SUSAN RUSS WALKER, Magistrate Judge.
This case is before the court on defendant Timothy Cortez Robinson's motion to suppress (Doc. 8), and the government's response (Doc. 12). The court held an evidentiary hearing on the motion on December 19, 2017. For the reasons discussed below, the motion to suppress is due to be denied.
Defendant is charged with unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). See Doc. 1. The firearm and ammunition that give rise to this charge were seized from defendant on July 12, 2017, following a home visit by defendant's federal probation officer. See Doc. 8. It is this home visit — and specifically, a search of defendant's bedroom that occurred during the visit — that forms the basis of defendant's motion to suppress. See id.
On June 18, 2013, defendant pled guilty to unlawful possession of a firearm by a felon. See Gov. Ex. 1 at 1. On October 2, 2013, this court sentenced defendant to 37 months of imprisonment, followed by three years of supervised release. See id. at 2-3. One condition of defendant's supervised release was that he "not possess a firearm, ammunition, destructive device, or any other dangerous weapon." See id. at 3. Another was that defendant "submit to a search of his person, residence, office and vehicle pursuant to the search policy of this court." See id. at 4. On December 28, 2015, United States Probation Officer Daniel Turner — who has been a federal probation officer since June 2015, and was responsible for supervising defendant from December 28, 2015 until defendant was arrested in July 2017 — met with defendant and instructed him concerning the terms and conditions of his supervised release. See Gov. Ex. 1 at 4. Defendant signed and dated the terms and conditions, acknowledging that these had been read to him and that he "fully underst[oo]d the conditions. . . ." See id. Turner also signed the document.
The events giving rise to the instant motion began in May 2017. According to Turner, defendant failed to appear for a drug test in May 2017, and again on June 8, 2017. Failure to appear for a drug test constitutes "noncompliant behavior" under the terms of defendant's supervised release, so Turner, accompanied by probation officer Kevin Poole, visited defendant at his home on June 9, 2017. The purpose of the visit was to "follow up on the reason why" defendant had missed his drug test. According to Turner, the visit was "pretty typical." Defendant's mother was home,
Approximately two minutes after the officers left the home, and while the officers were in the car, Poole told Turner that he had seen a "pearl-handled knife on the dresser, sort of on the other side behind the TV." According to Turner, Poole said that it was "[n]ot [hidden] behind the TV . . ., but [was situated] where it wouldn't be visible from entering the bedroom," and described the knife as "approximately [four] inches in the closed position." Turner testified that he believes Poole "just wanted [him] to have this information, for any future contacts. . . ." According to Turner, whether a knife was a "dangerous weapon" as contemplated by defendant's condition of supervision depended upon its presentation. Turner testified that although the knife was "described to [him] as a knife," he did not know whether the knife was being presented as a "weapon or a tool." Turner explained that if, for example, a knife was hidden in a pillowcase, he would think it was weapon, not a tool. Turner did not return to the home to investigate whether there was, in fact, a knife present. When asked whether he knew or had reason to suspect that defendant had been in violation of his supervision at the time Poole relayed his observations to Turner, Turner replied, "no."
The next month — on July 11, 2017 — defendant appeared for a drug test, which he passed.
However, Turner testified that he was aware that defendant had a "violent criminal history," and that on "at least three occasions, one including the latest federal offense for which he was on supervised release[,] . . . he had shot other individuals." Turner said that "during one of his sentences with the Department of Corrections, [defendant] was reprimanded or given some sort of noncompliance sanction for possessing — I believe the terminology was [—] a prison shank," which Turner said he understands to be "[a]nything that could be a sharp-edged weapon, pointed." According to Turner, the probation office conducts risk assessments on all convicted offenders. Turner testified that defendant's risk assessment "indicates that he needs a minimum of monthly contact[,] [s]o, that's the minimum standard. . . in his case, [but], [w]e can go beyond that minimum standard." Thus, Turner visited defendant "at a minimum monthly."
During defendant's term of supervised release, it was routine for Turner to visit defendant at his home, which is a mobile home located at "5700 Bell Road, Lot 54, Montgomery, Alabama," and owned by his mother.
