IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATE OF AMERICA )

)

v ) CR. NO. 2:06cr198-WKW

) (WO)

RONALD MCQUEEN )

RECOMMENDATION OF THE MAGISTRATE JUDGE

The defendant, Ronald McQueen (“McQueen”), is charged in a one-count indictment

with possession with intent to distribute cocaine and marijuana in violation of 28 U.S.C. §

841(a)(1). On September 13, 2006, the defendant filed a motion to suppress, in which he

asserts that the search warrant for a search of his residence was unconstitutionally deficient

and that the affidavit filed in support of the warrant did not establish probable cause. (Doc.

No. 23.) He also contends that the police lacked probable cause to stop and search his

vehicle. Finally, he asserts that the search of his mother’s residence was illegal because the

police failed to obtain proper consent to search his bedroom. The court held an evidentiary

hearing on the motion on November 13, 2006. Based on the motion, the evidence presented

to the court and the briefs and argument of the parties, the court concludes that the motion

to suppress is due to be denied.

FACTS

In June 2006, Montgomery Police Department Detective T.D. James (“Detective

James”) received information from a confidential informant that McQueen was a supplier of

cocaine and marijuana around the Montgomery area. The informant also indicated that, at

some point, he saw McQueen in possession of narcotics in an open area in Trenholm Court.

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On July 15, 2005, the confidential informant informed Detective James that McQueen’s

“source” from Texas was in town. The next day, the informant called Detective James and

told him that McQueen had one kilo of cocaine to sell. Detective James attempted to arrange

a drug buy from McQueen; however, several members of the Drug Task Force were

unavailable to participate in surveillance that day and nothing happened. Another

opportunity arose on July 26, 2006, when the confidential informant informed Detective

James that McQueen’s source had returned to town. Detective James then began making

arrangements for the confidential informant to participate in a controlled drug buy with

McQueen.

Later that day, members of the Drug Task Force began surveillance of an apartment

at 8833 Ashland Park, where McQueen and his girlfriend were thought to reside. McQueen

remained at the residence overnight. The next morning, Detective James and several other

officers began following McQueen. The confidential informant rode in Detective James’

vehicle. When McQueen left the apartment in a Ford Mustang and drove his girlfriend to an

assisted living center, the confidential informant called McQueen and arranged to meet him

in front of a residence on Cherry Street. The informant agreed to purchase two kilograms

of cocaine at $19,500 per kilogram from McQueen. 

During the surveillance, officers lost sight of McQueen’s vehicle. Ten minutes later,

officers saw McQueen’s girlfriend driving alone in McQueen’s Mustang. The informant

called McQueen and McQueen told him that he was “five minutes away.” After a few

minutes passed, Officer Mike Drummond (“Officer Drummond”) spotted McQueen driving

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down Cherry Street in a tan Saturn vehicle. Immediately after McQueen pulled into the

driveway next to a residence on 2200 Cherry Street, he backed out of the driveway and began

driving down the street toward Officer Drummond’s vehicle. When Officer Drummond

turned on his blue light, McQueen “threw the car in reverse” and began driving in reverse

gear down Cherry Street. When a police vehicle blocked McQueen’s vehicle, McQueen got

out of his car and began running away. Officer Drummond chased McQueen approximately

100 yards and took him into custody on outstanding capias warrants. During the chase,

another officer remained with McQueen’s car which was searched after McQueen was in

custody. Two kilograms of cocaine were found on the rear floorboard of the passenger’s side

of the vehicle. 

Around 3:45 p.m., Detective James obtained a warrant from a Montgomery County

Municipal Court judge to search the apartment at 8833 Ashland Drive for “U.S. Currency,

records, books, computers, notes, ledgers and/or items listed in Attachments I or II.” (Doc.

