U.S. v. Hagenow
| Decision Date | 31 August 2005 |
| Docket Number | No. 04-4175.,04-4175. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeremy D. HAGENOW, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John M. Maciejczyk (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.
Donald W. Pagos (argued), Sweeney, Dabagia, Thorne, Janes & Pagos, Michigan City, IN, for Defendant-Appellant.
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
Jeremy Hagenow filed a motion to suppress evidence, including several firearms, seized during a search of his home. The district court ruled that in light of the Supreme Court's decision in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), officers needed only reasonable suspicion that Hagenow was engaged in criminal activity in order to conduct the search because he had signed a waiver of his search and seizure rights while on probation. Finding that reasonable suspicion existed in this case, the district court denied the motion to suppress, and a jury subsequently convicted Hagenow of being a felon in possession of a firearm. He appeals his conviction and sentence. Because the district court correctly denied Hagenow's motion to suppress, we affirm his conviction. However, we remand to the district court for resentencing as the court improperly considered an affidavit when determining the nature of Hagenow's prior conviction for criminal confinement. In addition, Hagenow should not have received a criminal history point for his prior conviction for possessing a police scanner.
As part of his sentence for an August 2000 criminal confinement conviction, an Indiana state court placed Jeremy Hagenow on probation. When he was placed on probation, Hagenow signed a document that read in part: "You shall waive any and all rights as to search and seizure during your period of probation, and submit to search of your person or property by any police officer if a search is requested by a probation officer of this court." His conditions of probation also included a prohibition on owning or possessing firearms and dangerous weapons.
In July 2003, while still on probation, Hagneow was charged with illegally shooting a deer with a shotgun. After learning of this charge, Robert Schuster, Hagenow's probation officer, asked Hagenow to submit to a lie detector test. The examiner reported to Schuster that Hagenow was deceptive in responding "no" when asked if he had shot a deer with a shotgun. As a result, the local prosecutor's office requested an investigation as to whether Hagenow, a felon on probation, possessed a shotgun, and law enforcement officials contacted a confidential informant who knew Hagenow and had provided information in the past that led to the conviction of other defendants.
The confidential informant told LaPorte County Officer Joseph Morrison that while outside Hagenow's home in early July of 2003, he saw a handgun in Hagenow's possession, which Hagenow stated was a .357 revolver. The same confidential informant also told Morrison that in late July or early August of 2003, he was again at Hagenow's home when he saw him get out of a pickup truck carrying a long gun case. Hagenow told the informant that the case contained a shotgun that he had used earlier that day at his father's residence. The informant also told Morrison that on August 19, 2003, the informant was inside Hagenow's home when Hagenow showed him a 12 gauge shotgun. In addition, when the informant inquired about the revolver he had seen on a previous visit, Hagenow replied that he still had it.
Two days later, Officer Morrison testified to these facts at a state court hearing in conjunction with an application for a search warrant for Hagenow's home. The court found probable cause and issued a search warrant authorizing the search of Hagenow's residence for "(1) a 12 Gauge Shotgun; (2) a .357 Caliber Revolver; (3) any and all evidence relevant to the commission of a crime." On August 22, 2003, Officer Morrison, accompanied by Probation Officer Schuster and other officers, executed the warrant. Officers found a rifle and ammunition inside Hagenow's home. After Hagenow gave the officers the keys to his vehicles, the officers also found a handgun and ammunition parts in each of two trucks parked in the driveway. The searches did not produce a .357 handgun or 12 gauge shotgun.
Hagenow was charged with unlawfully possessing firearms and ammunition. The district court denied Hagenow's motion to suppress the firearms and ammunition. A jury convicted Hagenow of possessing ammunition, the rifle found in the spare bedroom, and one of the handguns found in one of the trucks. Using the 2004 version of the United States Sentencing Guidelines, the district court sentenced Hagenow to 57 months' imprisonment. Hagenow now appeals.
Hagenow first contends the district court erred when it denied his motion to suppress firearms and ammunition seized during the search of his home and vehicle. In our review of a district court's denial of a motion to suppress, we review de novo all questions of law, including the existence of reasonable suspicion to believe that a crime has been committed. United States v. Johnson, 383 F.3d 538, 542 (7th Cir.2004). We review findings of fact for clear error. United States v. Banks, 405 F.3d 559, 570 (7th Cir.2005).
Hagenow argues that the state court improperly issued the search warrant because it was based on unreliable, stale information. In addition, he maintains, a warrant was necessary because probation officers should not be permitted to conduct a warrantless search of a probationer's property absent a valid regulatory scheme. The government, in contrast, contends that under United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), if the officers had reasonable suspicion that Hagenow was engaged in unlawful activity, a warrantless search of his residence was authorized. In addition, the government maintains, the officers had reasonable suspicion here. We agree with the government that the search was proper.
The Supreme Court's decision in Knights forecloses Hagenow's argument that any possible infirmities in the search warrant rendered the search improper. The probationer in Knights had agreed in writing that while on probation, he would submit his "person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Knights, 534 U.S. at 114, 122 S.Ct. 587. Reasoning that the probation condition to which the probationer had agreed "significantly diminished" his reasonable expectation of privacy, the Court held that "no more than reasonable suspicion" was necessary to search the probationer's home. Id. at 121, 122 S.Ct. 587. Further, the Court made clear, when an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, a warrant is not necessary. Id. at 122, 122 S.Ct. 587.
Like the probationer in Knights, Hagenow signed a specific waiver of rights regarding searches during probation, agreeing to "waive any and all rights as to search and seizure" while on probation and to "submit to search of [his] person or property by any police officer if a search is requested by a probation officer." Knights made clear that the officers needed no more than reasonable suspicion to justify the search of his home while he was on probation.
"Reasonable suspicion amounts to something less than probable cause but more than a hunch," United States v. Baskin, 401 F.3d 788, 791 (7th Cir.2005), and exists when there is some "`objective manifestation' that a person is, or is about to be, engaged in prohibited activity." Knox v. Smith, 342 F.3d 651, 659 (7th Cir.2003). Ultimately, a court's determination of reasonable suspicion "must be based on common-sense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
Here, both federal law and the conditions of Hagenow's probation prohibited him from possessing firearms. A confidential informant who had provided reliable information to law enforcement officials in the past reported that on three occasions in the two months before the search, the informant was at Hagenow's home when Hagenow showed him firearms. One of these instances, when Hagenow showed the informant a 12 gauge shotgun, occurred only three days before the August 22, 2003 search. Hagenow also told the informant that day that he still possessed a revolver. In addition, the probation officer knew that Hagenow had recently failed a lie detector test after he was charged with shooting a deer with a shotgun. Under these circumstances, we agree with the district court and the government that there was reasonable suspicion that Hagenow unlawfully possessed firearms at his residence, thereby justifying the search of his home.
Moreover, we recently addressed a question left open by Knights — whether a waiver like the one Hagenow signed "so diminished, or completely eliminated, [a probationer's] reasonable expectation of privacy (or constituted consent) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment." Knights, 534 U.S. at 120 n. 6, 122 S.Ct. 587. In United States v. Barnett, 415 F.3d 690 (7th Cir.2005), we considered an agreement by a probationer to "submit to searches of [his] person, residence, papers, automobile and/or effects at any time such requests are made by the Probation Officer, and consent to the use of anything seized as evidence in Court proceedings." 415 F.3d at 691. We held that this blanket waiver of Fourth...
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