Turner testified that once defendant opened the door, he "turned around without any prompting and walked directly into the bathroom." Defendant "most likely just expected that [he] was going to ask [defendant] to perform a urinalysis," but because defendant had passed a drug test the previous day, Turner had no intention of testing him. After defendant walked into the bathroom, Turner advised him that there would be no test and they should just go into his room and talk, as they had done in all prior home visits. Turner then instructed defendant to go ahead and walk into his bedroom. During a typical home visit, Turner and defendant "just get in the doorway" and have a brief conversation, during which Turner observes the bedroom. But Turner testified that on this occasion defendant walked into his bedroom and immediately sat at the head of the bed — "in the area where the pillows would be" — "with his feet off the side of the bed." According to Turner, it was atypical for defendant to place so much distance between himself and Turner. It was also peculiar for defendant to take a seat. Turner said that, prior to the home visit giving rise to the instant indictment, defendant had never sat down, nor was he instructed to sit, during a home visit. Instead, Turner explained, after he and defendant "get in the doorway,"
According to Turner, he "never" lets defendant out of his sight during these visits.
Turner further testified that defendant's attire was unusual on that day; he was wearing shorts, with no shirt. Turner said that defendant is typically fully clothed during his home visits, except on one occasion when Turner arrived to find defendant shirtless. In that instance, defendant "asked [Turner] if he could put a shirt on before [they] went any further."
Once defendant sat on the bed, Turner walked into the bedroom, turned left, and proceeded toward the dresser underneath the television. Turner walked in this direction because Poole had indicated that he saw the pearl-handled knife on the dresser. Turner testified that he did not intend to search defendant at this point, but he was concerned about officer safety and "wanted to get a visual of where this knife was." According to Turner, the knife was described as "approximately four inches closed," which caused him to reason that it was likely "about double that" when opened. As noted above, Turner testified that a knife of that size could be construed as either a weapon or a tool, "depending on the presentation," and that as a condition of defendant's supervised release, he is not allowed to possess a knife as a weapon.
By the time Turner reached the dresser and saw that there was no knife in that location — approximately five to six seconds after defendant first sat down on the bed — defendant was exhibiting more behavior that Turner found unusual. "[K]eeping his feet on the floor," defendant "reclined back along the head of the bed" — in other words, he lay horizontally on the bed — and then grabbed his cellular phone and brought up a Youtube video of an upcoming boxing match, which he said he had been watching. Turner testified that defendant then "showed [the video] to [him] as an indication of what he had been doing before [Turner] arrived." Turner said that this behavior contrasted with previous visits, during which the part of the visit taking place in the bedroom was never long enough for a discussion of "that type of thing." To Turner, the video "appeared to be a distraction"; Turner "felt that [defendant] was trying to conceal something on that part of the bed." Because the knife was not on the dresser, Turner testified, he "just assumed the knife was somewhere in the area that he was concealing, either in the blankets or under the mattress." According to Turner, the presentation of a knife in this manner — i.e., "hidden" or "within his reach while he's sleeping" — indicates an intent to use it as a defensive weapon, and possession of such a weapon is a violation of the terms and conditions of defendant's supervision.
Ultimately, given Turner's awareness of defendant's violent criminal history, his knowledge of Poole's having reportedly seen a knife, his own determination that the knife was no longer in that location, and his observation of defendant's irregular behavior — i.e., defendant's not opening the door fully when Turner arrived; not wearing a shirt and not asking to get dressed; not staying in the doorway to the bedroom as usual, and instead putting considerable distance between them in the bedroom; and taking a seat and then reclining horizontally on the bed and discussing a Youtube video (all of which he had never done before and which appeared to Turner to be designed to conceal something and distract Turner from the concealed item's location) — Turner suspected that defendant was in possession of and attempting to conceal a dangerous weapon — i.e., a knife — in violation of the terms of his supervised release.
Turner instructed defendant to get up, put his phone down, and stand in the doorway of the bedroom. With defendant positioned in the doorway, Turner realized that in order to walk around the bed to check the area where defendant had been lying, he would have to put his "gun side" close to defendant. This caused Turner concern for his own safety so, although he wanted to check the blanket and pillows in the area in which defendant had been reclining, Turner "made the decision that it would be better for [him] to lift that end of the mattress to check under the mattress before he had to walk past [defendant]." "[R]ather than passing [defendant] twice, [Turner] just decided to lift the mattress and then go check with the blankets and see if there was anything hidden. . . ." When Turner lifted the mattress, he "did so high enough so that [he] could see from the front of the bed all the way to the head of the bed." He observed a "metallic item," which he could not identify at that time, but which was "obvious[ly]" concealed. Given its metallic appearance, Turner assumed that the object was a weapon. At that point, Turner escorted defendant to his vehicle, where he retrieved handcuffs and restrained defendant. A firearm and ammunition were recovered from under the mattress and, according to defendant's motion to suppress, defendant thereafter admitted to possessing the firearm.
