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United States v. Moore

United States District Court, W.D. North Carolina, Statesville Division

January 7, 2015

UNITED STATES,
v.
MARK WESLEY MOORE.

ORDER

RICHARD L. VOORHEES, District Judge.

BEFORE THE COURT is a Motion to Suppress Tangible Evidence and Statements filed by Defendant. (Doc. 12). The Government filed a Response (Doc. 13), to which the Defendant replied (Doc. 14).

The Court held an evidentiary hearing on the Motion to Suppress on December 4, 2014, and the motion is now ripe for disposition. Having fully considered the arguments, evidence, and legal authorities, the Court will DENY the Defendant's Motion to Suppress.

I. BACKGROUND AND FACTUAL FINDINGS

On September 17, 2014, an Indictment was returned alleging that Defendant violated 18 U.S.C. § 922(g)(1) and 26 U.S.C. § 5861 by being a felon in possession of an unregistered shotgun having a barrel of less than eighteen (18) inches in length.

On December 4, 2014, the Court held an evidentiary hearing concerning Defendant's Motion to Suppress. Officer Tim Goodman, Detective Sergeant Tim Edwards, and Captain William Hamby testified at the hearing.

The Court finds that the Government's witnesses were credible.

On July 15, 2014, the United States Marshals Service, the United States Probation Office, the Iredell County Sheriff's Office, and the North Carolina Probation Office engaged in a joint operation for sex offender compliance checks in Iredell County. (Hr'g Tr. 5, 44-45, Dec. 4, 2014). Officers from the respective organizations split into several teams, each checking between eight to ten residences. (Hr'g Tr. 44-45). The purpose of the joint operation was to increase efficiency by allowing each organization to perform checks on individuals within their jurisdiction. (Hr'g Tr. 61). If the individual was under federal supervision, then the federal probation officer would take the lead role. (Hr'g Tr. 7). If the individual was under state supervision, then the North Carolina Probation officer would take the lead role. (Hr'g Tr. 66). If the sex offender was not under any form of probation, then the Iredell County Sheriff's Office would have the lead role in conducting the check. ( Id. ). Officers who did not take a lead role in the investigation provided assistance in a supporting role. (Hr'g Tr. 21).

One of the teams stopped at Defendant's home in the late afternoon. (Hr'g Tr. 18, 44). Defendant was not on federal supervised release or any form of probation. (Hr'g Tr. 8, 66). Therefore, the Iredell County Sheriff's Office was the lead agency in this compliance check. (Hr'g Tr. 66). Detective Sergeant Tim Edwards of the Iredell County Sheriff's Office was the lead officer. He was assisted by John Hill of the North Carolina Probation Office, Tim Goodman of the Federal Probation Office, and Deputy Officer Thomas Patrick of the United States Marshals Service. (Hr'g Tr. 6). Edwards had on his uniform and Patrick had a vest indicating that he was a Marshal. (Hr'g Tr. 6-7). All officers were armed and wore protective vests. (Hr'g Tr. 8, 25-26). No officer removed his service weapon from its holster or intentionally displayed it throughout their encounter with Defendant. (Hr'g Tr. 59).

This was not the first time Edwards encountered Defendant. He was present when Defendant was arrested in 2010 and has conducted some three or four sex offender compliance checks at his home since Defendant's release on January 3, 2012. (Hr'g Tr. 72-74). Defendant was typically cordial and friendly when he encountered Edwards. (Hr'g Tr. 43). Edwards never entered Defendant's residence prior to July 15, 2014. (Hr'g Tr. 90).

Edwards also has experience with joint operations. (Hr'g Tr. 63). He testified that the purpose of a compliance check is to ensure that the registrant actually lives at the residence at which he or she registered. (Hr'g Tr. 45, 69). The first sign of compliance is actual presence at the residence. (Hr'g Tr. 46). However, other evidence of actually residing in a location is the presence of personal effects needed for daily livelihood. (Hr'g Tr. 69-70). Edwards performs what he describes as a "walkthrough" to find these personal effects. (Hr'g Tr. 76). Normally, Edwards asks for permission to enter the residence to perform a walkthrough. (Hr'g Tr. 46). Not everyone allows him into the home. (Hr'g Tr. 47). When the team is refused entry it leaves unless the offender is also on probation.[1] ( Id. ).

On the day in question, the four officers arrived in two unmarked cars. (Hr'g Tr. 24, 93). The cars were parked in the only driveway to Defendant's home. (Hr'g Tr. 89). The officers got out of their vehicles and approached Defendant's residence. (Hr'g Tr. 8). There were two or three individuals already present on the front porch. (Hr'g Tr. 8, 28, 47). Edwards spoke to the individuals with Goodman behind him. (Hr'g Tr. 8, 28). The other officers were spread out for safety purposes. (Hr'g Tr. 9).

Then the Defendant came out onto the porch. (Hr'g Tr. 11, 95). Edwards engaged the Defendant and informed him that the officers were performing a compliance check and asked for permission to enter the home. (Hr'g Tr. 9, 11-12, 29). In his testimony, Edwards did not remember receiving explicit consent to enter the home. (Hr'g Tr. 47). However, he did testify that he would not have entered the home without permission to do so. (Hr'g Tr. 47, 86). Defense counsel confused Edwards at one point (Hr'g Tr. 70-72), but Edwards testified that he would not have entered the home without permission because he knows he does not have the lawful authority do so. (Hr'g Tr. 99). Goodman did remember Defendant giving permission to enter. Goodman stated that Edwards first informed the Defendant that the team was performing a compliance check. (Hr'g Tr. 12). Edwards said, "You don't mind if we look around, do you?" (Hr'g Tr. 9) or "Do you mind if we look around?" (Hr'g Tr. 29). The inflection in Edwards's voice made clear that he was asking a question and not making an order. (Hr'g Tr. 29). Defendant responded "Yeah, sure, fine." (Hr'g Tr. 9, 11). He appeared calm and was not confused by the question. (Hr'g Tr. 11). Neither he nor any of the people on the porch seemed surprised or concerned that the officers were going to enter the residence. (Hr'g Tr. 12-13). None of the officers threatened or appeared to threaten anyone. (Hr'g Tr. 14). No officer told Defendant that the sex offender statutes did not subject him to searches of his home. (Hr'g Tr. 29-30). However, Defendant had some notice of what North Carolina requires of a sex offender because he signed and initialed every page of a thirteen page acknowledgement form. Ex. 1. No officer told him that he could refuse consent. (Hr'g Tr. 30). Edwards did not require Defendant to sign a consent to search waiver form issued by the Iredell County Sheriff's Office. (Hr'g Tr. 80). However, there is no set policy requiring use of such form and he was not investigating a criminal matter. (Hr'g Tr. 49, 80). Nor did Edwards expect to find evidence of criminal activity. (Hr'g Tr. 98). Had Edwards been responding to a criminal complaint or executing a search warrant he would have been more likely to use a waiver. ( Id. ). Therefore, the fact that a consent waiver was not used does change the fact (or this Court's finding) that permission was actually granted.

After obtaining permission to enter, Goodman and Edwards walked through the doorway and into the living room. (Hr'g Tr. 12, 53). Hill and Patrick remained outside the residence with the individuals and the Defendant on the porch. (Hr'g Tr. 14-15). All of the individuals, including Defendant, remained cooperative. (Hr'g Tr. 37-38). None of them was restrained in any manner. (Hr'g Tr. 13, 51-52). Officers always have a concern for safety when performing a search; however, in this instance that the concern was not elevated. (Hr'g Tr. 33-35, 37-38, 40, 91). No individual, including Defendant, was ...


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