United States v. Mabry

• Decision Date: 04 September 2013
• Docket Number: No. 12–3036.,12–3036.
• Citation: 728 F.3d 1163
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bruce A. MABRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

728 F.3d 1163

UNITED STATES of America, Plaintiff–Appellee,

v.Bruce A. MABRY, Defendant–Appellant.

No. 12–3036.

United States Court of Appeals,Tenth Circuit.

Sept. 4, 2013.

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant–Appellant.

Brent I. Anderson, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff–Appellee.

Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

INTRODUCTION

Bruce A. Mabry was arrested for a parole violation. While arresting Mr. Mabry, the officers found a sawed-off shotgun and subsequently charged Mr. Mabry with its possession. He moved to suppress the evidence of the weapon on the basis that his Fourth Amendment rights were violatedby the search. The district court denied his motion to suppress, and Mr. Mabry appeals.

We conclude that the officers had a reasonable suspicion that Mr. Mabry had violated his parole. In light of Mr. Mabry's diminished expectation of privacy and the State's strong interest in monitoring Mr. Mabry's behavior and preventing his recidivism, this court affirms the district court's denial of Mr. Mabry's motion to suppress on the basis that it was a valid search under the totality of the circumstances.¹

BACKGROUND

Prior to the incident involved in this appeal, Mr. Mabry was released from state prison, placed on parole, and assigned to be supervised by Kansas Parole Officer Garcia. At that time, Mr. Mabry signed a form entitled, “Conditions of Release for Parole and Post Release Supervision.” This form listed the standard conditions of parole. These conditions included that Mr. Mabry obtain permission to travel outside of Kansas; that he notify his parole officer of any contact with law enforcement; that he not possess, use, or traffic in any controlled substances or drugs; and that he not associate with anyone actively engaged in illegal activity. Moreover, Mr. Mabry agreed to “[b]e subjected to a search by parole officers or designated law enforcement officers of [his] person, residence, and any other property under [his] control.” R.O.A., Vol. I at 30.

Several months after Mr. Mabry's release, he violated his parole by leaving the state of Kansas. He was discovered by police in Utah in a car, driven by another parolee, which contained twenty-two pounds of marijuana. The other parolee was arrested, but Mr. Mabry was not arrested at that time. While Parole Officer Garcia was away on vacation, his partner, Parole Officer Marquez, learned about the incident in Utah and issued an “Order to Arrest and Detain” on the basis that Mr. Mabry had violated his parole by traveling out of state. The “Order to Arrest and Detain” was given to Special Enforcement Officer (“SEO”) Evans, a special agent employed by the Kansas Parole Office who was also assigned to the U.S. Marshals Task Force.

The next day, SEO Evans contacted two officers of the Wichita Police Department, Officer Tiede and Officer Norton, and went with them to Mr. Mabry's last reported address, which was the address of his girlfriend. When they arrived, SEO Evans and Officer Tiede went to the front door of the residence, while Officer Norton went around back. When SEO Evans knocked, a woman who was later identified as Mr. Mabry's girlfriend answered the door.

The district court found that “[Mr.] Mabry's girlfriend appeared nervous and tried to shut the door to the residence when SEO Evans and Officer Tiede came to the front door.” R.O.A., Vol. 1 at 54. SEO Evans informed the girlfriend who he was and that he needed to speak to Mr. Mabry. The girlfriend indicated that Mr. Mabry was unavailable, claiming that he was somewhere like the shower or bathroom. But at that point, Mr. Mabry walked into view from the back kitchen area. Accordingly, SEO Evans and Officer Tiede entered the residence.

SEO Evans arrested Mr. Mabry, had Mr. Mabry sit on the couch in the living room, and asked the girlfriend to stay in the living room as well. According to the testimony of SEO Evans, at the time he placed Mr. Mabry under arrest, he saw a tray underneath the coffee table that appeared to contain marijuana.

SEO Evans and Officer Tiede proceeded to search the residence. SEO Evans searched the bedroom nearest the living room, while Officer Tiede went to search the basement. Officer Tiede testified that before she went downstairs, the girlfriend “was real nervous” and advised Officer Tiede that the basement was her children's room. R.O.A. Vol. III at 80. Moreover, Officer Tiede testified that she asked the girlfriend if there was anybody in the basement, but the girlfriend did not answer the question and instead just repeated that it was her children's room. In the basement, Officer Tiede found an open closet containing a firearm in plain view. Because her radio did not transmit from the basement, Officer Tiede brought the firearm upstairs.

