United States District Court, S.D. Florida
ORDER ON DEFENDANT'S OBJECTIONS TO REPORT AND
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
cause came before the Court on the Defendant's Objections
to Report and Recommendation (ECF No. 37) which was timely
filed on July 25, 2019. The Government filed a Response (ECF
No. 40), and, on July 30, 2019, the Court heard arguments
from the parties on the Objections. Prior to the hearing, the
Court reviewed the transcript of the evidentiary hearing (ECF
No. 35) held on July 9, 2019 before Magistrate Judge Edwin
Torres. The Court also reviewed the relevant portions of the
body camera video of Officer Passion Wilson which had been
entered into evidence as Defendant's Exhibit B at the
evidentiary hearing. After considering the factual findings
in the Report and Recommendation (ECF No.
33), the Objections, Response, video and relevant
legal authorities, the Court overrules the
Objections and adopts the Report and Recommendation in full.
December 26, 2018, City of Miami Police Detective Floyd
Pinckney saw the Defendant, whom he had known and mentored
for seven years, make a hand to hand drug transaction.
Pinckney ordered the Defendant to stop but the Defendant took
off running with Pinckney in pursuit. Pinckney called for
backup as he pursued the Defendant. At one point, Pinckney
saw the Defendant discard a yellow tinted pill bottle in a
grassy area and at another point saw him throw a dark object
that appeared to be a firearm on the ground. Other officers
later found a yellow pill bottle with 51 baggies of fentanyl
and a loaded black Glock 17 firearm in the areas where
Pinckney had seen them tossed by the Defendant. The Defendant
was apprehended and placed in a patrol car.
minutes after being placed in the patrol car, the Defendant
called out to Pinckney. Pinckney did not know what the
Defendant wanted but he asked Officer Wilson, who was wearing
a body cam, to record his interaction with the Defendant.
Pinckney claims that the Defendant told him spontaneously
“Pinckney, the gun is clean, I just got it.” The
interaction lasted about one minute. Pinckney stopped
Defendant from talking because it seemed the Defendant wanted
to talk more about the incident and he wanted to read his
Miranda warnings prior to any further statements.
Pinckney also asked Wilson to turn on the sound on her body
camera to record the Miranda warnings and any
statements the Defendant might make. Post-Miranda,
the Defendant made a few non-inculpatory statements and then
declined to talk further on camera.
Defendant was originally arrested on State of Florida
charges, was appointed counsel, and was released on bond.
But, on March 14, 2019, a federal grand jury indicted the
Defendant for possession of a firearm and ammunition by a
convicted felon, possession with the intent to distribute a
controlled substance (fentanyl) and possession of a firearm
in furtherance of a drug trafficking offense. These charges
are based upon the same conduct that constituted the State of
March 26, 2019, the Defendant was arrested on the federal
charges and, after waiving his Miranda rights, made
inculpatory statements to Pinckney.
The findings and conclusion in the Report and
considering the testimony and evidence and reviewing the body
camera video, Magistrate Judge Torres found Pinckney to be
credible. Judge Torres found that the statement to Pinckney
on December 26, 2018 was a spontaneous statement that was not
the result of interrogation and, thus, no Miranda
warnings were required. Judge Torres also found that the
March 26, 2019 interrogation did not violate the
Defendant's Sixth Amendment right to counsel since a
state charge is a different offense than a federal charge.
The objections to the Report and Recommendation
Defendant challenges the denial of his motion to suppress
each of his two statements. As to the December 26, 2018
statement, he claims that the Report and Recommendation
should be rejected because the Magistrate Judge erroneously
found the Pinckney was credible. The Defendant argues that
Pinckney's testimony was inconsistent, the video
contradicts his testimony, and Pinckney's own words on
the video belie his description of the earlier, non-recorded
Defendant also objects to the denial of his motion to
suppress the March 26, 2019 statement. Although he recognizes
that current 11th Circuit case law holds that the
right to counsel is offense specific and “ordinarily
binds only the sovereign that has charged the defendant,
” United States v. Dixon, 901 F.3d 1322, 1340
(11th Cir. 2018), the Defendant wishes to preserve
this issue. The Defendant also claims that this case is
distinguishable from other 11th Circuit cases
because the same police officer (Pinckney) conducted both
district judge need conduct a de novo review of only
“those portions of the report or specified proposed
findings or recommendations to which ...