U.S. v. Jones

• Decision Date: 10 August 1998
• Docket Number: No. 97-3689,97-3689
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 680

152 F.3d 680

UNITED STATES of America, Plaintiff-Appellee, v. Christopher JONES, Defendant-Appellant.

No. 97-3689.

United States Court of Appeals, Seventh Circuit.

Argued May 22, 1998.

Decided Aug. 10, 1998.

Stephen A. Ingraham (argued), Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

John W. Hardin, III (argued), River Forest, IL, for Defendant-Appellant.

Before FLAUM, RIPPLE, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Christopher Jones, a Wisconsin parolee, was taken into custody by police for violating his parole. A subsequent warrantless search of Jones's residence uncovered 86 grams of crack cocaine. A jury convicted Jones of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), and the district court sentenced Jones to 360 months imprisonment. On appeal, Jones raises a number of challenges relating to the district court's denial of his motion to suppress the cocaine discovered during the search of his home, including an argument that the holding of Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), does not apply to warrantless searches that are conducted while the defendant is in police custody. We reject these arguments and affirm Jones's conviction and sentence.

I.

Christopher Jones was paroled to the Wisconsin Department of Corrections (DOC) in November 1995 after serving time for an earlier conviction on cocaine possession charges. As a parolee, Jones was subject to certain conditions elaborated in the Wisconsin Administrative Code. See WIS. ADMIN. CODE § DOC 328. One of those conditions prohibits parolees from possessing "contraband," see §§ DOC 328.21(3), 328.16(1), which in Jones's case included both firearms and controlled substances. Another condition required Jones to report his address to his parole supervisor, Bridget Downey. See § DOC 328.04(3). Jones provided Downey with the address of the Milwaukee apartment he shared with his fiance and their three children, and Downey visited the residence in December 1995. Subsequent attempts by Downey to visit Jones's residence proved unavailing because no one answered the door at the apartment. See § DOC 328.04(3)(k) (requiring a parolee to consent to a home search).

Milwaukee Police Officer Peter Pierce contacted Downey in February 1996 and informed her that Jones was suspected of selling drugs from a car. Downey did not take any action at this time, and the location of the vehicle was not known. Subsequently, on Friday April 12, 1996, Officer Pierce informed Downey that Jones's ex-girlfriend, LaDonna Hart, had filed a report claiming that Jones had threatened her with a gun. Pierce faxed the police report to Downey and, based on the report, Downey received approval from her DOC supervisor to issue an apprehension warrant for Jones's arrest for violating the terms of his parole. Pierce did not learn of the arrest warrant until the following Monday afternoon when he spoke with Downey, who told Pierce to arrest Jones on sight.

Later that Monday afternoon Pierce saw Jones, along with his fiancee Phyllis Reed, leave their apartment and drive off in a car. Pierce followed in his own car and stopped Jones after a short distance. He arrested Jones immediately for violating the terms of his parole and also for driving without a valid driver's license. Pierce also searched the vehicle, and he discovered a small amount of crack cocaine wedged between the front passenger seat and the front passenger door. Due to the cocaine's location, Pierce arrested only Reed, who had been sitting in the front passenger seat, for possession of the cocaine.

At this point, Pierce telephoned Downey and told her of the circumstances of Jones's arrest, that he had found cocaine in the car, and that no gun was found in the car. Downey then talked to her DOC supervisor about the possibility of a search of Jones's residence, pursuant to § DOC 328.21(3). ¹ She told her supervisor that Jones was on parole for a cocaine possession conviction and that cocaine was found in a car that he had been driving. In addition, Downey told her supervisor of the police report that Jones's ex-girlfriend had recently filed and that a gun was not found in the car when Jones was arrested. Downey's supervisor in turn relayed this information to his regional supervisor, John Barian, who approved the search of Jones's home.

Downey then contacted Officer Pierce and informed him that she would be conducting a search of Jones's residence. Pursuant to DOC procedure, Downey requested that Pierce meet the DOC officers at the residence in order to provide them with protection. She also asked Pierce to bring with him Jones's keys so that she could gain entry to the residence. Pierce and another officer met Downey and her supervisor at Jones's residence, and he brought along two sets of keys that he had obtained from the car that Jones was driving when he was arrested. The officers used the keys to gain entry to the residence, which was unoccupied at the time. After the police officers secured the apartment, Downey and her supervisor proceeded to search it while the police officers stood by. During the course of the search, the DOC officers discovered approximately 86 grams of crack cocaine hidden in a child's stool that was located in what appeared to be the adults' bedroom. The record does not reflect whether a gun was found in the apartment.

The grand jury indicted Jones for possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Jones filed a motion to suppress the evidence found at his residence. The motion argued that the DOC did not have "reasonable grounds," as defined in the Wisconsin Administrative Code, to conduct a warrantless search. In the alternative, the motion argued, the DOC officers conducted the search as agents of the police officers, rather than in furtherance of their correctional function, and they therefore were required to obtain a warrant supported by probable cause to conduct the search. After conducting a hearing, a magistrate judge recommended that the district court deny Jones's motion to suppress, and the district court adopted this recommendation. Jones's first trial ended in a mistrial, however, and the case was reassigned to Judge Thomas Curran and Jones was appointed new defense counsel. Jones renewed his motion to suppress before Judge Curran, and the motion was again rejected. The second trial resulted in a guilty verdict, and the district court sentenced Jones to 360 months imprisonment.

II.

On appeal, Jones raises three arguments relating to his motions to suppress that differ from the arguments raised in the district court. First, he asserts that a warrantless search of a parolee's residence based on "reasonable grounds" (as defined in the Wisconsin Administrative Code) violates the Fourth Amendment when the parolee is in police custody at the time of the search. His second and third arguments both relate to the procedural requirements of the Wisconsin Administrative Code. He argues that Downey was not aware of the requirements to satisfy Wisconsin's "reasonable grounds" regulation, such that she in fact could not have had reasonable grounds to conduct the search. Also, he argues that the DOC officers' use of his keys to gain entry to his residence constituted a forced entry in violation of the Administrative Code, which he asserts compels suppression of the evidence discovered during the search. Finally, Jones asserts that he received ineffective assistance from his trial lawyers with respect to the motions to suppress. ² We consider these arguments in turn.

A. Warrantless Searches of a Parolee's Residence

In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Supreme Court addressed the constitutionality of a warrantless search of a Wisconsin probationer's home ³ pursuant to § DOC 328.21. In that case, DOC officials had conducted a warrantless search of Griffin's home upon receiving information from a police officer that there "were or might be guns in Griffin's apartment." Id. at 871, 107 S.Ct. 3164. Rather than determine whether the search itself was constitutional, the Court held that "[t]he search of Griffin's home satisfied the demands of the Fourth Amendment because it was carried out pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement under well-established principles." Id. at 873, 107 S.Ct. 3164. The Court recognized that the Fourth Amendment's requirement that searches be "reasonable" did not require that all searches be undertaken pursuant to a warrant, which under the Fourth Amendment must be supported by probable cause. See id. Rather, the Court noted that it had permitted exceptions to the requirement of a warrant supported by probable cause "when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " Id. (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring)).

The Court in Griffin then proceeded to consider whether a State's administration of its probation system presents "special needs" beyond the requirements of normal law enforcement to justify a departure from the requirements of a warrant and probable cause. In the Court's view, probation, which is merely one point along a continuum of possible punishments, presents such special needs because it necessarily involves restricted liberty. The Court stated, "To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy 'the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.' " Id. at 874, 107 S.Ct. 3164 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92...