JOHN E. STEELE, District Judge.
On March 30, 2010, United States Magistrate Judge David M. Cohen submitted a Recommended Decision on Motion to Suppress (Doc. # 28) to the Court recommending that Defendant's Motion to Suppress (Doc. # 16) be granted. The government's Objections (Doc. # 31) were filed on April 13, 2010, and defendant filed a Response to the Objections (Doc. #40) on May 14, 2010. Although the Court accepts and adopts the Recommended Decision on Motion to Suppress as to the issues it addresses, the Court finds that there was sufficient probable cause and exigent circumstances to justify the entry of the residence and seizure of the firearms, and therefore denies Defendant's Motion to Suppress.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n. 1 (11th Cir.2009). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.1994).
The Court adopts the Proposed Findings of Fact set forth in the Report and Recommendation. (Doc. # 28, pp. 1-6.) In sum, these facts are as follows:
Defendant Richard Franklin (defendant or Franklin) was serving a sentence in the Florida state prison system after being convicted of the felony offenses of burglary and grand theft. Defendant's maximum release date—i.e., the longest he could be kept in confinement on the sentences—was July 16, 2006. On April 19, 2006, defendant signed a document relating to conditional release
By June 23, 2006, defendant had changed his residence without prior approval and absconded from conditional release supervision. On that date, defendant called his probation specialist William Lally (Lally) and told Lally that he (Franklin) was messed up, wished he had a pistol so he could stick it in his mouth and end it all, and that Lally should stop looking for him because he would not find him. A Violation Notice was issued later on June 23, 2006, recommending that a warrant for defendant's arrest be issued. The Parole Commission issued an arrest warrant (a "retaking") on June 23, 2006.
After defendant was arrested, Lally told Deputy Thorpe he was going into the residence to check for evidence of additional conditional release violations. Lally entered the residence alone, his pistol holstered, and removed weapons from the residence and turned them over to Deputy Thorpe.
It is uncontested that: (1) there was an valid outstanding arrest warrant for defendant issued on June 26, 2006; (2) defendant was directed to exit his residence, eventually did so, and was arrested outside the residence; and (3) there was no search warrant for the residence. (Doc. #16, p. 1; Doc. #18, pp. 1-2.) Even without an arrest warrant, officers may approach a residence and knock on the door, United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir.2006), and order defendant to exit the residence. Knight v. Jacobson, 300 F.3d 1272, 1277 (11th Cir. 2002). There was no unlawful conduct by the officers prior to the entry into the residence by Lally. The parties dispute the lawfulness of that conduct.
"Warrantless searches and seizures inside a home are presumptively unreasonable." United States v. Bennett, 555 F.3d 962, 965 (11th Cir.2009). The officers could have entered the house to arrest defendant because there was a valid outstanding arrest warrant, the location was defendant's residence, and defendant was inside the residence. Id.; United States v. Louisuis, 294 Fed.Appx. 573, 576 (11th Cir.2008). The officers chose a less confrontational method, ordering defendant to exit the residence, which was clearly a lawful alternative to forced entry into the dwelling. Having lawfully obtained defendant's presence outside the residence and having lawfully arrested him, the parties dispute whether Lally could then enter the residence in the manner he did.
The government "prefaces its objections by stating that defendant never made the argument in his suppression motion that he no longer was on conditional release at the time of the arrest and search," but rather "made this argument for the first time at the suppression hearing." (Doc. # 31, pp. 1-2.) While this is true, the government fails to assert what significance should be attached to this procedural posture. Defendant's motion to suppress relied upon the lack of a search warrant or an applicable exception under the Fourth Amendment. (Doc. #16.)
It is undisputed that defendant was released from prison on conditional release on April 29, 2006, that an arrest warrant was issued for violation of his conditional release on June 23, 2006, that his conditional release was scheduled to terminate on July 16, 2006, and that the events in question occurred on August 24-25, 2006. The Magistrate Judge found that defendant was not on conditional release after July 16, 2006, and therefore Lally's entry into the residence could not be justified by the conditions of defendant's conditional release. The Court agrees, and adopts that portion of the Report and Recommendation. (Doc. # 28, pp. 6-9.) The government's objections to the contrary are overruled.
