KIMBERLY A. SWANK, Magistrate Judge.
This matter is before the court on Defendant's motion to suppress [DE #22], 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 #23]. To further develop the record, the undersigned conducted an evidentiary hearing on November 15, 2016, at which the Government and Defendant, with counsel, appeared. Both parties submitted supplemental briefs after the evidentiary hearing [DE #44, 48, 49]. At the direction of the court [DE #60], the parties submitted additional briefing regarding a recent North Carolina Court of Appeals opinion [DE # 61, 62]. Accordingly, the matter is now ripe for decision.
On March 22, 2016, a federal grand jury returned a one-count indictment charging Corey Lamar Clark ("Clark") with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. On June 10, 2016, Clark filed the instant motion to suppress. Clark contends that his residence 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 (1) that the search of Clark's home was lawful because Clark was on supervised probation and subject to warrantless, suspicionless searches; and, in the alternative, (2) that the officers who conducted the search had reasonable suspicion to believe that Clark was involved in criminal activity. The motion concerns the contours of a probationer's Fourth Amendment rights when that probationer's home is subjected to a warrantless search.
At the evidentiary hearing on Clark's motion, the court heard the testimony of North Carolina Department of Public Safety Probation Officers Chris Cook, Chad Perry, and Kenneth "Pete" Jones; former North Carolina Probation Officer and current schoolteacher Ashley Chavis; Major Howard Branch of Robeson County, North Carolina Sheriff's Office; and Kaitlin Stansell of WBMF News, Myrtle Beach, South Carolina. Based upon the witnesses' testimony and documentary evidence received, the undersigned makes the following findings of fact.
Defendant's home was searched without a warrant on February 24, 2016, as part of a joint federal-state operation known as Operation Zero Hour.
At the time of the search, Clark was on supervised probation. On July 21, 2014, Clark pled guilty in state court to Assault by Strangulation, a Class H felony in North Carolina, and was sentenced to thirty-six months of supervised probation. As a condition of probation, Clark 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." (Gov't Ex. 1 [DE #42] at 3.) This condition mirrors the language in N.C. Gen. Stat. § 15A-1343(b)(13). Clark was also subject to a probation condition requiring that he "[s]ubmit to warrantless searches by a law enforcement officer of the defendant's person and of the defendant's vehicle, upon a reasonable suspicion that the defendant 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.)
After being placed on probation in July 2014, Clark was assigned to Probation Officer Ashley Chavis for supervision. In August 2014, Officer Chavis reviewed Clark's conditions of probation with him, including the warrantless search condition, and Clark agreed to the conditions. Over the course of supervising Clark from July 2014 through the date of the search in February 2016, Officer Chavis only visited Clark at his home one time—in July 2014. Officer Chavis was still supervising Clark on the date of the search at issue.
For purposes of Operation Zero Hour and at the request of Officer Brewington, Officer Cook created a list of people on probation and post-release supervision
After the list was made, files were created for each probationer or parolee, and these files were distributed to the officer who would be conducting the warrantless search. To prepare Clark's file, Officer Cook asked Officer Chavis to provide information regarding Clark's address, layout of his residence, and criminal history. Officer Chavis had no further involvement in the search of Clark's residence until after the search was conducted. In sum, Officer Brewington asked Officer Cook to compile a list of persons to be searched for Operation Zero Hour, and Cook made the list without consulting anyone else as to who to include on the search list.
Officer Cook put Clark on the list he created for Operation Zero Hour because Clark had been validated as a gang member in July 2014 and had a criminal record for violent offenses. Officer Cook, who is trained in gang validation, validated Clark in July 2014 because of (1) gang-related tattoos, (2) gang-related photographs posted on social media, (3) social media postings in January and February 2014 written in gang-coded language; and (4) Clark's admission in July 2014 to joining the gang in 1999.
