181 F.3d 781 (6th Cir. 1999), 98-5197, U. S. v. Payne

Docket Nº:98-5197
Citation:181 F.3d 781
Party Name:United States of America, Plaintiff-Appellee, v. Scott Payne, Defendant-Appellant.
Case Date:June 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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181 F.3d 781 (6th Cir. 1999)

United States of America, Plaintiff-Appellee,


Scott Payne, Defendant-Appellant.

No. 98-5197

United States Court of Appeals, Sixth Circuit

June 22, 1999

Argued: April 22, 1999

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Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 97-00016--Joseph H. McKinley, Jr., District Judge.

James A. Earhart, Asst. U.S. Atty. (briefed), Terry M. Cushing (argued and briefed), Office of the U.S. Attorney, Louisville, Kentucky, for Apellee.

Scott C. Cox, Louisville, Kentucky, for Appellant.

Scott N. Payne, pro se

MOORE, J., delivered the opinion of the court, in which SILER, J., joined. KENNEDY, J. (pp. 791-94), delivered a separate dissenting opinion.

Before: KENNEDY, SILER, and MOORE, Circuit Judges.


Scott Payne appeals his convictions for possession of marijuana and illegal possession of a firearm. The incriminating items were found by parole officers who, after arresting Payne for parole violations, performed what they called a "plain-view search" of Payne's home and vehicle. Although as a parolee Payne was subject to search on the basis of reasonable suspicion rather than probable cause, the parole officers did not have sufficient evidence to satisfy even this reduced standard. They therefore lacked a valid legal reason to be in the places from which they observed the contraband, and we REVERSE the district court's denial of Payne's motion to suppress.


Payne was paroled from Kentucky prison on June 1, 1994. His criminal history includes several felonies -- such as robbery, escape, and assault on corrections officers -- as well as numerous parole violations. Because of this history, he was placed under the maximum level of parole supervision, which meant he was required to have two office visits and one home visit with his parole officer each month. He agreed to a curfew and to random drug testing. He also signed a statement acknowledging that he was "subject to a search and seizure if my Probation and Parole Officer [has] reasonable suspicion to believe that I may have illegal contraband on my person or property." J.A. at 235 (Conditions of Parole). After an initial June 2 meeting with his parole officer, Robert Burdette, in Barren County, Kentucky, Payne did not report for any more office visits, and no home visits took place.

Payne left Barren County and moved to Bowling Green. There, he attracted the attention of Detective Jerry Smith, a member of the Kentucky State Police Drug Enforcement-Special Investigations Unit ("DESI-West"). Smith received information sometime in August that Payne had a large quantity of methamphetamine in the trunk of his car. J.A. at 143 (Smith Test.). The record does not contain any information about the source of this tip. DESI-West

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officers were unable to gather any more evidence to help establish probable cause for a search.

Some time around late August, Smith called Burdette. He told Burdette that Payne was living in Bowling Green and that he suspected him of being involved with drugs. Smith testified, "To be honest, I was a little frustrated that we had information that Scott Payne had a pound of methamphetamines, and I found out his probation/parole officer was in Barren County when I talked to him, he didn't seem too interested in checking into it. And that's why it took about a month and a half." J.A. at 157 (Smith Test.).

Burdette eventually confirmed that Payne was no longer living or working in Barren County. On September 23, he obtained an arrest warrant based on Payne's violation of the terms of his parole. He contacted Dan Duvall, a parole officer in Bowling Green, who agreed to perform the arrest. Burdette also told Duvall about his conversation with Smith. At some point the content of Smith's tip became exaggerated. Duvall testified that he believed Smith had information that Payne was dealing drugs from a trailer home. J.A. at 129 (Duvall Test.). The trailer belonged to and was the residence of Lisa Payne, Scott Payne's estranged wife. At the suppression hearing and on this appeal, the government and Payne's attorney have treated the trailer as Payne's residence. However, in a supplemental pro se brief, Payne points out that he actually lived in an apartment elsewhere in Bowling Green. He states that he visited the trailer only to see his children.