No. 36, Gov’s Ex. A.) The affidavit, in pertinent part, is as follows:

Based upon the affiant’s training, experience and participation

in other controlled substance investigations, he knows the

following:

A) That the sale of cocaine and other controlled substances

generates large quantities of United States Currency

usually in small denominations;

B) That the courts have recognized that the small and

medium denominations of questionable currency,

along with the manner in which the currency is

handled, carried and concealed may establish

probable cause that there is a substantial

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connection between the questionable currency and

narcotics transactions;

C) That the Currency Transaction Report (CTR) (IRS

Form 4789), which is required to be completed

and filed with the IRS by all financial institutions

on every currency transaction which exceeds

$10,000.00 causes tremendous problems for

narcotics traffickers when they attempt to

negotiate their illegal profits at a financial

institution, causing them to maintain large

amounts of cash on hand;

D) That the courts have recognized that unexplained

wealth is probative evidence of crimes motivated

by greed, in particular, trafficking in controlled

substances;

E) That large-scale narcotics traffickers must

maintain, on hand, large amounts of United States

Currency in order to maintain and finance their

ongoing narcotics business;

F) That it is common for narcotics traffickers to

maintain books, records, notes, ledgers, airline

tickets, receipts relating to the purchase of

financial instruments and/or the transfer of funds,

and other papers relating to the transportation.

Based on this affiant’s training and experience he has probable

cause to believe and does believe that drug records, telephone

tolls, currency and other items listed above and in Attachment

I are being stored and/or concealed in the 8833 Ashland Park

Drive, Montgomery, Alabama; and any persons, outbuildings,

and vehicles located within the curtilage thereof. 

1) Probable cause being that in the month of July

2006, Detective T.D. James received information

from a confidential and reliable informant,

hereafter referred to as “A,” observed Ronald

McQueen sell, deliver, and possess large

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quantities of cocaine on numerous occasions.

2) Further probable cause being that “A” provided

information that Ronald McQueen would be

delivering two kilos of cocaine to the 2200 block

of Cherry Street, Montgomery, Alabama on July

27 2006. th

3) Further probable cause being that on July 26 and th

27 2006, the Special Operations Division th

conducted surveillance on Ronald McQueen from

8833 Ashland Park Drive to numerous stops

through the Montgomery County area.

4) Further probable cause being that during the

surveillance McQueen was observed traveling to

8833 Ashland Park Drive, Montgomery, Alabama

on three separate occasions.

5) Further probable cause being that at

approximately 1345 hours, Ronald McQueen left

8833 Ashland Park Drive and traveled to the 2200

block of Cherry Street, Montgomery, Alabama.

6) After observing McQueen on Cherry Street the

Special Operations Division attempted to conduct

an[] investigative stop when the subject fled in the

vehicle and on foot before being apprehended.

Located in the vehicle was approximately two

kilos of cocaine in the back passenger floorboard.

There were no other occupants in the vehicle.

7) Further probable cause that upon further

investigation a boarding pass to the Bahamas was

listed for Ronald McQueen with his address listed

as 8833 Ashland Park Drive, Montgomery,

Alabama.

8) Further probable cause being that “A” has

provided accurate and reliable information in this

and other cases that has been verified by the

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Montgomery Police Department.

(Id.) 

Attachment I of the affidavit also listed several specific items which could be

expected to be found at the Ashland Drive residence, including paraphernalia for packaging,

cutting, weighing, and distributing controlled substances and books, records, and other

evidence of the obtaining, secreting, transfer, concealment and/or the proceeds of illegal drug

trafficking. (Id.) 

During the execution of this search warrant, officers found several items indicating

that McQueen resided at the Ashland Drive residence, including a light and telephone bill

and a lease agreement. Upon finding marijuana in the apartment, the officers stopped the

search and waited for the issuance of a drug search warrant. Detective James subsequently

obtained a warrant from a Montgomery County Municipal judge to search the apartment for

drugs. The affidavit states, in pertinent part:

On July 27, 2006, the Montgomery Police Department’s

Narcotics Bureau executed a document search warrant at 8833

Ashland Park Drive. During the execution of the search warrant

a quantity of marijuana was located inside of the residence. The

document search warrant was immediately ceased and the

residence was secured pending the court’s approval of a drug

search warrant.

