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United States v. Morris

United States District Court, S.D. Georgia, Augusta Division

October 19, 2017

UNITED STATES OF AMERICA
v.
JASON WAYNE MORRIS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE.

         The indictment charges Defendant Jason Wayne Morris with two counts of possession of a firearm by a prohibited person, two counts of possession with intent to distribute a controlled substance, and one count of possession of a firearm in furtherance of a drug trafficking offense. (Doc. no. 1.) Defendant moves to suppress evidence seized on May 26, 2017, during a search of his residence at 1852 East Warrenton Road in Warrenton, Georgia. (Doc. no. 19.) Upon consideration of the briefs and hearing testimony on October 12, 2017, the Court REPORTS and RECOMMENDS Defendant's Motion to Suppress (doc. no. 19) be GRANTED.

         I. FACTS

         Counts One and Two of the indictment charge Defendant with possession of a firearm by a prohibited person and possession with intent to distribute a controlled substance on October 13, 2016. Counts Three and Four assert the same charges except the alleged offense date is May 26, 2017. Count Five charges Defendant with possession of a firearm in furtherance of a drug trafficking offense on May 26, 2017. The Motion to Suppress concerns Counts Three to Five because it alleges invalidity of a warrant executed on the second offense date of May 26, 2017.

         Corporal Brian Adams is a Georgia game warden with two decades of experience. (Court's recording system, For the Record (hereinafter "FTR") 10:47:52 - 10:48:01, 10:49:10 - 10:49:13.) The only witness to testify at the suppression hearing, Corporal Adams described the investigation of Defendant and search of Defendant's residence at 1852 East Warrenton Road on May 26, 2017.

         The investigation began on May 8, 2017, when a family by the last name of Kitchens reported someone hunting alligators illegally in their private pond on East Warrenton Road. (FTR 10:54:01 - 10:54:22.) Finding a baited hook at the pond, Corporal Adams set up a surveillance camera on May 9, 2017, and retrieved the camera six days later. (FTR 10:54:56 -10:55:03.) The camera recorded two white males approach the area in a gray Ford truck. (Doc. no. 22-1, p. 2.) One of the males, later identified as Defendant, walked from the truck to a fishing pole set up at the edge of the water while his companion scanned the pond surface with a scope-mounted rifle. (FTR 10:58:14 - 10:58:21, 10:59:12 - 10:59:36.) Defendant retrieved a fishing pole with a treble hook from the truck and cast it into the pond near the fishing pole to drag the bottom. (FTR 10:59:50 - 11:00:06.) The males left the pond without any quarry. Corporal Adams described their actions as common practices for hunting alligators. (FTR 11:00:07-11:00:10.)

         While Corporal Adams could not identify either suspect or read the truck license plate, he did observe a distinctive rust spot on the roof of the truck along with multiple stickers on the back window. (FTR 11:01:02 - 11:01:18, 11:02:15 - 11:02:26.) Corporal Adams believed the video established probable cause because there is no alligator season in Warren County, a hook cannot be used to catch alligators in counties where alligator hunting is legal, and the Kitchens family had not given anyone permission to hunt on their land. (FTR 11:01:19- 11:01:47.)

         On May 17, 2017, Deputy Chert Jones of the Warren County Sheriffs Office observed the truck from the surveillance video running a stop sign and initiated a traffic stop. (FTR 11:04:10 - 11:04:19, 11:04:24 - 11:04:32.) Tamara Hutchinson was the driver and informed Deputy Jones she lived with Defendant at 1852 East Warrenton Road. (FTR 11:04:32 -11:04:47.) Deputy Jones ran the license plate and confirmed Defendant was the owner. (FTR 11:35:56-11:36:05.)

         One week later on May 24, 2017, Corporal Adams showed the pond surveillance video to Defendant's probation officer, Mark Johnson. (FTR 11:05:18 - 11:05:43.) Officer Johnson identified Defendant as one of the two suspects. (FTR 11:05:43 - 11:05:48.) Corporal Adams determined Defendant was a convicted felon and thus prohibited from possessing the rifle depicted in the video. (FTR 11:09:02- 11:09:14.)

         The affidavit and application for the search warrant drafted by Corporal Adams states in pertinent part:

         The undersigned Cpl. Brian Adams, being duly sworn, deposes and says:

I am an officer of the State of Georgia or its political subdivision charged with the duty of enforcing the criminal laws, and that I have reason to believe that in Warren County, Georgia, on the person, premises, or property described as follows:
Residence, all out buildings, vehicles and property at 1852 E Warrenton Rd Warrenton, GA.
There is now located certain instruments, articles, persons, or things, namely: Any firearms or ammunition. Any alligator or parts of alligators. Any equipment or devices used to illegally take alligators. Any electronic equipment that may have been used the recording of the illegal taking of alligators such as but not limited to cellular phones, cameras and tablets. [Keywords], which are being possessed in violation of Georgia Law(s):
27-3-15 Hunting alligators out of season
27-3-4 Hunting alligators with illegal weapons
16-11-131 Possession of firearm by convicted felon

         (Doc. no. 19, p. 10.) In contrast, the warrant states, in pertinent part, as follows:

Affidavit having been made before me by Cpl. Brian Adams, an officer charged with the duty of enforcing the Criminal Laws, that he or she has reason to believe that in Warren County, Georgia, on the ...

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