2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-13-2009

USA v. Maurice Plummer

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2371

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Recommended Citation

"USA v. Maurice Plummer" (2009). 2009 Decisions. Paper 826.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2371

 

UNITED STATES OF AMERICA

v.

MAURICE PLUMMER

also known as

MAURICE DION WILLIAMS

Maurice Plummer,

Appellant

 

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 2-05-cr-00336-1)

District Judges: Honorable Terrence F. McVerry

 

Submitted Under Third Circuit LAR 34.1(a)

March 24, 2009

 

Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

(Opinion filed August 13, 2009 )

 

OPINION

 

AMBRO, Circuit Judge 

Maurice Plummer pled guilty to three counts of an indictment: felon in possession
For identification purposes, we shall continue to refer to her as Smith rather than 1

Plummer.

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of a firearm, in violation of 18 U.S.C. § 922(g)(1) (two counts); and conspiracy to possess

with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A)(iii) (one count). Plummer’s plea agreement contains the

usual waiver of appeal rights, with one exception he could appeal – whether, in

connection with a motion to suppress the crack cocaine, his then-girlfriend (now wife)

Brandi Smith consented to a search of her apartment by law enforcement officers seeking 1

to arrest him. In searching Smith’s apartment for Plummer, the officers found the crack

cocaine in plain view. 

Plummer claims Smith’s consent was coerced by several law enforcement officers

showing up at her apartment door and telling Smith they had an arrest warrant for

Plummer (in fact, they did). Moreover, Plummer contends that the Court erred by not

considering how Smith herself perceived the officers’ actions; thus it did not evaluate all

the facts and circumstances involving the search. In this context, he concludes, the search

was invalid and the crack cocaine should be suppressed.

The problem for Plummer is that Smith, on the advice of her counsel, would not

testify at the suppression hearing without immunity from prosecution. The District Court

denied that request after concluding that the extraordinary relief of immunity was not

needed for Smith to testify on the limited issue of whether she consented to the search of

her apartment for Plummer. Thus the only testimony before the Court at the suppression
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hearing was that of two police officers to the effect that Smith consented to the search.

Plummer’s counsel on appeal perceives correctly that the consent issue is not

joined until first he wins on the immunity request, for only then can he get in evidence

that Smith did not consent freely to the search of her apartment. While the Government

argues that appealing the denial of immunity “falls outside the lone specific exception to

the appellate waiver [consent],” Gov’t’s Br. at 12, we believe the immunity issue ties as a

precondition to the consent exception. That said, we cannot say that the District Court’s

denial of immunity to Smith was an abuse of discretion, the standard Plummer concedes

applies (Plummer’s Br. at 2 & 9), as the Court’s reasons for denying immunity to Smith

are amply supported. See App. A-467-69. 

For these reasons, we affirm the decision of the District Court denying Plummer’s

motion to suppress the crack cocaine evidence.