United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge.
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.
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.”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
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.” 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.
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.
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.
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 ...