United States District Court, E.D. North Carolina, Southern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
B. Jones Jr. United States Magistrate Judge
matter comes before the court on Defendant Ledger Lynn
Hammonds, Jr. 's motion for production of evidence;
motion to suppress and for a hearing under Franks v.
Delaware, 438 U.S. 154 (1978); motion for a notice of
intention to use 404(b) evidence; motion for release of
perjured information to Grand Jury; motion for leave to file
further pretrial motions; and motion to sequester witnesses.
[DE-41, -42, -44, -45, -46, -47]. The Government responded in
opposition to the motion to suppress and for a
Franks hearing. [DE-50]. For the reasons that
follow, the motion for production of favorable evidence and
impeachment evidence [DE-41] is allowed in part and denied in
part; the motion for a Franks hearing [DE-42] is
denied; it is recommended that the motion to suppress [DE-42]
be denied; the motion for notice of intention to use 404(b)
evidence [DE-44] is allowed in part and denied in part; the
motion for release of perjured information to Grand Jury
[DE-45] is denied; the motion for leave to file further
pretrial motions [DE-46] is denied; and the motion to
sequester witnesses [DE-47] is allowed in part and denied in
Jury sitting in the Eastern District of North Carolina
returned a one-count indictment charging Defendant with
possession of a firearm by a convicted felon, in violation of
21 U.S.C. §§ 922(g)(1) and 924(a)(2). [DE-1].
Defendant filed the instant motions, [DE-38, -41, -42, -44,
-45, -46, -47], and the court continued the arraignment until
a date to be set no sooner than forty-five days after the
court's ruling on the pending motions. [DE-43]. The
Government opposes the motion to suppress and for a
Franks hearing, and the Government did not respond
to Defendant's other motions. [DE-50]. The deadline for a
response has passed, and the pending motions are now ripe.
STATEMENT OF FACTS
The 2015 Interview
October 8, 2015, Defendant's uncle, Ronald Hammonds
("Ronald"), was interviewed by Detective Mike Ellis
of the Robeson County Sheriffs Department concerning an
investigation into animal cruelty. [DE-42-5]. During the
interview, Ronald told Detective Ellis that he owned a herd
of buffalo and that he had discovered two of them dead in
July 2015, one of which had been decapitated. Id. at
3:15-22. Ronald told Detective Ellis that although he did not
suspect anyone at the time of the incident, the
twelve-year-old son of his nephew's brother-in-law
admitted to decapitating the buffalo. Id. at
5:19-22. Ronald told Detective Ellis further that in
September 2015, Ronald had seen someone with a flashlight
near his pasture at night, and he heard a gunshot.
Id. at 10:10-18. During the interview, Ronald first
identified Defendant's brother Joshua Hammonds
("Josh") as the culprit, then corrected himself and
stated that it was Defendant. Id. at 10:16-11:9.
Ronald stated that on the evening in question he saw
Defendant holding two items, one of which was a flashlight
and one of which could have been a rifle, but Ronald admitted
he could not see clearly. Id. at 11:16-22. According
to Ronald, the following day he discovered that one of his
buffalo had been shot. Id. at 12:14-16.
times during his interview with Detective Ellis, Ronald
confused Josh's and Defendant's names and corrected
himself. Id. at 30:21-24, 32:11-14, 34:21-22,
35:23-24, 40:25- 41:5. Ronald told Detective Ellis that he
had never seen Defendant shoot a firearm but that on one
occasion he saw Defendant carry a rifle while riding a horse.
Id. at 31:2-19. In fact, Ronald told Detective Ellis
that he recognized the gun as his and that it had been
stolen. Id. Ronald also told Detective Ellis that
when Defendant entered his property the day prior to the
interview, Ronald pointed a gun at Defendant, told him to
leave, and fired a shot over his head. Id. at
34:1-6. Ronald repeated that he had never seen Defendant
shoot a firearm. Id. at 35:8-11.
The 2017 Affidavit
27, 2017, Investigator Erich Von Hackney of the Robeson
County District Attorney's Office submitted an affidavit
requesting a warrant to search Defendant's home.
[DE-42-3]. Investigator Von Hackney stated in the affidavit
that in 2013, Ronald reported that he suspected Defendant of
deer hunting and trespassing on his property. Id. at
2. According to the affidavit, Defendant and Josh live near
Ronald's property. Id. In July 2015, Ronald
found that three of his buffalo had been killed, and one had
been decapitated. Id. According to the affidavit, in
September 2015, Ronald reported to the Robeson County
Sheriffs Office that he heard a gunshot at night near the
back of his pasture in the area where Defendant and Josh
live. Id. at 2-3. The next day, Ronald found that
another buffalo had been killed. Mat 3. Ten days later,
Ronald found yet another dead buffalo, and he reported to the
Robeson County Sheriffs Office that he witnessed
"them" shoot the buffalo. Id. When asked
who "they" were, Ronald identified Defendant and
said that he observed Defendant shoot a pistol. Id.