The court also heard testimony from defendant's mother, Ms. Amelia Hardy. She said that in the time leading up to the arrest, the home had flooded and required renovations. Ms. Hardy testified that beginning in May 2017, and continuing into June 2017, she had used a box cutter, which "look[ed] kind of like a pocketknife," but "you would know. . . wasn't a knife," to "tak[e] up tile and stuff off the floor." She further testified that after doing this work, she closed the box cutter and placed it on the dresser by the television in defendant's room. When asked whether she "would have left it [on the dresser by the television] in "June of 2017," Ms. Hardy responded,
Contrary to Turner's testimony, Ms. Hardy testified that she was not present in the home on June 9, 2017 — the date on which Poole purportedly saw a pearl-handled knife on the dresser. Ms. Hardy was also not present during the search on July 12, 2017.
Prior to the date in question, Turner had never conducted a search during any of his home visits with defendant. According to Turner, the "search policy of this court" is "the same as the federal guide," "which our district has adopted as policy." When asked for specifics about the policy, Turner said, "Essentially. . . we do have the ability to search. It's a tool at our discretion. And. . . we should reserve searches for when we have reasonable suspicion to believe that something is or could take place — a crime could be in the process of being committed or could be committed." Turner indicated that a search is also appropriate when there is reasonable suspicion "that the defendant is in violation of any terms" of supervised release, which he explained "could be technical offenses[,] rather than criminal offense[s]." For example, Turner said, "if a defendant had a financial term where [he or she] [wasn't] allowed to open new credit without first getting the Court or the probation officer's approval, opening new credit wouldn't necessarily constitute a criminal charge, but it would be a technical violation of [his or her] commitment or. . . judgment," and in such an instance, a probation officer would be able to search the defendant's person or residence for indications, signs, or proof of violations of that term.
In his motion to suppress, defendant contends that Turner lacked the reasonable suspicion required to conduct the search that resulted in the discovery of defendant's firearm. Defendant argues that the officers "had no evidence" that defendant "had violated any conditions of his supervised release or was otherwise engaged in criminal conduct." See Doc. 8 at 5. Defendant asks the court to suppress the firearm, as well as defendant's admission that he possessed the firearm. See Doc. 8 at 7.
In its response, the government argues that reasonable suspicion is not a necessary prerequisite for a search of a defendant on supervised release, if that release is subject to a search condition. See Doc. 12 at 3. In the alternative, the government contends that Turner had reasonable suspicion to perform the search. However, at the evidentiary hearing, the government conceded that a probation officer must possess reasonable suspicion prior to initiating a search of a defendant on supervised release.
The Fourth Amendment guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. Amend. IV. "The Fourth Amendment's protection against unreasonable searches and seizures unquestionably applies to probationers." United States v. Wasser, 586 F. App'x. 501, 504 (11th Cir. 2014) (unpublished)(citing Owens v. Kelley, 681 F.2d 1362, 1367 (11th Cir. 1982)). "Probationers, however, have a diminished expectation of privacy and `are subject to limitations to which ordinary citizens are free.'" Id. (quoting Owens at 1367-68).
In United States v. Riley, 706 F. App'x 956 (11th Cir. 2017) (unpublished), the Eleventh Circuit recently addressed the standard to be applied in assessing whether a warrantless search of a probationer's home violates the Fourth Amendment. The court explained:
Based on Carter, probation officers are required to have reasonable suspicion of criminal conduct in order to search a probationer's residence when the terms of probation do not require him to submit to warrantless searches. See id. at 974-75.
Id. at 959-960.
While Knights and its Eleventh Circuit progeny concerned probationers, their reasoning is also applicable to cases involving supervised releasees, who have an even more diminished expectation of privacy. See United States v. Makeeff, 820 F.3d 995 (8th Cir. 2016)("Supervised release, parole, and probation lie on a continuum. The most severe is supervised release, which is followed, in descending order, by parole, then probation. Thus. . . the current case involves the most circumscribed expectation of privacy.") (internal quotation marks and citations omitted). Following this logic, numerous courts have applied Knights' reasonable suspicion analysis to the search of a supervised releasee's residence. See, e.g., United States v. Lofton, 244 F. App'x. 113, *1 (9th Cir. 2007)(applying Knights to the search of a supervised releasee's residence); United States v. Berger, 2014 WL 180483, *7 (W.D. Ark. 2014)(adopting recommendation holding that, like a probationer, "[a]n individual serving a term of supervised release has a diminished expectation of privacy and the Government has the same concerns regarding recidivism.")(citing Samson v. California, 547 U.S. 843, 850, 854-55 (2006)(finding that parolees have fewer expectations of privacy that probationers and the State's concerns in protecting the public from criminal acts by reoffenders are even greater, because parole is more akin to imprisonment on the continuum of punishments; citing United States v. Reyes, 283 F.3d 446, 461 (2nd Cir. 2002), which held that the same principles apply to federal supervised release, because federal supervised release, in contrast to probation, is meted out in addition to, not in lieu of, incarceration; and United States v. Weikert, 504 F.3d 1, 12-14 (1st Cir. 2007)); United States v. Krug, 2010 WL 2196607, *4-5 (M.D. Tenn. 2010)(applying Knights to search of supervised releasee's residence); U.S. v. Lykins, 2012 WL 1947346, *8 (E.D. Ky. 2012)(same).
