United States v. White, 13–2943.

• Decision Date: 25 March 2015
• Docket Number: No. 13–2943.,13–2943.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jason L. WHITE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

781 F.3d 858

UNITED STATES of America, Plaintiff–Appellee

v.Jason L. WHITE, Defendant–Appellant.

No. 13–2943.

United States Court of Appeals, Seventh Circuit.

Argued July 8, 2014.

Decided March 25, 2015.

Stephen B. Clark, Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff–Appellee.

Terry M. Green, Attorney, West Frankfort, IL, for Defendant–Appellant.

Jason L. White, Terre Haute, IN, pro se.

Before WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

While defendant-appellant Jason White was on parole from an Illinois state prison sentence, police suspected that he was involved in a shooting and had a warrant to arrest him. Before the police found White, they located his gym bag that he had left in his cousin's car. Without a search warrant, but relying on a condition of his parole that required White to agree to searches of his property, the police opened the bag and found a gun. White was convicted of being a felon in possession of a firearm. He moved to suppress evidence of the gun on the ground that neither he nor his cousin had consented to the search of the bag. The district court denied his motion, and White challenges that decision on appeal. We affirm. The search of the property of a suspected parole violator who had agreed in writing to consent to property searches and whom the police could not locate was reasonable.

I. Factual and Procedural Background

The Illinois Department of Corrections issued a warrant on March 29, 2011 to arrest White for violating his parole. The warrant was based on two discoveries. First, one of two victims from a shooting a week earlier had identified White as the shooter. Second, earlier that month a parole officer had found in White's bedroom the packaging for a Glock .40 caliber magazine. Two days after the warrant was issued, the police received a tip that White was driving a green sport utility vehicle.

That tip led the officers to the home of White's cousin, Tawana Williams. They knew she drove such a car. Williams told the police that she and White had been together earlier that day and that White had placed his gym bag in her car. The police searched White's bag and found a .40 caliber Glock handgun loaded with 10 rounds of ammunition. White was later arrested and charged with possessing a firearm and ammunition as a felon in violation of 18 U.S.C. § 922(g)(1).

White moved to suppress the evidence seized from his gym bag in his cousin's car, arguing that the warrantless search of his bag violated the Fourth Amendment. He argued that, even though he was a parolee and had left his bag with Williams, he enjoyed a legitimate expectation of privacy in the contents of his bag and that Williams had neither actual nor apparent authority to consent to the bag's search. The government countered that White's status as a parolee extinguished any expectation of privacy. It explained that when White began his term of supervisory release from an Illinois prison (where he served a sentence for unlawful possession of a firearm), he agreed in writing as a condition of release: “You shall consent to a search of your person, property, or residence under your control.” The government also argued that the search was valid because the police suspected White of a shooting, feared he was dangerous, and were in hot pursuit to arrest him.

In a hearing on the motion to suppress, the parties disputed whether White's cousin Williams had actually consented to the search of the bag. She testified that the morning of the search, she had met briefly with White and he asked her to store his bag in her car. White did not tell her what was inside the bag, nor did she look inside. Later that day, Williams said, about 20 officers arrived at her home.

One demanded that she let them search her car and threatened that if she did not, they would get a warrant and arrest her for any contraband found in it. Acquiescing, she allowed the officers to search the car. In her hearing testimony she characterized the officers as threatening. On cross-examination, though, she acknowledged that in a recorded interview at the police station on the day of the search, she had said that she had allowed the police to search the car and had not claimed that they had threatened her.

Next to testify was Officer Thomas Woods, who participated in the search. He testified that before the search, the police had learned that a shooting victim had identified White as the shooter and that the police believed he was armed and dangerous. Woods also testified that Williams told him that White had left bags in her car and that she volunteered, “You can have 'em.” With her permission, he entered the car, retrieved and opened White's bag, and found the gun inside. Officer Woods explained that Williams had been cooperative, that he never threatened her, and that he searched the car only after she volunteered the information that White had stored a bag inside and allowed him access to it.

The district court denied White's motion to suppress evidence of the gun. Based on the videotaped interview of Williams, the court found as a fact that she freely consented to the police search of her car. The court also concluded that White's privacy rights were so diminished by his parole status and his promise to consent to searches that the search of the bag was reasonable. White then went to trial. A jury found him guilty of the firearm charge. The district court sentenced him to 360 months in prison, consistent with White's status as a career offender.

II. Analysis

On appeal White argues only that the search of his gym bag violated his right under the Fourth Amendment to be free from unreasonable searches. He insists that, despite the conditions of his parole, he had a protectable privacy interest in the closed gym bag in which the police found the gun, and that he did not relinquish that interest by placing it in Williams' car. He also argues that Williams did not have actual or apparent authority to give third-party consent to the warrantless search of the bag. The government counters that neither her consent nor a warrant was required because of White's diminished privacy expectations as a parolee subject to the terms of his parole agreement requiring consent to searches of his property. The government argues in the alternative that the search was reasonable because the police were in hot pursuit of an armed and dangerous felony suspect. We find that the search of the bag was reasonable based on White's sharply diminished privacy expectations as a parolee who was required to consent to searches of his property. We do not reach the government's exigent circumstances argument.

A preliminary question concerns the first step of searching Williams' car. The district court made a factual finding that Williams consented to the search of her car. We find no basis to disturb that finding, which is not clearly erroneous. See United States v. Terry, 572 F.3d 430, 434–35 (7th Cir.2009). Without reaching any question about whether White is a proper party to object to that first step, therefore, Williams' consent to the search of her car made it permissible under the Fourth Amendment. That lawful search led to the discovery of White's bag.

The central issue is whether the search of White's bag was lawful. The district court determined that it was because, in its view, White had consented based on the condition of his release requiring that he “shall consent to a search of your ... property.” The district court and we apply federal Fourth Amendment law to decide whether the search was reasonable. Because that question turns in large part on the extent of White's legitimate expectations of privacy, see, e.g., Maryland v. King, 569 U.S. ––––, 133 S.Ct. 1958, 1978, 186 L.Ed.2d 1 (2013), our analysis is shaped by the state law that governed White's terms of parole. See, e.g., Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (suspicionless, warrantless search of parolee did not violate Fourth Amendment where state law authorized search as condition of parole); United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (warrantless search of probationer based on reasonable suspicion did not violate Fourth Amendment where state law authorized search as condition of probation).

Based on the Supreme Court's decisions in Samson and Knights, one might conclude quickly that the condition of White's parole requiring consent to warrantless searches of his property easily resolves this case in favor of the government. Our path to that destination is a little less direct, though, because of some intricacies of Illinois law. We trace the key cases briefly:

In People v. Lampitok, 207 Ill.2d 231, 278 Ill.Dec. 244, 798 N.E.2d 91 (2003), the defendant was sharing a motel room with his fiancée, who was on probation at the time. One condition of her probation required her to “submit to a search of her person, residence, or automobile at any time as directed by her Probation Officer.” Police conducted a warrantless search of the motel room and found drugs and weapons used to convict Lampitok of several crimes. The Illinois court interpreted Knights to require at least reasonable suspicion of a probation violation to justify the search. It also held there was no reasonable suspicion to justify a search of the motel room for drugs or weapons. 278 Ill.Dec. 244, 798 N.E.2d at 109. On the issue of consent, the Illinois court parsed the language of the parole conditions very finely, noting that they did not actually authorize a warrantless search itself but required only that the probationer “submit” to such a search. The court concluded that the condition of probation gave the probationer a choice: either “submit” (i.e., consent) to a search or face a possible probation revocation for refusal to consent. The condition itself, though, did not actually authorize warrantless searches. Id. 278...