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United States v. Fuller

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

October 1, 2019

UNITED STATES OF AMERICA
v.
MALCOLM DION FULLER, Defendant.

          MEMORANDUM & RECOMMENDATION

          KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Defendant's motion to suppress, 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. To further develop the record, the undersigned conducted an evidentiary hearing, at which the Government and Defendant, with counsel, appeared. Accordingly, the matter is ripe for decision.

         STATEMENT OF THE CASE

         On December 13, 2017, a federal grand jury returned a one-count indictment charging Malcolm Dion Fuller (“Fuller”) with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. On February 15, 2018, Fuller filed the instant motion to suppress evidence seized pursuant to a warrantless search of his home on June 8, 2017. At the evidentiary hearing on Fuller's motion, the court heard the testimony of the following individuals: James Harding, North Carolina Department of Public Safety (“NCDPS”) Chief Probation Officer for District 12; Priscilla Webb and Billy Draughon, NCDPS Probation and Parole Officers for Cumberland County; and Special Agent Jeff Silver of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Based upon the evidence presented, the undersigned makes the following findings of fact.

         FINDINGS OF FACT

         On January 17, 2017, Fuller was convicted of possession with intent to sell or deliver marijuana in the Superior Court of Harnett County, North Carolina. Fuller received a sentence of six to seventeen months' imprisonment, which was suspended, and Fuller was placed on supervised probation for twelve months, a shorter than presumptive term under North Carolina law. (Judgment, Def.'s Ex. 1 to Mot. Suppress & Mem. Law [DE #22-1].) As a “regular” condition of probation, [1] Fuller was ordered to “[s]ubmit at reasonable times to warrantless searches by a probation officer of [his] person and of [his] vehicle and premises while [he] is present, for purposes directly related to the probation supervision, but [he] may not be required to submit to any other search that would otherwise be unlawful.”[2] (Id. at 2.) Fuller was also subject to a “regular” probation condition requiring that he “[s]ubmit to warrantless searches by a law enforcement officer of [his] person and of [his] vehicle, upon a reasonable suspicion that [he] is engaged in criminal activity or is in possession of a firearm, explosive device, or other deadly weapon listed in [ N.C. Gen. Stat. §] 14-269 without written permission of the court.” (Id.)[3]

         During the summer of 2017, NCDPS Probation and Parole for District 12 conducted a series of warrantless searches in Cumberland County dubbed “Operation Triple Play.” Chief Probation Officer Harding requested the office's sectional chiefs to provide him with the names of individuals to be searched, and Harding organized the search teams and made the search assignments. Each of the search teams consisted of probation and parole officers, as well as law enforcement officers.

         Defendant's home was one of several residences searched without a warrant as part of Operation Triple Play. At the time of the search, Fuller was being supervised by Probation Officer Priscilla Webb. Webb had been assigned to supervise Fuller approximately one month earlier, after Fuller's supervision risk level had been downgraded based on his compliance with supervision. After consulting with her supervisor, Webb submitted Fuller's name for search pursuant to Operation Triple Play, along with the names of twenty-four other individuals recently assigned to her supervision. Webb submitted Fuller's name because he was new to her caseload and she had not yet conducted a visit of his residence.

         Probation Officer Billy Draughon led the team that conducted the search of Fuller's residence on June 8, 2017. Accompanying Draughon were ATF Special Agent Silver, approximately three probation officers, and a Fayetteville Police Officer who was also an ATF task force officer. Fuller's supervising officer was not a member of the team and was not present during the search.

         Special Agent Silver had been instrumental in the planning of Operation Triple Play. Upon being transferred to Fayetteville, he “extended an olive branch to probation and parole.” He offered his assistance with searches and, upon request, provided the agency with dates he was available. Prior to the searches, he was given a copy of the search list so he could check to make sure there would be no interference with pending federal investigations. He conducted a criminal history check on Fuller, but he did not have any input in deciding whether to search Fuller's residence, and he was not familiar with Fuller prior to the search.

         Upon the team's arrival at Fuller's residence, one of the officers knocked on the front door. When Fuller came to the door, he said the front door was broken and instructed the officers to meet him at the garage. Draughon advised Fuller that he and the other officers were there to conduct a random search. After being handcuffed for officer safety, Fuller led the team from the garage to the living area of his home. When asked where he slept, Fuller led Draughon and the other probation officers to a back bedroom. Special Agent Silver and the Fayetteville Police Officer remained in the garage or kitchen area while the residence was being searched.

         Upon observing children's belongings and no adult clothing in the bedroom, Draughon asked Fuller where his clothes were. Fuller directed the probation officers to a room across the hall, where a search was conducted. Probation officers located identification and bills with Fuller's name on them, as well as adult clothing. The probation officers also found a large black bag containing an assault rifle in the closet. Special Agent Silver was then called to the bedroom and took custody of the firearm. In other areas of the home, probation officers located small-caliber ammunition and a plastic bag containing a small amount of marijuana.

         DISCUSSION

         I. Legal Framework Governing Supervision Searches

         The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures “of their persons, houses, papers, and effects.” U.S. Const. amend. IV. As “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, ” warrantless searches of a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)).

         “A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be ‘reasonable.'” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). However, state “interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.” Jones v. Chandrasuwan, 820 F.3d 685, 692 (4th Cir. 2016) (quoting Samson v. California, 547 U.S. 843, 853 (2006)); see also Griffin, 483 U.S. at 874 (“[P]robationers . . . do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.'” (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972))).

