IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA, :

:

PLAINTIFF, :

:

v. : CIVIL ACTION NO. 2:06cv736-WKW

:

SEVENTY FOUR THOUSAND SEVEN :

HUNDRED ($74,700) DOLLARS IN :

UNITED STATES CURRENCY, :

:

DEFENDANT. :

RESPONSE TO MOTION TO SUPPRESS

Comes now the United States of America (United States), by and

through Leura G. Canary, United States Attorney, Middle District of

Alabama, and John T. Harmon, Assistant United States Attorney, and

hereby responses as follows to Claimant’s Motion to Suppress:

I. Facts

On March 31, 2006, at approximately 8:40 a.m., Detective B.W.

Bartlett of the Montgomery Police Department (hereinafter, “MPD”)

obtained a document search warrant for 5304 West Shades Valley

Drive, Montgomery, Alabama (hereinafter, “Residence”). Another MPD

officer had the residence under surveillance during this period. At

approximately 8:45 a.m., this officer observed a Ford F-150 truck

pull into the driveway of the residence and saw a black male get

out of the truck and enter the residence.

Pursuant to the document search warrant, MPD officers

approached the residence at approximately 9:00 a.m. While the

officers were approaching, they observed two black males leaving

Case 2:06-cv-00736-WKW-SRW Document 18 Filed 05/21/2007 Page 1 of 8
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and going towards the truck. These men were Otis Jones and George

Edward Jones, III. George Jones saw the officers approaching, fled

into the backyard of the residence and jumped the fence. Two

officers pursued George Jones on foot. During the pursuit, they

saw him throw down a plastic bag. The officers were able to detain

George Jones and recover the plastic bag which contained an offwhite substance believed to be powder cocaine. Otis Jones was also

detained and the keys to the truck were found on his person.

Officers entered the residence to secure it. A large quantity

of cash was observed under a bed in the rear bedroom.

At approximately 9:15 a.m., an officer found a Glock 9mm

pistol in the truck. At approximately 9:30 a.m. two plastic bags,

containing a substance which appeared to be powder cocaine, were

found in a tool box on the truck.

Officers then sought and, at approximately 11:25 a.m., were

issued a drug search warrant for the residence. Cocaine powder and

plastic packaging containing cocaine residue were recovered from

various locations within the rear bedroom.

George Jones and Otis Jones were transported to the MPD

Narcotics Office. A law enforcement officer asked George Jones why

he had the defendant currency. George Jones stated an individual

known to him as “Boo” asked him to hold the currency. When asked

where “Boo” got the currency George Jones stated, “we all know

what’s going on .... it’s dope money.”

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Even if George Jones had sought suppression of the truck 1

evidence, his motion would have been in vain as he lacks standing

to object to this evidence. See U.S. v. Elmore, 304 F.3d 557 (6th

Cir. 2002).

George Jones does not allege that his statement was procured 2

in violation of his Miranda rights or that it was illegally

coerced.

3

Otis Jones denied any knowledge of the seized currency.

II. The Motion to Suppress

George Jones seeks to have evidence seized during the searches

of the residence and his person suppressed along with his

statements. He does not seek to have the evidence seized during

the search of the truck suppressed. See 2 a through e of Motion to

Suppress. See also Standing Order on Arraignment in the Middle 1

District of Alabama.

George Jones contends that the search warrants in this matter

were vague, overbroad and constitutionally imprecise. He also

alleges that the warrants lacked probable cause. He finally states

that the warrants fail to adequately describe the premises to be

searched “and/or” the things to be seized so as to be a general

warrant.2

George Jones does not specify the deficiencies noted above nor

does he allege any fact to support them. The only specific fact

alleged is that the affiant for the document search warrant was

“found to have given false testimony in an affidavit for a search

warrant, and that his credibility was subject to question” and that

this finding was not conveyed to the judge issuing the document

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George Jones supports this allegation by way of a 3

Recommendation of the Magistrate Judge issued in U.S. v. Williams,

Case No. 2:05cr68-T, Middle District of Alabama.

4

warrant. George Jones does not allege that anything in the 3

document search warrant is false. (Of course this alleged “finding”

has no impact upon the drug search warrant as the affiant there was

another police officer.).

A motion to suppress must in every critical

respect be sufficiently definite, specific,

detailed, and non-conjectural to enable the

court to conclude that a substantial claim is

presented. (cites omitted) In short, the

motion must allege facts which, if proven,

would provide a basis for relief.

