United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendant's motion to
suppress [DE #24], which has been referred to the undersigned
for memorandum and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). The Government filed a response in
opposition to the motion to suppress [DE #28]. To further
develop the record, the undersigned conducted an evidentiary
hearing on October 23, 2017, at which the Government and
Defendant, with counsel, appeared. Accordingly, the matter is
now ripe for decision.
OF THE CASE
April 18, 2017, a federal grand jury returned a one-count
indictment charging Eric Daniel Vanderwerf
(“Vanderwerf”) with possession of a firearm by a
felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). On July 20, 2017, Vandwerwerf filed the
instant motion to suppress. Vanderwerf contends that his home
was subjected to an unlawful warrantless search and that
evidence was seized in violation of the Fourth Amendment. He
demands that any evidence obtained, including any inculpatory
statements made by him, be suppressed. The Government argues
that (1) the search of Vanderwerf's home was lawful
because Vanderwerf was on state post-release supervision and
subject to warrantless, suspicionless searches; and, in the
alternative, (2) the search was reasonable even if it
violated the terms of Vanderwerf's post-release
supervision. For the reasons set forth below, it is
recommended that Vanderwerf's motion be granted.
OF THE FACTS
evidentiary hearing on Vanderwerf's motion, the court
heard the testimony of Akendra Brown, Tyree Simmons, and
Jeffrey Sipes of the North Carolina Department of Public
Safety (“NCDPS”); and of Thomas Jarrett Wishon
and Nathan Honaker of the United States Department of
Justice's Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”). Based upon the witnesses'
testimony and the documentary evidence received, the
undersigned makes the following findings of fact.
was released from North Carolina prison to state post-release
supervision on November 18, 2016, after serving an
active sentence for Second- Degree Murder. Vanderwerf was
sixteen years old when he committed the murder that resulted
in the aforementioned conviction and imprisonment term.
Carolina law requires that all persons serving an active
sentence in the Division of Adult Correction of the
Department of Public Safety be released on post-release
supervision before the maximum term of imprisonment.
See N.C. Gen. Stat. § 15A-1368.2 (explaining
eligibility and procedure for various forms of post-release
supervision). Refusing post-release supervision is prohibited
by law and can be punished as contempt of court. N.C. Gen.
Stat. § 15A-1368.2(b). The Post-Release Supervision and
Parole Commission of the Division of Adult Correction of the
Department of Public Safety (“Commission”)
administers post-release supervision in accordance with state
law. N.C. Gen. Stat. § 15A-1368(b). Certain conditions
of supervision are mandated by state law and apply to all
persons on post-release supervision. N.C. Gen. Stat. §
15A-1368.4(b), (d), (e), and (f). Other conditions mandated
by state law apply only to persons convicted of a sex offense
or an offense involving abuse of a minor. N.C. Gen. Stat.
§ 15A-1368.4(b1). The Commission may also impose
discretionary conditions that are “reasonably necessary
to ensure that the supervisee will lead a law-abiding life,
” N.C. Gen. Stat. § 15A-1368.4(c), and the
Commission can modify the conditions “at any
time” during the term of supervision, N.C. Gen. Stat.
was subject to a battery of conditions upon his release from
state prison, imposed by state law and by the Commission in
its discretion. (Gov't Ex. 1.) On November 22, 2016,
Vanderwerf acknowledged these conditions in writing.
(Id.) Because his underlying conviction was not a
sex offense and did not involve abuse of a minor, state law
did not require that Vanderwerf be subject to warrantless
searches of his automobile, residence, or electronic devices.
See N.C. Gen. Stat. § 15A-1368.4(b1). State law
did require, however, that Vanderwerf submit to warrantless
searches of his person, N.C. Gen. Stat. §
15A-1368.4(e)(10), and permit a post-release supervision
officer “to visit [him] at reasonable times” in
“[his] home or elsewhere, ” N.C. Gen. Stat.
here, the Commission, apparently acting in its discretion
pursuant to N.C. Gen. Stat. § 15A-1368.4(c), purported
to impose the following condition on Vanderwerf via a
document labeled “PCAR111D (23)”:
VANDERWERF, ERIC D. DOC ID: 1164455 AGREES TO ABIDE BY ANY
AND ALL CONDITIONS INDICATED BELOW:
. . . .
. . . .
. . . .
SUBMIT AT REASONABLE TIMES TO SEARCHES OF MY PERSON, PREMISES
OR ANY VEHICLE UNDER MY CONTROL BY MY SUPERVISING OFFICER FOR
PURPOSES REASONABLY RELATED TO MY SUPERVISION.
(Gov't Ex. 1.)
Brown is a probation/parole officer employed by NCDPS who
works in Cumberland County, North Carolina. As of October
2017, she has worked as a probation/parole officer for
approximately two years. She has no prior work experience in
law enforcement or criminal corrections. She was
Vanderwerf's assigned supervising officer from the date
of his release through the date of his arrest on the instant
Simmons is a probation/parole officer employed by NCDPS who
works in Cabarrus County, North Carolina. As of October 2017,
he has worked as a probation/parole officer for approximately
two-and-a-half years. He began his career as a
probation/parole officer in Cumberland County but transferred
to Cabarrus County on August 7, 2017.