On February 24, 2016, Officer Perry led the team of probation and law enforcement personnel that searched Clark's home. Neither Officer Cook nor Officer Chavis were part of the team that searched Clark's home. The team consisted of two Robeson County Probation Officers (Officer Perry and Officer Jones), a Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Agent, two Deputy Sheriffs from outside Robeson County, a K-9 Officer from the North Carolina Department of Public Safety, and a North Carolina Highway Patrol Officer. All team members were dressed in uniform. The team arrived at Clark's home at approximately 8:30 a.m. Clark was standing in the yard of his home
While in the front yard, Officer Perry handcuffed Clark but permitted his hands to remain in the front of his body because, according to Officer Perry, Clark was being cooperative. Officers Perry and Jones informed Clark they were there to conduct a warrantless search. There was no evidence presented that Clark was searched after being handcuffed in his yard. Officers Perry and Jones then entered Clark's home, with Clark leading the way to his bedroom. Officer Perry and Clark proceeded to Clark's bedroom; Officer Jones stayed outside the bedroom and spoke with Clark's mother. Officer Perry then searched Clark's bedroom while Clark sat on his bed. In conducting the search, Officer Perry saw what he believed to be the grip of a firearm in Clark's closet. Officer Perry then called the ATF Agent and stepped out of Clark's bedroom. The other agents then took over the search and collection of evidence. Officer Perry's belief was correct, and a firearm was located in Clark's bedroom closet. Officer Chavis was then called at the probation office and informed of the firearm, and Clark was arrested for violation of his probation.
Following his arrest, Clark was subjected to custodial interrogation at his house and made allegedly incriminating statements. He also sent allegedly incriminating text messages to another person.
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. "[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)). Warrantless searches of a home are "presumptively unreasonable." Payton, 445 U.S. at 586.
However, probationers "do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions." Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). "The Supreme Court has repeatedly acknowledged that a State's 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)).
Moreover, "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search 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." United States v. Knights, 534 U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
In three cases, the Supreme Court has addressed the reasonableness of warrantless searches of probationers and parolees: Griffin, 483 U.S. 868 (1987) (warrantless search of probationer by probation officer); Knights, 534 U.S. 112 (2001) (warrantless search of probationer by other law enforcement officer); and Samson, 547 U.S. 843 (2006) (warrantless search of parolee by other law enforcement officer). 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 all three cases, the Supreme Court reiterated that probationers and parolees (unlike prisoners) retain some Fourth Amendment rights. Griffin, 483 U.S. at 873 ("A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be `reasonable'"); Knights, 534 U.S. at 121 (holding that reasonable suspicion is constitutionally sufficient to conduct a warrantless search of a probationer's home); Samson, 547 U.S. at 850 n.2 ("Nor, as the dissent suggests, do we equate parolees with prisoners for the purpose of concluding that parolees, like prisoners, have no Fourth Amendment rights.").
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. Analogizing 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," id. at 873-74, the Court held 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. However, the Court expressly reserved judgment as to whether the search of a probationer's home for any purpose is lawful if supported by "`reasonable grounds' to believe contraband is present." Id. at 880.
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. Despite the condition's language that purported to authorize searches without "reasonable cause," both the government and Knights agreed that reasonable suspicion existed in the case. Id. at 122. The district court had suppressed evidence of the search, however, and the Ninth Circuit had affirmed, on the ground that that the search was investigatory in nature and that the probation condition must be construed as authorizing searches only for probationary purposes. Id. at 116.
The Knights Court reversed the Ninth Circuit without examining the "official purpose" of the search. Knights, 534 U.S. at 122. Rather than applying Griffin's "special needs" framework, 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." Knights, 534 U.S. at 119 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The Court concluded that "the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer's house." Knights, 534 U.S. at 121. The warrantless search of the probationer's home by a law enforcement officer was reasonable because it was "supported by reasonable suspicion and authorized by a condition of probation." Id. at 122. Importantly, the Supreme Court noted that it was not addressing the "constitutionality of a suspicionless search because the search in [Knights] was supported by reasonable suspicion." Id. at 120 n.6.
