U.S. v. Henry, 04-6382.

• Decision Date: 22 November 2005
• Docket Number: No. 04-6382.,04-6382.
• Citation: 429 F.3d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio R. HENRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

429 F.3d 603

UNITED STATES of America, Plaintiff-Appellee, v. Antonio R. HENRY, Defendant-Appellant.

No. 04-6382.

United States Court of Appeals, Sixth Circuit.

Argued: September 19, 2005.

Decided and Filed: November 22, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Elgin L. Crull, Crull & Crull, Louisville, Kentucky, for Appellant. Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Elgin L. Crull, Crull & Crull, Louisville, Kentucky, for Appellant. Terry M. Cushing, Brian Butler, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: DAUGHTREY and MOORE, Circuit Judges; ALDRICH, District Judge.^*

MOORE, Circuit Judge.

Defendant-Appellant Antonio R. Henry ("Henry") appeals his conviction for possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Henry argues that the district court erred first by denying his motion to suppress evidence obtained during a probation officer's search of a bag found at his residence and then by treating the United States Sentencing Guidelines as mandatory while sentencing him. Henry also contends for the first time on appeal that § 922(g)(1) exceeds Congress's power under the Commerce Clause.

Because the probation search was founded upon neither reasonable suspicion nor consent, we REVERSE the district court's denial of Henry's motion to suppress and VACATE Henry's conviction and sentence. This result makes it unnecessary for us to reach the sentencing issue. Finally, we reject Henry's commerce-power argument.

I. BACKGROUND

On October 8, 2003, Henry was discharged from a Kentucky prison pursuant to a grant of shock probation. See KY. REV. STAT. ANN. § 439.265. The following day, Henry reported to Probation Officer Michael Havens ("Officer Havens") for the first time. At that meeting, Henry filled out a releasee's report, indicating that he was unemployed, received SSI payments, and resided at 2821 Northwestern Parkway. A condition of Henry's probation forbade Henry either to change the residence listed on this report without the approval of his probation officer or to have more than one residence at a time. Joint Appendix ("J.A.") at 53 (Conditions of Supervision ¶ VI.D). Henry also was required either to maintain full-time employment or to seek employment when unemployed. J.A. at 51 (Order on Motion for Shock Probation ¶ 8), 53 (Conditions of Supervision ¶¶ VI.B, VII.A.4).

Subsequent to the initial meeting on October 9, 2003, Officer Havens made three visits to 2821 Northwestern Parkway in order to verify that Henry resided there. On October 13, 2003, Officer Havens made two visits to the reported address: the first in the morning and the second in the afternoon.¹ On October 20, 2003, Officer Havens made one visit at some time between 8:00 A.M. and 4:30 P.M., but he could not recall a more precise time. On each occasion, nobody answered Officer Havens's knocks on the front and back doors, and Officer Havens observed no movement or noise. Officer Havens made no other efforts to verify Henry's residence: Officer Havens made no attempt to reach Henry at his reported phone number, either before or after his home visits, and he did not ask any neighbors whether Henry lived at the residence. Officer Havens testified that, in his experience, it is "relatively common" for probationers to live somewhere other than the addresses they report, and he concluded that Henry "probably didn't live at that address." J.A. at 80-81 (Suppression Hr'g Tr. at 8-9) (Havens Test.).

On October 22, 2003, Henry made his next scheduled report to Officer Havens. At that meeting, Henry filled out another releasee's report and once again indicated that he was unemployed, received SSI payments, and resided at 2821 Northwestern Parkway. Officer Havens informed Henry that he was going to send two officers home with Henry in order to verify his residence. Officer Havens testified that upon hearing this news, Henry "acted very erratic, very nervous." J.A. at 83 (Suppression Hr'g Tr. at 11) (Havens Test.).

At Officer Havens's request, Probation Officers Melanie McClish ("Officer McClish") and Christopher Tally ("Officer Tally") went with Henry to 2821 Northwestern Parkway in order to verify that Henry lived there. Henry let the officers in, but neither officer recalled whether Henry had a key to the house. While Officer Tally remained downstairs with Henry, Officer McClish went upstairs to examine Henry's room.

