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United States v. Jackson

United States District Court, N.D. Indiana, Hammond Division

May 20, 2019

UNITED STATES OF AMERICA,
v.
AKEEM JACKSON, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         On July 19, 2018, defendant Akeem Jackson was indicted on charges of violating the Hobbs Act and possession of a firearm in furtherance of a robbery. [DE 9.] The charges stem from the robbery of a Brinks armored truck outside of a Chase Bank in Hammond, Indiana. The charges resulted from incriminating evidence found during a warrantless search of Jackson's home. The search was the result of what has come to be known in law enforcement parlance as a “knock and talk.” [DE 5.] Jackson has filed a motion to suppress [DE 24], contending that physical evidence seized from his residence, and his statements he made to law enforcement during his interrogation were obtained unconstitutionally. Jackson tells me that any consent to search he gave during the “knock and talk” was involuntary under the circumstances, and that his later statements to police were made without a knowing waiver of his rights.

         While I think some of the police conduct in this case was questionable as it relates to the consent to search received from Jackson, I need not address that issue because Lillie Banks, Jackson's grandmother and the lessee of the apartment in which Jackson resided, consented to the search of her entire apartment immediately after Jackson's narrower and challenged consent to the search of his bedroom. Furthermore, it is apparent to me from the video evidence, that defendant Jackson knowingly and voluntarily waived his Miranda rights prior to being questioned at the police station. For that reason, his statements to police will not be suppressed either. Accordingly, I will deny the motion in full.

         Factual Background

          The factual record related to this motion has been significantly developed. On February 6, 2019, I held the first evidentiary hearing. [DE 35.] At that hearing, I heard testimony from FBI Agent Chad Oakes, Captain Zeke Hinojosa of the Hammond Police Department, Detective Dan Bates of the Hammond Police Department, FBI Investigator Michael Peasley, and the defendant Akeem Jackson. In addition, audio recordings of law enforcement's conversations with Jackson in his home, as well as their ride from his home in Chicago to the police station in Hammond, Indiana were entered into evidence. There is also a videotape of Jackson's interrogation by law enforcement at the police station. At two supplemental evidentiary hearings, I heard additional testimony from the officers who performed the search of the apartment, one of the officers who spoke with Jackson's mother and grandmother in person later in the day, additional testimony from FBI Agent Chad Oakes concerning his telephone conversations with Jackson's grandmother Lillie Banks, Lillie Banks herself, and from Jackson's mother Tajuana Banks. Based upon all this evidence, I make the following factual findings concerning the day's events. To the extent testimony or evidence is in conflict, it is noted below and resolved in the discussion section of the opinion as necessary.

         Sometime after 8:00 am, on the morning of June 27, 2018, a crew of federal and local law enforcement descended upon an apartment building on the south side of Chicago. They were there pursuing a lead in an armed robbery of a Brinks truck which took place three months prior here in Hammond. Specifically, investigators were interested in speaking with Akeem Jackson, who they suspected had a role in the robbery. They knew Jackson resided in the apartment with his grandmother, Lillie Banks. The officers had neither an arrest warrant nor search warrant that day. Instead, they hoped to conduct a “knock and talk” to glean information from Jackson concerning his possible involvement in the robbery. As the moniker implies, a knock and talk is a law enforcement technique whereby officers simply show up at a suspect's home, knock on the door and try to gain entry by consent so as to talk to the suspect.

         As they were on the scene but prior to them approaching the apartment itself, investigators who had been conducting surveillance identified Lillie Banks leaving the apartment. Her daughter (the defendant's mother) Tajuana Banks was driving a car in which Lillie Banks was a passenger. Officers approached the vehicle and asked them if they knew Akeem Jackson. The women identified themselves, explained their relation to Jackson and told police that Jackson was in the apartment, along with his five-year old cousin, and that they were the only people present. Investigators told Lillie and Tajuana Banks that they wanted to speak with Jackson, and the two women informed officers that they were running late to a doctor's appointment. They provided the officers with their cell phone numbers if they needed to be reached, and they went on their way. At no time during this encounter did officers ask Lillie Banks for her consent to search the apartment in which she lived with Jackson.

         Shortly thereafter, at approximately 8:30 a.m., seven law enforcement officers entered the apartment building and knocked on the door of the apartment in which Akeem Jackson resided. The officers were dressed primarily in plain clothes, although it seems some were wearing FBI jackets and vests. All were armed but kept their weapons holstered but visible throughout the encounter. The apartment is a two-bedroom, one-bathroom unit, approximately 700 square feet in size in total. From the floor plan presented during the hearing, it's clear it isn't a spacious place.