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 release—violates the Fourth Amendment. Samson, 547 U.S. at 849-50. The Samson Court approved of such suspicionless searches but limited the authorization of such searches to parolees. Id. at 857.
As in Knights, the Court in Samson did not apply Griffin's "special needs" framework. Instead, it conducted a general Fourth Amendment "examin[ation of] the totality of circumstances" of the search, balancing the individual's privacy against the governmental interests. Samson, 547 U.S. at 848 (quoting Knights, 534 U.S. at 118). The 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. Balancing the parolee's diminished privacy interest against California's "overwhelming interest in supervising parolees," id. at 853 (quoting Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998)), the Court concluded it was reasonable to permit warrantless searches of parolees without reasonable suspicion, id. at 857.
The Supreme Court's decisions provide no bright-line rules, and application of the Court's precedents is far from straightforward because of the varying state probation, parole, and post-release supervision regimes. As noted by the district court in Lafferty, "reducing the decision in Knights to a `reasonable suspicion' standard applicable to warrantless searches of probationers under all state systems of supervision is wholly antithetical to the Supreme Court's holding that each search must be evaluated under the totality of circumstances." Lafferty, 173 F. Supp. 3d at 501. Most helpful is the Tenth Circuit's analysis in Freeman:
Freeman, 479 F.3d at 746-47 (citations and footnote omitted) (first and second alterations in original).
Thus, a court considering the constitutionality of a warrantless search of a probationer or parolee should engage in the following procedure. First, the court should determine whether the search was made for the purpose of the "special needs" of probation, i.e. inquire whether the search was a "probation search" made pursuant to state law or regulation. If the search was made for the special needs of probation, then the court should apply Griffin. In so doing, the court must determine whether the statute or regulation authorizing the search is reasonable and examine whether the search complied with the statute or regulation. A federal court is "bound by the state court's interpretation" of the statute or regulation, if such exists, but this "is relevant to [the] constitutional analysis only insofar as it fixes the meaning of the regulation [or statute]." Griffin, 483 U.S. at 875.
If, on the other hand, the search was not made for the purpose of the special needs of probation or parole supervision, i.e. the search does not comply with a statute or regulation authorizing warrantless searches based upon the state's special needs, or the state law or regulation purporting to authorize such searches is itself unconstitutional, then the court must apply the Knights balancing test to determine the reasonableness of the search. In conducting this balancing test, the court must weigh the state's legitimate governmental interests against the individual's privacy interests, giving due regard to any probation or parole condition authorizing warrantless searches. See Knights, 534 U.S. at 118 (noting that a "probation search condition [is] a salient circumstance"); Lafferty, 173 F. Supp. 3d at 501 ("[T]he `totality of circumstances' approach in Knights and Samson examines the state statutes, but only to inform and assess the probationer or parolee's reasonable expectations of privacy and weigh the state's countervailing interests in searching the person or home of those on supervision.").
In United States v. Midgette, 478 F.3d 616 (4th Cir. 2007), the Fourth Circuit considered whether a warrantless search of a North Carolina probationer's home conducted pursuant to a condition of probation complied with the Fourth Amendment. The Fourth Circuit conducted both a Griffin "special needs" analysis to determine the reasonableness of the North Carolina statute
In Midgette, a local police officer informed Midgette's supervising probation officer that (1) Midgette might be in possession of a firearm, (2) Midgette had a reputation for carrying firearms, and (3) Midgette had personally retrieved a firearm from that officer's police department a year earlier. Midgette, 478 F.3d 616, 619. Based upon this information, Midgette's supervising probation officer "asked police officers to assist her in searching Midgette during his upcoming meeting with her." Id. During that subsequent meeting, two local police officers searched Midgette's person and his vehicle at the request of the supervising probation officer. Id. The search of the vehicle revealed firearm ammunition, which caused the probation officer to conduct a warrantless search of Midgette's residence with the assistance of the local police officers. Id. at 619-20.
