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. Smith

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

July 5, 2018

UNITED STATES OF AMERICA
v.
DENISE ANN SMITH, Defendant.

          MEMORANDUM AND RECOMMENDATION

          Dennis L. Howell, United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion to Suppress (# 23) and Memorandum in Support. The Government filed a Response (# 26). On April 24, 2018, the undersigned conducted a hearing and heard evidence from the Government and Defendant. Post-hearing, Defendant filed a Brief In Support Of Motion To Suppress (# 38), and the Government filed a Supplemental Response To Defendant's Brief (# 40). Having carefully considered the evidence and arguments of counsel, the Court enters the following Findings, Conclusions, and Recommendation. FINDINGS AND CONCLUSIONS

         I. Procedural Background

         Defendant is charged in one count of an eight-count Bill of Indictment (# 1). In particular, Defendant is charged in Count One with making a false and fictitious written statement to American Tactical and Pawn, a licensed dealer of firearms, in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 924(a)(2).

         On March 21, 2018, Defendant filed her Motion to Suppress (# 23), in which she moves to suppress all physical evidence seized as the result of the March 13, 2017 search of her home and all statements made by her and her son, Michael Smith, to law enforcement officers during the search.[1] On March 28, 2018, the Government filed its Response to Defendant's Motion (# 26).

         On April 24, 2018, the Court held a hearing on Defendant's Motion. At the end of the hearing, Defendant's counsel made an oral motion for leave to file an additional brief. On April 25, 2018, the oral motion was granted by written order (# 36).

         On May 6, 2018, Defendant filed a “Brief In Support Of Motion To Suppress” (# 38). On May 11, 2018, the Government filed a “Supplemental Response To Defendant's Brief” (# 40).

         II. Factual Background

         A. John McIntyre

         John McIntyre (“Officer McIntyre”) was called as a witness for the Government. (Apr. 24, 2018 Hr'g Tr. at 36-103.) Officer McIntyre has been employed for twenty years as a law enforcement officer with the Cleveland County Sheriff's Office. (Apr. 24, 2018 Hr'g Tr. at 37.) In February 2017, Officer McIntyre was a lieutenant over the Investigations Division. (Apr. 24, 2018 Hr'g Tr. at 37.)

         In early 2017, Officer McIntyre received a Crime Stoppers tip, which stated that Brandon Randall, who lived at Towery Road in Shelby, North Carolina, was dealing drugs and firearms. (Apr. 24, 2018 Hr'g Tr. at 38.) On February 22, 2017, Officers with the Cleveland County Sheriff's Office began surveillance on the Towery Road home. (Apr. 24, 2018 Hr'g Tr. at 39, 45.)

         While watching Randall's home, Officer McIntyre noticed a vehicle go into the driveway of the home, stay a short period of time, and leave. (Apr. 24, 2018 Hr'g Tr. at 39.) Based upon Officer McIntyre's experience, he suspected drug activity and decided to follow the vehicle. (Apr. 24, 2018 Hr'g Tr. at 39-40.) A check of the vehicle's registration tag showed the tag was registered to a Chevrolet vehicle that had been placed on a Dodge vehicle. (Apr. 24, 2018 Hr'g Tr. at 40.) Based on this observation, Officer McIntyre stopped the vehicle. (Apr. 24, 2018 Hr'g Tr. at 40.)

         Officer McIntyre discovered a “Mr. Queen” was operating the vehicle, and Queen's driver's license had been revoked. (Apr. 24, 2018 Hr'g Tr. at 40.) Queen told Officer McIntyre that he had gone to the Randall residence on Towery Road to purchase marijuana, but Randall was not at home. (Apr. 24, 2018 Hr'g Tr. at 40.) Queen informed Officer McIntyre that Queen was now on his way to another location where Randall sold marijuana, which was 216 Dellinger Road, Shelby, North Carolina. (Apr. 24, 2018 Hr'g Tr. at 41.) Queen also stated that Randall was known to deal drugs out of both locations. (Apr. 24, 2018 Hr'g Tr. at 41.)

         Officer McIntyre released Queen and traveled to 216 Dellinger Road, Shelby, North Carolina to determine if Randall was present at that residence. (Apr. 24, 2018 Hr'g Tr. at 41.) At the residence, Officer McIntyre saw a green Nissan vehicle that was owned by Defendant. (Apr. 24, 2018 Hr'g Tr. at 42.) A black Impala vehicle then arrived, stayed a few minutes, and left, which was consistent with a drug transaction. (Apr. 24, 2018 Hr'g Tr. at 42.)