(Gov’s Ex. B.) After securing the search warrant, officers seized marijuana, cocaine,

currency, a handgun, and other items from the apartment. 

Around the time officers conducted a search of the Ashland Drive apartment, another

officer knocked on the door of a residence on 2200 Windsor Avenue and asked for

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 Specifically, the Fourth Amendment provides that “[]he right of the people to be secure in their

1

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

7

permission to search the house. McQueen’s aunt answered the door and told Corporal Hayes

that she did not live at the residence. She told the officer to ask Larry Mitchell, a bedridden

man in a downstairs bedroom, for permission to search the house. After Mr. Mitchell

consented to a search of the residence, the officers began searching all of the rooms

throughout the house. McQueen’s mother, Brenda Waters, testified that, when she awoke

from a nap and learned that officers were searching her house, she told officers that “it

wasn’t right” and that she was “real mad.” Ms. Waters remained at the house during the

search but never told officers to stop their search. The officers seized 460 grams of

marijuana, 240 grams of cocaine, two digital scales, and paper documents from a rear

bedroom.

DISCUSSION

A. The Warrant to Search 8833 Ashland Drive

McQueen claims that the search of his home wasillegal because the documents search

warrant did not particularly describe the drug-related items expected to be found in his

apartment. McQueen contends also that stopping the search and amending the warrant after

controlled substances were found did not cure any Fourth Amendment violation.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

CONST. AMEND. IV. “The Amendment protects persons against unreasonable searches of 1

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describing the place to be searched, and the persons or things to be seized.”

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“their persons [and] houses.” Minnesota v. Carter, 525 U.S. 83, 88 (1998). The Fourth

Amendment further provides that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” Probable cause to support a search warrant exists when

“there is a fair probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Brundidge, 170 F.3d

1350, 1352 (11 Cir. 1999). Evidence seized as the result of an illegal search may not be th

used by the government in a subsequent criminal prosecution. United States v. Martin, 297

F.3d 1308, 1312 (11 Cir. 2002). th

Items outside the scope of a search warrant may be seized only if the circumstances

surrounding the search meet one of the recognized exceptions to the warrant requirement.

One of these exceptions is the “plain view” doctrine. Horton v. California, 496 U.S. 128

(1990). Under the “plain view” doctrine, an item outside the scope of a search warrant may

be properly seized only if: (1) the officer is authorized to be in the area; (2) the officer looks

in places likely to contain the property; and (3) the item seized is immediately recognizable

as incriminating in character. Id., 495 U.S. at 142.

First, it is clear that the officers searched the apartment pursuant to a valid document

search warrant. The evidentiary materials clearly demonstrate that Detective James initially

sought a warrant to search the Ashland Drive apartment for specific documents or

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 During the hearing, Detective James testified that a document search warrant was also necessary

2

to determine whether McQueen resided at the residence. 

 Although Detective Jamestestified that the four pounds of marijuana were found while the officers 3

were looking for documents, the court is unable to discern the exact location that the marijuana was found.

Nonetheless, the defendant presented no evidence that the marijuana was stored in a place where documents,

such as telephone bills and lease agreements, could not be stored. Moreover, it is not reasonable to believe

that four pounds of marijuana could be stored in a place where a sheet of paper could not be stored.

9

paraphernalia related to the distribution of controlled substances. The affidavit in support 2

of the search warrant indicated that officers had observed McQueen leave the Ashland Drive

apartment prior to driving to Cherry Street and that cocaine was found in McQueen’s car.

Thus, the affidavit indicated a fair probability that specific documents or paraphernalia

related to the distribution of controlled substances would be found in the residence. This

court therefore concludes that the affidavit described the items to be seized with sufficient

particularity and that the issuance of the search warrant was supported by probable cause.