The government argues that the Magistrate Judge should have made a finding as to whether Lally had reasonable suspicion/probable cause of criminal activity when he entered the residence to conduct the search. (Doc. #31, p. 2.) The government further argues that there was "reasonable suspicion of criminal activity (if not probable cause)" at the time of the search because defendant was a convicted felon who had been seen in the same room where firearms were in plain view on shelves and on a table. (Id.)
Reasonable suspicion would not have justified Lally's entry into the residence. As the government later notes, both probable cause and exigent circumstances are required to excuse a search warrant. (Id. at pp. 3-5.) To the extent the government intends to argue that reasonable suspicion alone is sufficient, that argument is rejected.
The government also argues that Lally's entry into the residence was justified as a protective sweep. The government asserts that Lally had the dual purposes of securing the weapons as evidence of a new conditional release violation and conducting a protective sweep for safety reasons. (Id. at pp. 2-3.)
In Maryland v. Buie, the Supreme Court held that a protective sweep may be lawfully undertaken pursuant to an in-house arrest where the officer "possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). "A `protective sweep' is a quick and limited search of premises .... [i]t is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327, 110 S.Ct. 1093; see also Bennett, 555 F.3d at 965-66. Such a protective sweep has been extended to situations where a defendant is arrested outside a residence. "Law enforcement officers who have lawfully apprehended a suspect on a portion of a structure (here it was an open porch built as a part of the home) which they have reason to believe contains dangerous third persons who might pose a threat to their safety have a right to conduct a reasonable security check of such premises." United States v. Burgos, 720 F.2d 1520, 1526 (11th
The Magistrate Judge recognized that Lally testified to a dual purpose for his entry, but expressly discredited the officer-safety motivation testimony. (Doc. #28, p. 5 n. 5.) The Magistrate Judge found that "Officer Lally's post-arrest entry into the residence was motivated solely by his desire to secure the observed weapons as evidence of a new conditional release violation by the defendant." (Id. at p. 13.) The seizure of the firearms was therefore not supported by protective sweep principles. United States v. Rodgers, 924 F.2d 219, 222 (11th Cir.1991). Additionally, the Magistrate Judge also found that there was an absence of any evidence that any of the officers harbored a reasonable belief that the persons remaining in the house posed a danger to the officers. (Doc. #28, p. 13.) The record contains ample evidence to support the Magistrate Judge's findings, and the government's objections as to this issue are overruled.
The government argues that even if defendant was not being supervised on conditional release, he was an absconder whose privacy interests were reduced to the point where the search was valid. (Doc. # 31, pp. 5-13.) The Court is unconvinced, and the government has cited no binding authority in support of its reading of the Fourth Amendment as it relates to a person whose term of conditional release has expired.
The government objects to the Magistrate Judge's finding that Lally "either knew or should have known that his supervisory jurisdiction vis-a-vis the defendant had ended on July 16, 2006." (Doc. # 31, pp. 13-16.) The government also argues that the good faith exception to the exclusionary rule should be applied to this case. Further, the government argues that the exclusionary rule should not be applied to this case in light of Herring v. United States, ___ U.S. ___, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). The Court agrees with the findings and conclusions of the Magistrate Judge as to these matters, and the government's objections are overruled.
In its Objection to the Report and Recommendation, the government argues that the existence of both probable cause and exigent circumstances authorized the entry into the house to seize the firearms. (Doc. # 31, pp. 3-5.) Exigent circumstances were not asserted by the government in its Response to the Motion to Suppress (Doc. # 18) or in argument to the Magistrate Judge. (Doc. #26, pp. 114-119.) Franklin filed a Response to the government's Objections, but did not meaningfully address the issue. (See Doc. # 40, p. 6.)
"It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "A warrantless search is allowed, however, where both probable cause and exigent circumstances exist." United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.1991) (en banc). See also United States v. Santa, 236 F.3d 662, 668 (11th Cir.2000); United States v. Davis, 313 F.3d 1300, 1302 (11th Cir.2002).
The pivotal issue, as in Rodgers, 924 F.2d at 222, is whether exigent circumstances existed. "The exigent circumstances exception to the warrant requirement recognizes a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." Bashir v. Rockdale County, 445 F.3d 1323, 1328 (11th Cir.2006). "The exception applies only if the police reasonably believe that an emergency situation justified warrantless action." United States v. $291,828.00 in U.S. Currency, 536 F.3d 1234, 1237 (11th Cir.2008) (citing United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir.2002)). "The mere presence of contraband, however, does not give rise to exigent circumstances." United States v. Lynch, 934 F.2d 1226, 1232 (11th Cir.1991). "The test of whether exigent circumstances exist is an objective one. `[T]he appropriate inquiry is whether the facts ... would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.'" Tobin, 923 F.2d at 1510 (citation omitted).
