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United States v. Linder

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

June 21, 2019

UNITED STATES OF AMERICA
v.
TREMAYNE O. LINDER, LAKESIA L. HARDEN

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Defendants seek suppression of marijuana, methamphetamine, and a firearm discovered by police in the bedroom closet of a residence shared by Defendants. After careful consideration of the legal briefs and evidence presented at the hearing on May 22, 2019, the Court REPORTS and RECOMMENDS Defendants' motions to suppress, (doc. nos. 44-46), be DENIED. A strong odor of green marijuana provided reasonable suspicion for the warrantless search, and reasonable suspicion was sufficient in light of Defendant Tremayne Linder's state probationary status, the Fourth Amendment waiver and search consent contained in supplemental conditions to his state probationary terms, and Defendant Lakesia Harden's failure to voice any objection to the search.

         I. FACTS

         On February 6, 2019, the grand jury in the Southern District of Georgia charged Defendants with one count of possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and Defendant Linder with one count of receipt of a firearm by a person under indictment in violation of 18 U.S.C. § 922(n). (Doc. no. 1.) The search and seizure giving rise to these federal charges occurred on April 9, 2018, as a direct consequence of Defendant Linder being on state probation since March 21, 2016. On the latter date, Laurens County Superior Court Judge Donald W. Gillis sentenced Defendant Linder to a twenty-year probated sentence for burglary and criminal attempt to commit armed robbery. (Doc. no. 56-1.)

         Defendant Linder's original conditions of probation did not include a Fourth Amendment waiver and consent to warrantless search of his home. (Id.; doc. no. 46-2.) However, on January 11, 2018, Defendant Linder met with Probation Officer Tim Ray, admitted to using narcotics in violation of his general probation conditions, and tested positive for marijuana. (Court's recording system, For the Record (“FTR”), 11:23:20 - 11:33:05; 11:42:00 - 11:43:05.) To avoid a revocation hearing and the prospect of imprisonment, Defendant Linder signed a court order on January 11, 2018, whereby he waived his right to a revocation hearing, confirmed his positive drug test, accepted entry into the Department of Community Services Daily Reporting Center program (“DRC”), and agreed to comply with all DRC rules and regulations. (FTR 11:23:20 - 11:33:05; 11:42:00 - 11:43:05; doc. no. 56-2.) Defendant Linder also signed DRC special conditions of probation that are mandatory for entry into the program. (Doc. no. 56-3; FTR 11:28:20 - 11:33:05.) Officer Ray signed both documents with Defendant Linder on January 11, 2018, and Judge Gillis signed them the following day. (FTR 11:23:20 - 11:33:05; 11:42:00 - 11:43:05; doc. no. 56-2.) Defendant Linder signed all of the documents concerning the DRC program in the presence of Officer Ray, he was not represented by legal counsel at that time, and he never appeared before Judge Gillis. (FTR 11:23:20 - 11:33:05; 11:41:15 - 11:43:05.)

         Included in the DRC special conditions is the following Fourth Amendment waiver and consent to search condition:

Probationer shall submit to a search of his (her) person, residence, papers, vehicle, and/or effects as these terms of the Fourth Amendment to the United States Constitution are defined by the Courts, any time of the day or night with or without a search warrant whenever requested to do so by a Probation Supervisor or any law enforcement officer and specifically consents to the use of anything seized as evidence in a judicial or disciplinary proceeding.

(Doc. no. 56-3.) Defendant Linder was also required to report to Officer Ray as directed and permit Officer Ray to visit him at his home. (Id.)

         On April 5, 2018, Judge Gillis issued a warrant for Defendant Linder's arrest because of unexcused absences from mandatory DRC meetings. (Doc. no. 56-4.) On April 9, 2018, Officer Ray and City of Dublin Police Sergeant Eric Roland arrived at Defendant Linder's home to arrest him. (FTR 10:39:30 - 10:40:45.) Officer Ray arrived first and spoke with Defendant Harden, Defendant Linder's girlfriend and cohabitant. (FTR 10:39:30 - 10:40:45.) Sergeant Roland arrived shortly thereafter and turned on his body camera. (See Body Camera, doc. no. 44-5, 00:00-00:10.) Defendant Harden informed the officers Defendant Linder was at a DRC meeting. (Id. at 00:00-03:00.) Officer Ray confirmed by telephone Defendant Linder was not at DRC and informed Defendant Harden. (Id. at 01:30-5:00.)

         Defendant Harden invited Officer Ray and Sergeant Roland to enter the home and look for Defendant Linder, stating “you can come look if you want to.” (Id.) Sergeant Roland responded by asking if he could come inside, and Defendant Harden confirmed he could. (Id.) Sergeant Roland entered the home while Officer Ray remained in the door frame with the door open. (Id. at 00:30-1:30.) Inside the home were Defendant Harden, her sister Tamara Harden, and a young child. (Id.) Defendant Linder was not there, and all occupants in the house were sitting in the living room. (Id.)

         Once inside, Sergeant Roland confirmed with Officer Ray the existence of the warrantless search condition quoted above. (Id. at 01:30-02:30.) Both officers detected a strong odor of green marijuana, which they could smell both inside and outside the home, and confronted Defendant Harden about it. (Id. at 02:00-03:00.) Sergeant Roland asked Defendant Harden “since [Defendant Linder] has search conditions is there anything in here we need to know about?” (Id.) She responded “no.” (Id.) Sergeant Roland said it smelled like marijuana, to which she explained a friend smoked marijuana in the home the night before. (Id.) Sergeant Roland explained it smelled like green marijuana, which he confirmed at the suppression hearing he recognized based on his police training and experience. (Id.; FTR 10:44:00 - 10:45:05.) Tamara Harden attempted to leave the room, and Sergeant Roland requested she remain seated in the living room because “we're probably about to conduct a search on this residence.” (Body Camera, 02:30-03:00.) Tamara Harden explained she lived in Atlanta and was visiting her sister. (Id. at 03:00-4:00.)

         Sergeant Roland exited the home to confirm again with Officer Ray that Defendant Linder had signed a waiver and consent to search as part of his state probation. (Id. at 05:00-7:00.) By telephone, Officer Tony Karmazinas confirmed existence of the search condition to Officer Ray and Sergeant Roland. (Id.) Sergeant Roland reentered the home and pronounced into his radio, while standing in the living room in the presence of Defendant Harden, his intention to conduct a search of the residence based on the probation search condition. (Id. at 06:30-6:50.) Defendant Harden expressed no objection and did not respond in any way to this pronouncement, and Sergeant Roland proceeded to conduct the search. (Id. at 6:45-10:00.)

         Because the smell of marijuana was so strong, Sergeant Roland testified, it took him little time to find the marijuana inside a backpack stored in the closet of Defendants' shared bedroom. (Id.; FTR 10:46:00 - 10:47:55.) The backpack contained marijuana and methamphetamine wrapped in twelve small bags. (Body Camera, 6:30-10:00; FTR 10:47:56 - 10:50:15.) In the same bedroom, Sergeant Roland also found a prison guard uniform with Defendant Harden's name on it. (Body Camera, 6:30-10:00; FTR 10:50:16 - 10:52:00.)

         II. ...


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