In August 2016, Ronald reported that firearms were discharged
near the trailer where Defendant and Joshua live.
Id. In May 2017, Ronald reported that two more
buffalo had been killed. Id. at 3-4. In June 2017,
another buffalo was shot. Id. at 4.
Erich Von Hackney spoke with Ronald in June 2017.
Id. Ronald said that six or seven years ago, he
purchased a rifle, and approximately a year after the
purchase, he saw Defendant holding a rifle, and he noticed
that his rifle had been stolen. Id. Additionally,
Ronald's brother, Cordell Hammonds ("Cordell"),
lives near his property. Id. at 5. One year
previously, one of Cordell's cows was shot, and three
months previously, Cordell's dog was shot. Id. A
firearm was once discharged into a house adjacent to
Ronald's property. Id.
Erich Von Hackney stated in his affidavit that Katherine
Floyd, the Robeson County Animal Cruelty Investigator, told
him that she had observed Defendant in possession of a
firearm on two occasions. Id. at 6. In particular,
on or about May 24, 2017, she saw Defendant operate a dirt
bike with-a firearm in a holster on his right side.
Id. In September 2015, Floyd saw Defendant riding a
horse with a firearm in a hip holster. Id.
Von Hackney stated that based on that information, there was
probable cause to believe Defendant had committed the crimes
of cruelty to animals and possession of a firearm by a
convicted felon. Id. at 7. A North Carolina
magistrate issued a warrant authorizing a search of
Defendant's home. [DE-42-4]. The warrant was executed on
June 28, 2017, and a rifle and handgun were seized. [DE-50]
The Motion for a Franks Hearing
requests a Franks hearing because the search warrant
affidavit contained misrepresentations and omissions. [DE-42]
at 8-1.3. The Fourth Amendment provides that "[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated ...." U.S. Const, amend.
IV The Supreme Court has interpreted the Fourth Amendment to
establish three requirements for warrants: they must (1) be
issued by neutral, disinterested magistrates; (2) be
supported by probable cause; and (3) particularly describe
the place to be searched and the things to be seized.
United States v. Dalia, 441 U.S. 238, 256 (1979)
(citations and quotations omitted). Probable cause is
"not defined by bright lines and rigid boundaries [,
]" but instead "allows a magistrate to review the
facts and circumstances as a whole and make a common sense
determination of whether 'there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.'" United States v.
Williams, 974 F.2d 480, 481 (4th Cir. 1992) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)).
"[P]robable cause is a flexible, common-sense standard
.... [that] merely requires that the facts available to the
officer would 'warrant a man of reasonable
caution'" to believe that evidence of a crime may be
discovered and does not require "any showing that such a
belief be correct or more likely true than false."
Texas v. Brown, 460 U.S. 730, 742 (1983) (quoting
Carroll v. United States, 267 U.S. 132, 162 (1925));
see also Williams, 974 F.2d at 481. Sufficient
information must be presented to the magistrate to allow for
the exercise of independent judgment; the magistrate cannot
simply ratify the bare conclusions of others. Gates,
462 U.S. at 239.
reviewing the probable cause supporting a warrant, a
reviewing court must consider only the information presented
to the magistrate who issued the warrant." United
States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996)
(citing United States v. Blackwood, 913 F.2d 139,
142 (4th Cir. 1990)). Since probable cause is evaluated
through a "totality of circumstances" analysis and
based on a person's common sense, great deference is
accorded to a magistrate's assessment of the facts before
him. United States v. Montieth, 662 F.3d 660, 664
(4th Cir. 2011) (citing Gates, 462 U.S. at 230;
Blackwood, 913 F.2d at 142). The court's review
is therefore limited to whether there was a "substantial
basis for determining the existence of probable cause."
Id. (quoting Gates, 462 U.S. at 239).
Franks v. Delaware,438 U.S. 154 (1978), the Supreme
Court established certain "narrowly-defined
circumstances" under which a defendant may attack a
facially valid search warrant. United States v.
Colkley,899 F.2d 297, 300 (4th Cir. 1990) (citing
Franks, 438 U.S. at 171-72). To demonstrate
entitlement to a hearing, a defendant must make "a
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant
affidavit." Franks, 438 U.S. at 155-56.
Additionally, the false information must be essential to the
court's determination of probable cause; in other words,
"if, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to
support a finding of probable cause, no hearing is
required." Colkley, 899 F.2d at 300 (quoting
Franks, 438 U.S. at 171-72); see United States
v. Friedemann,210 F.3d 227, 229 (4th Cir. 2000)
("Franks thus serves to prevent the admission
of evidence obtained pursuant to warrants that were issued
only because the issuing magistrate was misled into believing
that there existed probable cause."). The ...