Deputy Haigis first observed the firearms through the rear window, when he went around the back of the house, a location where he had a right to be. Further, the officers knew that at least one person other than defendant was in the residence, and that this person was aware of defendant's arrest and had cooperated with defendant by not responding to the officers' knocking and yelling at the door. In this case, the firearms were rifles, which are not as easily hidden or removed as the handguns in Rodgers. However, considering there were other people at the residence, and at least two cars in the driveway, under the totality of the circumstances, a reasonable, experienced officer would believe that the evidence might be destroyed or removed before a warrant could have been secured. Therefore, Lally's entry into the residence and seizure of the firearms was proper.
Accordingly, it is now
1. The Magistrate Judge's Recommended Decision on Motion to Suppress (Doc. # 28) is
2. Defendant's Motion to Suppress (Doc. # 16) is
DAVID M. COHEN, United States Magistrate Judge.
Richard Franklin, charged in two counts with being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and in a third count with possession of a firearm and a weapon made from a shotgun without a serial number
The defendant was released from a Florida prison, where he was serving a sentence for burglary and grand theft, on April 29, 2006, prior to his "maximum release date" of July 16, 2006, based on "gain time" he had earned. Gov't. Exh. 1 at 1; Tr.
Id. at 2, 4.
Florida Department of Corrections Probation Specialist William Lally, acting essentially as a parole officer, was assigned to supervise the defendant upon his release from incarceration. Tr. at 9-11, 20. On the morning of June 23, 2006, after the defendant had ostensibly changed his residence without prior approval and absconded from supervision, he telephoned Officer Lally and told him, among other things, that he was "messed up," wished he had a pistol so that he could "stick it in his mouth and end it all," and Lally should stop looking for him because he would not find him. Gov't. Exh. 2 at 1; Tr. at 17-19, 23. Later that same day a Violation Report was issued charging the defendant with failing to obtain the permission of his conditional release supervisor prior to changing his residence, failing to submit to a urinalysis, and committing the criminal offense of possession and use of marijuana. Gov't. Exh. 2 at 1; Tr. at 17, 23. On the Violation Report, a box to the left of the word "Absconder" was marked with an "X". Gov't. Exh. 2 at 1. The report contained a recommendation that the Parole Commission issue a warrant for the defendant's arrest because the defendant was
The Parole Commission issued a warrant for the defendant's arrest (called a "retaking") on June 23, 2006. Gov't. Exh. 3. Thereafter, Officer Lally attempted on several occasions to locate the defendant, but without success. Tr. at 24. On August 24, 2006, at approximately 10:30 p.m., Officer Lally drove to a rented house at 12356 Third St. in Fort Myers Shores that he had driven by several times before, in which he knew the defendant's fiancée was residing and believed the defendant might be found.
After the defendant was put in a patrol vehicle, Officer Lally told Deputy Thorpe that he was going into the residence to check for evidence of additional conditional release violations. Tr. at 83, 88, 90; Deft. Exh. E. Lally entered the residence alone, armed with a holstered Glock 19 pistol. Tr. at 35, 62, 81, 85, 88. He then removed weapons from the residence and turned them over to Deputy Thorpe who took custody of them. Id. at 34-35, 88.