Sipes is Chief of Special Operations for NCDPS. He has held
that position for approximately six years. Previously, he
worked as a surveillance officer and as a probation/parole
officer for NCDPS (or one of its previous iterations) in Wake
County, North Carolina. In his current capacity, he serves a
liaison between NCDPS and federal agencies with which NCDPS
Jarrett Wishon is a Special Agent with ATF. He has worked for
ATF in this capacity since March 2014. Before joining ATF,
Agent Wishon worked for the Charlotte-Mecklenburg Police
Department as both a patrol officer and as a detective. He is
the lead law enforcement officer in the instant case.
Honaker is the Resident Agent in Charge of ATF's
Fayetteville, North Carolina, Field Office. Agent Honaker has
approximately 18-19 years of law enforcement experience: he
worked as an ATF Special Agent in Cleveland, Ohio, for
approximately eight years before his current position, and he
worked for the Kentucky State Police before joining ATF.
his time in state prison, Vanderwerf was validated, based on
self-admission and possession of letters to-and-from another
individual, as a member of the Latin Kings gang. (Gov't
Ex. 4.) After his release from prison, Vanderwerf repeatedly
denied membership in a gang. From the date of his release in
November 2016 through the date of his arrest in March 2017,
Officer Brown had no reason to suspect that Vanderwerf was
active in a gang; she also had no knowledge that Vanderwerf
had been affiliating with gang members. NCDPS has a policy
that outlines the procedure for renouncing gang affiliation
and removing associated security risk group conditions. (Def.
Ex. 1); NCDPS Community Corrections Policy & Procedures
Chapter C § 0.608,
(last visited Nov. 28, 2017). Officer Brown was unaware of
NCDPS internal policy regarding removal of a person's
gang status and associated conditions.
the course of her supervision, Officer Brown developed
“concern” about Vanderwerf's reintegration to
society. This concern was borne out of (1) Vanderwerf's
gang validation; (2) his tattoo of a firearm and several
bullets on his arm, (3) his quiet nature, (4) his tendency to
make little eye contact, (5) his lack of friends, (6) the
fact he had spent the majority of his adult life in prison,
and (7) general concerns expressed by Vanderwerf's church
pastor about his reintegration. Nevertheless, Vanderwerf gave
Officer Brown “no issues”: he passed multiple
drug screens, he complied with a discretionary curfew that
was ultimately lifted because of his compliance with
supervision, and he attended an Operation Ceasefire community
resources meeting as requested. Officer Brown made five or
six home visits and never felt the need to request that law
enforcement accompany her. These home visits, however, were
not full-blown warrantless searches, but were more akin to
walkthroughs of Vanderwerf's residence. No full-blown
warrantless search of Vanderwerf's residence took place
until March 28, 2017, slightly more than four months after
Vanderwerf was released from prison and approximately
one-third of the time through his period of post-release
Spring Sweep was a multi-agency operation organized by the
United States Marshals Service, ATF, NCDPS, and local law
enforcement which took place March 28-29, 2017. The operation
had two primary purposes: (i) to locate and arrest people
with outstanding warrants or who had absconded from
probation/parole, and (ii) to conduct warrantless searches of
probationers and parolees subject to warrantless searches as
part of their conditions of supervision. The U.S.
Marshals' involvement was limited to the warrant and
absconder portion of the operation; and ATF involvement was
limited to the warrantless search portion of the operation.
An Assistant United States Attorney for the Eastern District
of North Carolina participated in at least one planning
meeting and was on call to authorize criminal complaints
should grounds for a federal arrest emerge as a result of the
operation. Similarly, the Harnett County, North Carolina,
jail was secured as a detention facility for any federal
arrests. The U.S. Marshals created the operations plan
manual. (Gov't Ex. 2.) However, other participating
agencies contributed to the overall operation: for example,
Agent Honaker was responsible for the “federal
logistics” of the plan, and NCDPS probation/parole
officers selected persons for the search component of the
here, the search teams of the operation were led by NCDPS
probation/parole officers. (Gov't Ex. 2.) These
probation/parole officers comprised the majority of each
search team. (Id.)
March 27, 2017, an operational briefing took place at the
United States Courthouse in Fayetteville, North Carolina.
This briefing was led by the United States Marshals Service
March 22, 2017, Vanderwerf attended an Operation Ceasefire
event regarding the federal consequences of firearm
possession by convicted felons at the direction of Officer
Brown. (Gov't Ex. 8.) Sometime between March 22 and March
28, 2017, Officer Brown selected Vanderwerf for the
warrantless search component of Operation Spring Sweep.
Officer Brown selected Vanderwerf because of his gang
validation, her concerns described above, and convenience.
Officer Brown testified that she “was going to search
[Vanderwerf] anyway” and that Operation Spring Sweep
provided a perfect opportunity to do so.
unidentified time on March 28, 2017, an Operation Spring
Sweep search team arrived at Vanderwerf's residence for
the purpose of conducting a warrantless search. Officer
Simmons led the search team, which was comprised of three
additional probation/parole officers, Agent Wishon, ATF Task
Force Officer Blake Harrell, and other local law enforcement.
Officer Brown was not part of this search team and
played no part in the search of Vanderwerf's residence.
Officer Simmons knocked on the door; a family member answered
and informed Officer Simmons that Vanderwerf was asleep in
his room. Shortly thereafter, Vanderwerf arrived at the door,
and Officer Simmons informed him they were there to conduct a
warrantless search as part of his post-release ...