Mr. Mabry was subsequently charged with the unlawful possession of this weapon. He moved to suppress the evidence on the grounds that the search had violated his rights under the Fourth Amendment. The district court denied the motion. Mr. Mabry then pled guilty, was sentenced, and appealed, arguing that the district court erred in denying his motion to suppress.

JURISDICTION

Mr. Mabry timely filed this appeal under Fed. R.App. P. 4(b). This court has jurisdiction pursuant to 28 U.S.C. § 1291.

STANDARD OF REVIEW

“When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Eckhart, 569 F.3d 1263, 1270 (10th Cir.2009) (internal quotation marks omitted). “The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court.” United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir.2004) (internal quotation marks omitted). But “[w]e can affirm a lower court's ruling on any grounds adequately supported by the record, even grounds not relied upon by the district court.” Elwell, 699 F.3d at 1213.

DISCUSSION

“A [parolee's] home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be reasonable.” United States v. Warren, 566 F.3d 1211, 1215 (10th Cir.2009) (alteration in original) (internal quotation marks omitted). But there are “exceptions to the warrant and probable-cause requirements” for “searches of probationers and parolees and their homes.” Id. One such exception “authorizes warrantless searches without probable cause (or even reasonable suspicion) ...² when the totality of the circumstances renders the search reasonable.” ³Id. at 1216. We have explained that “[t]his exception is predicated on (1) the reduced (or absent) expectation of privacy that the Court would recognize for probationers and parolees and (2) the needs of law enforcement.” Id.

Applying this exception, the Supreme Court held in Samson v. California that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee” when such a search is authorized by state law. See547 U.S. 843, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). But in Samson, “[t]he Court noted ‘that some States and the Federal Government require a level of individualized suspicion,’ and strongly implied that in such jurisdictions a suspicionless search would remain impermissible.” United States v. Freeman, 479 F.3d 743, 747 (10th Cir.2007) (quoting Samson, 547 U.S. at 854–55, 126 S.Ct. 2193). Thus, “[p]arolee searches are ... an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.” Id. at 747–48.

Under Kansas law, a warrantless search of a parolee must be supported by reasonable suspicion. See id. at 748;accord State v. Bennett, 288 Kan. 86, 200 P.3d 455, 462–63 (2009) (“The Kansas Legislature has not authorized suspicionless searches of probationers or parolees.... Put another way, parolees in Kansas have an expectation that they will not be subjected to suspicionless searches.”). Indeed, in Kansas, “parolees are told that searches must be based on a suspicion of a parole violation.” Bennett, 200 P.3d at 462.

“Reasonable suspicion is a less demanding standard than probable cause.” United States v. Tucker, 305 F.3d 1193, 1200 (10th Cir.2002) (internal quotation marks omitted). Specifically, “reasonable suspicion is merely a particularized and objective basis for suspecting criminal activity.” Id. “To determine whether ... investigating officers had reasonable suspicion, we consider both the quantity of information possessed by law enforcement and its reliability,” viewing both factors “under the totality of the circumstances.” Id. (footnote omitted).

Under the totality of the circumstances, we conclude that the search at issue here was reasonable, because (1) as a parolee, Mr. Mabry had a diminished expectation of privacy; (2) there was reliable information that Mr. Mabry had violated his parole and was involved with distributing drugs, which supports a reasonable suspicion to search the residence; and (3) the State had a strong interest in monitoring Mr. Mabry's behavior and preventing his recidivism, especially in light of his recent parole violations.

First, “[a] parole agreement containing a provision allowing the search of a parolee's residence diminishes the parolee's reasonable expectation of privacy in his residence.” Id. at 1199;accord Samson, 547 U.S. at 852, 126 S.Ct. 2193 (“[A]cceptance of a clear and unambiguous search condition significantly diminishe[s] [a defendant's] reasonable expectation of privacy.” (internal quotation marks omitted)). In this case, in his last meeting with Parole Officer Garcia, Mr. Mabry listed...