Turning to the case at hand, it is clear, just as in the Carter case, that as a supervised releasee defendant does not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty dependent upon his observing special release conditions. See Yuknavich, 419 F.3d 1302, 1308 (11th Cir. 2005). In addition, defendant here agreed to a search condition requiring him to "submit to a search of his person, residence, office and vehicle pursuant to the search policy of this court." Gov. Ex. 1 at 4; see Knights, 534 U.S. at 118 (consent is salient factor in assessing defendant's reasonable expectation of privacy under the totality of the circumstances test). Thus, the court concludes that defendant had a significantly reduced expectation of privacy in his home at the time of the search. In addition, the same legitimate governmental interests support the search in this case as in Knights, Carter, Yuknavich, Riley, and similar cases. Further, as in Carter, defendant has a history of committing violent crimes,
The court now turns to the question of whether reasonable suspicion existed in this case. "[A] court must look to the "totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.'
In the case before the court, taking "stock of everything [Turner] knew before searching," it would be reasonable for an officer in his position at the scene to suspect legal wrongdoing — i.e., either a supervised release violation or an otherwise criminal act. Specifically, it would have been reasonable for an officer in Turner's position to have suspected that defendant was in possession of and attempting to conceal a knife.
First, Turner was personally acquainted with and had supervised defendant for almost a year and a half when the search occurred. He was aware that defendant had a violent criminal history. Turner knew that defendant had shot persons on at least three occasions, and that one of these was the latest federal offense for which he was serving supervised release. He also knew that defendant had been reprimanded or sanctioned while in prison for possessing a shank.
Second, Turner knew, when he entered defendant's bedroom, that Poole had personally seen a pearl-handled knife in defendant's bedroom, and that such a knife — depending on its character and presentation in the room — could be the sort of "dangerous weapon" that defendant's release conditions prohibited him from possessing. He also knew by the time he entered the bedroom that the knife was no longer where Poole had observed it. Although defense counsel argued at the hearing that what Poole actually saw was "a utility tool," implying that Poole mistook Ms. Hardy's box cutter for a knife, the court cannot draw this conclusion based on the testimony before it. Even if Ms. Hardy's testimony is taken as true, it does not render Poole's reported observations implausible. First, while Ms. Hardy testified that she would have left the box cutter on the dresser by the television during June 2017, she did not testify affirmatively that the box cutter was actually present during the June 9, 2017 home visit. Further, even assuming that the box cutter was on the dresser during this home visit, Ms. Hardy testified that no person could have mistaken the box cutter for a knife. Therefore, it is reasonable to believe that what Poole saw was, in fact, a knife, even if the box cutter were also present. Poole reported specific details about the knife to Turner — i.e., that the knife was approximately four inches long in the closed position and pearl-handled. Although the court does not have the benefit of testimony from Poole, it reasonably infers, based on the evidence before it, that if Poole were in a position to communicate such details about the item to Turner, he also was close enough to determine whether it was a box cutter or a knife. Thus, even accepting Ms. Hardy's testimony as credible, the court cannot conclude that because Ms. Hardy was storing a box cutter on the dresser in June 2017, what Poole saw on the dresser was the box cutter, especially given his reported description of at least one attribute that would be inconsistent with a box cutter used to perform home renovations— i.e., that it had a pearl handle.
But for his argument that what Poole observed was a box cutter, Defendant cites no other basis to call into question the factual basis of Poole's statement to Turner, or the reasonableness of Turner's reliance on that statement. The court must consider all facts known to Turner prior to his initiating the search in determining whether or not a reasonable officer in his position would have suspected wrongdoing. The court finds that Turner's knowledge — via Poole — of the prior existence of a knife in the room, is appropriately considered as one of these facts.