Employing the Griffin "special needs" analysis, the Fourth Circuit determined that North Carolina's statute authorizing warrantless searches of probationers was "narrowly tailored" and imposed meaningful restrictions to "guarantee that the searches are justified by the State's `special needs,' not merely its interest in law enforcement." Midgette, 478 F.3d at 623-24 (citing former North Carolina statute governing warrantless probation searches). The court held that "searches conducted in conformity with the statute are reasonable under the Fourth Amendment" because the restrictions in the statute on warrantless searches "assure that the searches conducted pursuant to it are justified by the State's `special needs.'" Id. at 624.
Using the Knights balancing test, the Fourth Circuit also determined that the search in Midgette was supported by reasonable suspicion and was, therefore, reasonable under the Fourth Amendment. Id. at 624-25. The probation officer conducting the search had received a tip from a police officer informing him that the probationer might be in possession of firearms. Id. at 625. The police officer provided some additional, "objective grounds for his suspicion—that he was familiar with Midgette, that Midgette had a reputation for carrying firearms, and that Midgette had personally retrieved some firearms from his police station." Id. The court held that the search comported with the Fourth Amendment because the probation officer conducting the search "had reasonable suspicion that Midgette possessed firearms." Id. (citing Knights and comparing Samson).
Fourth Circuit case law is unclear, however, whether a scheme that authorizes warrantless probation searches without any individualized suspicion of unlawful activity would pass constitutional muster under Griffin's special needs analysis. In Midgette, the Fourth Circuit emphasized that "Griffin's `special needs' rationale . . . did not make individualized suspicion the sine qua non of a valid probation [search] scheme." Midgette, 478 F.3d at 624. However, the Wisconsin regulation approved in Griffin did require some form of individualized suspicion ("reasonable grounds"). See Griffin, 483 U.S. at 871. Moreover, Midgette's statement that individualized suspicion is not the sine qua non of valid probation search schemes is even more difficult to reconcile with the Fourth Circuit's subsequent statement—citing Midgette, no less—that "it remains an open question whether a suspicionless search of a probationer can be constitutional." Jones v. Chandrasuwan, 820 F.3d 685, 692 (4th Cir. 2016) (citing Knights, 534 U.S. at 120 n.6; Midgette, 478 F.3d at 625).
In sum, it is unclear whether a warrantless and suspicionless search— otherwise compliant with N.C. Gen. Stat. § 15A-1343(b)(13)—of a North Carolina probationer would be constitutional. As explained below, this court need not reach that question because the search at issue here did not comply with N.C. Gen. Stat. § 15A-1343(b)(13).
The North Carolina Court of Appeals recently analyzed N.C. Gen. Stat. § 15A-1343(b)(13) in State v. Powell, ___ S.E.2d ____, No. COA16-1022, 2017 WL 2118676 (May 16, 2017). Powell is relevant to the instant case because (1) it is the only published North Carolina appellate opinion regarding the amended warrantless probation search condition, N.C. Gen. Stat. § 15A-1343(b)(13); and (2) the facts in Powell are similar, although not identical, to the facts at issue here.
In Powell, the defendant was on state, supervised probation for a felony breaking and entering conviction and was subjected to a warrantless search as part of "an operation with the U.S. Marshal's task force service." Powell, 2017 WL 2118676, at *1. That operation included North Carolina Department of Public Safety Probation and Parole officers from Catawba County, North Carolina; an officer from the Hickory, North Carolina Police Department's Street Crime Interdiction and Gang Unit; and U.S. Marshals. Id. The task force conducted warrantless searches of residences of people on probation, parole, or post-release supervision in a particular area of Catawba County. Id. The list of people to be searched by the task force was created by a supervisor employed with the North Carolina Department of Public Safety and was intended to target people convicted of "violent offenses involving firearms [and] drugs." Id. (alteration in original). The probation officers who searched the defendant's residence admitted that not everyone searched met that criteria; and, indeed, the facts recited in the opinion indicate that the defendant had neither a gang affiliation nor a prior record for violent offenses. Id. Neither of the two state probation officers that searched the defendant's residence were assigned to supervise the defendant. Id. Moreover, there was no evidence that the defendant's supervising probation officer "was even notified—much less consulted—regarding the search of [the] [d]efendant's home." Id. at *8 n.3.
