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United States v. Hammonds

United States District Court, E.D. North Carolina, Southern Division

August 30, 2019

UNITED STATES OF AMERICA
v.
LEDGER LYNN HAMMONDS, JR., Defendant.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          Robert B. Jones Jr. United States Magistrate Judge

         This 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 part.

         I. PROCEDURAL BACKGROUND

         A Grand 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.

         II. STATEMENT OF FACTS

         A. The 2015 Interview

         On 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.

         Several 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.

         B. The 2017 Affidavit

         On June 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.

         Investigator 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.

         Investigator 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.

         Investigator 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] at 2.

         III. DISCUSSION

         A. The Motion for a Franks Hearing

         Defendant 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.

         "When 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).

         In 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 ...


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