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United States v. Scott

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

December 20, 2017

UNITED STATES OF AMERICA
v.
JAVION SCOTT, Defendant.

          MEMORANDUM & RECOMMENDATION

          KIMBERLY A. SWANK United States Magistrate Judge

         This matter is before the court on Defendant's motion to suppress [DE #20], 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 #26], to which Defendant replied [DE #29]. To further develop the record, the undersigned conducted an evidentiary hearing on September 28, 2017, at which the Government and Defendant, with counsel, appeared. Defendant submitted supplemental briefing on October 10, 2017 [DE #37], and the Government filed a notice of supplemental authority on October 19, 2017 [DE #38]. Accordingly, the matter is now ripe for decision.

         STATEMENT OF THE CASE

         On April 24, 2017, a federal grand jury returned a one-count indictment charging Javion Scott (“Scott”) with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).[1] On June 21, 2017, Scott filed the instant motion to suppress. Scott contends that his home was subjected to an unlawful warrantless search and that evidence was seized in violation of the Fourth Amendment. He also contends that his cellular telephone and automobile were searched unlawfully in the same course of action as the home search. He demands that any evidence obtained as a result of these searches be suppressed. The Government argues that Scott's state post-release supervision conditions rendered the search reasonable under the Fourth Amendment and, in the alternative, that the tangible evidence Scott seeks to suppress had been abandoned. For the reasons set forth below, the Government's argument that the conditions of Scott's post-release supervision rendered the search constitutional is meritorious. Accordingly, the undersigned recommends that Scott's motion be denied.

         STATEMENT OF THE FACTS

         At the evidentiary hearing on Scott's motion to suppress, the court heard the testimony of North Carolina Department of Public Safety (“NCDPS”) Probation/Parole Officers Courtney Thomas and Becky Staley; Special Agent Jarrett Wishon of the United States Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”); and the mother of Defendant, Ms. Brenda Scott. Based upon the witnesses' testimony and documentary evidence received, the undersigned makes the following findings of fact.

         On June 8, 2010, Defendant was sentenced to a term of 60 to 81 months' imprisonment in the North Carolina Department of Corrections for Second-Degree Sexual Offense.[2] Scott was released from North Carolina prison on November 14, 2016, and immediately placed on post-release supervision.[3]

         North Carolina General Statute § 15A-1368.4 governed Scott's post-release supervision, and he was subject to a battery of conditions imposed by state law and the North Carolina Post-Release Supervision and Parole Commission. As a person convicted of a reportable offense as defined in N.C. Gen. Stat. § 14-208.6(4), Scott was subject to conditions beyond those imposed in standard, post-release supervision cases. See N.C. Gen. Stat. § 15A-1368.4(b1) (listing eight additional required post-release supervision conditions). Relevant here, Scott was subject to the following condition:

Submit at reasonable times to warrantless searches by a post-release supervision officer of the supervisee's person and of the supervisee's vehicle and premises while the supervisee is present, for purposes reasonably related to the post-release supervision, but the supervisee may not be required to submit to any other search that would otherwise be unlawful. For purposes of this subdivision, warrantless searches of the supervisee's computer or other electronic mechanism which may contain electronic data shall be considered reasonably related to the post-release supervision.

N.C. Gen. Stat. § 15A-1368.4(b1)(8).

         Courtney Thomas is a probation/parole officer employed by NCDPS who has worked for four years as a probation/parole officer in Cumberland County, North Carolina. She has no law enforcement experience beyond her career with NCDPS. She supervises approximately sixty people, all of whom have been convicted of a sex offense or validated as a gang member. Scott was added to her caseload in November 2016. Scott was previously supervised by four different Cumberland County probation/parole officers before his transfer to Officer Thomas' caseload.

         Becky Staley is a probation/parole officer employed by NCDPS who has worked as a probation/parole officer for two years in Cumberland County, North Carolina. She works as a veterans' court officer and supervises approximately fifty people on probation or post-release supervision. At no point did she supervise Scott. She had, however, met Scott prior to the search at issue and was aware that he had previously violated the terms of his post-release supervision.

         Special Agent Thomas Jarrett Wishon works for ATF and primarily investigates federal firearms offenses. He has worked for ATF since May 2014. He is the lead law enforcement agent in this case.

         In November 2016, Scott's supervision was transferred to Officer Thomas. At that time, Officer Thomas knew that Scott had been validated as a gang member, had previously violated curfew while on post-release supervision, and had allegedly been disrespectful toward a prior probation/parole officer. At some point between November 2016 and the end of March 2017, Officer Thomas removed Scott's curfew condition because he had no major violations or issues.

         Officer Thomas had no information, either from her personal supervision of Scott or from local police, that Scott was active in a gang. Indeed, Scott had repeatedly stated to the Cumberland County probation/parole office that he was not in a gang. Nevertheless, Scott remained validated as a gang member by NCDPS primarily due to his refusal to cover or remove his gang-affiliated tattoos.

         Although Officer Thomas had no major issues with Scott, Scott's lack of employment and lack of continuing education bothered Officer Thomas. In particular, Officer Thomas had observed Scott wearing “flashy” things, such as a necklace, grill, watch, and “expensive-looking” shoes and was suspicious as to how he came to acquire such items without employment. Scott's mother testified that Scott had received his deceased brother's jewelry after his death on June 23, 2016.

         Pursuant to the local probation/parole office's policy, Scott was subject to an unannounced warrantless search every 180 days because of his sex offender status and an unannounced warrantless search every 180 days because of his gang validation status.[4] Historically, Officer Thomas has conducted such warrantless searches even if a supervisee was in compliance with the terms of his probation or parole.

         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.

         Officer Thomas was asked to select some of her supervisees for warrantless searches to be conducted as part of Operation Spring Sweep. Officer Thomas selected three or four supervisees from her caseload, including Scott. Officer Thomas selected Scott for a warrantless search because (1) she was suspicious of his “flashy” jewelry in the absence of any employment and (2) Scott was approximately forty-five days away from the deadline to be searched pursuant to the probation office's warrantless search policies for sex offenders and gang members.

         On March 27, 2017, an Operation Spring Sweep planning meeting was held at the United States Courthouse in Fayetteville, North Carolina. At this meeting, federal, state, and local law enforcement officers participating in ...


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