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United States v. Smith

United States District Court, E.D. North Carolina, Southern Division

July 7, 2017

ALEXIS P. SMITH, Defendant.


          LOUISE W. FLANAGAN United States District Judge.

         On April 5, 2016, defendant was charged in a single-count indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. This matter comes now before the court on defendant's motion to suppress. (DE 43). Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Robert T. Numbers, II, issued a memorandum and recommendation (“M&R”) after evidentiary hearing, wherein it is recommended that this court grant defendant's motion. (DE 54). The government timely filed objections to the M&R. (DE 59). Defendant did not respond, and the time for doing so has passed. In this posture, issues raised are ripe for ruling. For reasons that follow, defendant's motion to suppress is denied.


         Defendant seeks to suppress all evidence derived or flowing from the February 24, 2016, warrantless search of his Lumberton, North Carolina residence as a part of “Operation Zero Hour.”[1]Defendant contends that the search was unlawful under North Carolina law and in violation of his Fourth Amendment rights. Certain background facts pertinent to the instant motion and summarized in the M&R, are repeated below:

In August 2015, Smith began a period of post-release supervision after serving time in prison for a probation violation. As part of his supervision, Smith agreed to abide by numerous conditions, including the condition that he would “submit at reasonable times to searches of [his] person, premises, or any vehicle under [his] control by [his] supervising officer for purposes reasonably related to [his] supervision.” Post-Release Supervision Order at 5, D.E. 43-2. The [North Carolina Post-Release Supervision and Parole Commission] indicated that it imposed the conditions on Smith “after careful study and consideration in accordance with North Carolina General Statute § 15A-1368.4.”[2] Supervision Order at 3.
Upon his release from prison, the Commission assigned Christopher Cook to supervise Smith. Tr. at 15:3-25, 16:8-10. About three months later, Patrick Oxendine took responsibility for Smith's supervision and remained in this role throughout the events at issue in this motion. Tr. at 16:1-7.
In late February 2016, the North Carolina Department of Public Safety, in conjunction with other law enforcement agencies, launched Operation Zero Hour. Tr. at 16:11-16, 22:20-22. As part of this operation, supervision officers and law enforcement officers conducted warrantless searches and served outstanding arrest warrants throughout Robeson County. Tr. at 16:15-22.
Cook decided to search Smith's home because “he was considered a high risk supervision case.” Tr. at 17:1-4. Additionally, officers obtained information that Smith was selling drugs and knew that he had tested positive for using multiple drugs. Tr. at 17:4-8. All of this information caused Cook to believe that Smith was involved in the sale of illegal narcotics. Tr. at 17:9-10.
Cook and five other law enforcement officers - two DPS officers and three local law enforcement officers - arrived at Smith's home at approximately 6:25 a.m. on February 24, 2016. Tr. at 17:13-18, 18:18-20. After learning that Smith was not there, Cook called and told him that he needed to come home so that the officers could conduct a search. Tr. at 17:17-23.
Smith arrived home approximately 15 minutes later. Tr. at 16:24-17:4. Cook informed him that the officers were there to perform a search of his residence, as allowed by his post-release supervision order. Tr. at 19:3-9. Smith then led the officers to his bedroom and unlocked his bedroom door. Tr. at 16:24-17:4. A search of the bedroom uncovered two loaded firearms and marijuana. Tr. at 18:4-8.
Later that day, representatives of the Robeson County Sheriff's Office and the Bureau of Alcohol Tobacco and Firearms interviewed Smith at his home. Resp. to Mot. to Suppress ¶ 7, D.E. 47. After waiving his Miranda rights in writing, Smith admitted that the firearms and marijuana found in his bedroom were, in fact, his. Id. Smith also admitted that he was aware that he was prohibited from possessing a firearm. Id.

See M&R (DE 54) at 2-3.

         The magistrate judge determined that the warrantless search of defendant's home was unreasonable under the Fourth Amendment because it was instigated and participated in by Christopher Cook (“Cook”), defendant's former post-release supervising officer, and not Patrick Oxendine (“Oxendine”), his then current supervising officer, in contravention of conditions set by the North Carolina Post-Release Supervision and Parole Commission (“Commission”) and memorialized by agreement of defendant. That agreement provided in part that defendant would “[s]ubmit at reasonable times to searches of my person, premises, or ...

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