Officer McClish saw that the room that Henry claimed was his had a dresser and was "cluttered with clothes," but it did not have a bed. J.A. at 101 (Suppression Hr'g Tr. at 33) (McClish Test.). Officer McClish had the impression that the room "just didn't look like it was occupied." Id. Officer McClish began looking in the room for items — such as "[c]lothes, pictures,... deod[o]rant" — indicating that Henry lived there. Id. Officer McClish saw a gym bag in an open closet; she picked the bag up, noticing that it was very heavy. Officer McClish opened the bag and found in it a firearm and ammunition.²

Henry was indicted for possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Henry made a motion to suppress the ammunition, arguing that the officers had neither reasonable suspicion nor consent to conduct the search. The district court denied Henry's motion, holding that the officers had reasonable suspicion to conduct the search. The district court did not address the consent issue.

A jury found Henry guilty. At sentencing, the district court found that Henry was an armed career criminal who possessed ammunition in connection with a crime of violence. Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Henry objected to his sentence under the Sixth Amendment. The district court overruled Henry's objection and sentenced Henry to 280 months' imprisonment, pursuant to the then-mandatory United States Sentencing Guidelines. Henry now appeals.

II. ANALYSIS

A. Motion to Suppress

Henry argues that the district court should have granted his motion to suppress because (1) the officers lacked reasonable suspicion to search the bag containing the ammunition and (2) he did not consent to the search.³

1. Standard of Review

"`When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo.'" United States v. Oliver, 397 F.3d 369, 374 (6th Cir.2005) (quoting United States v. Hurst, 228 F.3d 751, 756 (6th Cir.2000)). "`A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999)).

2. Probationary Search

The Supreme Court first addressed the constitutionality of the search of a probationer's home in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). At issue in Griffin was the warrantless search of a probationer's apartment conducted by probation officers upon receiving information from a police detective that "there were or might be guns" there. Id. at 870, 871, 107 S.Ct. 3164. The search was conducted pursuant to a Wisconsin probation regulation that permitted a probation officer to perform a warrantless search of a probationer's home "as long as his supervisor approves and as long as there are `reasonable grounds' to believe the presence of contraband."<sup>4</sup> Id. at 870-71, 107 S.Ct. 3164. Accepting as given the Wisconsin Supreme Court's determination that the detective's tip constituted "reasonable grounds" under the regulation, the Court upheld the regulation because "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.'" Id. at 875-76, 107 S.Ct. 3164. The Court then upheld the search itself as "`reasonable' within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers." Id. at 880, 107 S.Ct. 3164.⁵

When analyzing the validity of a probationary search under the Fourth Amendment, we follow the Court's example by applying its "two-pronged inquiry." United States v. Loney, 331 F.3d 516, 520 (6th Cir.2003). "First, [we] examine whether the relevant regulation or statute pursuant to which the search was conducted satisfies the Fourth Amendment's reasonableness requirement. If so, [we] then analyze whether the facts of the search itself satisfy the regulation or statute at issue." Id. (citations omitted).

a. The Kentucky Search Policy

Applying the two-step Griffin analysis to the instant case, the first question is whether the Kentucky search policy that authorized the complained-of search is reasonable under the Fourth Amendment. Pursuant to statutory authority, KY. REV. STAT. ANN. §§ 196.030, 196.035, 439.430, 439.470, the Kentucky Department of Corrections promulgated a policy "[t]o establish guidelines for Probation and Parole Officers ... relating to search and seizure" and other issues. J.A. at 56 (KENTUCKY CORRECTIONS POLICIES AND PROCEDURES 27-16-01 (issued May 14, 2001) [hereinafter CORRECTIONS POLICIES], incorporated by reference in 501 KY. ADMIN. REGS. 6:020 (2003)). As interpreted by the Kentucky Supreme Court, the policy provides that an officer may conduct a warrantless search if he has "reasonable suspicion `that the performance of the search may produce evidence to support [an alleged violation of Appellant's parole].'" Coleman v. Commonwealth, 100 S.W.3d 745, 754 (Ky.2002) (alteration in original).

We assessed an earlier version of this policy in United States v. Payne, 181 F.3d 781 (6th Cir.1999). At the time, "[u]nlike the Supreme Court in Griffin, we [were] without the...