         Officer McIntyre followed the Impala and saw the driver almost hit another vehicle near an Arby's restaurant. (Apr. 24, 2018 Hr'g Tr. at 42.) Officer McIntyre proceeded to stop the Impala and talked to the driver. (Apr. 24, 2018 Hr'g Tr. at 43.) The driver seemed very nervous. (Apr. 24, 2018 Hr'g Tr. at 43.)

         When the driver stepped out of the vehicle, Officer McIntyre noticed a cellophane baggie in the door handle, which was consistent with the type bag used to store drugs. (Apr. 24, 2018 Hr'g Tr. at 44.) The driver stated that there was Xanax in the bag, and he did not have a prescription for the Xanax. (Apr. 24, 2018 Hr'g Tr. at 44.) The driver also stated that his female passenger had non-tax paid white liquor in her possession. (Apr. 24, 2018 Hr'g Tr. at 44.) Both the driver and the passenger stated they had bought the Xanax and the non-tax paid white liquor from Randall at the residence on 216 Dellinger Road. (Apr. 24, 2018 Hr'g Tr. at 44.) The Xanax and non-tax paid white liquor were seized by Officer McIntyre. (Apr. 24, 2018 Hr'g Tr. at 44-45.)

         The driver and the female passenger agreed to serve as confidential informants for Officer McIntyre. (Apr. 24, 2018 Hr'g Tr. at 44-45.) The driver made a monitored call to Randall and asked to return to the 216 Dellinger Road home to purchase marijuana. (Apr. 24, 2018 Hr'g Tr. at 45.) The driver, the female passenger, and the Impala were searched by officers. (Apr. 24, 2018 Hr'g Tr. at 46) They were given audio and video recording equipment, and the driver and female passenger traveled back to the 216 Dellinger Road. (Apr. 24, 2018 Hr'g Tr. at 46.)

         The driver and female passenger went inside the home and used sixty dollars in currency provided by Officer McIntyre to purchase marijuana from Randall. (Apr. 24, 2018 Hr'g Tr. at 47.) The driver and female passenger then left the 216 Dellinger Road residence and met with Officer McIntyre and delivered the marijuana to him. (Apr. 24, 2018 Hr'g Tr. at 47-48) The driver stated he bought the marijuana from Randall and that Michael Smith, Defendant's son, was present during the purchase. (Apr. 24, 2018 Hr'g Tr. at 47-48.) The driver further stated that he saw more marijuana, Ecstasy pills, and white non-tax paid liquor in the home. (Apr. 24, 2018 Hr'g Tr. at 49.)

         On February 27, 2017, Officer McIntyre, through the driver of the Impala who was an informant, attempted to contact Randall to purchase more illegal substances. (Apr. 24, 2018 at 49-50.) The plan was for the informant and an undercover investigator, Travis Glover, to travel to the residence at 216 Dellinger Road and purchase illegal substances. (Apr. 24, 2018 Hr'g Tr. at 50.) The informant and Officer Glover were provided with audio and video recording equipment and United States currency to make the purchase. (Apr. 24, 2018 Hr'g Tr. at 50-51.)

         Upon arrival at the home, the informant and Officer Glover went inside and had a conversation with Michael Smith. (Apr. 24, 2018 Hr'g Tr. at 51.) Michael Smith stated that Randall was not there. (Apr. 24, 2018 Hr'g Tr. at 51.) Michael Smith was asked to contact Randall to see if the purchase of illegal substances could be made from Randall. (Apr. 24, 2018 Hr'g Tr. at 52.) Officer McIntyre could hear the conversation from the audio recording equipment. (Apr. 24, 2018 Hr'g Tr. at 52.) Michael Smith called Randall on the telephone and told him the informant and the undercover investigator wanted to purchase all the Ecstasy that Randall had. (Apr. 24, 2018 at 52.) Both the informant and the undercover investigator showed Michael Smith the currency, and Michael Smith verified to Randall that the potential purchasers had the cash necessary to buy the controlled substances. (Apr. 24, 2018 Hr'g Tr. at 53.) During the conversation, the informant and the investigator commented that the marijuana they were seeing at Michael Smith's home was “not any good.” Michael Smith spoke into the phone and told Randall, “That is your marijuana they are talking about.” (Apr. 24, 2018 Hr'g Tr. at 53.)