Applying a plain error standard of review, the Powell court held that the State had not met its burden to prove that the warrantless search of the probationer was directly related to the purposes of his probation and, therefore, reversed the trial court's denial of the defendant's suppression motion. Powell, 2017 WL 2118676, at *2, 8. In reaching this conclusion, the court noted that the 2009 amendment of the North Carolina statute imposed a more stringent burden on the State—requiring that the State show the purpose of the search was "for purposes directly related" to probation as opposed to the former, less stringent requirement that it be "for purposes reasonably related" to probation. Id. at *8.
The Powell court reiterated its prior holdings that "the presence and participation of law enforcement officers does not, by itself, render a warrantless search under the statute unlawful." Powell, 2017 WL 2118676, at *8. The court emphasized the Fourth Circuit's interpretation of the North Carolina probation search condition as "guaranteeing that the searches are justified by [North Carolina]'s `special needs,' not merely its interest in law enforcement." Id. (quoting Midgette, 478 F.3d at 624). Because "it [was] clear from the officers' testimony that the search of [the] [d]efendant's home occurred as part of an ongoing operation of a U.S. Marshal's Service task force," the court concluded that the State had failed to meet its burden, under the statute, of demonstrating that the search of the defendant's home was directly related to his supervision. Powell, 2017 WL 2118676, at *8 (emphasis added).
The government contends that the search of Clark and his residence was constitutionally permissible under N.C. Gen. Stat. § 15A-1343(b)(13). (Gov't Resp. Def.'s Mot. Suppress [DE #23] at 4-7; Gov't Resp. Def.'s Supp. Brief. Mot. Suppress [DE #48] at 7-10; Gov't Resp. Order Brief. Powell [DE #62] at 2-4.) Therefore, the court must determine whether the instant search complied with N.C. Gen. Stat. § 15A-1343(b)(13), i.e. whether Clark and his home were searched "for purposes directly related" to probation supervision.
The government contends that Powell is distinguishable from the instant case and is not persuasive authority. (Govt. Resp. Order Brief. Powell at 2.) It is true that there are a number of factual distinctions between the defendant-probationer in Powell and Clark. First, the Powell defendant was not gang-affiliated. In contrast, Clark was validated as a gang member in 2014, and the gang with which Clark is affiliated has a "propensity for violence" in the area where Clark resided, according to Officer Cook. Additionally, the defendant-probationer in Powell did not have a prior record for "violent offenses," while Clark indisputably does.
Nevertheless, there are relevant similarities between the search at issue in Powell and the instant search. First, both searches were conducted as part of a joint federal-state task force operation comprised of state probation and parole officers, local law enforcement officials, and U.S. Marshals. Second, both Powell and Clark were placed on the respective task force's search list by supervisory staff, i.e. managerial level probation officers within the North Carolina Department of Public Safety. Third, neither Powell's nor Clark's supervising probation officer was consulted about or gave any reasons to search the respective defendant's home, nor did either of the supervising probation officers have any input as to whether to include the respective defendant on the task force's search list. Fourth, in both searches, the searching officers had no particular information to suggest that either defendant was engaged in criminal activity or otherwise in violation of probation.
