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United States v. Houston

United States District Court, E.D. Tennessee

July 30, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
CLIFFORD LEON HOUSTON, Defendant

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Clifford Leon Houston, also known as Leon Houston, Defendant, Pro se, MARYVILLE, TN.

For Clifford Leon Houston, also known as Leon Houston, Defendant: Charles I Poole, LEAD ATTORNEY, Charles Poole & Associates, PLLC, Sevierville, TN.

For USA, Plaintiff: David C Jennings, LEAD ATTORNEY, U S Department of Justice (Knox USAO), Knoxville, TN.

OPINION

Danny C. Reeves, United States District Judge.

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MEMORANDUM OPINION AND ORDER

This matter is currently pending for consideration of Defendant Clifford Leon Houston's six motions to suppress evidence obtained from the warrantless surveillance of his property with a video pole camera, the January 11, 2013 search of his residence, and the seizure of his person on the same day. [Record Nos. 14, 16, 18, 20, 47, 57, 58] These motions were referred to United States Magistrate Judge C. Clifford Shirley, Jr., pursuant to 28 U.S.C. § 636(b). On April 16, 2013, Magistrate Judge Shirley conducted a hearing on these motions. Assistant United States Attorney David C. Jennings appeared on behalf of the United States and the defendant proceeded pro se with the assistance of elbow counsel Charles I. Poole.

On June 13, 2013, the magistrate judge issued a report, recommending that the Court deny the various motions to suppress. [Record No. 117] On July 2, 2013, the defendant filed a notice, which the Court will construe as objections to the magistrate judge's report. [Record No. 129] After reviewing this matter, the Court will deny the defendant's various motions to suppress.

I.

This cases arises from law enforcement's investigation of the defendant's brother Rocky Joe Houston. After receiving information that Rocky Joe Houston, a convicted felon, was in possession of firearms, agents from the Bureau of Alcohol, Tobacco, and Firearms (" ATF" ) began their investigation. As part of the investigation, on October 9, 2012, a video camera was installed on a utility pole adjacent to the Houston family property. On December 19, 2012, law enforcement obtained authorization

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for the continued use of the pole camera. Based upon evidence collected throughout law enforcement's investigation of Rocky Joe Houston, on January 11, 2013, ATF agents obtained search warrants for the defendant's residence (391 Barnard Narrows Road), Rocky Joe Houston's primary residence (373 Barnard Narrows Road), and Rocky Joe Houston's daughter's residence (412 Barnard Narrows Road). While these search warrants were being executed, law enforcement encountered Defendant Clifford Leon Houston. The events which followed led to his arrest for being in possession of firearms while an unlawful user of a controlled substance.

At a January 17, 2013 hearing before Magistrate Judge Shirley, Roane County Sheriff's Investigator Jason Mynatt testified regarding the underlying investigation of Rocky Joe Houston for being a convicted felon in possession of a firearm. [1] [Record No. 12, pp. 10-71] Mynatt also testified regarding the installation, use, and monitoring of the video camera installed on the utility pole adjacent to the defendant's property. Specifically, Investigator Mynatt testified that he was monitoring the pole camera for safety purposes the night the defendant was taken into custody (January 11, 2012). He observed the defendant drive toward Rocky Joe Houston's residence on an All Terrain Vehicle (" ATV" ) at a rapid pace, at which time law enforcement drew their weapons and ordered the defendant off the vehicle. [ Id., pp. 31-32] Mynatt testified that he observed that the defendant was armed with several guns at this time. [ Id. ] Additionally, he testified about the subsequent questioning of the defendant and the search of his residence. According to Mynatt, the defendant admitted that he had been smoking marijuana and drinking alcohol the night he was taken into custody. [ Id., pp. 70-71] He also testified that the defendant appeared to be under the influence of intoxicants when Mynatt arrived at the Houston family property the night of January 11, 2012. [ Id. ]

ATF Special Agent Jason Dobbs testified at the April 16, 2013, motion hearing. [Record No. 97] Special Agent Dobbs stated that, in 2012, the ATF began investigating the defendant's brother Rocky Joe Houston for being a felon in possession of a firearm. As part of this investigation, a camera was placed on a utility pole near Rocky Joe Houston's residence from October 2012 to December 2012. Evidence collected from this camera revealed that Rocky Joe Houston was in possession of firearms. Special Agent Dobbs also testified regarding the functional capabilities of the pole camera and how law enforcement used the camera. He stated that the areas captured by the camera were readily viewable from public roads surrounding the property. Special Agent Dobbs recollected the application, issuance, execution of the various search warrants obtained in furtherance of law enforcement's investigation into Rocky Joe Houston, as well as the events surrounding the defendant's arrest.

