IN THE DISTRICT COURT OF THE UNITED STATESFOR THE MIDDLE DISTRICT OF ALABAMASOUTHERN DIVISION
UNITED STATES OF AMERICA ))v. ) CR. NO. 1:11cr007-MHT)MONTY ERVIN)
RECOMMENDATION OF THE MAGISTRATE JUDGE
Before the court is Defendant’s Motion to Suppress (Doc. #89). On June 7, 2011, theundersigned held an evidentiary hearing on the Motion. Following the hearing, on June 21,2011, Defendant filed a post-hearing brief (Doc. #102) and on June 28, 2011, theGovernment filed a reply (Doc. #106). For the reasons that follow, the undersignedMagistrate Judge RECOMMENDS that the Motion to Suppress (Doc. #89) be DENIED.
I.BACKGROUND
On February 17, 2011, the grand jury returned a five count Superseding Indictment,charging Defendant and his wife with various forms of tax fraud and evasion.
See
Sup.Indictment (Doc. #21). Defendant was arrested on March 19, 2011, and now seeks tosuppress “evidence in the form of photographs, testimony and all other evidence gatheredafter a warrantless search of his property in Houston County, Alabama, on or about March20, 2011, by [Deputy] Ryan Karle [] and other federal agents.” Def.’s Brief (Doc. #102) at1.
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II.OPERATIVE FACTS
Based on the testimony at the hearing held on June 7, 2011, and to a preponderanceof the evidence, the court finds the operative facts as follows:
1
Deputy United States Marshal Ryan Karle (“Deputy Karle”) participated in thefugitive hunt for Defendant. Tr. (Doc. #99) at 3. As part of the fugitive hunt, Deputy Karle placed Dale Anthony Ervin (“Anthony Ervin”), Defendant’s son, under surveillance. On
23
or around March 17, 2011, Rick Clemmons, a member of the Houston County Sheriff’soffice, and members of an arrest team, temporarily detained Anthony Ervin, who they believed was meeting with Monty Ervin in the parking lot of a Ruby Tuesday’s restaurant inDothan Alabama.
Id
. at 4. Deputy Karle was in Auburn, Alabama at the time of AnthonyErvin’s detainment, remotely directing the arrest team.
Id
. at 5. Anthony Ervin was incustody for approximately fifteen minutes while the arrest team determined that Monty Ervinwas not at the scene.
Id
. at 4. Anthony Ervin was then informed that he was not under arrest.
Id
. One of the investigators at the scene placed Anthony Ervin on the phone with DeputyKarle, who explained that he was a Deputy United States Marshal and that there was a
The Court reaches findings of fact at a suppression hearing based on a preponderance of the evidence.
1
United States v. Beechum
, 582 F.2d 898, 913 n.16 (5th Cir. 1978) (citing
Lego v. Twomey
, 404 U.S. 477, 489(1972)).Dale Anthony Ervin is commonly known as Anthony Ervin.
See
Id
. at 3.
2
There is inconsistency between the Government’s Brief, the hearing testimony, and Defendant’s Brief,
3
regarding Anthony Ervin’s relationship with Defendant. For the purposes of this Recommendation, the courtwill rely on Defendant’s description of Anthony Ervin as Defendant’s son.
2
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fugitive search for Monty Ervin underway, and asked Anthony Ervin if he would have timeto be interviewed.
Id
. at 5-6. Anthony Ervin agreed to be interviewed.
Id
. at 8.Deputy Karle and two Houston County Sheriff’s deputies arranged to meet withAnthony Ervin at his place of residence the next day, March 18, 2011, in Ashford, Alabama.
Id
. at 8 & 11. Anthony Ervin lived on a large piece of property with several acres of land.
Id
. at 8. The buildings on the property include a trailer, or mobile home, that Deputy Karle believed was used by Monty Ervin as one of the two or three homes that he moved back andforth between, a built home that was the residence of Anthony Ervin, and a shed, or barn,
4
located about twenty-five meters from Anthony Ervin’s home and approximately threehundred or four hundred meters from Monty Ervin’s trailer.
Id
. at 8-9.Deputy Karle began interviewing Anthony Ervin by asking him questions regarding background information in an attempt to generate leads in the search for Monty Ervin.
Id
.at 10. Deputy Karle soon determined that Anthony Ervin did not know anything aboutMonty Ervin’s whereabouts, so he began to ask him questions related to officer and publicsafety and whether Monty Ervin would be traveling with firearms.
Id
. He also askedAnthony Ern if he knew where Monty Ervin stored firearms.
Id
. at 11. Anthony Ervin then
5
told Deputy Karle that firearms were stored in the shed located near Anthony Ervin’s house.The structure was referred to as either a shed or barn during testimony and in the pleadings.
4
Deputy Karle testified that he was concerned with the possibility that Defendant and the group
5
with which he was alleged to have ties might have been collecting munitions and firearms, and possibly pipe bombs.
See Id
. at 7.3
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USA v Ervin, ALMD 11-cr-00007, Doc 117, (17 Aug 2011) REPORT and Recommendations by Magistrate That Def Ervin Motion to Suppress Be Denied
USA v Ervin, ALMD 11-cr-00007, Doc 117, (17 Aug 2011) REPORT and Recommendations by Magistrate That Def Ervin Motion to Suppress Be Denied
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