United States v. Timley

338 F. App'x 782
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 30, 2009
Docket08-3160
StatusUnpublished

This text of 338 F. App'x 782 (United States v. Timley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Timley, 338 F. App'x 782 (10th Cir. 2009).

Opinion

ORDER AND JUDGMENT *

WADE BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Appellant Donnell Francis Timley appeals his conviction for possession with intent to distribute 67.5 net grams of cocaine base (or crack cocaine). 1 He alleges the district court erred in denying his motion to suppress evidence obtained during a search of his home because the affidavit in support of the search warrant failed to establish the probable cause necessary for such a warrant and did not support seizure of certain items listed in the warrant — all in violation of his Fourth Amendment right against unreasonable searches and seizures. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Timley’s conviction.

I. Factual Background

In September 2006, Mr. Timley became the subject of a narcotics investigation by the Shawnee County Sheriffs Office in Topeka, Kansas. In conjunction with that investigation, Deputy Bryan L. Clemmons executed an affidavit in support of a search warrant of Mr. Timley’s residence. The affidavit contained, in part, the following background information.

In September 2006, Deputy Clemmons, through a confidential informant, made two controlled purchases of marijuana *784 from someone known to the informant as “Bebo.” Later, after viewing a series of photographs matching his description, the informant positively identified Mr. Timley as the person from whom he made the .controlled purchases.

During the first controlled purchase, on September 25, 2006, Mr. Timley exited a maroon Toyota Camry in the driveway of a house on the west side of Colorado and 29th Street in Topeka, where he met with the informant. Mr. Timley pulled two bags of marijuana from his coat pocket and gave them to the informant in exchange for $60. Mr. Timley also asked the informant if he was interested in buying ecstasy, which the informant declined to purchase at that time. A field test of the substance in the two bags tested positive for THC, or tetrahydrocannabinol, 2 and had a combined weight of 6.9 grams.

Prior to the next controlled purchase, the informant told Deputy Clemmons and others that Mr. Timley usually drove a green minivan. Thereafter, on September 29, 2006, authorities saw a green minivan with Kansas license tag “WDR 074” parked at the gas station where the informant was scheduled to meet Mr. Timley. Deputy Clemmons observed the informant enter the green minivan, heard him conversing with two individuals inside the vehicle, and then watched him exit the van and walk away. At that time, Mr. Timley sold the informant two bags of marijuana for $50 and again asked the informant if he was interested in buying ecstasy, which the informant declined but said he might try some cocaine in the future. The two bags again tested positive for THC and had a gross weight of 6.9 grams. On or about January 12, 2007, the informant positively identified Mr. Timley from a photograph.

Deputy Clemmons learned the green minivan at the scene of the second drug transaction was registered to Trelonda Brown, at 308 Scotland Avenue, Topeka. However, surveillance of Mr. Timley following the two controlled purchases of marijuana indicated he lived in a house at 528 S.E. 33rd Terrace in Topeka; parked at that house was the green minivan he used to conduct the second controlled purchase as well as a large, older-model automobile covered with a tan tarp parked in the back of the driveway.

Because the green minivan was registered to Trelonda Brown, at 308 Scotland Avenue, Deputy Clemmons also began conducting surveillance of the Scotland Avenue address on February 23, 2007; at that residence he began to notice the green minivan parked in the driveway as well as the large, older-model automobile covered with a tan tarp, which was parked in the back of that driveway. In addition, sometime after the beginning of the year, surveillance showed the residence at the S.E. 33rd Terrace address had been vacated, which was confirmed by a Topeka police officer who had information Mr. Timley was now living at the Scotland Avenue address.

On March 22, 2007, Deputy Clemmons saw a black male matching Mr. Timmy’s description exit the Scotland Avenue residence and move the green minivan parked in the driveway onto the street and then enter a black vehicle, also parked in the driveway, and drive away. On March 30, 2007, which was the normal pick-up day for trash in the neighborhood, Deputy Clemmons took two large tied-up black plastic bags of garbage from the alley di *785 rectly behind the Scotland Avenue residence. On examination of the contents of those bags, he found a bank statement addressed to “Trelonda Timley” at the Scotland Avenue address; a piece of paper with Mr. Timley’s first name, “Donnell,” written on it; several empty cigar boxes and wrappers; loose cigar tobacco mixed with marijuana stems and seeds; trace amounts of cocaine on a shirt; and thirty plastic baggies with the corners torn off, which indicated to Deputy Clemmons the packaging of illegal narcotics for distribution.

In addition to these facts, Deputy Clem-mons averred in his affidavit that he was a certified law enforcement officer who possessed approximately seven years experience and hundreds of hours of professional law enforcement training in the detection and investigation of criminal offenses. 3 Based on his training and experience, Deputy Clemmons further stated he knew that individuals who use and sell illegal substances: (1) commonly have firearms and other weapons in their possession used to protect and secure their property, drugs, and money; (2) frequently have in their possession paraphernalia required to conduct narcotics transactions, including scales, plastic baggies, pipes, and other smoking devices; (3) commonly discard their drug packaging and used materials in their personal trash receptacles; (4) often discard small amounts of marijuana in the form of seeds, stems, and burned marijuana cigarette butts; (5) make or use cigars to smoke marijuana using a “blunt,” which is an unrolled cigar with the tobacco taken out of the middle and then refilled with marijuana; and (6) use small plastic baggies with the corners cut off as a means of narcotics packaging and/or discard small plastic baggies commonly used to package narcotics after cutting or tearing off their corners to remove cocaine, crack cocaine, methamphetamine, marijuana, and other drugs.

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Bluebook (online)
338 F. App'x 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timley-ca10-2009.