United States v. Thomas

605 F.3d 300, 2010 U.S. App. LEXIS 9838, 2010 WL 1904908
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 13, 2010
Docket08-5239
StatusPublished
Cited by59 cases

This text of 605 F.3d 300 (United States v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thomas, 605 F.3d 300, 2010 U.S. App. LEXIS 9838, 2010 WL 1904908 (6th Cir. 2010).

Opinions

KENNEDY, J., delivered the opinion of the court, in which WHITE, J., joined. MOORE, J. (pp. 314-19), delivered a separate opinion dissenting in part and concurring in part.

OPINION

KENNEDY, Circuit Judge.

Defendanb-Appellant James Thomas pleaded guilty under a conditional plea agreement to one count of manufacturing 100 or more marijuana plants and one count of possession with intent to distribute a detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Thomas now exercises a right he reserved under the plea agreement by appealing the district court’s denial of his motion to suppress the evidence that law enforcement agents seized from his trailer home during execution of a search warrant. Thomas also appeals his sentence, claiming that he was not given- certain sentence reductions to which he is allegedly entitled. Because there was probable cause to support the issuance of the search warrant in this case, we AFFIRM the district court’s order denying Thomas’ motion to suppress. Additionally, we DISMISS Thomas’ sentence appeal to the extent that he knowingly and voluntarily waived his right to appeal it through his plea agreement.

FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2005, Tennessee Bureau of Investigation Special Agent Dennis Mabry presented an application for a warrant to search the premises of 3971 Taz Hyde Road in Nashville, Tennessee to a judge of the Metropolitan Davidson County, Tennessee Court. In his affidavit in support [304]*304of the warrant, Mabry recited information that was provided to him by Drug Enforcement Administration Special Agent John Hardcastle, a twenty-year veteran of the DEA who had been involved in an investigation of Thomas. The relevant portions of the affidavit1 contained the following information:

1. SA John Hardcastle with the Drug Enforcement Administration (DEA) recently met with a Confidential Informant (Cl) who works for DEA. This Cl provided information regarding [sic] illegal indoor marijuana grow operation located at 3971 Taz Hyde Road, Nashville, TN. This Cl has worked with SA Hard-castle, and has given him reliable information within the past year. Information provided by this Cl has led to the successful arrests and prosecution of three subjects who were arrested. Two were charged and convicted in Federal Court.
2. The Cl has informed SA Hardcastle that James I. THOMAS has had a reputation within the marijuana community of Nashville for the past two to three years as being a successful producer of just not [sic] leaf marijuana, but the more sought after “bud” of the plant, which is more expensive and produces a greater high for the user. Typically one ounce of the “hydroponically” produced bud will sell as for a high [sic] as $250.00 per ounce.
3. The Cl informed SA Hardcastle where James I. THOMAS lived. SA Hardcastle was able to confirm by [sic] THOMAS’S driver’s license has the address of 3971 Taz Hyde Road. SA Hard-castle discovered that THOMAS has an active gun permit with the address listed as 3971 Taz Hyde Road. On 10-18-2005 at approximately 10:15 am, SA Hardcastle drove by the residence of 3971 Taz Hyde Road and observed THOMAS standing in the driveway smoking a cigarette.
4. According to the reliable Cl, he/she has been to the residence on at least three occasions and observed THOMAS conduct narcotic transactions. The Cl has observed THOMAS exit the residence with marijuana and sell the marijuana to customers on at least three occasions. [2]
5. According to Nashville Electric Service, the subscriber to this residence is Sandra G. Brumit the girlfriend of James I. THOMAS. [3] According to Metro Nashville Property records, Brumit is the owner of the property. The house has a finished area of 1059 square footage. SA Hardcastle pulled electricity records for that address from March 2005 through September 2005. The research conducted by SA Hardcastle revealed usage which SA Hardcastle and I believe to be high usage. The following information was provided by Nashville Electric Service (NES) to the [sic] SA Hardcastle for the electrical usage at 3971 Taz Hyde Road:
March 2005 — $345.24
April 2005 — $371.22
May 2005 — $337.51
June 2005 — $436.28
July 2005 — $513.90
August 2005 — $499.63
Sept. 2005 — $530.46
6. The following information was provided by the Nashville Electric Service [305]*305(NES) to SA Hardcastle for the electric usage for the neighbor of THOMAS located at address of 3986 Taz Hyde Road. The square footage of the residence according to the Davidson County is 1568 square footage of finished area.
May 2005 — $125.00
June 2005 — $181.64
July 2005 — $202.78
Aug 2005 — $221.89
Sept 2005 — $233.21
7. According to the NES records, THOMAS’S residence regularly uses more electricity than the neighbor. THOMAS pays twice as much a month on a regular basis which you [sic] affiant knows is something that is very common with indoor marijuana grow operations.
8. Indoor marijuana cultivation operations typically use large volumes of electricity to operate the advanced lighting systems used in such operations. An indoor grow operation can generate marijuana year round if the growing operation is managed properly. An indoor grower of marijuana will use a technique that is referred to as an “up cycle” to increase the lighting given to the marijuana simulate [sic] the coming of fall to make the marijuana plants to [sic] produce more “buds” on the plants.
9. NES disclosed to the Affiant that the January 2005 bill was for $745.00. Given the recorded square footage of the 3971 Taz Hyde Road location and the utility usage, it strongly appears that James I. THOMAS is “cycling up” on his utility usage which indicates that THOMAS is running a marijuana cultivation operation on the 3971 Taz Hyde Road location.
10. Davidson County property records reveal that there are at least two “out buildings” located on the property out of sight from the front of the property. Property records do not indicate that there are any other structures on the property that would legitimately use such a high volume of electricity such as a heated pool or air conditioned buildings other that [sic] the residence. [4]

Based on this information, the judge issued a search warrant, which was executed on October 26, 2005. When the officers arrived at the Taz Hyde property, .they discovered that Thomas, as well as his girlfriend and their two children, lived in a freestanding trailer home behind the main building of the property.

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Cite This Page — Counsel Stack

Bluebook (online)
605 F.3d 300, 2010 U.S. App. LEXIS 9838, 2010 WL 1904908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-ca6-2010.