The two factors identified by the government to distinguish the instant search from that at issue in Powell require additional discussion. Preliminarily, Clark's prior criminal record and gang affiliation are effectively immutable characteristics as the government's witnesses construed them at the evidentiary hearing. The immutability of the prior record is patent. Indeed, the Fourth Circuit has noted, albeit in the context of Terry stops, that in most cases "[a] prior criminal record is not, standing alone, sufficient to create reasonable suspicion." United States v. Powell, 666 F.3d 180, 188 (4th Cir. 2011) (alteration in original) (quoting United States v. Foster, 634 F.3d 243, 246-47 (4th Cir. 2011)).
As to the gang affiliation, Clark was validated in July 2014 by Officer Cook based on self-admission, tattoos, and February 2014 social media postings written in gang-coded language but otherwise containing no criminal or suspicious content. Officer Cook testified that Clark's tattoos would remain a reason to validate Clark "twenty years from now." (Hr'g Tr. at 45.) Officer Cook credited Clark's self-admission to joining the gang in 1999 but discredited as "self-serving" Clark's statement that he was, as of July 2014, not active in the gang. (Hr'g Tr. at 31-32.) But there was no testimony—from Officer Cook or from Clark's supervising probation officer Ashley Chavis—that Clark was active in the gang between the day of his validation in July 2014 and the day of the search in February 2016.
In evaluating the totality of the evidence, the undersigned finds that the government has not met its burden to show that the search of Clark and his home complied with N.C. Gen. Stat. § 15A-1343(b)(13). The facts of the instant case are more closely analogous to those in Powell than to those in Midgette. While Clark's record and gang affiliation distinguish him from the defendant in Powell, these factors must be weighed against the similarities between the instant search and that at issue in Powell. The undersigned cannot credit the government's position that the search of Clark was conducted "for purposes directly related" to Clark's supervision when his supervising officer played no role other than providing Clark's contact information and home layout to a joint, federal-state, multi-county search team. Officer Chavis described how probation officers will typically not search (or even attend a search of) their own supervisees, but will instead have other probation officers conduct a search to avoid "hostility or tension between an officer and offender."
Furthermore, the search of Clark's home was very different from the search at issue in Midgette. In Midgette, the probation officer received a tip from local police that provided objective, particularized reasons for searching Midgette—reasons nearly identical to those in Griffin. The probation officer enlisted the assistance of local police to conduct searches of Midgette's person and vehicle, which revealed contraband. Only then did the probation officer elect to search Midgette's residence. In contrast, Clark's probation officer did not receive any tip that Clark was in violation of probation, she was not consulted as to whether Clark should be included on Operation Zero Hour's search list, and there was no particularized reason to search Clark's residence other than his prior record and gang validation.
The North Carolina Court of Appeals held that to permit the warrantless search at issue in Powell would "essentially . . . [read] the phrase `for purposes directly related to the probation supervision'" out of N.C. Gen. Stat. § 15A-1343(b)(13). Just as the mere "presence and participation of law enforcement officers does not . . . render a warrantless search" of a North Carolina probationer unlawful under N.C. Gen. Stat. § 15A-1343(b)(13), Powell, 2017 WL 2118676, at *8, so too the mere presence and participation of probation officers in a warrantless search of a North Carolina probationer's home does not guarantee that such a search complies with N.C. Gen. Stat. § 15A-1343(b)(13). Here, the search of Clark's residence as part of Operation Zero Hour is analogous to the general law enforcement search at issue in Powell. To find otherwise would effectively eviscerate the statutory language requiring that warrantless searches of probationers' homes be for purposes "directly related" to their probation supervision.
Having concluded that the instant search did not comply with N.C. Gen. Stat. § 15A-1343(b)(13), the search may still be permissible under the Fourth Amendment if it did not violate Clark's reasonable expectation of privacy. This requires the court to conduct the balancing test that the Supreme Court articulated in Knights to determine whether, under the totality of the circumstances, the instant search was reasonable regardless of the "official purpose" of the search. See Knights, 534 U.S. at 122.
