451 F.Supp.2d 1290 (M.D.Ala. 2005), 1 05cr161, United States v. Herring

Docket Nº:1 05cr161
Citation:451 F.Supp.2d 1290
Party Name:United States v. Herring
Case Date:October 26, 2005
Court:United States District Courts, 11th Circuit, Middle District of Alabama
 
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Page 1290

451 F.Supp.2d 1290 (M.D.Ala. 2005)

UNITED STATES of America

v.

Bennie Dean HERRING.

Criminal Action No. 1:05cr161-T (WO).

United States District Court, M.D. Alabama, Southern Division.

Oct. 26, 2005

Bennie Dean Herring, Montgomery, AL, Pro Se Defendant.

Verne H. Speirs, U.S. Attorney's Office, Montgomery, AL, for Plaintiff.

Page 1291

OPINION

MYRON H. THOMPSON, District Judge.

Defendant Bennie Dean Herring is charged with one felony count of being a convicted felon in possession of a firearm, 18 U.S.C.A. § 922(g)(1), and one misdemeanor count of intentionally and knowingly possessing a mixture or substance containing a detectable amount of methamphetamine, 21 U.S.C.A. § 844(a). On October 24, 2005, this court adopted the recommendation of the United States Magistrate Judge that Herring's motion to suppress certain "physical evidence" recovered incident to his arrest and search be denied. The court said that a memorandum opinion would follow. This is the promised opinion.

I. Factual Background

On July 7, 2004, Herring drove to the Coffee County, Alabama Sheriff's Department to check on a vehicle that had been impounded. As Herring was leaving, Investigator Mark Anderson asked Sandy Pope, the warrant clerk for the Coffee County Sheriff's Department, to check whether there were any outstanding warrants in Coffee County for Herring. Pope checked her computer database and advised Anderson that there were no active warrants. Anderson then asked Pope to call the neighboring Dale County Sheriff's Department to see if it had any active warrants for Herring. Pope telephoned Sharon Morgan, the Dale County Sheriff's Department warrant clerk, who reported an active Dale County felony warrant for Herring for a failure to appear. Pope asked Morgan to fax her a copy of the warrant, and informed Anderson of the outstanding warrant.

Anderson and another officer then left the station, pursued Herring, and arrested him. After Herring was placed under arrest, Anderson searched his front pocket and found a plastic bag containing a powder substance later identified as methamphetamine. A search of Herring's vehicle uncovered a handgun, ammunition, and a knife.

While the arrest and search were occurring, Morgan unsuccessfully tried to locate Herring's warrant. She then called the Dale County Circuit Clerk's Office to see if it had the warrant...

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