667 F.3d 477 (4th Cir. 2012), 10-4442, United States v. Jones

Docket Nº:10-4442, 10-4698.
Citation:667 F.3d 477
Opinion Judge:KING, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Lisa JONES, a/k/a Rebecca North, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kipling Joe Jones, a/k/a Kip Jones, Defendant-Appellant.
Attorney:Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellants. Richard Lee Edwards, Office of the United States Attorney, Asheville, North Carolina, for Appellee. Claire J. Rauscher, Executive Director, Fredilyn Sison, Assistant Federal Defender, Fede...
Judge Panel:Before KING and DIAZ, Circuit Judges, and RICHARD M. GERGEL, United States District Judge for the District of South Carolina, sitting by designation. Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge DIAZ and Judge GERGEL joined.
Case Date:January 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 477

667 F.3d 477 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rebecca Lisa JONES, a/k/a Rebecca North, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Kipling Joe Jones, a/k/a Kip Jones, Defendant-Appellant.

Nos. 10-4442, 10-4698.

United States Court of Appeals, Fourth Circuit.

January 13, 2012

Argued: Dec. 6, 2011.

Page 478

ARGUED:

Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellants.

Richard Lee Edwards, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Fredilyn Sison, Assistant Federal Defender, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant Rebecca Lisa Jones; Robert W. Waddell, The Waddell Law Firm, PLLC, Greenville, North Carolina, for Appellant Kipling Joe Jones. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before KING and DIAZ, Circuit Judges, and RICHARD M. GERGEL, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge DIAZ and Judge GERGEL joined.

OPINION

KING, Circuit Judge:

Defendants Kipling J. Jones and Rebecca L. Jones, husband and wife, appeal their convictions in the Western District of North Carolina for conspiracy to manufacture, distribute, and dispense, and to possess with intent to distribute and dispense, methamphetamine (" meth" ), in contravention of 21 U.S.C. § 846. The Joneses' drug conspiracy convictions were predicated on conditional guilty pleas, pursuant to which they preserved their rights to appeal the district court's denial of motions to suppress. See United States v. Jones, No. 2:09-cr00011, 2009 WL 2366044 (W.D.N.C. July 29, 2009) (the " Order" ).1 Kipling Jones also appeals from his sentence of 262 months in prison. As explained below, we affirm the court's denial of the suppression motions, but vacate Mr. Jones's sentence and remand.

I.

A.

On the evening of October 28, 2008, the Cherokee County, North Carolina Sheriff's Office received a call from Mike Monteith, a narcotics officer with the Polk County, Tennessee Sheriff's Office.2 Monteith advised

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that an officer from the Bradley County, Tennessee Sheriff's Office had notified him that an individual had been admitted to a hospital in Bradley County with serious burn injuries believed to have been sustained in a meth lab explosion. Monteith investigated the incident by visiting the burn victim's house and speaking with the victim's son, who advised that his father had been " at Kip and Becky's house" earlier that day. See Order 3. During Monteith's visit, the victim's son received a telephone call, which the caller ID indicated was from the Joneses' home phone.

Based on information relayed by Monteith, four officers of the Cherokee County Sheriff's Office were dispatched to the Jones residence in Murphy, North Carolina. When the officers arrived at the Jones residence around 1:00 on the morning of October 29, 2008, they observed seven motor vehicles on the property, including a " camper," a truck, and an " SUV." See J.A. 61-62. As they approached, the officers did not observe any disturbances or signs of activity within the house, which was dark except for some light apparently emanating from a television set in the living room. In response to the officers' knock at the front door, the Joneses opened the door after a few moments and met the officers on the front porch. The officers explained that they were investigating a burn victim's injuries and a possible meth lab explosion. Kipling Jones informed the four officers that he did not know anything about a burn victim or a meth lab explosion and asked the officers to leave his property.

The officers started to comply but, as they were about to leave the driveway, Officer Sean Matthews recalled that Kipling Jones might be the subject of an outstanding arrest warrant. One of the officers then confirmed by radio that there was an arrest warrant for Mr. Jones and a corresponding request for extradition from the State of Georgia. The officers promptly returned to the Jones residence to arrest Mr. Jones. On this occasion, the officers found Mr. Jones in the open doorway of the residence, informed him of the outstanding warrant, and placed him under arrest. Although Mr. Jones protested that he had already been arrested on that warrant, he did not resist. During the arrest, Rebecca Jones raised her voice to question her husband's arrest, but did not either impede the arrest or otherwise cause difficulty for the officers.

As Officer Matthews was placing Kipling Jones in handcuffs, the other officers entered the house through the front door with their handguns drawn. Officer Dustin Smith promptly informed the Joneses that the officers were going to conduct a protective sweep of the residence, explaining that this was being done for the officers' safety. The officers asked the Joneses if there was anyone else in the house, and they replied that there was not. From his vantage point on the front porch, Officer Smith did not see any indication of illegal drug activity, and he did not hear or see any movement from within the house to indicate the presence of other persons. Smith was nevertheless suspicious that others might be in the house, based primarily on his prior dealings with the Joneses, whom he had investigated at various times since 2003 as part of his duties as a narcotics officer.3

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During the officers' protective sweep, the Joneses were in the living room of the house. From the front door, the officers walked through the living room and the adjoining kitchen, and quickly scanned the remaining rooms but did not find anyone else in the house. Although there was a closed door leading to the basement, Officer Smith did not open it because there was a cloth along the door's bottom, possibly used to retain heat, and Smith did not believe that anyone had been through the basement doorway. Smith and the other officers noticed a number of items in plain view during their sweep. Based on his training and experience in narcotics investigations, Officer Smith believed that several of these items constituted precursor materials for the manufacture of meth. Smith also detected a strong odor that he associated with meth production. In the living room, Smith observed a pipe containing marijuana and a pill that had been crushed into powder, lying on an end table beside the couch where Rebecca Jones had been sitting.

Mrs. Jones was also then placed under arrest for possession of marijuana, and both Joneses were transported to the Cherokee County Sheriff's Office. An officer remained at the Jones residence to secure the house until the other officers could obtain a search warrant. That afternoon, Officer Smith applied for and obtained a search warrant from the Superior Court of Cherokee County. Smith's application for the warrant specifies that he and Officer Matt Kuhn had " conducted a safety search of the [Jones] residence for other persons" and detailed the items they had observed in plain view. Later that day, the North Carolina State Bureau of Investigation executed the search warrant, seizing, inter alia, a meth mixture and drug paraphernalia.

B.

On June 3, 2009, the grand jury in the Western District of North Carolina returned the operative indictment in this case, charging the Joneses with four offenses arising from the evidence seized at their residence. Most pertinent here, Count One charged the Joneses with conspiracy to manufacture, distribute, and dispense, and to possess with intent to distribute and dispense, at least 400 grams of a mixture and substance containing a detectable amount of methamphetamine, in contravention of 21 U.S.C. § 846. On June 5, 2009, Rebecca Jones filed a motion to suppress the evidence seized from the Jones residence on the ground that the warrantless protective sweep that led to the discovery of evidence in plain view— and provided probable cause for the search warrant— violated her Fourth Amendment rights. On July 12, 2009, Kipling Jones filed a nearly identical motion to suppress on the same basis.4 The district court conducted a hearing on the suppression motions on July 24, 2009, during which it

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received the testimony of Officer Smith and heard argument of counsel.

Promptly thereafter, on July 29, 2009, the district court entered the Order...

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