U.S. v. Freeman

• Decision Date: 08 March 2007
• Docket Number: No. 05-3437.,05-3437.
• Citation: 479 F.3d 743
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deandre A. FREEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

479 F.3d 743

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.

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 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 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 anything illegal. While he was engaged in the search, another officer, Sergeant Walker, entered the room and saw a handgun in plain view on the closet shelf. Further search of the house uncovered a bullet-proof vest in the same closet as the gun and marijuana seeds and stems in the basement. Based on this evidence, Mr. Freeman was charged with possession of a firearm in violation of 18 U.S.C. 922(g)(1).

Mr. Freeman moved to suppress the evidence found in the search on the ground that it was the fruit of a warrantless search. The district court found that the search did not comply with the parole agreement because it was not conducted by an SEO. It also determined that the police officers had no right to search Mr. Freeman's home without his consent at the time they arrived. The court found, however, that Mr. Freeman's parolee status created a diminished expectation of privacy that allowed law enforcement officers to search if they had reasonable suspicion that Mr. Freeman was violating the conditions of his parole. Based on Mr. Freeman's agitation in response to hearing the officers' intention to search, Ms. Coleman's actions in the bedroom, and Mr. Freeman's status as a convicted felon and known gang member, the court found that such reasonable suspicion existed. The district court therefore denied Mr. Freeman's motion to suppress.

We review the facts found by the district court for clear error and its determination of the reasonableness of the search de novo. United States v. Tucker, 305 F.3d 1193, 1199 (10th Cir.2002).

II.

The Supreme Court has created two exceptions to the Fourth Amendment's warrant requirement in the context of parolee searches. First, in Griffin v. Wisconsin, the Supreme Court held that "[s]upervision [of parolees] ... is a `special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large." 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).¹ Because parole has the dual purpose of rehabilitating the offender and protecting society, it is constitutionally reasonable for a parole officer to search parolees in compliance with a parole agreement search provision, but without a warrant. Id. at 875-76, 107 S.Ct. 3164. Moreover, this Court has held that "[i]n many cases, the police may ... search a probationer's premises without a warrant at the behest of the parole officer." United States v. McCarty, 82 F.3d 943, 947 (10th Cir.1996). Neither this Court nor the Supreme Court has, however, blessed a search by law enforcement acting independently of the parole officer under this rationale.

Second, the Court expanded Griffin by holding in United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), that searches performed in compliance with a valid parole agreement search provision may be constitutional even if they were not "conducted by a probation officer monitoring whether the probationer is complying with probation restrictions." Id. at 117, 122 S.Ct. 587. To determine whether such a search is reasonable under the Fourth Amendment, a court must balance " `on 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 governmental interests.'" Id. at 119, 122 S.Ct. 587 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)).

In Knights, a detective suspected that defendant Mark James Knights was involved in several acts of vandalism and arson against Pacific Gas & Electric because the crimes coincided with a complaint for theft of services PG & E filed against him and with PG & E's termination of his electric service. Id. at 114-15, 122 S.Ct. 587. After observing suspicious objects in the truck of the suspected accomplice, which was parked at Knights's apartment complex, the detective decided to search Knights's apartment. Id. The detective believed he could conduct the search without a warrant because Knights had signed a probation agreement in conjunction with an unrelated drug offense, which required him to submit to a search at any time without cause by either a probation or law enforcement officer. Id. The search uncovered significant evidence of Knights's involvement in the crime. Id.

The Court determined that the detective's search of Knights's apartment was reasonable. Knights had a diminished expectation of privacy because, by signing the parole agreement, Knights became aware that he was subject to search by law...