         The police knocked on the door and Jackson answered. They identified themselves and asked Jackson if they could come in to talk. Jackson said yes. It is unclear whether Jackson saw just one or two or the officers when he opened the door, or whether he saw the entire cavalcade congregating in the hallway. So when Jackson said yes to the officers' entry, it is unclear whether he was saying yes to all of them coming in or just one or two of the officers. But indeed, all seven of them accepted the invitation and the parade of officers entered and crammed their way around the small apartment. And while at least one (Agent Oakes) went in and out of the apartment to speak on the telephone at times, it seems the rest remained inside the confines of the apartment until Jackson later departed with some of them to the police station.

         Jackson testified that one officer stood near the front hallway, blocking the only exit out of the apartment. While Jackson spoke with some of the officers (primarily Captain Hinojosa), others stood watch while at least one of the officers entertained Jackson's five-year old cousin. Jackson testified that he subjectively felt he had no choice but to let them in and that he didn't feel he could tell them to leave once they were inside. He testified that while he was not physically restrained, officers followed him step-by-step as he moved throughout his home while they were there. Agent Oakes testified that while officers did not draw their weapons, several likely assumed the “superman position” by which they stood, arms akimbo, with their hand near their weapon.

         After officers entered the apartment, they began to question Jackson. He was not formally placed under arrest or given Miranda warnings at this time. One of the first things officers asked Jackson was whether he had a firearm or weapon in the house. Jackson told them he owned a handgun, which was stored in his bedroom. He told police he legally owned the gun and bought it recently with the assistance of his mother in the hopes it would help him get a full-time job as a security guard. When police asked if they could retrieve the gun from his room, Jackson gave them permission and a few officers began searching for it. Officers had difficulty locating the gun at first but it is unclear how extensive their searching through Jackson's bedroom was at that time. When they couldn't easily locate the weapon, Jackson offered his assistance and it was at that time Captain Hinojosa asked formally for permission to conduct a search of the apartment.

         Captain Hinojosa read a consent to search form to Jackson apprising him of his rights. Jackson initially said that it wasn't necessary and that he trusted the police, but Captain Hinojosa insisted. And after Jackson was informed he had the right to refuse the search, he explained that he would only give police his consent to search his own bedroom within the apartment and nowhere else. He explained that because the apartment lease was in his grandmother's name and because the other bedroom was hers, he didn't think she would want them searching elsewhere.

         After Jackson explained why he could not give his consent to search the rest of the apartment, Agent Oakes testified that he tried to get ahold of Lillie Banks, Jackson's grandmother. He testified that he went out into the hallway of the apartment building to make this phone call, and that is why he cannot be heard speaking on the phone with Ms. Banks on the audio recording. Agent Oakes's telephone records from that day show he made two phone calls to Lillie Banks' phone number at 8:57 a.m. and 9:17 a.m., and that he likewise received two calls from her phone number at 9:02 a.m. and 10:13 a.m. Agent Oakes testified that it was during the first phone call that he asked Lillie Banks if she would consent to the search of the apartment. He could not recall whether he told her she had the right to refuse consent. He recalled that Tajuana Banks answered the phone first before handing it to Lillie Banks. He testified that the conversation he had with her was not lengthy, but he was certain that Lillie Banks consented to the search and that she did not revoke her consent during any of the subsequent phone calls.

         Lillie Banks and Tajuana Banks testified differently from Special Agent Oakes. That said they only had two phone calls with police, and Lillie Banks testified that she did not give verbal consent over the phone to allow police to search her apartment. There is evidence that in some ways corroborates Agent Oakes's memory of his call with Banks. In the audio recording of Captain Hinojosa speaking with Jackson, at one point Agent Oakes can be heard saying that he had spoken with Lillie Banks and that she had agreed to a search of the entire apartment. Although this is a statement of Agent Oakes essentially corroborating himself, it is at least a contemporaneous recitation of the call.

         Although the Government says police had full consent to begin searching the apartment at that time, they did not immediately do so while Jackson was still present. Instead, Captain Hinojosa then told Jackson that police wanted to speak with him further at the police station. Jackson asked when, and Captain Hinojosa said “now.” Jackson testified that he did not feel the police asked so much as demanded that he accompany them. Jackson hesitated because he was the only person watching his five-year old cousin while Jackson's mother and grandmother were at the doctor's office. Police then agreed to try and contact them again to see if Jackson's cousin could be taken by police to the doctor's office, while Jackson went in another squad car to the Hammond Police Department. Jackson, who was wearing lounge clothes (it was before 9 a.m. when police showed up at his door) at the time, then asked police if he could change before going to the station. And while the testimony on this issue was not consistent, it seems Jackson was told he could change in the bathroom (instead of his bedroom where police had been searching for Jackson's gun), and he testified that a ...


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