U.S. v. Reyes
| Decision Date | 07 March 2002 |
| Docket Number | Docket No. 01-1099.,Docket No. 01-1110. |
| Citation | 283 F.3d 446 |
| Parties | UNITED STATES of America, Appellee, v. Donald REYES, Defendant-Appellant, Robert Jubic, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
Kevin A. Luibrand (Adrienne Kerwin, on the brief), Tobin & Dempf, Albany, NY, for Defendant-Appellant, on submission.
William C. Pericak, Assistant United States Attorney (Daniel J. French, United States Attorney, on the brief), United States Attorney's Office for the Northern District of New York, Albany, NY, for Appellee, on submission.
Before: FEINBERG, JACOBS, and CABRANES, Circuit Judges.
Defendant Donald Reyes timely appeals from the denial of his motion to suppress by the United States District Court for the Northern District of New York (Thomas J. McAvoy, then-Chief Judge). Following the denial of his motion to suppress, Reyes pleaded guilty to, and was convicted on, one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1), and admitted guilt and was convicted for violation of the conditions of his supervised release (weapon possession, new drug offense, and drug possession). Reyes now offers three reasons why the District Court should have suppressed evidence of marijuana plants growing in his yard and in his home. First, Reyes claims that even though he is a convicted person serving a court-imposed sentence of federal supervised release, his Fourth Amendment rights are entitled to full legal protection, making the warrantless search of his property by United States probation officers ("probation officers" or "USPOs") unconstitutional. Second, he argues that probation officers discovered marijuana plants in his yard by unlawfully standing in a constitutionally protected curtilage area. Third, Reyes contends that the probation officers' conduct in this case is prohibited by the so-called "stalking horse" theory, pursuant to which a probation officer may not use his authority to conduct a home visit to help law enforcement officers evade the Fourth Amendment's usual warrant and probable cause requirements for police searches and seizures.
The District Court rejected these arguments, finding that it was lawful for probation officers conducting a home visit of a convicted person serving a term of federal supervised release to walk on the driveway toward the backyard to determine whether anyone was at home. The District Court held that, in such circumstances, the "plain view" exception to the Fourth Amendment warrant requirement applied, and it declined to suppress evidence of the probation officers' discovery of marijuana plants in defendant's yard. The District Court also concluded that the "stalking horse" defense did not apply, because the probation officers had a clear duty to make home visits and were lawfully on Reyes's premises for that purpose.
In considering a district court's denial of a motion to suppress, we review the court's factual findings under a "clearly erroneous" standard, construing all evidence in the light most favorable to the government. See, e.g., United States v Glover, 957 F.2d 1004, 1007 (2d Cir.1992). Accordingly, we take the facts set forth below primarily from the record of the District Court's October 2, 2000 suppression hearing, drawing all inferences in the government's favor and according deference to the District Court's findings.
In mid-1999, Reyes began a three-year term of federal supervised release following his incarceration upon conviction before then-Chief Judge McAvoy for conspiracy to possess with intent to distribute marijuana. Standard Condition # 10 of the terms of Reyes's supervised release imposed by the District Court, which is recommended under United States Sentencing Guidelines § 5D1.3(c)(10), provides, "You shall permit a probation officer to visit at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer." Conditions of Prob. and Supervised Release for Donald Reyes, United States Dist. Ct. for the Dist. of N.N.Y., 5/12/98, at 2 (emphasis added); see also U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(c)(10) (2000, 2001).1 Pursuant to this standard condition of supervised release, United States Probation Officer ("USPO") Merry Jill Blomquist, accompanied by another probation officer, attempted to conduct an unannounced home visit to Reyes on December 6, 1999 and again on May 31, 2000. Blomquist concluded that Reyes was not at home on both of these occasions. Nevertheless, because he was maintaining a job, appearing for appointments at the United States Probation Office ("Probation Office" or "Probation"), and testing negative for drug-use, Reyes seemed to be doing well on supervised release.