Secondly, thee is no evidence that the officers were searching in places unlikely to contain

documents at the time they found four pounds of marijuana in the apartment. Finally, the 3

four pounds of marijuana were immediately recognizable as incriminating in character.

Consequently, the initial search was authorized by the document search warrant and the

subsequent seizure of marijuana was authorized by the “plain-view” doctrine. See Horton,

supra. In addition, the seizure of the marijuana, as well as the six pounds of Ecstacy, one

gram of cocaine, $2641 in currency, and the 25 caliber handgun, were discovered during a

lawful search authorized by a valid drug search warrant.

McQueen also asserts that the affidavit in support of the document search warrant

failed to establish probable cause because the affidavit contained no information about the

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 In his motion to suppress, McQueen also asserts that the information in the affidavit was stale. 4

However, the face of the affidavit, as well as from testimony at the hearing on the motion to suppress,

demonstrates that the information was not stale and that the information was corroborated and substantiated

by the officers’ surveillance of McQueen. See U.S. v. Magluta, 198 F.3d 1265, 1272 (11 Cir. 1989).

th

Moreover, during the hearing, defense counsel conceded that the information was not stale. 

 The affidavit also specified that the confidential informant “provided accurate and reliable 5

information in this and other cases that has been verified by the Montgomery Police Department.” (Doc. No.

36, Gov’s Ex. A.) During the hearing, Detective James testified that, on July 16, 2006, the informant had

10

 confidential informant’s reliability.4

A court reviewing the issuance of a search warrant by a state court judge is not to conduct

a de novo probable cause determination, but is merely to decide whether the evidence viewed

as a whole provided a “substantial basis” for the finding of probable cause at the time the

warrant was issued. Massachusetts v. Upton, 466 U.S. 727, 732-33 (1984) (per curiam). 

The task of the issuing [judge] is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before

him, including the “veracity” and “basis of knowledge” of persons supplying

hearsay information, there is a fair probability that contraband or evidence of

a crime will be found in a particular place. And the duty of a reviewing court

is simply to ensure that the [judge] had a “substantial basis for . . .

conclud[ing]” that probable cause existed. Jones v. United States, supra, 362

U.S., at 271, 80 S.Ct., at 736. 

Gates, 462 U.S. at 238-239. Traditionally, information derived from a confidential

informant is scrutinized to determine the informant’s reliability, veracity, and basis of

knowledge to determine whether the information forms a basis for probable cause. See

Gates, 462 U.S. at 230. The affidavit indicates that, at some point in July 2006, the

confidential informant contacted Detective James and informed him that he had observed

McQueen sell, deliver, and possess large quantities of cocaine. Thus, the affidavit specified

the basis of the informant’s knowledge. The informant also indicated that McQueen would 5

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provided information that McQueen wanted to sell one kilogram of cocaine. Although Detective James and

the informant began arrangements for a drug buy on July 16, 2006, Detective James was unable to find a

sufficient number of Drug Task Force members to assist him and the planned meeting was cancelled. 

11

deliver two kilograms of cocaine to the 2200 block of Cherry Street on July 27, 2006 after

they arrested him on outstanding warrants. The affidavit further indicated that law

enforcement officials observed McQueen drive into a driveway on the 2200 block of Cherry

Street and found two kilograms of cocaine in his car on July 27, 2006. Because the

informant’s information was corroborated by the law officers’ investigation of McQueen, the

court concludes that the affidavit sufficiently established the reliability of the informant.

In Illinois v. Gates, the Court “reaffirm[ed] the totality of the circumstances analysis

that traditionally has informed probable cause determinations.” 462 U.S. at 238. The court

determined that factors such as an informant’s veracity, reliability, and basis of knowledge

“should be understood simply as closely intertwined issues that may usefully illuminate the

common sense, practical question whether there is ‘probable cause’ to believe that

contraband or evidence is located in a particular place.” Id. at 230. 

