U.S. v. Williams

• Decision Date: 01 August 2005
• Docket Number: No. 04-4043.,04-4043.
• Parties: UNITED STATES of America, v. Shannon WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 373

417 F.3d 373

UNITED STATES of America, v. Shannon WILLIAMS, Appellant.

No. 04-4043.

United States Court of Appeals, Third Circuit.

Submitted pursuant to Third Circuit LAR 34.1(a) July 11, 2005.

August 1, 2005.

John F. Yaninek, Mette, Evans & Woodside, Harrisburg, PA, for Appellant.

Thomas A. Marino, United States Attorney, James T. Clancy, Assistant U.S. Attorney, Harrisburg, PA, for Appellee.

Before ALITO and BECKER, Circuit Judges and SHADUR, District Judge.^*

OPINION OF THE COURT

SHADUR, District Judge.

After the district court had denied his motion to suppress evidence obtained during a warrantless search by parole officers, defendant-appellant Shannon Williams ("Williams") executed a plea agreement with the government pursuant to which he entered a conditional guilty plea on a charge of felon in possession of a firearm. That agreement entitled Williams to appeal the adverse suppression decision and to withdraw his guilty plea should he prevail on appeal.

Williams now appeals both (1) the denial of his motion to suppress and (2) the sentence imposed by the district court. We affirm the district court's decision as to suppression, but we remand the case for resentencing pursuant to our en banc decision in United States v. Davis, 407 F.3d 162 (3d Cir.2005).

Facts

Williams began serving a state parole sentence in March 2003 under the supervision of Christine McElhinny, a parole agent for the Pennsylvania Board of Probation and Parole. As a condition of his parole, Williams signed an agreement that provided in part:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.

During his parole term Williams first lived with his sister, but at the time relevant to this appeal he was living with his mother. As a condition of McElhinny's approval of Williams' residence there, his mother signed a written Home Provider Agreement Letter that contained the following provision:

I understand the Parole Supervision Staff has a right to search the residence at anytime when reasonable suspicion exists that parole has been violated. I will not deny them access to this residence. I understand that if I deny access to Parole Supervision Staff, the laws of Pennsylvania give Parole Supervision Staff the authority and responsibility to force entry into my residence to search for the parolee or contraband without the need of a warrant.

Williams was monitored closely by McElhinny throughout his parole term. While still living with his sister, he received three warnings for technical parole violations: failure to make job contacts, violation of curfew and presence of ammunition at his residence. That last violation followed a search of Williams' sister's home conducted by McElhinny, based on a tip she had received that Williams was selling drugs. Though she found no drugs, she did find some ammunition.

Shortly after Williams moved in with his mother, McElhinny received another tip that someone was seeking to shoot Williams. McElhinny responded by arranging a meeting at the mother's home, where she discovered that Williams had quit his job, violated his curfew and broken his leg. Williams also told McElhinny that people were looking for him and that he wanted to move to Albany, New York.

McElhinny thought that the information she had obtained about Williams' activities warranted notification of the local police, and she spoke to Detective Matthew Luchko ("Luchko") of the York City Police Department for that purpose. In response Luchko informed McElhinny that his investigation of a fatal shooting at a local bar had revealed that Williams was at the bar when the homicide occurred and that Luchko believed he might have information about the incident. When Luchko said he would like to speak with Williams as part of his investigation, McElhinny set up a meeting at her office.

Williams did not appear at the appointed time, and while waiting for Williams to arrive Luchko told McElhinny that Williams might have a gun. After waiting a half hour Luchko left, and Williams arrived shortly thereafter. By that time McElhinny had decided that the information conveyed by Luchko warranted a search of Williams' residence. After she discussed the situation with her supervisor, they handcuffed Williams and transported him to his mother's home for a search.

McElhinny, her supervisor and another parole agent began the search about 2 p.m. September 30, 2003. It did not take long for the second parole agent to find an ice bucket containing two loaded handguns, cocaine and Williams' parole supervision fee receipt. When those items were found, the parole agents halted the search and called Luchko.

Luchko and his partner came to Williams' mother's house and retrieved the found items. While the parole officers transported Williams to the York County Prison, Luchko obtained a search warrant that authorized a search of Williams' third-floor bedroom. Although that warrant-authorized search yielded no additional items, the guns found by the parole officers during their warrantless search formed the basis for the federal charges brought against Williams.

Williams was indicted by a grand jury in October 2003 on charges of possession of a firearm by a convicted felon and possession of stolen firearms shipped and transported in interstate commerce. Williams originally entered a plea of not guilty and filed a motion to suppress all evidence recovered during the warrantless search. After that motion was denied by the District Court, Williams entered into the conditional plea agreement and was sentenced on October 13, 2004.

Motion To Suppress

We review the denial of a motion to suppress for clear error as to the underlying factual determinations and exercise plenary review over the application of the law to those facts (United States v. Lockett, 406 F.3d 207, 211 (3d Cir.2005)). Because the basis for denial of the motion was a determination that the search that produced the evidence was valid, we must review the propriety of the warrantless search that led to the discovery of incriminating evidence.

In that regard we begin with the Supreme Court's unanimous teaching in United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)(internal quotation marks omitted):

The 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 government interests.

That balance generally requires that a warrant be obtained upon a showing of probable cause before a residence is searched. But when a parolee is involved and has signed a consent agreement such as the one at issue here, both sides of the balance are affected: the parolee's reasonable expectation of privacy is decreased and the government's reasonable need to monitor behavior is increased (Knights, 534 U.S. at 119, 122 S.Ct. 587; see also Griffin v. Wisconsin, 483 U.S. 868, 871-72, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)).¹ As a result, "no more than reasonable suspicion" (Knights, 534 U.S. at 121, 122 S.Ct. 587) is required to justify a search in these circumstances.²

To decide whether "reasonable suspicion" exists, we consider the totality of the circumstances to determine whether the "officer has a particularized and objective basis for suspecting legal wrongdoing" (United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)(internal quotations marks omitted)). Here there can be no doubt that the totality of the circumstances supports a conclusion that McElhinny initiated the search on the basis of reasonable suspicion. She obviously had knowledge of Williams' numerous parole violations, which included storing ammunition at his residence; she had received earlier tips that Williams was dealing drugs and that someone wanted to shoot him; she had heard from Williams himself that people were looking for him; and she had received information from Detective Luchko that Williams might have information about a homicide. Based on all of that, we find that McElhinny reasonably suspected that Williams was violating his parole (and indeed that he was engaged in criminal conduct) when Luchko told her that Williams was suspected of having a gun.

Williams responds that the search should nevertheless be declared invalid because its true purpose was to further a criminal investigation rather than to examine possible parole violations. Put differently, Williams asserts that McElhinny was merely acting as a "stalking horse" for the police. In United States v. Watts, 67 F.3d 790, 794 (9th Cir.1995) (internal citations omitted) the Ninth Circuit described the "stalking horse" theory in these terms³:

A probation officer acts as a stalking horse if he conducts a probation search on prior request of and in concert with law enforcement officers. However, collaboration between a probation officer and police does not in itself render a probation search unlawful. The appropriate inquiry is whether the probation officer used the probation search to help police evade the Fourth Amendment's usual warrant and probable cause requirements or whether the probation officer enlisted the police to assist his own legitimate objectives. A probation officer does not act as a stalking horse if he initiates the search in the performance of his duties as a probation officer.

In a more succinct articulation of the same view, the Eighth Circuit concluded in United States v. McFarland, 116 F.3d 316, 318 (8th Cir.1997) that a parole search may be invalidated "when it is nothing more than a ruse for a police...