Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Plemmons

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

January 11, 2018

UNITED STATES OF AMERICA
v.
TIMOTHY LANE PLEMMONS, Defendant

          MEMORANDUM AND RECOMMENDATION

          Dennis L. Howell United States Magistrate Judge

         THIS MATTER is before the Court on Defendant's Motion to Suppress and Request for Evidentiary Hearing (# 10). The Government filed a Response (# 11). On September 19, 2017, the undersigned conducted an evidentiary hearing and heard evidence from the Government. Thereafter, Defendant filed a Brief in Support of his Motion to Suppress (# 18), and the Government filed a Response to Motion to Suppress (# 19).

         Having carefully considered the evidence and briefs the Court enters the following Findings, Conclusions and Recommendation.

         FINDINGS AND CONCLUSIONS

         I. Procedural Background

         Defendant is charged in a single-count bill of indictment (# 1), which alleges that on or about October 26, 2016, Defendant did knowingly and intentionally possess with intent to distribute a quantity of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). It was alleged that the offense involved in excess of 50 grams of actual methamphetamine.

         On May 24, 2017, Defendant filed the instant Motion to Suppress (#10), in which he objects to the results of a search made of his home being introduced into evidence. On May 31, 2017, the Government filed its Response (# 11) to the motion. The Court held an evidentiary hearing on September 19, 2017. On October 4, 2017, Defendant filed his Brief in Support of his Motion to Suppress (# 18), and on October II, 2017, the Government filed its Response (# 19).

         II. Factual Background

         A. Government's Evidence

         1. Jordan Fields

         Jordan Fields (“Officer Fields”) was called as a witness for the Government. (Hr'g Tr. 1-71, Sept. 19, 2017.) Officer Fields has been employed for four years as a supervisory probation officer for the North Carolina Department of Public Safety, Probation and Parole. (T. p. 4) Fields' duties include supervising offenders who are on probation or parole. (T. p. 4)

         There are conditions placed upon offenders who are on probation or parole, which are established by a Judgment entered by a judge. (Hr'g Tr. 5, Sept. 19, 2017.) Officer Fields was supervising Defendant pursuant to two convictions and judgments that had been entered against him. (Hr'g Tr. 6-13, Sept. 19, 2017; Gov.'s Exs. 1, 2 and 3.) In one Judgment Defendant had been placed on terms and conditions of probation as a result of his conviction of the crime of driving while impaired. (Hr'g Tr. 4-6, Sept. 19, 2017; Gov.'s Ex. 1.) In the second Judgment, Defendant was placed on probation for a felony conviction for habitual misdemeanor assault. (Hr'g Tr. 8-26, Sept. 19, 2017; Gov.'s Exs. 2, 3, 5, 6.)

         In each judgment, there are identical conditions of probation set forth as conditions nine and eleven, which read as follows:

(9) Submit at reasonable times to warrantless searches by a probation officer of the defendant's person and of the defendant's vehicle and premises while the defendant is present, for the purposes directly related to the probation supervision, but the defendant may not be required to submit to any other search that would otherwise be unlawful.
(11) Not use, possess, or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it, not knowingly associate with any known or previously convicted users, possessors, or sellers of any illegal drug or controlled substance; and not knowingly be present at or frequent any place where such illegal drugs or controlled substances are sold, kept or used.

(Gov.'s Exs. 1, 2.)

         The judgment entered for the conviction of driving while impaired was entered on February 22, 2016, by Buncombe County District Judge Edwin Dwayne Clontz, in file number 14CR4717. (Hr'g Tr. 5-7, Sept. 19, 2017; Gov.'s Ex. 1.) Defendant was placed on supervised probation for 12 months. (Gov.'s Ex. 1.) The judgment entered for the conviction of habitual misdemeanor assault was entered on February 19, 2016, by Superior Court Judge Jeffrey P. Hunt, in file number 15CRS620. (Hr'g Tr. 7-10, Sept. 19, 2017; Gov.'s Ex. 2.) The judgment placed Defendant on supervised probation for 36 months and ordered him to pay costs and attorney fees totaling $7, 703.00. (Hr'g Tr. 8-9, Sept. 19, 2017; Gov.'s Ex. 2.)

         On October 6, 2016, the terms and conditions in the judgment for file number 15CRS620 were modified by Superior Court Judge Alan Thornburg. (Hr'g Tr. 10-14, Sept. 19, 2017; Gov.'s Ex. 3.) The Order modifying the terms of probation was based upon the commission of violations of the terms and conditions of probation by Defendant. (Hr'g Tr. 12-13, Sept. 19, 2017; Gov.'s Ex. 3.) In the Order, Judge Thornburg found Defendant had violated the terms and conditions of probation, but continued Defendant on supervised probation. (Hr'g Tr. 13-14, Sept. 19, 2017.) Judge Thornburg included a special condition of supervised probation which stated:

The defendant's probation was continued; defendant was ordered to complete ninety days of electronic monitoring and to have a curfew of no later than 9:00 o'clock p.m. Once monies in full compliance defendant to be terminated successfully.

(Hr'g Tr. 13-14, Sept. 19, 2017; Gov.'s Ex. 3.)

         It was the understanding of Officer Fields that if Defendant completed his ninety-day period of electronic monitoring and curfew and paid his costs and attorney fees, Defendant's supervised probation was to be successfully terminated. (Hr'g Tr. 13-14, 47-53, Sept. 19, 2017.) Upon completion of the terms of probation by Defendant, Officer Fields would need to complete a modification form and then obtain the signature of a judge on that document. (Hr'g Tr. 16, 49-53, Sept. 19, 2017.)

         Officer Fields testified that on September 9, 2016, he had a conversation with Buncombe County Sheriff Deputy Sgt. Tray McDonald concerning Defendant. (Hr'g Tr. 26-27, 53-54, Sept. 19, 2017.) Deputy McDonald told Officer Fields that a person who had been arrested by the Sheriff's Department had been interviewed at the Buncombe County Jail ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.