United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
JOE L. WEBSTER, Magistrate Judge.
This case came before the Court on September 12, 2014, on a motion for detention by the United States, pursuant to 18 U.S.C. § 3142(f) and a preliminary examination hearing pursuant to Fed. R. Crim. P. 5.1. At the end of the hearing, the undersigned United States Magistrate Judge orally found that probable cause supports charges against Defendant and ordered Defendant's detention pending disposition of this case because clear and convincing evidence established that no condition or combination of available conditions of release would reasonably assure the safety of other persons and the community, and assure Defendant's appearance at trial or other proceedings in this matter. The Court now enters this written order memorializing that ruling as required by 18 U.S.C. § 3142(i)(1).
On September 4, 2014, the Court (per the undersigned United States Magistrate Judge) issued a Criminal Complaint charging Defendant with one count of possession of firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), one count of maintaining a drug involved premises, in violation of 21 U.S.C. § 856(a)(1), and one count of carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 924(c)(1)(C) (see Docket Entry 1 at 1) based on a sworn affidavit by a law enforcement officer (see id. 1 at 2-14.) At his initial appearance on September 5, 2014, the Court advised Defendant of the matters required under Federal Rule of Criminal Procedure 5(d)(1), including his right to a hearing on the issue of release or detention and to a preliminary hearing to contest the issue of probable cause, as well as the setting of those proceedings for September 12, 2014. (See Docket Entry 6.) Defendant was appointed counsel at the hearing, but he later retained private counsel. (See Docket Entries 5, 7, and 9.)
In advance of the hearing, a United States Probation Officer assigned to the Pretrial Services Unit prepared a report regarding Defendant's history, residence, family ties, employment history, financial resources, health (including as it relates to mental health and substance abuse issues), and prior record. Both parties had an opportunity to review that report before the hearing. At the hearing, Defendant conceded the accuracy of the Pretrial Services report.
At the hearing, Defendant was "afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear[ed] at the hearing, and to present information by proffer or otherwise." 18 U.S.C. § 3142(f). The United States called (and, through his counsel, Defendant cross-examined) Special Agent Thomas Brereton, with the Federal Bureau of Investigation ("FBI"), who investigated this matter and reviewed reports related to the case.
II. PROBABLE CAUSE DETERMINATION
At the hearing, Agent Brereton testified at length about the investigation leading to Defendant's arrest. According to Agent Brereton, on August 10, 2014, he received information from Kelly Recotta, Defendant's former girlfriend and mother of his 13-year old son, regarding Defendant's possession of firearms. Agent Brereton testified that Ms. Recotta stated she had recently visited her son at Defendant's home. Ms. Recotta informed Agent Brereton that Defendant had a marijuana grow operation at his residence, that he was in possession of multiple firearms, and that she was afraid of Defendant. Agent Brereton testified that he knew Ms. Recotta to be a truthful and reliable source because she had previously provided information to him involving a 2002 armored car robbery in Rowan County, which ultimately resulted in Defendant's arrest and conviction.
After receiving the information from Ms. Recotta, Agent Brereton contacted the Rowan County Sheriff's Department, and a search warrant was executed on August 13, 2014 by the state authorities at Defendant's residence at 475 Collins Road, China Grove, North Carolina. During this search, 20 firearms were recovered from Defendant's residence. Rowan County detectives also found 33.8 grams of marijuana during the search of the residence. In a subsequent search warrant executed by the federal authorities on September 5, 2014, agents discovered an additional six weapons in a safe inside Defendant's residence. Agent Brereton also testified that a neighbor of Defendant told investigators that she had observed Defendant walking around his property with firearms, that Defendant often fired weapons on the property, and in fact that Defendant taught her how to shoot a gun and had given her a shotgun.
Agent Brereton further testified that another witness, who was a known associate of Defendant's, was questioned. This witness was with Defendant on June 22, 2014 when he was arrested on state charges for felony possession and intent to distribute marijuana. Agent Brereton testified that the witness told investigators that he knew Defendant to carry weapons on his person and that he had personally observed Defendant carrying a concealed weapon at a bar. The witness described at least one weapon which was consistent with a firearm which was seized from Defendant's residence in the search conducted by state officers on August 13, 2014. The witness also described a hidden compartment inside the closet at Defendant's residence. According to Agent Brereton, this witness also related a discussion he had with Defendant regarding the marijuana grow operation and the witness also stated that he had personally observed Defendant tend to the marijuana grow operation on his property.
During the search pursuant to the federal search warrant on September 5, 2014, in addition to the weapons seized, agents found what were described as grow lights and a scale, consistent with a marijuana grow operation, in the outdoor shed on the property where Defendant resided. Agent Brereton described these lights as hanging fixtures with a dome type reflector, two of which were dismantled, the other one intact and lying on the ground.
Agent Brereton also testified that when he questioned Defendant, he admitted that he carried weapons and that he had weapons in his bedroom, and further admitted that he taught his neighbor to shoot and gave her a gun. Additionally, Defendant reported to the agents that there were more firearms in a safe in the residence. These weapons were recovered by the federal officers in the search conducted on September 5, 2014.
Probable cause has been defined as "reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. 10.10 Acres Located on Squires Rd. in Cheeks Tap., Orange County, NC., 386 F.Supp.2d 613, 617 (M.D. N.C. 2005) (citing United States v. $95, 945.18, 913 F.2d 1106, 1110 (4th Cir. 1990)). The record here supports a finding of probable cause as to the charges in the Criminal Complaint. The testimony of Agent Brereton, together with his affidavit, suggests a reasonable ground for belief that Defendant committed the crimes which are charged. Multiple witnesses informed law enforcement that they had seen Defendant carrying weapons and knew that there were many weapons in his residence. Indeed, a significant number of firearms were recovered during the two searches of Defendant's home; many of the weapons were out in the open in the home, suggesting Defendant had access to them. Defendant himself informed law enforcement about the weapons in the safe inside the home. Additionally, there were some items recovered which suggested a grow operation on the property, and at least three separate witnesses had told officers that Defendant was engaged in growing marijuana on the property. As for the charge of carrying a firearm in relation to drug trafficking, there was evidence provided to law enforcement from witnesses that Defendant carried a firearm while walking on his property and ...