Officer Thorpe testified that he (Thorpe) had no authority to enter the residence without a search warrant and knew of no reason why he should enter the residence. Id. at 82. Later in his testimony he acknowledged that in police work there are always security concerns, id. at 89, but expressed no particular concern about officer
Officer Lally testified that, after learning from Deputy Haigis that there were weapons, as well as other persons,
On August 25, 2006, Officer Lally contacted Sandra Rossier, a Parole Commission officer, to report that the defendant had been arrested on the outstanding violation warrant. Gov't. Exh. 4 at 5
Carrado Lazzizzera, an investigator with the Federal Defender's Office, testified on behalf of the defendant. Tr. at 91. Prior to becoming an investigator, Lazzizzera had served as a state probation officer for six years. Id. at 92, 94. Lazzizzera testified that if the termination date of the defendant's conditional release was July 16, 2006, then any warrant for the his arrest stemming from an alleged conditional release violation had to issue prior to that date in order to be valid. Id. at 97. He further testified that on August 24, 2006, the date of the defendant's arrest and weapons seizure, the defendant's supervision had already terminated, that the defendant was then no longer on supervision, and that, as a consequence, Officer Lally did not have the authority to cite the defendant for any new violations of his
The threshold issue before the court is whether Officer Lally had the authority to enter the Fort Myers Shores residence and search for weapons therein after the defendant's arrest. The question of his authority turns on whether the defendant remained on conditional release when Officer Lally entered the premises. The evidence presented is uncontested that the defendant was arrested outside the residence. It is also uncontested that when Officer Lally entered the premises, neither he nor the deputies had a search warrant. There is no dispute that the outstanding arrest warrant was valid on the date of the defendant's arrest because it had been issued prior to July 16, 2006. The government contends that Officer Lally was authorized to conduct the challenged search both because the defendant was then still on conditional release, a form of parole, and, thus, a parolee who had no reasonable expectation of privacy, and because the Conditions of Supervision specifically permitted him to conduct a warrantless search of the defendant's residence and premises. The defendant responds that Lally was without jurisdiction to conduct the search in his role as a parole officer because when the search was conducted the defendant was no longer on conditional release, that status having expired on July 16, 2006 under the terms of the Conditions of Supervision.
A basic tenet of the Fourth Amendment is that a warrantless search of a home is presumptively unreasonable. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citations omitted). That said, inasmuch as the "ultimate touchstone" of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. Id. One established exception to the requirements of both a warrant and probable cause applies when a search is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the instant case, the terms and conditions of the defendant's conditional release provided that he was required to submit to searches by his conditional release supervisor. Gov't. Exh. 1 at 2, 4. By signing the Conditions of Supervision, the defendant consented to the search of his residence without a warrant during the term of his conditional release.
The government argues that the defendant remained on conditional release on August 24, 2006, the date of his arrest and of the challenged search and seizure, based upon the language in the Conditions of Release indicating that the stated termination date of July 16, 2006 was subject to extension if "other action [was] taken." Id. at 1. The government asserts that the issuance of the Violation Report and arrest warrant constituted "other action taken" and, therefore, effectively tolled the termination date of the defendant's conditional release. It concedes that it has not found any statutory or case law authority supporting
FLA. STAT. § 947.1405 establishes the framework for the state's conditional-release program. FLA. STAT. § 947.141 provides the details regarding violations of conditional release. Conditional release is an extra post-prison probation-type program. In other words, when an inmate
Evans v. Singletary, 737 So.2d 505, 507 (Fla.1999) (emphasis in original). My own research has unearthed no case law, statutes or regulations which support the government's position that the stated July 16, 2006 termination date of the defendant's conditional release was stayed, tolled or extended by the issuance of the violation arrest warrant. Nothing in the hearing record establishes that the Parole Commission otherwise took any action that effectively extended the defendant's supervision termination date.
The government argues that, even if the court reaches the above conclusion, the good-faith exception to the exclusionary rule applies and saves the day. The
The exclusionary rule is not an individual right. It applies only when it serves to deter otherwise unlawful conduct and the benefit of the deterrence outweighs the cost. United States v. Davis, 598 F.3d 1259, 1265 (11th Cir.2010). The decision to suppress evidence depends on the culpability of the officers and the "potential of exclusion to deter wrongful police conduct." Id. (citing Herring v. United States, ___ U.S. ___, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009)) (quoting United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)) (internal quotation marks omitted).
The Supreme Court in Leon held that in most cases evidence obtained when an officer acts in reasonable reliance on a search warrant issued by a detached and neutral magistrate may not be barred even if not supported by probable cause. 468 U.S. at 926, 104 S.Ct. 3405. In each of its subsequent decisions "expanding the exception, the Court has concluded that the unlawful police conduct at issue was neither 'sufficiently deliberate that exclusion [could] meaningfully deter it' nor 'sufficiently culpable that such deterrence [would be] worth the price paid by the justice system.'" (Davis, 598 F.3d at 1265) (quoting Herring, 129 S.Ct. at 700, 702). The good-faith exception to the exclusionary rule does not apply in instances:
United States v. Parker, 600 F.Supp.2d 1251, 1259 (M.D.Fla.2009) (internal quotation marks and citations omitted). If the issuing judge was neutral and detached, then suppression is appropriate only "`if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.'" Id. (citing Leon, 468 U.S. 897 at 926, 104 S.Ct. 3405, 82 L.Ed.2d 677).