The question for this court is whether the information viewed as a whole provided a

substantial basis for the issuing judge’s finding of probable cause at the time the warrant was

issued. Massachusetts v. Upton, supra. Based on the facts of this case, the court concludes

that the affidavit contained information sufficient to establish a substantial basis for allowing

a state court judge to find probable cause. In short, the court concludes that the affidavit

sufficiently demonstrates that probable cause existed for the search of the residence. 

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B. The Stop and Search of McQueen’s Car

McQueen asserts that the police lacked probable cause to stop and search his vehicle.

At the time Officer Drummond stopped McQueen’s vehicle on Cherry Street, he knew that

there were outstanding warrants for the arrest of McQueen. Thus, the warrants themselves

gave law enforcement officials probable cause to stop and arrest McQueen. Furthermore,

“[o]nce an officer determines that there is probable cause to make an arrest, it is reasonable

to allow officers to ensure their safety and to preserve evidence by searching the entire

passenger compartment. Thornton v. U.S., 541 U.S. 615, 623 (2004). See also N.Y. v.

Belton, 453 U.S. 454, 463 (1981); U.S. v. Robinson, 414 U.S. 218, 234-35, and n. 5 (1973).

Consequently, the search of the automobile and the seizure of the cocaine from the

floorboard of the rear passenger seat was reasonable under the circumstances.

C. The Consent to Search 2200 Windsor Avenue

McQueen asserts that the search of his mother’s residence was unreasonable because

Larry Mitchell did not have the authority to consent to search the house. Specifically,

McQueen contends that Mr. Mitchell is bedridden and that, with the exception of his

bedroom, he does not have access to other areas of the house.

A law enforcement officer’s warrantless entry and search of a residence does not

violate the Fourth Amendment’s proscription of “unreasonable searches and seizures” if the

officer obtained the consent of a third party who possessed common authority over the

premises. U.S. v. Matlock, 415 U.S. 164 (1974). In addition, consent of a third-party lacking

authority over the premises may nonetheless be valid under the Fourth Amendment if law

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enforcement officials reasonably believed that the consenting party had authority to consent

to the search. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990); U.S. v. Mathis, 96 F.3d

1577 (11 Cir. 1996). th

During the hearing on the motion to suppress, Ms. Waters testified that she owned the

residence and that McQueen frequently stays there when “his old lady gets made at him.” Mr.

Mitchell also lives in the house; however, he uses a separate entrance to the residence

because his electric wheelchair does not fit through the common entryway to his bedroom.

Ms. Waters acknowledged that Mr. Mitchell’s room is accessible from inside the house and

that family members bring food and items to Mr. Mitchell from other parts of the residence.

Given these facts, it is clear that Mr. Mitchell possessed common authority over the premises.

More importantly, the court concludes that it was reasonable for the officers to believe that

Mr. Mitchell had the authority to consent to the search. Testimony indicated that both Ms.

Waters’ sister and Mr. Mitchell told officers that Mr. Mitchell lived in the residence. In

addition, Ms. Waters testified that, upon learning that Mr. Mitchell had consented to the

search of her residence, she did not tell officers that Mr. Mitchell’s consent was limited or

ask the officers to leave. Consequently, Mr. Mitchell’s consent to search the premises was

valid under the Fourth Amendment.

CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the

defendant’s motion to suppress be denied. It is further

ORDERED that the parties shall file any objections to the said Recommendation on

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or before December 19, 2006. Any objections filed must specifically identify the findings

in the Magistrate Judge’s Recommendation to which the party objects. Frivolous, conclusive

or general objections will not be considered by the District Court.

Failure to file written objections to the proposed findings and recommendations in the

Magistrate Judge's report shall bar the party from a de novo determination by the District

Court of issues covered in the report and shall bar the party from attacking on appeal factual

findings in the report accepted or adopted by the District Court except upon grounds of plain

error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein

v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of

Prichard, 661 F.2d 1206 (11 Cir. 1981) (en banc), adopting as binding precedent all of the th

decisions of the former Fifth Circuit handed down prior to the close of business on

September 30, 1981.

Done this 6 day of December, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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