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United States v. Ownby

October 19, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARK BRANDON OWNBY, DEFENDANT.



The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge

MEMORANDUM AND ORDER

This matter came before the undersigned upon Defendant Mark Ownby's Motion to Suppress Evidence filed on August 17, 2007. The parties came before the Court for a suppression hearing on August 22, 2007. Assistant United States Attorney Robert Simpson was present representing the government. Attorney Charles G. Blackard III was present representing Defendant Ownby, who was also present. Jurisdiction of this Court is proper under 28 U.S.C. § 636(a)(4). As the conclusion of the hearing, the Court took the suppression motion under advisement.

I. Position of the Parties

Defendant Mark Ownby ("Ownby") is charged with possession of a controlled substance in violation of 36 C.F.R. § 2.35(b)(2). Defendant moves this Court to suppress all evidence illegally obtained by law enforcement officers as a result of searches and/or seizures of Defendant's vehicle on April 22, 2007. Defendant contends his vehicle was unlawfully searched by U.S. Park Ranger Keith Gad ("Ranger Gad") without a warrant and without probable cause, in violation of the Fourth Amendment.*fn1

II. Suppression Hearing Testimony

The only witness called to testify was Ranger Gad. Ranger Gad was called by the government. For the past year, Ranger Gad has been stationed as a U.S. Park Ranger in the Foothills Parkway West. Prior to his assignment in Great Smoky National Park, he testified he has been a law enforcement officer since 1994 and has worked as a Park Ranger in other national parks, such as Yellowstone National Park and the Everglades in Florida. Ranger Gad testified he was working the weekend of April 21, 2007 and was stationed at the Foothills Parkway Spur, U.S. 441 between Gatlinburg and Pigeon Forge, in the foothills of the Great Smoky Mountains. He testified he was stationed there on that day because it was Rod Run weekend and additional rangers are asked to monitor the area because increased traffic is expected.

Ranger Gad testified April 21, 2007 was a Saturday and he worked that day into the evening. Ranger Gad testified that the weekend of April 21, 2007 was Rod Run weekend and traffic was especially heavy on this part of the Parkway and was backed up going into Pigeon Forge on the spur in the northbound lanes. He stated that traffic was stopped and was not moving at points during his shift. Ranger Gad testified that close, but prior to, midnight on April 21, he was standing at the edge of the woods, keeping an eye on traffic when he heard shouting and hollering from the general direction of Defendant's vehicle. Ranger Gad stated he observed a lot of movement from that direction and was drawn to Defendant's vehicle because of the unreasonable noise and the yelling of abusive utterances coming from the vehicle. Thus, Ranger Gad walked over to Defendant's truck to inquire into commotion coming from the vehicle. From the direction of his initial approach, Ranger Gad approached the passenger side of the vehicle. The front window of the passenger side was down. When Ranger Gad came upon the vehicle, he determined there were five people in the vehicle, including the Defendant.

Ranger Gad testified when he approached the vehicle, the first people he saw through the open passenger window were the driver, who was later determined to be Defendant Mark Ownby, and the front-seat passenger. Ranger Gad testified both of these individuals had bloodshot eyes. Ranger Gad then testified he noticed, through the open passenger window, a glass drinking cup in the center console next to the seat where the front-seat passenger was sitting. After noticing the cup, Ranger Gad asked the vehicle's occupants whether they had any drugs or alcohol on them. Defendant and the other occupants stated they did not. Ranger Gad then began asking questions about the glass cup and asked the passenger in the front seat if he could see it. Ranger Gad stated he asked the passenger if he could see the cup as opposed to the Defendant, the owner of the vehicle, because the cup was closest to the passenger, however no one claimed ownership of the cup. Ranger Gad inspected the cup, determined there was a residual amount of clear liquid in it, and then smelled it. Ranger Gad testified the cup "smelled strongly of alcohol" and he determined from the smell, it contained a residual amount of a liquor type alcohol as opposed to beer. After smelling alcohol in the cup, Ranger Gad asked Defendant, as the driver of the vehicle, to pull the vehicle off to the side of the road. After Defendant pulled the vehicle over to the side of the road, Ranger Gad told the occupants to exit the vehicle.

Ranger Gad further testified that, at this point, he was joined by Ranger Flemming, the Little River Supervisor. Ranger Gad stated he called Ranger Flemming over to the scene because of the amount of people in the vehicle. While exiting the vehicle, Defendant advised Ranger Flemming he had a firearm in the vehicle, but also had a permit to carry the firearm. Ranger Gad further testified he saw a firearm in the vehicle attached to the plastic pocket inside the driver side door and the firearm was inside its holster. Ranger Gad inspected the firearm, determined it was loaded, and then proceeded to remove the magazine and made sure there were no rounds in the chamber. After making the firearm safe, Ranger Gad testified he held onto the firearm, either in his pocket or placed it in his vehicle, but later returned it to Defendant.

Ranger Gad then testified after seeing the firearm, he began to search the vehicle and further testified he was looking for other open containers of alcohol, other firearms, or ammunition. He testified he first found a small pack of rolling papers in the center console of the vehicle and he then found a bottle of Grey Goose vodka on the floor behind the front seat and testified the seal on the bottle was broken. He further testified, based on his experience, finding the pack of rolling papers was significant because a majority of the time the papers are used to roll marijuana cigarettes and upon discovering the rolling paper, he suspected this meant there was marijuana in the vehicle. Ranger Gad testified his search of the vehicle was now also looking for marijuana as well as other open containers of alcohol.

Ranger Gad testified he then found 8.3 grams of marijuana inside a gym shoe which was under the rear passenger seat. Ranger Gad stated he put the bag of marijuana into another bag in order to seal it. Ranger Gad further testified when he found the marijuana he asked the occupants of the vehicle who the gym shoe belonged to. Ranger Gad stated that Defendant Ownby said the shoe belonged to him and when Ranger Gad explained to Ownby what was inside the shoe, Ownby stated "I'll accept responsibility for that." Ranger Gad then issued Defendant Ownby a citation for possession of a controlled substance.

On cross-examination, Ranger Gad testified he had no reason to approach Defendant's vehicle until he heard the occupants of the car yelling inappropriate language from the side of the road. He stated he was drawn to the vehicle because of the excessive noise and utterances coming from the vehicle that other drivers could have overheard. Ranger Gad further testified that as he approached the car, Defendant had not committed any crime, but was using "unreasonable noise and abusive utterances." Thus, Ranger Gad stated the stop was not a traffic stop, but that he approached the vehicle to find out why the occupants were yelling and what they were yelling.

When asked about the Grey Goose bottle that was found inside Defendant's vehicle, Ranger Gad testified it was used as evidence of an open container inside the vehicle, but was not used to charge anyone with a violation of the law because of where it was found. Since it was not next to anyone and no one claimed ownership, no one received a citation with respect to the open vodka bottle. He further testified that no one claimed ownership of the glass cup found in the center console, but since it was closest to the front-seat passenger, that person received a citation for the cup.

Ranger Gad further testified once the vehicle was pulled over and the occupants were asked to step out of the vehicle, Ownby was not free to leave the area, no consent was given to search the vehicle, and Ownby was not read his Miranda rights. When Ranger Gad was asked on cross-examination about the rolling papers, defense counsel noted Ranger Gad stated on direct examination that "rolling papers are normally used for marijuana" and asked whether people can use rolling papers for other, legitimate purposes and Ranger Gad agreed that the papers can have a legal purpose. Ranger ...


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