Shortly before July 10, 2000, Special Agent Donald Abrams of the Drug Enforcement Agency ("DEA") contacted USPO Blomquist and, later, Deputy Chief USPO John Watts to inform them that DEA information suggested that Reyes, a resident of Woodward Avenue in Troy, New York, might be involved again in the growth and distribution of marijuana. Abrams also told Blomquist and Watts that the DEA expected to execute a search warrant at the home of Reyes's next-door neighbor, Steven Posniewski, who (in the DEA's view) definitely was engaged in such activity. Abrams did not apply for a search warrant for Reyes's house, because Abrams did not believe that he had enough information to obtain one.
During their telephone conversation, Abrams asked Watts to coordinate a home visit to Reyes with the DEA's search of Posniewski's residence. Watts understood from Abrams that the DEA was interested in whether Reyes was engaged in a marijuana growing operation; if Reyes was involved, the DEA expected that a large number of marijuana plants and cultivation apparatuses would be present in Reyes's house and "readily apparent in a home visit." (Suppression Hr'g Tr. of 10/2/00, at 18.)
After explaining to Abrams the "parameters" of home visits and that the probation officers would "do the home visit within [their] own format," Watts concluded that it would be "efficient" to coordinate with the DEA to ensure that, if Reyes was indeed growing marijuana — a violation of his conditions of supervised release — the Probation Office would discover it before the search next door spurred Reyes to destroy the evidence. (Id.) Watts discussed with Abrams "what [Probation] could do, what they couldn't do, [and] what they could and could not do in conjunction with [the DEA search] operation." (Id. at 100.) Watts and Abrams agreed that if a probation officer observed drugs in plain view, the officer would notify the DEA upon exiting Reyes's home, "which is part of [the Probation Office's] policy," but that the DEA "were not, under any circumstances, going to come in the house" with the probation officers to conduct the home visit. (Id. at 50.) Watts testified that this course of action was elected pursuant to the Probation Office's "search policy for the Northern District of New York that states that [probation officers] generally are not to seize marijuana or drugs when [they] see them in plain view, but an officer is to tell [his] supervisor and to contact the local authorities so that it can be handled through the legal process." (Id. at 36; accord Mem. from Paul W. DeFelice, Chief USPO for N.D.N.Y., approved by then-Chief Judge Thomas J. McAvoy, to All USPOs for N.D.N.Y. of 11/18/94, at 2 ())
On July 10, 2000, USPOs Watts, Blomquist, and Christopher McNeill met members of the DEA and the Troy Police Department at 5:00 AM at the Troy Police Department's Special Operations Office, from which they all traveled to Woodward Avenue. Troy police and DEA agents were assigned to assist in the DEA search of Posniewski's house. New York law enforcement and parole personnel provided security for Probation's home visit to Reyes (next door), since Probation was uncertain as to what it might encounter in light of the DEA's suspicions that Reyes was growing marijuana. Special Agent Abrams testified that no DEA agents were assigned to back up Probation's home visit to Reyes. New York State ("NYS") Parole Officer Michael P. Smith, who regularly worked with the Special Operations Section of the Troy Police Department and the Drug Task Force (consisting of federal, state, and local law enforcement agents), was asked to assist in the home visit by subduing, if necessary, the dog at Reyes's residence and by generally providing additional security.
The DEA resolved to execute its search warrant for Posniewski's house at just after 6:00 AM. Sometime thereafter, upon cue from the team searching Posniewski's house, the probation officers attempted the home visit to Reyes. Although the probation officers repeatedly knocked on the front door and called out that they had come to do a home visit, no one answered the door at Reyes's house. The probation officers also called Reyes by cellular telephone and left a message on his home answering machine, but no one answered the call or responded to the message. Nevertheless, Reyes's black truck and his girlfriend's gray sports car were both in the driveway with keys in the ignitions, and, in Blomquist's view, the dog inside the Reyes house "did not display the same amount of aggression that he did at the first two [attempted] home visits," suggesting to Blomquist that "someone was probably home." (Mem. of USPO Merry Jill Blomquist to Deputy Chief USPO John Watts of 9/29/00, at 2.)
After waiting "a substantial period of time" (Suppression Hr'g Tr. of 10/2/00, at 144) — a minimum of ten to fifteen minutes — for Reyes to answer the door, Watts walked over to the left side of the property and then walked along what appeared to be a gravel driveway to determine, among other...
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