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United States v. Willard

United States District Court, W.D. Missouri, Western Division

August 22, 2016

United States of America, Plaintiff,
v.
David A. Willard, Defendant.

          David A. Willard, Defendant, represented by William M. Ermine, Federal Public Defender's Office.

          USA, Plaintiff, represented by Bruce Eugene Clark, United States Attorney's Office.

          REPORT AND RECOMMENDATION

          JOHN T. MAUGHMER, Magistrate Judge.

         Pending before the Court is the MOTION TO SUPPRESS EVIDENCE WITH SUGGESTIONS (Doc. #10) filed on July 11, 2016, by defendant David A. Willard ("Willard"). On August 9, 2016, the undersigned held an evidentiary hearing on Willard's motion. Willard was present and was represented by his counsel, Assistant Federal Public Defender Marc Ermine. The government was represented by Assistant United States Attorney Bruce Clark. At the evidentiary hearing, the government called one witness: U.S. Probation Officer Kimberly Grace. Additionally, the following exhibits were admitted into evidence:

         On the basis of all the evidence adduced at the evidentiary hearing, the undersigned submits the following:

         PROPOSED FINDINGS OF FACT

         1. Kimberly Grace ("Grace") is a probation officer with the United States District Court for the Western District of Missouri. Tr. at 4.

         2. Grace performs supervision on individuals subject to supervised release by the federal court. Tr. at 4-5.

         3. As part of her supervisory activities, Grace occasionally performs supervisory searches ( i.e., searches performed of a probationer's property pursuant to the probationer's courtordered conditions of supervised release). Tr. at 5.

         4. Willard was a probationer assigned to Grace. Tr. at 5-6.

         5. On March 23, 2007, a Judgment in a Criminal Case was entered against Willard based on the offense of Felon in Possession of a Firearm by the United States District Court for the Western District of Missouri. Gov't #1.

         6. The Judgment entered by the district court included terms and conditions for Willard's supervised release. Tr. at 6-7; Gov't #1.

         7. One of the conditions imposed on Willard was that he would "notify the probation officer at least ten (10) days prior to any change in residence." Tr. at 7; Gov't #1.

         8. Another condition of Willard's supervised release provided:

[Willard] shall submit his person, residence, office or vehicle to a search, conducted by the U.S. Probation Officer at a reasonable time and a reasonable manner, based on reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.

         Tr. at 7; Gov't #1.

         9. Willard's supervision with Grace began on November 19, 2013. Tr. at 6, 8, 25.

         10. Grace considers a "residence" to be where an individual "sleeps" and "spends their time." Tr. ...


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