         The undercover investigator and the informant then traveled to the home of Randall located at Towery Road. (April 24, 2018 Hr'g Tr. at 53.) Randall came out to the vehicle and sold Ecstasy pills, Hydrocodone pills, and Xanax to the undercover investigator and the informant. (Apr. 24, 2018 Hr'g Tr. at 54.) Randall also brought out a MAC-10 firearm and a pistol with him. (Apr. 24, 2018 Hr'g Tr. at 54.) Randall is a convicted felon. (Apr. 24, 2018 Hr'g Tr. at 54-55.) On March 9 and 10, 2017, undercover investigator Glover purchased additional controlled substances and a .45 caliber firearm from Randall. See Gov. Ex. 4. (Apr. 24, 2018 Hr'g Tr. at 56.)

         On March 10, 2017, undercover investigator Glover made arrangements to purchase Ecstasy pills from Randall. (Apr. 24, 2018 Hr'g Tr. at 57.) During the purchase, Randall was arrested. (Apr. 24, 2018 Hr'g Tr. at 57.) Randall told Officer McIntyre that he wished to speak to the officers, and Randall was taken to Officer McIntyre's office. (Apr. 24, 2018 Hr'g Tr. at 57.) Officer Gordan went to search Randall's home on Towery Road. (Apr. 24, 2018 Hr'g Tr. at 57.)

         After a search of the home at Towery Road, Officer McIntyre made an inventory of the items seized, which included cash that had been hidden in the home containing serial numbers consistent with the cash that had been used to make the purchases of the controlled substances from Randall. (Apr. 24, 2018 Hr'g Tr. at 58-59.) Officer McIntyre was also advised that the officers had found a Smith & Wesson AR-15 assault-style rifle. (Apr. 24, 2018 Hr'g Tr. at 59.) The officers also found a purchase order or receipt for that specific firearm showing that the purchaser of the firearm was Denise Ferrer Smith, Defendant. See Gov. Ex. 9. (Apr. 24, 2018 Hr'g Tr. at 59, 76.)

         On March 10, 2018, Officer McIntyre listened to a recorded call made by Randall from the Cleveland County Jail. (Apr. 24, 2018 Hr'g Tr. at 60.) In the call to Randall's mother, Randall stated he “wanted his ‘AR' back.” (Apr. 24, 2018 Hr'g Tr. at 61.) On March 13, 2017, Officer McIntyre heard Randall ask his father to go to Mike Smith's house and collect Randall's money. (Apr. 24, 2018 Hr'g Tr. at 61.)

         Officer McIntyre testified that he decided there was probable cause to believe that there might be evidence of criminal activity located at 216 Dellinger Road based upon the following: (1) the purchase of drugs and illegal non-tax paid liquor located at the residence; (2) the fact that Randall might have stored firearms at the residence; and (3) Defendant was named as the purchaser of the AR-15 assault rifle. (Apr. 24, 2018 Hr'g Tr. at 62.) Officer McIntyre prepared and obtained a search warrant for the search of the residence at 216 Dellinger Road at 3:15 p.m. and executed the search warrant at 3:39 p.m. on March 13, 2018. See Gov. Ex. 4. (Apr. 24, 2018 Hr'g Tr. at 62-63.)

         When serving the search warrant, Officer McIntyre, Officer Gordan, Officer Glover, and three uniformed officers went to the home located at 216 Dellinger Road to execute the search warrant. (Apr. 24, 2018 Hr'g Tr. at 63-64.) Present at the home was Defendant; Defendant's husband; Defendant's son, Michael Smith; and another lady. (Apr. 24, 2018 Hr'g Tr. at 64.) Officer McIntyre asked Michael Smith if he would talk to him. (Apr. 24, 2018 Hr'g Tr. at 65.) Michael Smith and Officer McIntyre then walked outside of the home and sat in Officer McIntyre's minivan, which was parked in the driveway of the residence. (Apr. 24, 2018 Hr'g Tr. at 66.)

         Officer McIntyre recorded the interview with Michael Smith on his cell phone. See Gov.'s Ex. 2. (Apr. 24, 2018 Hr'g Tr. at 66.) Michael Smith was not under arrest, and he was advised he was free to go. (Apr. 24, 2018 Hr'g Tr. at 68.) Officer McIntyre did not make threats or promises to Michael Smith. (Apr. 24, 2018 Hr'g Tr. at 67.)

