USA v. Simmons

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 30, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11457
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cr-00325-VEH-RRA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON CHRISTOPHER SIMMONS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 30, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Marlon Christopher Simmons, who conditionally pleaded guilty to
possessing an unregistered firearm or destructive device, 26 U.S.C. § 5861(d),

-- 1 of 3 --

appeals the denial of his motion to suppress. Simmons argues that the affidavit in
support of the search warrant failed to provide probable cause to search his home,
the warrant “fail[ed] to state with any particularity” the items to be seized, and the
search of his home exceeded the scope of the search warrant. We affirm.
The district court did not err when it denied Simmons’s motion to suppress.
The affidavit provided probable cause to conclude that Simmons had used a
cellular telephone to threaten to kill officers of the Birmingham Police Department
and that the cellular telephone was located inside Simmons’s residence. See
United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009). The affidavit
stated that Simmons had made the threat that morning “from a cellular phone . . .
number (714) 213-1425” that Simmons “did not have . . . in his possession” when
he had been arrested, and that officers had observed Simmons go “to and from
[his] residence since the phone call was received and before his arrest.” Because
of the open-ended nature of Simmons’s threat, the warrant, which permitted
officers to seize “any and all evidence of the crime of a terrorist threat from a
cellular phone . . . number (714) 213-1425,” was “as specific as the circumstances
and the nature of the activity under investigation permit[ted],” United States v.
Blum, 753 F.2d 999, 1001 (11th Cir. 1985). The warrant gave the officers lawful
access to Simmons’s house and permitted them to make “a search . . . [as]
2

-- 2 of 3 --

extensive as reasonably necessary . . . to locate” Simmons’s cellular telephone and
any object that he could use to effectuate his threat. United States v. Jackson, 120
F.3d 1226, 1228 (11th Cir. 1997). Based on that warrant, Officer Carla Bingham
was permitted to search a duffle bag that she observed lying open on the floor and
inside which she discovered components used to make a pipe bomb.
We AFFIRM Simmons’s conviction.
3

-- 3 of 3 --