         A. Supreme Court Framework

         “The [Supreme] Court's jurisprudence on the subject [of supervision searches] has yielded two distinct doctrinal frameworks, ” which are set forth in the Court's decisions in Griffin v. Wisconsin, 483 U.S. 868 (1987) (warrantless search of probationer by probation officer); United States v. Knights, 534 U.S. 112 (2001) (warrantless search of probationer by other law enforcement officer); and Samson v. California, 547 U.S. 843 (2006) (warrantless search of parolee by other law enforcement officer). Herndon v. United States, 501 F.3d 683, 687 (6th Cir. 2007). See generally United States v. Freeman, 479 F.3d 743, 746-48 (10th Cir. 2007) (summarizing Supreme Court case law and articulating two-pronged framework for evaluating warrantless probationer or parolee searches); Jones v. Lafferty, 173 F.Supp.3d 493, 497-99 (E.D. Ky. 2016) (discussing the history, development, and nuances of Supreme Court case law concerning warrantless searches of probationers and parolees).

         In Griffin, the Supreme Court considered the constitutionality of a warrantless search of a Wisconsin probationer's home. The search at issue in Griffin was conducted pursuant to a state regulation that authorized warrantless searches by probation officers if the searching officer received supervisory approval and there were “reasonable grounds” to believe contraband would be found. Griffin, 483 U.S. at 870-71. Noting that probation creates an “ongoing supervisory relationship” that is “not entirely[ ] adversarial, ” id. at 879, the court analogized the state's operation of its probation system to “its operation of a school, government office or prison, or its supervision of a regulated industry, ” which “presents ‘special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements, ” id. at 873-74. Concluding that the “special needs of Wisconsin's probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by ‘reasonable grounds,' as defined by the Wisconsin Supreme Court, ” id. at 876, the Court held that the search was constitutional because it was conducted pursuant to a reasonable state regulation governing probationers, id. at 880. However, the Court expressly reserved judgment as to whether the search of a probationer's home for other purposes would be lawful if supported by “‘reasonable grounds' to believe contraband is present.” Id.

         In Knights, a unanimous Supreme Court approved a warrantless search of the home of a California probationer who was subject to a probation condition that authorized searches of the probationer's “person, property, place of residence, vehicle, [or] personal effects . . . at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.” Knights, 534 U.S. at 114 (emphasis added). Despite the condition's language authorizing searches “without . . . reasonable cause, ” both the government and Knights agreed that reasonable suspicion existed in the case. Id. at 122. The district court suppressed evidence of the search, however, the Ninth Circuit affirmed, on the ground that the search was investigatory in nature and the probation condition could be upheld only to the extent it authorized searches for probationary purposes. Id. at 116.

         Pointing to “Griffin's express statement that its ‘special needs' holding made it ‘unnecessary to consider whether' warrantless searches of probationers were otherwise reasonable within the meaning of the Fourth Amendment, ” Knights, 534 U.S. at 117, the Court found it unnecessary to examine the “official purpose” of the search, id. at 122. Instead, the Court applied its “general Fourth Amendment approach of ‘examining the totality of the circumstances,' with the probation search condition being a salient circumstance.” Id. at 118 (citation omitted) (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). This approach requires a court to “assess[ ], on the one hand, the degree to which [a search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 119 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

         Without deciding “whether Knights' acceptance of the search condition constituted . . . a complete waiver of his Fourth Amendment rights, ” the Court determined that the search was valid. Knights, 534 U.S. at 112. The Court reasoned that Knights had a diminished right to privacy given his status as a probationer and his acceptance of the search condition (of which he had been fully informed) further diminished his reasonable expectation of privacy. Id. at 120. Balancing Knights' privacy rights against California's interests in combating recidivism, the Court held that the Fourth Amendment “requires no more than reasonable suspicion to conduct a search of this probationer's house.” Id. at 120-21. Because the warrantless search of Knights' home by a law enforcement officer was “supported by reasonable suspicion and authorized by a condition of probation, ” it was held reasonable under the Fourth Amendment. Id. at 122. Notably, the Knights Court expressly declined to address whether the search condition's authorization of suspicionless searches by law enforcement officers violated the Fourth Amendment. Id. at 120 n.6 (“The terms of the probation condition permit [law enforcement searches without individualized suspicion], but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.”).

         Samson posed the question left unanswered by Knights-whether a warrantless search by a law enforcement officer without reasonable suspicion but authorized by conditions of supervision violates the Fourth Amendment. Samson, 547 U.S. at 849-50. The Samson Court approved of such suspicionless searches but limited its holding to parolee searches. Id. at 857.

         The Samson Court distinguished parolees from probationers, concluding that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Samson, 547 U.S. at 850. Considering parole as “an established variation on imprisonment, ” as well as Samson's execution of an order submitting to the parole search condition, the Supreme Court concluded that Samson “did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852. The Court noted that states, by contrast, have substantial interests “in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees, ” which “warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.” Id. at 853. Balancing these interests, the Court concluded it was reasonable for California to authorize warrantless searches of parolees without reasonable suspicion. Id. at 857.

         The Supreme Court's decisions provide no bright-line rules, and application of its precedent is far from straightforward because of the varying state probation, parole, and post-release supervision regimes. Most helpful to understanding the Supreme Court's decisions is the Tenth Circuit's analysis in Freeman:

The Supreme Court has created two exceptions to the Fourth Amendment's warrant requirement in the context of [probation and] parole[ ] searches. First, in Griffin v. Wisconsin, the Supreme Court held that “[s]upervision . . . is a ‘special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.” Because parole has the dual purpose of rehabilitating the offender and protecting society, it is constitutionally reasonable for a parole officer to search parolees in compliance with a parole agreement search provision, but without a warrant. . . . ...

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