         During the interview, Michael Smith told Officer McIntyre that he had known Randall for a little over a year. Michael Smith met Randall at the home of a neighbor to whom Randall was selling drugs. Michael Smith stated that he would purchase fifty dollars of marijuana from Randall each week. This had occurred over a two or three-month period before March 13, 2017. Randall began to use Defendant's home at 216 Dellinger Road to sell drugs. Randall would come to the home each day, and at least three people per day would come to the residence to purchase drugs from Randall. See Gov. Ex. 2.

         When questioned about Randall's possession of guns, Michael Smith stated Randall had possessed a MAC-10 weapon, but he had sold it to an informant. Michael Smith stated Randall wanted him to purchase firearms and sell them to persons from Florida, where Randall obtained the controlled substances he sold. Randall then asked Michael Smith to purchase an AR-15 assault rifle for Randall. Michael Smith knew that Randall was a convicted felon and could not lawfully purchase a firearm. Michael Smith told Randall he would ask his mother, Defendant, to purchase the firearm for Randall. Michael Smith then lied to his mother and asked her to purchase the firearm for Michael Smith and did not ask her to purchase it for Randall.

         Michael Smith stated that Defendant agreed to purchase the firearm for Michael Smith, but only if the firearm was secured at Randall's residence by Randall's father. According to Michael Smith, Defendant talked to Randall's father, who agreed to keep the firearm inside of Randall's father's gun safe. At the Smith home, Randall gave Defendant $900.00 to purchase the firearm. Randall, Michael Smith, and Defendant then went together to purchase the firearm, which was selected by Randall, a Smith & Wesson AR-15 assault rifle. After the purchase of the weapon, Defendant carried the firearm out of the store. The rifle was then taken by Randall to his father's home. When questioned about his possession of money owned by Randall, Michael Smith stated Randall had brought him $1, 300.00 in currency and some drugs to hold while Randall went with his girlfriend to visit some of her friends.

         Later that same day, Randall came back to Defendant's home and took back the money and drugs. Michael Smith was then asked by Officer McIntyre and Officer Gordan if Michael Smith would ask his mother, Defendant, if she would speak to the officers. Michael Smith left the minivan and went to get his mother. See Gov. Ex. 2. (Apr. 24, 2018 Hr'g Tr. at 68-92.)

         Defendant came to the minivan to meet with the officers. (Apr. 24, 2018 Hr'g Tr. at 69, 92.) A recording of Defendant's interview was introduced into evidence. See Gov.'s Ex. 1. In the recording, Officer McIntyre can be heard telling Defendant that she was not under arrest, and the officers were performing an investigation about drugs and guns.

         Officer McIntyre told Defendant, “We would like to speak with you.” Defendant responded, “I have no problem.” Defendant was then asked about her knowledge of Randall selling drugs. Defendant stated that she had seen him with a bag of Xanax pills and a big bag of marijuana. Randall had told Defendant that he obtained drugs from a friend and sold them.

         With respect to firearms, Defendant stated she obtained a gun for Randall about a month ago. Defendant stated that she was asked to purchase the gun for Randall because she could buy the firearm legally. Defendant stated Randall could not purchase a firearm because he had been in jail. Defendant knew Randall was on probation because she had taken him to visit his probation officer on two occasions. Randall went with Defendant, and he picked out the firearm he wanted purchased. Randall stated to Defendant that he knew the people at the pawn shop where the firearm was purchased. Defendant did not know the name, type, or caliber of the firearm that was purchased. When the interview was complete, Defendant was thanked by the officers, and she replied that the officers were very welcome and requested the officers provide her a card, so she could contact them if she thought of something else. See Gov.'s. Ex 1. Defendant was then allowed to leave, and she was not arrested. (Apr. 24, 2018 Hr'g Tr. at 71.) During the interview, no threats were made to Defendant, and she seemed sober, awake, and willing to talk to the officers. (Apr. 24, 2018 Hr'g Tr. at 70.)

         The search of 216 Dellinger Road took a little over an hour. (Apr. 24, 2018 Hr'g Tr. at 71, 88.) The officers found non-tax paid white liquor and some marijuana and ...


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.