Based upon evidence presented at the January 17, 2013 and April 16, 2013 hearings, the magistrate judge made the following findings:

In 2012, the ATF and the Roane County Sheriff's Department began an investigation into the alleged possession of firearms by the Defendant's brother Rocky Houston, whom they knew to be a convicted felon. On October 9, 2012, the ATF engaged Volunteer Electric utility

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company to install a video camera on a public utility pole on Dogtown Road in Ten Mile, Tennessee. The pole camera, which was located directly across Dogtown Road from the residence of Ray and Juanita Johnson, had a view of the rear of the Defendant's mobile home residence, his back yard, the pasture and fields surrounding his residence, and the rear of Rocky Houston's residence. In addition to recording, the camera was monitored by law enforcement agents remotely through an internet connection primarily during the daytime. The camera was monitored on a few occasions at night. The monitoring officers could cause the camera to pan and to zoom, although the focus was mostly maintained at what could be seen with the naked eye from Dogtown Road because additional magnification made the image blurry. The camera could not see into the Defendant's residence.
The pole camera was installed and monitored without a search warrant or other judicial authorization from October 9 to December 19, 2012. During this time, law enforcement observed the Defendant and Rocky Houston, via the camera, carrying and shooting firearms on the Defendant's property on numerous occasions. On December 19, 2012, ATF Agent Jason Dobbs sought a search warrant authorizing the continued use of the pole camera and provided an affidavit in support thereof. United States Magistrate Judge H. Bruce Guyton issued a search warrant authorizing the continued use of the pole camera on that same day. Following the issuance of this search warrant, law enforcement monitored the pole camera in the same manner as before the search warrant.
On January 11, 2013, ATF agents and Roane County deputies arrested Rocky Houston at the bank where his wife worked. Following this arrest, Agent Dobbs went to Knoxville, Tennessee, to obtain federal search warrants to search the three residences on the Houston family property. Law enforcement arrived at Rocky Houston's residence around 8:00 p.m. on January 11, 2013, in anticipation of executing a search warrant at the residence. Officers entered Rocky Houston's property and began to secure it. While engaged in this task, officers saw the Defendant get on a ATV by his residence and ride toward Rocky Houston's property at a rapid pace. The officers could see that the Defendant was armed and drew their weapons. They met the Defendant in the field between the Defendant's and Rocky Houston's residences and ordered him to stop. The Defendant complied with this order. The officers detained the Defendant and handcuffed him. An agent advised the Defendant of the Miranda warnings, the Defendant agreed to talk with officers, and the officers removed the Defendant to Rocky Houston's carport. Before the search warrants were signed at around 8:30 p.m., agents on the scene called Agent Dobbs to advise him that the Defendant had been taken into custody. Sometime following his receipt of the Miranda warnings, the Defendant spoke with an ATF agent and made the statement that he had been " getting high and getting drunk" that evening.
When Agent Dobbs arrived at Rocky Houston's residence around 9:15 p.m. on January 11, 2013, the Defendant was still speaking with an ATF agent in Rocky Houston's carport. Investigator Mynatt arrived at the Houston property around that same time, which was approximately an hour after he saw, via the pole camera, the officers stop the Defendant. When Officer Mynatt arrived, the Defendant was still speaking

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with an agent and appeared to be intoxicated. Agent Dobbs, Investigator Mynatt, and other officers searched the Defendant's residence pursuant to a search warrant and seized marijuana residue, drug paraphernalia, and firearms.

[Record No. 117, pp. 13-16]

Defendant Clifford Leon Houston objects to the testimony and the magistrate judge's finding that he admitted to law enforcement that he had been high and drunk. [Record No. 129, p. 7] He contends that ATF Agent Steve Cordal asked him if had been smoking marijuana, and that he replied saying, " what whacky tobacco?" [ Id., p. 10] The defendant avers he " then asked the ATF agent if he smoked marijuana, and in his response ATF Agent Steve Cordal said he smoked pot before he became [an] agent." [ Id. ] He asserts that this is " nothing but a vicious and malic[i]ous lie manufactured by ATF agents to cover their unlawful conduct." [ Id. ] He also contends that this is a " conspiracy in furtherance of [a] conspiracy to block the defendant from reporting federal crimes being committed by state and federal official[s]" and is " domestic terrorism and treason." [ Id. ] The defendant contends that he did not approach law enforcement at a " high rate of speed" on his ATV the night of January 11, 2013, and that he was not aware they were on the property until he was confronted. [2] [ Id., p. 11]

On Saturday, January 12, 2013, a Criminal Complaint for the defendant was signed by Magistrate Judge Shirley. On Monday, January 14, 2013, Defendant Clifford Leon Houston was indicted by the Grand Jury. [Record Nos. 1, 6] The initial Indictment [3] alleges that on or about January 11, 2013, the defendant knowingly possessed a firearm while being an unlawful user of ...


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