Neither the Supreme Court nor the Fourth Circuit has explicitly set the standard for this inquiry as "reasonable suspicion" for all probationers. See Knights, 534 U.S. at 121 (holding that "that balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer's house") (emphasis added). However, both have reached conclusions that a finding of reasonable suspicion satisfies the Fourth Amendment in the context of warrantless probation searches. See Knights, 534 U.S. at 121-22 ("When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable."); Midgette, 478 F.3d at 625; see also Chandrasuwan, 820 F.3d at 693 (holding, based on Knights, that reasonable suspicion of a probation violation is constitutionally sufficient to make a warrantless arrest of a probationer).
"Reasonable suspicion requires a particularized and objective basis for suspecting the person [searched] of criminal activity." Midgette, 478 F.3d at 625 (alteration in original) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). A tip with "some particular indicia of reliability" can suffice. Midgette, 478 F.3d at 625 (quoting United States v. Perkins, 363 F.3d 317, 324-26 (4th Cir. 2004)). However, reasonable suspicion cannot be an "inchoate and unparticularized suspicion or `hunch.'" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). In most cases, "[a] prior criminal record is not, standing alone, sufficient to create reasonable suspicion," United States v. Powell, 666 F.3d 180, 188 (4th Cir. 2011) (alteration in original) (quoting United States v. Foster, 634 F.3d 243, 246-47 (4th Cir. 2011)), although a prior record paired with "more concrete factors" can "demonstrate . . . reasonable suspicion of current criminal activity," Foster, 634 F.3d at 247 (4th Cir. 2011) (emphasis added) (citing United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994)). Nor is "mere[] . . . association" enough to justify reasonable suspicion. United States v. Black, 707 F.3d 531, 539 (4th Cir. 2013).
In general, reasonable suspicion requires "individualized suspicion of wrongdoing." Black, 707 F.3d at 540 (quoting DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir. 1998)). "Exceptions to the individualized suspicion requirement have been upheld only in certain limited circumstances, where the search is justified by special needs—that is, concerns other than crime detection—and must be justified by balancing the individual's privacy expectations against the government interests." Black, 707 F.3d at 540 (quoting DesRoches, 156 F.3d at 574) (internal quotation marks omitted). Here, the search must comply with the "individualized" component of reasonable suspicion because it was not justified by special needs, see supra § II(A).
As required by Knights, the specific terms of probation must also be evaluated when determining a probationer's reasonable expectation of privacy. Knights, 534 U.S. at 118. In addition to the warrantless probation search condition discussed above, see supra §§ I(C), II(A) (discussing N.C. Gen. Stat. § 15A-1343(b)(13)), Clark was also subject to a condition of probation, authorized by N.C. Gen. Stat. § 15A-1343(b)(14), requiring him to submit to warrantless searches "by a law enforcement officer of [Clark]'s person and of [Clark]'s vehicle upon reasonable suspicion that [Clark] is engaged in criminal activity or is in possession of a firearm, explosive device, or other deadly weapon . . . without written permission of the court." (Gov't Ex. 1 at 3.)
Based upon the totality of the circumstances, the undersigned determines that the search of Clark's home violated his reasonable expectation of privacy. First, the search was not supported by reasonable suspicion. Clark's prior criminal record and gang validation by Officer Cook in July 2014 are insufficient, without other particularized and objective facts, to form reasonable suspicion of any wrongdoing. See Midgette, 478 F.3d at 625. As the Tenth Circuit noted in the context of a warrantless search of a parolee's home, though law enforcement officers
Freeman, 479 U.S. at 749. Here, the government argues that Clark's gang validation and prior record, coupled with Officer Cook's testimony that the gang of which Clark was a validated member had a "propensity for violence" in Robeson County and was responsible for violent crime in February 2016, was sufficient for reasonable suspicion. (Gov't Resp. Order Brief. Powell at 3.) But as discussed above in § II(A), Clark had been on probation for over a year-and-a-half and Officer Cook offered no testimony that Clark was involved in any gang-related activity during that time period—not even a social media posting similar to the one that partially formed the basis of Clark's initial validation. And Clark's supervising probation officer did not testify that she even suspected Clark of being actively involved in the gang. (Hr'g Tr. at 60-72). This evidence—or lack thereof—diminishes the potency of the government's argument. See United States v. Sprinkle, 106 F.3d 613, 617 (noting, in the context of a Terry stop, that the investigating officer "had no evidence that [the defendant] had returned to crime since his release [from prison]"). Thus, the instant facts are distinguishable from those in Knights and Midgette, where the searching officers had particularized, objective suspicion that the probationers were currently involved in illegal activity. Here, the officers who searched Clark's home had no more than a hunch on which to base their search.
