Ex-ETSU basketball player’s drug charge headed to grand jury
Feb 15, 2013 at 5:45 AM
A defense attorney attacked the constitutionality of a drug case brought against his client after a package mailed to an East Tennessee State University post office box was opened by the post office manager.
Marcus Dubose, formerly a senior guard on the basketball team, is charged with possession of marijuana for resale and possession of drug paraphernalia. The charges stem from an Express Mail package mailed to Dubose’s ETSU post office box and a subsequent search of his campus apartment.
“There are constitutional problems with this case. This postmaster clearly said what he did was wrong, illegal,” attorney Cliff Corker argued to Sessions Judge James Nidiffer after hearing the state’s case.
The apparent basis for Harvey Byerly — not a postmaster, but the former contracted postal manager at ETSU — opening the box was frequent similar deliveries to Dubose from an address in South Carolina and another in California. It happened Nov. 19 after an ETSU post office employee told Byerly of the supposed suspicious packages Dubose had not only been receiving, but also mailing packages to the same addresses in South Carolina and California.
Byerly also testified that another student, former basketball player Sheldon Cooley, another former senior guard on the team, received similar packages from the same addresses. Between the two, Byerly said there were 12 to 15 packages delivered or mailed during that semester.
Cooley was not charged in the resale case, but had faced a drug-paraphernalia charge that stemmed from police finding a set of digital scales in a kitchen drawer of the apartment the men shared.
Cooley’s attorney, Tom Jessee, was able to get the charge against his client dismissed Thursday.
Byerly said he was ultimately fired after ETSU administrators determined he committed a felony federal offense by opening the box.
“In hindsight, I realize I made a rash decision,” Byerly said about his decision to open the package. Byerly has not been charged with a crime.
He said the box contained a “cloth mesh” bag and he saw a “green, leafy material (and) seeds.” Byerly also said he detected an aroma of marijuana. He said he called ETSU Public Safety to report the package.
The next day, Byerly testified, Dubose received an Express Mail envelope, and he called police to report it. Police had to obtain a federal warrant to open that package, which contained $10,700 cash, according to testimony later in the hearing.
Testimony from an ETSU public safety officer contradicted part of Byerly’s statements, with Lt. Mike Orr testifying there was no smell of marijuana and the drugs were sealed in a plastic bag. That plastic bag was also inside a dark blue bag, Orr said. Prior to inspecting the boxes’ contents, Orr had contacted 1st Judicial Drug Task Force Director Mike Adams.
Adams testified he waited at the ETSU post office until Dubose signed for the delivery and then took the student into custody. Adams said he advised Dubose of his rights and asked what was in the box.
“He was asking ‘What’s going on, what’s going on?’ ” Adams testified. Dubose denied knowing what was in the package and told Adams he was picking it up for “a teammate,” the officer said.
Dubose gave Adams a name of the person he claimed to be picking up the package for, but officers never investigated that possibility. That’s another issue Corker attacked in the hearing.
Adams testified he asked for consent to open the package, and Dubose said he could. Again, Dubose denied knowing the package contained marijuana. Dubose was initially taken to ETSU Public Safety but later transported to his apartment by Sgt. Mark Tipton. He testified he took Dubose home after Dubose gave other officers consent to search the apartment he shared with Cooley so Dubose could end the search if he changed his mind.
But on cross examination, Tipton said he never told Dubose that’s the reason for taking him home and Tipton was unaware of any other officer letting Dubose know he could end the search.
Cooley, who was at basketball practice at the time, was also taken home as the search was conducted. Tipton testified both men adamantly denied ownership of the digital scales found in their kitchen and also told officers that a friend — who has not surfaced at this point in the case — had been living with them.
Both men were arrested at that point by DTF, Tipton said, but he was asked to transport them to the Washington County Detention Center. Tipton said as soon as the men were placed in the back of his cruiser and he backed out of a parking spot, Dubose said the scales belonged to him.
“Mr. Dubose stated the scales belonged to him. He said, ‘The scales are mine,’ and Mr. Cooley said, ‘Did you hear him? he said the scales are his,’ ” Tipton testified.
The hearing ended with Nidiffer ruling against Corker’s arguments of constitutional rights violations and bound the charges over to a Washington County grand jury. Dubose, who is free on bond, is scheduled to appear in Criminal Court on March 11.