Returning to the other facts that Turner knew before he initiated the search, Turner's past experience with defendant also informed his understanding of how defendant normally acted during a home visit. Because he had conducted as many as twelve home visits over nearly eighteen months by the time this encounter took place, Turner was well-enough acquainted with defendant to perceive irregularities and draw inferences based on them. The following behavior observed by Turner prior to his search is significant to the reasonable suspicion determination, when taken altogether:
First, the defendant did not open the door all the way when Turner arrived, thus necessitating Turner's having to ask to be let in. This was out of the norm for defendant and, taken together with the other facts Turner later observed, could reasonably contribute to a conclusion that defendant was nervous or apprehensive about letting Turner into the home because he had a weapon in his bedroom, and knew that Turner would view that room.
Second, the defendant was not wearing a shirt and did not ask to get dressed before proceeding with the visit. Like defendant's behavior with the door, this factor is insufficient, standing alone, to create a reasonable suspicion that defendant was engaged in wrongdoing. However, the behavior was atypical, and it contrasted with how defendant had handled a similar situation during another home visit. Given Turner's experience with defendant, it was not unreasonable for him to consider this anomaly along with the others in suspecting that defendant was hiding a weapon. Moreover, although the government has not explicitly made this argument, Turner would not have been unreasonable in suspecting that defendant did not want to put a shirt on because Turner would have followed defendant — to the bedroom, presumably — and would have had more time to observe the bedroom closely and possibly discover the violation.
Third, defendant did not remain in the doorway to the bedroom during the conversation, which was his normal practice during prior home visits. According to Turner, during a typical home visit, Turner and defendant "just get in the doorway" and have a brief conversation, during which Turner observes the bedroom. But Turner testified that on this occasion, defendant walked into his bedroom and immediately sat at the head of the bed — "in the area where the pillows would be" — "with his feet off the side of the bed." It was atypical for defendant to place so much distance between himself and the probation officer, and it was reasonable for Turner to include this among the factors that made him suspicious that defendant was attempting to conceal something that was prohibited.
In addition, defendant "reclined back along the head of the bed" — in other words, he lay horizontally on the bed — and, while "keeping his feet on the floor," grabbed his cellular phone, and brought up a Youtube video of an upcoming boxing match, which he said he had been watching. Turner testified that defendant then "showed [the video] to [him] as an indication of what he had been doing before [Turner] arrived." According to Turner, this contrasted with previous visits during which defendant never sat nor was invited to sit, and in which the portion of the visit that took place in the bedroom had never been long enough for a discussion of something like a cell phone video. To Turner, the discussion of the video "appeared to be a distraction." Turner believed that defendant's lying on the bed and chatting was an attempt to conceal something on that part of the bed. "Because the knife wasn't on the dresser," Turner testified, he "just assumed the knife was somewhere in the area that he was concealing, either in the blankets or under the mattress." Combined with the other facts known to Turner, this deduction was reasonable.
In summary, Turner approached the home visit knowing that defendant had a violent criminal history. He had reason to believe that defendant had a knife in his room, and once he got in the room, the knife was nowhere to be seen. Moreover, defendant exhibited behaviors that, taken together, suggested he was hiding something. Viewed in the totality of the circumstances, and taking into account all that Turner knew prior to initiating the search of defendant's bedroom, it would have been reasonable for an officer with knowledge of these facts to suspect that defendant was attempting to conceal something on or under the bed and also, that he was attempting to distract Turner from looking in that direction. It also would have been reasonable for an officer in Turner's position to suspect that the item being concealed was the pearl-handled knife about which he had been warned by Poole.
"Reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence and less than probable cause, which is a fair probability that contraband or evidence of a crime will be found." United States v. Henderson, 145 F. App'x. 346, 351 (11th Cir. 2005) (citation and internal quotation marks omitted)(unpublished).
Id. (citing Griffin v. Wisconsin, 483 U.S. 868, 879 (1987)). The same is true in the context of supervised release.
Thus, the court concludes that Turner possessed the necessary reasonable suspicion to search defendant's bedroom, which resulted in his finding a metallic object under the mattress that was later determined to be a handgun, along with ammunition, both of which defendant was prohibited from possessing. Under the totality of the circumstances, the court finds no Fourth Amendment violation here.
Because there was no Fourth Amendment violation, the question of whether the confession was the "direct result" of a violation and should be suppressed is moot.
Defendant has failed to establish that Turner lacked reasonable suspicion to conduct the search in question. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that defendant's motion to suppress the firearm and confession (Doc. 8) be DENIED. It is further
ORDERED that
Failure to file a written objection to the Magistrate Judge's findings and recommendations under 28 U.S.C. §636(b)(1) shall bar a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of a party to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. 11th Cir. R. 3-1; Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