In the instant case, there was no search warrant. Officer Lally's authority to conduct a warrantless search of the defendant's residence derived solely from the Conditions of Supervision. No impartial judicial officer relied on an affidavit, and the officer who conducted the search himself signed the Conditions of Supervision. Officer Lally was not misled, and the termination date was clear on the face of the Conditions of Supervision. To the extent that he somehow believed that the defendant remained on conditional release on August 24, 2006 and that he was authorized under the terms of the Conditions of Supervision to enter the residence and conduct the warrantless search following the defendant's arrest on the violation warrant, I find that such a belief was not grounded in good faith inasmuch as no legal authority whatsoever supports such a conclusion in the circumstances of this case A state parole officer supervising an individual
The government next contends that Officer Lally had the authority to secure the premises to assure his own safety and that of the deputies present. A search incident to a lawful arrest can constitute an exception to the warrant requirement but is limited to and "derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations." Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009). Officers have a recognized interest in assuring themselves that a residence in which a suspect has just been arrested is not harboring other people who are dangerous. Maryland v. Buie, 494 U.S. 325, 333, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). However, the scope of the search of a premises incident to arrest without a warrant is limited. Id. at 334; see also, U.S. v. Bervaldi, 226 F.3d 1256, 1268 (11th Cir.2000). An officer must possess "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 337, 110 S.Ct. 1093.
The fact that an arrest takes place outside of the residence does not itself preclude the officers from conducting a protective sweep. United States v. Watson, 273 F.3d 599, 603 (5th Cir.2001); see also, United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir.1983). "A protective sweep of a suspect's house may be made even if the arrest is made near the door but outside the lodging if the arresting officers have reasonable grounds to believe that there are other persons present inside who might present a security risk." Watson, 273 F.3d at 603 (internal quotation marks and citation omitted).
In the instant case, Officer Lally testified that he entered the residence after the defendant had been arrested and placed in a sheriff's patrol car in order to secure the firearms that had been seen in plain view through a window both for reasons of officer safety due to the presence of other persons in the house and as evidence of a new conditional release violation by the defendant. I have already discredited Officer Lally's proffered officer-safety motivation testimony. See fn. 5, supra. While officer safety is often, if not always, a legitimate concern of law enforcement officers as they do their work, I am satisfied that in this case Officer Lally's post-arrest entry into the residence was motivated solely by his desire to secure the observed weapons as evidence of a new conditional release violation by the defendant.
This factual finding alone undermines the government's officer-safety argument as a justification for Officer Lally's warrantless entry into the residence and seizure of the firearms at issue. Beyond this, however, is the absence of any evidence in this record that any of the officers present harbored a reasonable belief that the persons remaining in the house posed a danger to them. Indeed, Deputy Thorpe testified that he knew of no reason to enter the house and understood that, in the circumstances in which he found himself, he had no authority to do so without a warrant.
Finally, the government argues that even if the defendant was no longer on conditional release at the time of the search and seizure, and even if the search and seizure were not justified by a goodfaith exception or for reasons of officer safety, they were nevertheless lawful based upon the totality of the circumstances. The government also argues that the defendant had no reasonable expectation of privacy as an absconder while on conditional release. "Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (internal quotation marks and citation omitted). I recognize that the Supreme Court has determined that an individual on parole has no reasonable expectation of privacy by virtue of his status. Id. at 848-49. But I have already determined that at the time of the search and seizure the defendant was no longer on conditional release and Parole Officer Lally had no continuing jurisdiction to act as he did following the defendant's arrest. He either knew, or should have known, that his supervisory jurisdiction vis-a-vis the defendant had ended on July 16, 2006. Applying Samson, I conclude that, in the circumstances of this case, the government had no legitimate interest in the warrantless search of the defendant's home following his arrest, let alone one that outweighed the intrusion represented by Officer Lally's search. Considering the totality of the circumstances, the search of the defendant's home was not reasonable.
For the foregoing reasons, and on the showing made, I recommend that the proposed findings of fact herein be adopted, that the Motion be