Parole officers often request help from police officers when serving an arrest warrant. They usually call on regular local police officers, but on occasion they call other agencies. In this case Duvall called DESI-West and invited Smith to help with Payne's arrest. On October 4, Duvall and two other parole officers met Smith and two other DESI-West officers at a shopping mall before the arrest. There, Duvall informed the drug officers of his intention "to do a plain-view search" of the trailer. J.A. at 121 (Duvall Test.). Lieutenant Wayne Mayfield, the ranking police officer at the scene, acknowledged that he "view[ed] this as an opportunity to have a probation/parole officer basically help [him] get in Mr. Payne's trailer." J.A. at 168 (Mayfield Test.).1

When the six officers arrived at the trailer, Payne's pickup truck was parked in front. There is a factual dispute over whether the driver's-side door was open or closed. The district court found that the door was closed. J.A. at 104 (Dist. Ct. Op.) (stating that two of the officers opened the door).

Smith and two other officers went to the front door. When Lisa Payne answered the door, she denied that Scott Payne was in the trailer. Smith heard a noise from the left end of the trailer, so he moved down the hallway to conduct a protective sweep of the trailer. He found Scott Payne hiding behind a door in the left-side bedroom, holding a glass of tea. Payne was handcuffed and placed in a car. At this point, the police and parole officers felt that their safety was assured.

After Payne had been put in the car, Duvall entered the trailer to conduct his "plain-view search." In the right-side bedroom, he saw an ashtray containing what appeared to be a marijuana cigarette. He gave it to Smith.

In the meantime, Russell McElroy, another parole officer at the scene, had made a discovery in Payne's pickup truck. McElroy is under the impression that he and his colleagues have the authority to search the persons and homes of parolees at any time. When asked at the suppression hearing to define "reasonable suspicion," he responded, "Just my own personal feelings." J.A. at 207 (McElroy Test.). McElroy testified that the doors on the

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pickup truck were closed but the driver's-side window was open. He put his head through the window and leaned forward so he could see the door handle. J.A. at 209 (McElroy Test.).2 There, he saw what he suspected was a marijuana cigarette, a roach clip, and rolling papers. He and one of the DESI-West officers opened the door and pushed the seat forward. Behind the seat, they found a box of what he thought were shotgun shells and a black case that turned out to contain digital scales. It is unclear who removed and opened the case.

The parole officers left with Payne, and two of the DESI-West officers went to get a search warrant. They used the marijuana cigarette from the bedroom and the scales from the truck to establish probable cause to search both the truck and the trailer. Mayfield stayed to secure the trailer, which meant following Lisa Payne around to make sure she did not destroy any contraband. Eventually, in exchange for permission for her children to use the bathroom, she produced cash, a handgun, and what turned out to be methamphetamine from a closet in the right-side bedroom. When the other officers returned with the search warrant, they found an assault rifle and various gun paraphernalia in the same bedroom. Some of the items -- a holster, a box of shells, and a gun-cleaning kit -- were in a bag that also contained a jacket belonging to Scott Payne. In the truck, the officers found a handgun inside a carrying case. In addition, Lisa Payne consented to a search of her car, which contained no contraband.

Payne was charged in federal court with possessing methamphetamine with intent to distribute, possessing marijuana, and being a felon in receipt of firearms. The district court denied Payne's motion to suppress, holding that the initial searches were supported by reasonable suspicion. At trial, Payne's lawyer conceded that the marijuana in the truck belonged to Payne and essentially told the jury to convict on that count. He then put on evidence that the methamphetamine and weapons in the trailer belonged to Lisa. A friend of Payne's testified that the gun found in the truck was his and that he had forgotten it there after taking a trip with Payne. Several witnesses testified that Payne used the digital scales to balance engine parts when he fixed motorcycles, which he did for a living. Payne was acquitted on the count for possession with intent to distribute methamphetamine and convicted on the other two counts. He was sentenced to 264 months in prison.



Although we may disturb the district court's findings of historical fact only if they are clearly erroneous, we review de novo the ultimate question of whether the search was supported by reasonable suspicion. See Ornelas v. United States, 517 U.S. 690, 699 (1996).

1. Standard

A state's rules governing the terms of parole may infringe on constitutionally

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protected liberties as long as the rules are reasonably related to the purposes of parole. See United States v. Holloway, 740 F.2d 1373...

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