Furthermore, Clark had a greater expectation of privacy in his residence than the probationer in Knights. In Knights, the California probation agreement informed the defendant that he, his car, or his residence could be subjected to a warrantless search at any time and without cause. Knights, 534 U.S at 114. Here, Clark's probation agreement only permitted warrantless law enforcement searches of his person and his vehicle upon reasonable suspicion and said nothing about warrantless searches of his residence. Thus, based upon the plain language of Clark's probation judgment, he had a reasonable expectation that his home could not be subjected to a warrantless law enforcement search—the "chief evil against which the wording of the Fourth Amendment is directed," Payton, 445 U.S. at 585—merely because he was on probation.
In sum, the lack of reasonable suspicion and Clark's reasonable expectation of privacy based on the plain language of his probation judgment entail that, based on the totality of facts as presented at the evidentiary hearing, the search of Clark's home on February 24, 2016, by federal and state officials was unreasonable under the Fourth Amendment.
In general, evidence obtained by law enforcement through violation of the Fourth Amendment is subject to suppression under the exclusionary rule. See, e.g., United States v. Gaines, 668 F.3d 170, 173 (4th Cir. 2012). Suppression of unlawfully obtained evidence may not be subject to suppression where that evidence "has been purged of the taint of the unlawful search." Id. Factors to consider when determining whether the taint of the illegal search has been sufficiently attenuated include: "(1) the amount of time between the illegal action and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
Here, the firearm sought to be suppressed by Clark was discovered during the illegal search of his bedroom. The acquisition of the evidence was contemporaneous with the illegal search, and there is no evidence that intervening circumstances broke the causal chain between the search and the acquisition of the firearm. Because the search was neither justified under the Fourth Amendment's "special needs" exception articulated in Griffin v. Wisconsin, 483 U.S. 868 (1987), nor under the ordinary Fourth Amendment reasonableness balancing test articulated in United States v. Knights, 534 U.S. 112 (2001), it must be excluded pursuant to Weeks v. United States, 232 U.S. 383 (1914), and Elkins v. United States, 364 U.S. 206 (1960). Therefore, the undersigned recommends that Clark's Motion to Suppress be granted and the evidence seized pursuant to the warrantless search of Clark's home on February 24, 2016, be suppressed.
Clark also seeks to have statements attributed to him shortly after the search at issue be suppressed as "fruit of the poisonous tree." (Def.'s Mot. Suppress at 1.) No witness testified to the content of these alleged statements, only that Clark was subjected to a "post-arrest interview" in the living room or kitchen of his house. (Hr'g Tr. at 104-05). Given the timing of these alleged statements, and the lack of evidence showing that the taint of the illegal search had been purged, the undersigned recommends that these statements be suppressed.
For the foregoing reasons, the undersigned RECOMMENDS that Defendant's Motion to Suppress [DE #22] be GRANTED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 11, 2017, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b); Local Crim. R. 1.1 (permitting modification of deadlines specified in local rules), 5.3(c) (E.D.N.C. Dec. 2016).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See United States v. Jones, 658 F. App'x 188, 189 (4th Cir. 2016).
