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Clark v. United States

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

July 20, 2017

COREY LAMAR CLARK, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          ORDER

          Malcolm J. Howard Senior United States District Judge

         This matter is before the court on petitioner's motion to suppress, [DE #22] . Magistrate Judge Kimberly A. Swank filed a Memorandum and Recommendation ("M&R") on June 27, 2017, recommending the defendant's motion to dismiss be granted. The government filed objections on July 11, 2017, and the defendant replied on July 14, 2017.

         First, the government argues the M&R ignores and misstates material facts established by the government at the suppression hearing in this matter. The government asserts the M&R acknowledges defendant's prior violent criminal record and gang affiliation are "effectively immutable characteristics, " and it fails to give proper credence to the testimony by Officer Cook that defendant was a member of a violent gang involved with ongoing criminal activities at the time of the search, wrongly concluding the search failed to further purposes directly related to the probation supervision. Officer Chavis testified she was notified of the search of petitioner's residence before the search was conducted and was available to assist in the search if needed. The search was conducted as part of Operation Zero Hour, a joint-task force mission of federal and state law enforcement officers that targeted the defendant because he had previously been affiliated with a gang; had a history of violent crimes; and the gang had been active in violent crimes preceding the search. The government did not show evidence that defendant was an active member of the gang, was involved in the gang's criminal activity, or otherwise in violation of the terms of the probation agreement. This court agrees with the magistrate judge's finding that the purpose of the search was not "directly related to the probation supervision." N.C. G.S. § 15A-1343(b)(13).

         Second, the government contends the M&R's reliance on State v. Powell, No. COA16-1022, 2017 WL 2118676 (May 16, 2017), is misplaced and ignores clear factual differences with the present case. The probation officer in Powell had testified there was "not any particular reason" that Powell had been searched; Powell was not a member of a gang; and Powell had not been suspected of recent illegal activity. Id. at *4, *5. The government contends the court in Powell narrowly held that the warrantless search was not in compliance with N.C. G.S. § 15A-1343(b) (13) based on the particular facts of that case as the search was not conducted for purposes "directly related" to the probation supervision. Thus, the government concludes reliance upon Powell is misplaced because the government contends this search was conducted of a probationer's residence who was a gang affiliate with a violent criminal record. This argument is without merit. In the instant case, the search was not "directly related to the probation supervision." N.C. G.S. § 15A-1343(b) (13). Rather, the purpose of the search was to further the mission of Operation Zero Hour, and there was no evidence of conduct of the defendant upon which to conclude a violation of the probation agreement had occurred.

         Third, the government contends reasonable suspicion was not required because the condition of probation did not require reasonable suspicion. The warrantless search was not in compliance with the North Carolina statute because it was not for "purposes directly related to the probation supervision." N.C. G.S. § 15A-1343(b)(13). Thus, the constitutionality of the search is analyzed under United ' States v. Knights, 534 U.S. 112 (2001). The court finds no reasonable suspicion existed as there was no "individualized suspicion of wrongdoing, " United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (internal citations omitted) to support the conclusion that the terms of probation had been violated. Weighing the privacy interest of the defendant in his residence to be free from warrantless search under his probation agreement terms that he would only be searched "for purposes directly related to the probation supervision" and without mentioning his residence, against the government's interest in public safety when there was no reasonable suspicion, the privacy interest of the defendant supersedes the interest of the government. See N.C. G.S. § 15A-1343(b)(13). Thus, without reasonable suspicion and based on defendant's reasonable expectation of privacy, the magistrate judge correctly found that the warrantless search violated the Fourth Amendment.

         Fourth, the government argues the suppression of the evidence here is not supported by the purpose of the exclusionary rule. The evidence derived from an unlawful search should not be admitted pursuant to the exclusionary rule unless the evidence "has been purged of the taint of the unlawful search." United States v. Gaines, 668 F.3d 170, 173 (4th Cir. 2012). The government has presented no evidence to show the "taint of the unlawful search" has been purged as the evidence and statements were seized in the course of and immediately following the unlawful search. Therefore, the evidence seized as a result of the warrantless search should not be admitted pursuant to the exclusionary rule.

         The court has carefully considered all of the government's objections and finds them to be without merit. The government has failed to show the warrantless search of defendant's home was in compliance with the North Carolina statute governing warrantless searches of probationers, N.C. G.S. §15A-1343(b)(13) and was constitutional under the Fourth Amendment.

         A full and careful review of the M&R and other documents of record convinces the court that the recommendation of the magistrate judge is, in all respects, in accordance with the law and should be approved. Accordingly, the court adopts the recommendation of the magistrate judge as its own; and for the ...


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