U.S. v. Midgette

Decision Date26 February 2007
Docket NumberNo. 05-4765.,05-4765.
Citation478 F.3d 616
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Nicholas Omar MIDGETTE, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Devon L. Donahue, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER and Judge SHEDD joined.

OPINION

NIEMEYER, Circuit Judge.

While Nicholas Omar Midgette was on probation for two North Carolina criminal convictions, New Bern city police officers, under the direction and supervision of Midgette's probation officer, conducted warrantless searches for contraband of his person, vehicle, and house. The police officers found three firearms, ammunition, and marijuana. Based on this evidence, Midgette was indicted by a federal grand jury for possession by a convicted felon of firearms, possession of an unregistered firearm, and possession of marijuana.

Midgette filed a motion to suppress the evidence, contending that the searches were unreasonable under the Fourth Amendment because (1) even though Midgette was a probationer, the State still did not have "reasonable suspicion" that Midgette possessed any contraband, and (2) the search did not conform to North Carolina law, which authorized the probation officers, but not police officers, to conduct warrantless searches of probationers. After a magistrate judge made proposed findings of fact and recommendations to reject both of Midgette's arguments, Midgette filed timely objections to the magistrate judge's report, but his objections were based only on his second argument that the searches did not comport with North Carolina's probation law. The district court overruled Midgette's objections and denied his motion to suppress. Midgette then pleaded guilty pursuant to a plea agreement to one firearms count, reserving his right to appeal the suppression order.

On appeal, Midgette challenges the district court's order denying his motion to suppress, arguing that the searches violated the Fourth Amendment because (1) North Carolina's probation scheme, under which the searches were executed, allows warrantless searches without requiring "reasonable suspicion"; (2) the probation officer did not have a reasonable suspicion that Midgette possessed contraband; and (3) the probation officer did not comply with North Carolina law, which authorizes only probation officers, not police officers, to conduct warrantless searches of probationers.

Because the police officers' searches were conducted under the direction and supervision of Midgette's probation officer, we conclude that they did not violate North Carolina law. Because Midgette failed to present his other arguments regarding the constitutionality of the North Carolina probation law and the lack of reasonable suspicion to the district judge as objections to the magistrate judge's report, we conclude that he waived his right to appeal those issues. Moreover, they fare no better on the merits. Accordingly we affirm.

I

On January 14, 2004, Midgette pleaded guilty to the North Carolina offense of resisting a public officer and was sentenced to 30 days' imprisonment, which was suspended, and to 36 months of supervised probation. One month later, on February 18, 2004, Midgette pleaded guilty to a 2003 North Carolina felony offense for possession of marijuana and was sentenced to a three-month term of imprisonment, again suspended, and to 12 months of supervised probation. Under the terms of probation imposed in connection with each offense, Midgette was required to refrain from possessing a firearm; to retain employment or pursue training for employment; to remain within the jurisdiction of the court unless granted written permission to leave; to report regularly to a probation officer and permit the officer to visit him at reasonable times; and to notify the probation officer of any change in address or employment. Midgette was also subjected to special conditions requiring him to abstain from possessing or using illegal drugs; to submit to drug testing; and to "submit at reasonable times to warrantless searches by a probation officer of the defendant's person, and of the defendant's vehicle and premises while the defendant is present, for the purposes which are reasonably related to the defendant's probation supervision."

On March 22 or 23, 2004, Midgette's probation officer, Tammy Edwards, was informed by Sergeant Willie Wilcutt of the New Bern, North Carolina Police Department that Midgette might be in possession of a firearm. Sergeant Wilcutt pointed out that Midgette had a reputation for carrying firearms and had retrieved firearms from the New Bern Police Department in July 2003. Probation Officer Edwards thereafter asked police officers to assist her in searching Midgette during his upcoming meeting with her.

Midgette reported to Probation Officer Edwards at her office for a regularly scheduled meeting on March 24, 2004. As Edwards had requested, two New Bern police officers attended the meeting and searched Midgette in Edwards' presence, but they found no contraband. Edwards then asked the officers to search Midgette's vehicle. Again in the presence of Edwards and Midgette, the officers searched Midgette's vehicle, where they found, in the glove compartment, a pistol magazine containing ten rounds of .40 caliber ammunition. Because of what was discovered, Probation Officer Edwards decided that "it probably would be a good idea to search [Midgette's] house." The parties drove to Midgette's residence where, before entering the house, one of the officers asked Midgette whether there were any firearms inside. Midgette told the officers that there was a firearm on top of his dresser and "the rest of the weapons" were in his bedroom closet. Under Probation Officer Edwards' direction and in Midgette's presence, the police officers searched Midgette's room and recovered a loaded .20 gauge shotgun, a loaded sawed-off shotgun, a loaded 9-millimeter pistol, and 51.9 grams of marijuana. The officers then arrested Midgette for violating the conditions of his probation. A federal grand jury thereafter indicted Midgette for the offenses charged in this case— possession by a felon of firearms, in violation of 18 U.S.C. §§ 922(g)(i), 924; possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d), 5871; and possession of marijuana, in violation of 21 U.S.C. § 844(a).

Midgette filed a motion to suppress the evidence seized, contending that the searches violated the Fourth Amendment because the probation officer lacked the reasonable suspicion necessary to conduct the searches and because the probation officer did not comport with North Carolina law in having police officers conduct the searches. The motion was referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(B), and the magistrate judge made findings of fact and recommended that Midgette's motion be denied on each ground that he raised.

Midgette timely filed three objections to the magistrate judge's report, contending (1) that the magistrate judge improperly assumed that when Midgette was searched in March 2004, he was on probation for the January 14, 2004 offense; (2) that because the searches were conducted by police officers, not the probation officer, they violated North Carolina's probation law; and (3) that the magistrate judge clearly erred in finding that the searches were conducted during a regularly scheduled appointment with the probation officer.

The district court overruled Midgette's objections by order dated January 26, 2005, finding that Midgette was under supervised probation at the time of the search; that the police officers' participation in the searches did not violate North Carolina law; and that the searches were conducted in connection with Midgette's regularly scheduled appointment with his probation officer. The court thereupon adopted the magistrate judge's proposed findings and recommendation and denied Midgette's motion to suppress.

Midgette thereafter pleaded guilty, reserving his right to appeal the district court's order denying his motion to suppress under Federal Rule of Criminal Procedure 11(a)(2). The district court sentenced Midgette to 46 months' imprisonment.

On appeal, Midgette contends that the searches were illegal under the Fourth Amendment for three reasons: (1) North Carolina's probation law fails to require individualized suspicion for warrantless searches; (2) Probation Officer Edwards and the police officers lacked reasonable suspicion that Midgette possessed contraband; and (3) the searches violated North Carolina law because they were conducted by police officers rather than by a probation officer. The government contends that Midgette waived the first two issues by failing to raise them as objections to the magistrate judge's report.

II

We agree with the government that Midgette's arguments on appeal are far broader than the issues he presented to the district court as objections to the magistrate judge's report. Midgette only challenged the magistrate judge's findings that supported his conclusion that the probation officer complied with North Carolina's probation law. He argued that he was not shown to be on probation for the January 2004 conviction at the time of the March 2004 searches (although he did not challenge his probation status as a result of his February 2004 ...

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