479 F.3d 743 (10th Cir. 2007), 05-3437, United States v. Freeman

Docket Nº:05-3437.
Citation:479 F.3d 743
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Deandre A. FREEMAN, Defendant-Appellant.
Case Date:March 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 743

479 F.3d 743 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Deandre A. FREEMAN, Defendant-Appellant.

No. 05-3437.

United States Court of Appeals, Tenth Circuit.

March 8, 2007

Page 744

Kurt P. Kerns of Ariagno, Kerns, Mank & White, LLC, Wichita, KS, for Defendant-Appellant.

Matthew T. Treaster, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before HENRY, HOLLOWAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

The Kansas Department of Corrections (KDOC) has established criteria for the search of the person or property of parollees in the state. These criteria are contained in a policy statement called the Internal Management Policies and Procedures (IMPP). They specify that "with the exception of pat-down and plain view searches, special enforcement officers are the only personnel authorized to conduct a more extensive search of offenders' person or property." Supplemental Vol. I, IMPP 14-164, 1. The IMPP permit warrantless searches under the following circumstances: "If the Special Enforcement Officer (SEO) has a reasonable suspicion that evidence of a condition violation can be found on the person, or in the property in possession of the offender, the officer may conduct a search of the person or property without a warrant." Id. at 7.

Upon being released on parole from Kansas state prison, defendant Deandre Freeman signed a Conditions of Post Release Supervision agreement, which read: "I agree to subject [sic] to a search by parole officer(s) of my person, residence,

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and any other person under my control." United States v. Freeman, No. 05-10102-01-MLB, slip-op at 2 (D. Kansas Aug. 11, 2005).

On October 1, 2004, law enforcement officers conducted a warrantless search of Mr. Freeman's residence without his consent and discovered a firearm, body armor, and a small quantity of marijuana. No SEO was present at the time of the search. The district court held that the search was lawful because, at the time of the search, the police officers had reasonable suspicion to believe that Mr. Freeman was violating the conditions of his parole.

Following the denial of his motion to suppress, Mr. Freeman pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As part of the plea agreement, he preserved his right to appeal the district court's denial of his motion to suppress, which he does in the instant appeal. For the reasons stated below, we REVERSE the district court's denial of the motion to suppress.

I.

Mr. Freeman was paroled on October 3, 2002. While on parole, Mr. Freeman violated curfew and was placed under more intensive supervision by the Wichita Day Reporting Center (DRC), a parolee monitoring company employed by the Kansas Department of Corrections (KDOC). On the night of September 30, 2004, the DRC, with the assistance of several local law enforcement agencies, conducted a sweep of parolees designed to determine whether parolees were in compliance with curfew and to verify that their GPS-tracking ankle bracelets were functioning. DRC instructed law enforcement to obtain written consent to search the residence of each parolee visited, but also instructed them that refusal to consent constituted a violation of the parolee's parole agreement. Although some of the parolees selected for curfew check were chosen because of specific concerns of their parole officers, others, including Mr. Freeman, were chosen at random.

Around 1:00 AM the morning of October 1, 2004, four police officers from the Wichita Police Department knocked on Mr. Freeman's front door. Bridgette Franklin, a representative from DRC, accompanied the officers to check Mr. Freeman's ankle bracelet and GPS unit. However, she was not an SEO authorized to conduct parolee searches under the KDOC IMPP. When Mr. Freeman answered the door, Officer Little explained that they were there to conduct a curfew check and to ensure that the ankle bracelet monitoring device was functioning. Mr. Freeman invited the officers into his home.

As Ms. Franklin checked the monitoring device, Officer Little informed Mr. Freeman of their intention to search the premises. Mr. Freeman told him that the officers had no right to search. When Officer Little replied that they could search because Mr. Freeman had agreed to the search as part of the terms of his parole, he became agitated and began to walk quickly out of the living room toward the bedroom. As he walked, he told the officers that he needed to inform his girlfriend, Maria Coleman, of the officers' search because she was in bed and possibly undressed. Out of concern for officer safety, Officer Little followed Mr. Freeman to prevent him from entering the bedroom. He instructed Mr. Freeman to tell Ms. Coleman of the search from the hallway and then to return to the living room. Mr. Freeman complied with his request.

From the hallway, Officer Little could see Ms. Coleman reaching for something in the dresser. After ensuring that Mr.

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Freeman was returning to the living room, Officer Little entered the bedroom and proceeded to search. Ms. Coleman left the bedroom as Officer Little entered. Although the police officers had obtained written consent for all previous searches conducted that evening, they did not obtain Mr. Freeman's consent.

Officer Little's initial search of the bedroom did not uncover...

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