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United States v. Vanderwerf

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

December 20, 2017




         This 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.


         On 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).[1] 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.


         At the 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.

         Vanderwerf was released from North Carolina prison to state post-release supervision[2] 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.

         North 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. § 15A-1368.3(b).

         Vanderwerf 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. § 15A-1368.4(e)(6).

         Relevant 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)”:

. . . .
. . . .
. . . .

(Gov't Ex. 1.)

         Akendra 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 charges.

         Tyree 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.

         Jeffrey 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 collaborates.

         Thomas 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.

         Nathan 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.

         During 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.

         Over 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 supervision.

         Operation 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 operation.

         Relevant 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.)

         On 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 and ATF.

         On 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.

         At an 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 ...

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