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United States v. Clemens

June 22, 1995

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

MICHAEL A. CLEMENS,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.

No. 93 CR 133--Larry J. McKinney, Judge.

Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED JUNE 9, 1995

DECIDED JUNE 22, 1995

Michael A. Clemens (Clemens) pleaded guilty to possession and distribution of marijuana and use of a firearm during a drug trafficking crime in violation of 21 U.S.C. secs. 841(a)(1) & 846; 18 U.S.C. sec. 924(c)(1). He challenges his conviction on the grounds that evidence was illegally seized from his home. The district court found that the warrant authorizing the search of Clemens' residence was not tainted by an earlier warrantless entry into the residence and was supported by probable cause. We affirm.

I. FACTS

This case involves an arranged purchase of marijuana, set up by a confidential informant (CI) working with the Quad City Drug Task Force in Richmond, Indiana. On July 16, 1993, the CI, wearing body transmitters, went to David Lambert's place of employment to discuss the purchase of five pounds of marijuana. Lambert was willing to arrange the purchase but told the CI that the deal could not be done until the following day.

On July 17, 1993, the CI again met Lambert at his place of employment, where Lambert informed the CI that the purchase would involve traveling outside of Richmond. The CI gave Lambert $7,000 which had been provided by the Task Force for the marijuana buy, and the two got into Lambert's car. They were joined by another individual, Terry Mackey, who also gave Lambert a large sum of money and joined them in Lambert's car.

The three men drove to Darke County, Ohio. In Darke County, they went to the home of the defendant, Michael Clemens. When they arrived at the Clemens residence, the CI and Mackey remained in the car while Lambert went into the house. A short time later, Lambert came out of the house with Clemens and two large trash bags, which he placed in the trunk of the car. Lambert then got back in the car, and the three started to drive back to Richmond.

After the car reentered Indiana, police officers stopped it and searched the vehicle. They found that the trash bags, which were still in the trunk, contained 15 one-pound bags of marijuana. The passenger compartment of the car also contained a partially smoked marijuana cigarette and more than $12,000 in currency. Mackey and Lambert were both then placed under arrest.

Officer Mark Smith, a Richmond police officer working with the Task Force, had been monitoring all these events through the body transmitters worn by the CI. After the arrests, Smith contacted the Sheriff of Darke County, Ohio and informed him of what had transpired. The Sheriff sent Darke County police officers to meet with Smith, and after speaking to Smith, the Darke County officers used the information he gave them as the basis for requesting a search warrant for the Clemens residence.

Before the search warrant was issued, however, Smith and about 12 other officers entered the Clemens house to "sweep and secure" the premises. This first "search" took place at 2:00 p.m., but the search warrant for the residence was not issued until 3:20 p.m.. The search warrant was executed at 3:40 p.m. and a full search of the house was performed at that time. This second search revealed numerous handguns and rifles, ammunition, 481 pounds of marijuana, explosive devices, scales and more than $2,000 in currency.

Clemens was taken into custody and indicted along with Lambert. He moved to suppress evidence collected during the search of his house, but his motion to suppress was denied. He eventually pleaded guilty to conspiracy to possess with intent to distribute and distribution of marijuana, and the use of a firearm during commission of a drug trafficking crime in violation of 21 U.S.C. secs. 841(a)(1) & 846, and 18 U.S.C. sec. 924(c)(1), but reserved the right to appeal the denial of his motion to suppress. He now exercises that right, ...


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