Drug charge against ex-ETSU basketball player dismissed

Becky Campbell • Sep 23, 2013 at 2:37 PM

A Washington County Criminal Court judge said it was unconstitutional for a college postal employee to open a student’s package, which led to that student’s being charged with possession of marijuana for resale.

Marcus DuBose, 25, originally from Hartsville, S.C., walked out of court a free man Thursday after Judge Stacy Street suppressed all the drug evidence related to the case — including the quarter pound of marijuana buds inside the package.

“As expected, in my opinion, the judge did what was the appropriate thing. He found that the postal employee illegally opened a private package,” said DuBose’s attorney, Cliff Corker.

DuBose had also faced a drug paraphernalia charge that stemmed from officers finding a set of scales commonly used to weigh marijuana. The scales were found in a kitchen drawer in the campus apartment DuBose shared with Sheldon Cooley. Both men were star basketball players at East Tennessee State University at the time, but were ultimately kicked off the team and withdrew from school.

Cooley was only charged with possession of drug paraphernalia, but it was dismissed earlier this year without any kind of ruling on the search conducted by 1st Judicial Drug Task Force agents and ETSU police.

The Fourth Amendment issue in the case stemmed from the postal employee’s — who worked for ETSU through a contract with the postal service — opening the package without first notifying police, who could have obtained a search warrant.

Corker argued that the employee, Harvey Byerley, was an “agent of the state,” but prosecutors said that just wasn’t the case.

“The state argued the postal worker was not a state actor, that he acted as a private citizen. But he clearly was paid by the state under a contract with the state,” Corker said.

“(Byerley) had his suspicions … but he didn’t know there was marijuana” in the package, Corker said.

Byerley had testified in the case that he became suspicious because DuBose received multiple packages from addresses in California and South Carolina. Another package intended for DuBose but intercepted by drug agents in the days following DuBose’s arrest contained $10,700 cash. Investigators believed the money was proceeds from drug sales.

“The Fourth Amendment won the day,” Corker said about the case being dismissed.

“We all have, as private citizens, an expectation of privacy for the mail we get. You can’t have postal employees just opening up mail and then calling law enforcement and saying they found something illegal,” Corker said. “They can’t do that. If they have suspicions, they have to ... get a warrant. Without a warrant, they can’t just open someone’s mail.”

For his part in the debacle, Byerley was fired from his job as manager of the ETSU post office. University officials determined Byerley had committed a felony. No charges have been filed against Byerley.

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