United States of America v. MAURICE PLUMMER also known as MAURICE DION WILLIAMS Maurice Plummer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2371
UNITED STATES OF AMERICA
v.
MAURICE PLUMMER
also known as
MAURICE DION WILLIAMS
Maurice Plummer,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 2-05-cr-00336-1)
District Judges: Honorable Terrence F. McVerry
Submitted Under Third Circuit LAR 34.1(a)
March 24, 2009
Before: RENDELL, AMBRO, and JORDAN, Circuit Judges
(Opinion filed August 13, 2009 )
OPINION
AMBRO, Circuit Judge
Maurice Plummer pled guilty to three counts of an indictment: felon in possession

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For identification purposes, we shall continue to refer to her as Smith rather than1
Plummer.
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of a firearm, in violation of 18 U.S.C. § 922(g)(1) (two counts); and conspiracy to possess
with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(iii) (one count). Plummer’s plea agreement contains the
usual waiver of appeal rights, with one exception he could appeal – whether, in
connection with a motion to suppress the crack cocaine, his then-girlfriend (now wife)
Brandi Smith consented to a search of her apartment by law enforcement officers seeking1
to arrest him. In searching Smith’s apartment for Plummer, the officers found the crack
cocaine in plain view.
Plummer claims Smith’s consent was coerced by several law enforcement officers
showing up at her apartment door and telling Smith they had an arrest warrant for
Plummer (in fact, they did). Moreover, Plummer contends that the Court erred by not
considering how Smith herself perceived the officers’ actions; thus it did not evaluate all
the facts and circumstances involving the search. In this context, he concludes, the search
was invalid and the crack cocaine should be suppressed.
The problem for Plummer is that Smith, on the advice of her counsel, would not
testify at the suppression hearing without immunity from prosecution. The District Court
denied that request after concluding that the extraordinary relief of immunity was not
needed for Smith to testify on the limited issue of whether she consented to the search of
her apartment for Plummer. Thus the only testimony before the Court at the suppression

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hearing was that of two police officers to the effect that Smith consented to the search.
Plummer’s counsel on appeal perceives correctly that the consent issue is not
joined until first he wins on the immunity request, for only then can he get in evidence
that Smith did not consent freely to the search of her apartment. While the Government
argues that appealing the denial of immunity “falls outside the lone specific exception to
the appellate waiver [consent],” Gov’t’s Br. at 12, we believe the immunity issue ties as a
precondition to the consent exception. That said, we cannot say that the District Court’s
denial of immunity to Smith was an abuse of discretion, the standard Plummer concedes
applies (Plummer’s Br. at 2 & 9), as the Court’s reasons for denying immunity to Smith
are amply supported. See App. A-467-69.
For these reasons, we affirm the decision of the District Court denying Plummer’s
motion to suppress the crack cocaine evidence.

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