U.S. v. Richardson, 764 F.2d 1514, 1527 (11 Cir. 1985). See also th

Standing Order on Arraignment, Middle District of Alabama.

The United States contends that the only issue properly before

the court is that dealing with the document search warrant

affidavit and the alleged failure to notify the issuing magistrate

of the Magistrate Judge’s Recommendation. All other grounds for

suppression should be summarily dismissed.

Without waiver of this position, the United States will

address the other grounds raised for suppression to the extent the

basis for them can be determined from the general and conclusory

assertions made in George Jones’s motion. Likewise, these

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conclusory assertions are founded upon mere suspicion and

conjecture which greatly hamper the United States’ ability to

respond.

III. Argument and Citation of Authority

A. The Search of George Jones’s Person

A law enforcement officer may arrest a person without a

warrant where an offense is committed by that person in the

presence of the officer and where the officer has probable cause to

believe the person has committed a felony. See United States v.

Humphries, 372 F.3d 653, 659-60 (4 Cir. 2004); Storck v. City of th

Coral Springs, 354 F.3d 1307, 1317 (11 Cir. 2003); See also United th

States v. Watson, 423 U.S. 411, 418, 422 n.11 (1976).

Officers saw George Jones fleeing from them and throwing

away a packet which appeared to contain drugs. Accordingly,

potential felony offenses were being committed in their presence

and they were authorized to make an arrest. Once they made the

valid arrest, they were authorized to conduct a search of the

arrestee. See United States v. Lyons, 403 F.3d 1248, 1254-55 (11th

Cir. 2005). Certainly the recovery of the cocaine thrown away by

George Jones was legal because it was abandoned. See United States

v. Tinoco, 304 F.3d 1088, 1117 (11 Cir. 2002). th

The arrest of George Jones was constitutional, no matter

what the court determines regarding the search of the residence.

Because George Jones does not even allege that his voluntary

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statement to the police regarding the source of the money was

coerced or otherwise illegally obtained, there is no basis to

suppress his statement.

B. The Drug Search Warrant

George Jones makes some conclusory and unsupported

assertions that the warrant is general and unspecific and lacks

probable cause. Because of the lack of specificity or factual

support for this assertion, the United States can only show that

this warrant and the affidavit comport to any reasonable

interpretations of constitutional requirements, particularly in

light of the discovery of narcotics described above.

Even should the court find a problem, the warrant cannot be

found to be so deficient that the “Good Faith Exception” to

suppression would not apply. See United States v. Leon, 468 U.S.

897 (1984).

C. The Document Search Warrant

The United States restates the argument found in III B

above and also asserts that, should the court find the warrant

deficient, the “Good Faith Exception” is applicable.

The United States will separately address the only

specific allegation supported by a detailed factual assertion made

by George Jones.

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By making this argument, the United States does not make any 4

representation or assertion that it agrees that the affiant officer

on the document search warrant was untruthful or reckless in the

criminal case which resulted in the Magistrate Judge’s Opinion.

7

George Jones does not show how this “finding” impinges on

the issue of the document search warrant. The affidavit 4

supporting this warrant does not reflect any personal observation

or determination made by the affiant. All the facts cited have to

do with the efforts of confidential sources, information given by

George Jones, and an arrest of George Jones. It is difficult to

see how the information regarding the recommendation could have had

any affect upon the issuing magistrate’s decision. See United

States v. Novaton, 271 F.3d 968, 987 (11 Cir. 2001)(Past th

reliability of informants not material when examined in the context

of all the information in the affidavit).

Finally, George Jones makes no assertion that any of the

evidence presented in the affidavit is false. Even if the matter

of the recommendation should have been presented to the issuing

magistrate, the fact that the allegations in the affidavit are true

overcomes any problem presented by such an omission.

Respectfully submitted this 21 day of May, 2007. st

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FOR THE UNITED STATES ATTORNEY

 LEURA G. CANARY

/s/John T. Harmon 

John T. Harmon

Assistant United States Attorney

Office of the United States Attorney

Middle District of Alabama

One Court Square, Suite 201 (36104)

Post Office Box 197

Montgomery, Alabama 36101-0197

Telephone:(334) 223-7280

Facsimile:(334) 223-7560

E-mail: John.Harmon@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that on May 21, 2007, I electronically filed

the foregoing Response to Motion to Suppress with the Clerk of the

Court using the CM/ECF system which will send notification of such

filing to the following: Bruce Maddox.

/s/John T. Harmon 

John T. Harmon

Assistant United States Attorney

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