in part and denied in part. Specifically, Magistrate Judge Shirley recommends that:

         (1) The defendant's comments made in the presence of Trooper Reynolds be allowed in the government's case-in-chief, with the exception of:

(a) The defendant's comment that he has no idea what is going on and that it is not normal to be kicked out of and abandoned by a car traveling on the interstate [Doc. 46-1, ll.58-65];
(b) The defendant's explanation of why he was in prison and where [Id. ll.234-45, 290-94]; and
(c) The defendant's response to Trooper Reynolds's questions about the identity of the driver and what the defendant and the driver were doing [Id. ll.296-300, 314-20].

         (2) The defendant's statements to Agents Blanton and Gryder at the Asheville Police Department be deemed inadmissible in the government's case-in-chief because they are unwarned and, furthermore, the government has stated that it does not plan to use them in its case-in-chief;

         (3) The defendant's conversation with Officer Shelton and his telephone conversation with his sister should not be excluded because they are not the product of interrogation;

         (4) The defendant's discussion with AUSA Lewen and Agents Blanton and Nocera at the Buncombe County Jail should be deemed inadmissible as plea discussions. The defendant's comment about the two kinds of people made after the conclusion of plea negotiations, however, is admissible in the government's case-in-chief, if relevant; and

         (5) The government should be permitted to use any of the defendant's statements of November 25, 2015, including the statements in numbers (1)(a)-(c) and (2) above and except for those deemed to be plea discussions, to impeach the Defendant, if he testifies [Doc. 58 pp. 49-50].

         The defendant filed objections to the R&R, asserting that the magistrate judge erred in determining that law enforcement had probable cause to arrest the defendant for the September 3 incident [Doc. 73 p. 1]. Additionally, the defendant objects to the partial denial of his Motion to Suppress Oral Statements [Id.]. Specifically, the defendant objects to the use of his statements to Trooper Reynolds, Agent Blanton, and Agent Gryder in the government's case in chief or for impeachment purposes [Id.]. Finally, the defendant objects to the use of his statement regarding “two types of people” because it was made as part of plea negotiations with an attorney for the ...

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