USA v. Franklin

• Decision Date: 22 June 2010
• Docket Number: Case No. 2:07-cr-58-FtM-29DNF.
• Parties: UNITED STATES of America v. Richard FRANKLIN.
• Court: U.S. District Court — Middle District of Florida

721 F.Supp.2d 1229

UNITED STATES of America

v.Richard FRANKLIN.

Case No. 2:07-cr-58-FtM-29DNF.

United States District Court,M.D. Florida,

Fort Myers Division.

June 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Jeffrey Michelland, U.S. Attorney's Office, Ft. Myers, FL, for United States of America.

Martin Der Ovanesian, Federal Public Defender's Office, Ft. Myers, FL, for Richard Franklin.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

On March 30, 2010, United States Magistrate Judge David M. Cohen submitted a Recommended Decision on Motion to Suppress (Doc. # 28) to the Court recommending that Defendant's Motion to Suppress (Doc. # 16) be granted. The government's Objections (Doc. # 31) were filed on April 13, 2010, and defendant filed a Response to the Objections (Doc. # 40) on May 14, 2010. Although the Court accepts and adopts the Recommended Decision on Motion to Suppress as to the issues it addresses, the Court finds that there was sufficient probable cause and exigent circumstances to justify the entry of the residence and seizure of the firearms, and therefore denies Defendant's Motion to Suppress.

I.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b) (1)(C). See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n. 1 (11th Cir.2009). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.1994).

II.

The Court adopts the Proposed Findings of Fact set forth in the Report and Recommendation. (Doc. # 28, pp. 1-6.) In sum, these facts are as follows:

Defendant Richard Franklin (defendant or Franklin) was serving a sentence in the Florida state prison system after being convicted of the felony offenses of burglary and grand theft. Defendant's maximum release date-i.e., the longest he could be kept in confinement on the sentences-was July 16, 2006. On April 19, 2006, defendant signed a document relating to conditional release ¹ from prison and the terms and conditions of the conditional release supervision. On April 29, 2006, defendant was released from prison based on earned gain time, and placed on conditional release. Defendant's conditional release was to terminate on July 16, 2006 (his maximum release date) “unless otherwise released or until other action may be taken.” (Doc. # 25, Exh. 1.) The terms of defendant's conditional release included that he submit to a “reasonable search” of his person, residence or automobile and “searches” of his person, property and premises by a conditional release supervisor. ( Id.)

By June 23, 2006, defendant had changed his residence without prior approval and absconded from conditional release supervision. On that date, defendant called his probation specialist William Lally (Lally) and told Lally that he (Franklin) was messed up, wished he had a pistol so he could stick it in his mouth and end it all, and that Lally should stop looking for him because he would not find him. A Violation Notice was issued later on June 23, 2006, recommending that a warrant for defendant's arrest be issued. The Parole Commission issued an arrest warrant (a “retaking”) on June 23, 2006.

On August 24, 2006, at about 10:30 p.m., Lally drove by a residence where defendant's fiancée was residing and where he believed defendant was located. The Magistrate Judge found that this was defendant's residence. (Doc. # 28, p. 3 n. 3.) Lally contacted the Lee County Sheriff's Office for assistance on the possible arrest of defendant, and Deputy Jamie Thorpe (Deputy Thorpe) and deputy trainee Mighael Haigis (Deputy Haigis) responded, followed soon thereafter by two additional deputies. No one inside the residence responded when Lally knocked and banged loudly on the front door, or called defendant's cell phone, or yelled through the door. Deputy Haigis went to the back of the house, and reported to Lally that he observed through a rear window that defendant was in the dining room and several firearms were in plain sight on shelves on the wall and on the table. Lally eventually established telephone contact with defendant, and told defendant a SWAT team was on its way. Lally told defendant to come out of the residence with his hands raised and wearing only boxer shorts. Defendant eventually did so, and was arrested, handcuffed, and placed in a sheriff's patrol vehicle.

After defendant was arrested, Lally told Deputy Thorpe he was going into the residence to check for evidence of additional conditional release violations. Lally entered the residence alone, his pistol holstered, and removed weapons from the residence and turned them over to Deputy Thorpe.

III.

It is uncontested that: (1) there was an valid outstanding arrest warrant for defendant issued on June 26, 2006; (2) defendant was directed to exit his residence, eventually did so, and was arrested outside the residence; and (3) there was no search warrant for the residence. (Doc. # 16, p. 1; Doc. # 18, pp. 1-2.) Even without an arrest warrant, officers may approach a residence and knock on the door, United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir.2006), and order defendant to exit the residence. Knight v. Jacobson, 300 F.3d 1272, 1277 (11th Cir.2002). There was no unlawful conduct by the officers prior to the entry into the residence by Lally. The parties dispute the lawfulness of that conduct.

“Warrantless searches and seizures inside a home are presumptively unreasonable.” United States v. Bennett, 555 F.3d 962, 965 (11th Cir.2009). The officers could have entered the house to arrest defendant because there was a valid outstanding arrest warrant, the location was defendant's residence, and defendant was inside the residence. Id.; United States v. Louisuis, 294 Fed.Appx. 573, 576 (11th Cir.2008). The officers chose a less confrontational method, ordering defendant to exit the residence, which was clearly a lawful alternative to forced entry into the dwelling. Having lawfully obtained defendant's presence outside the residence and having lawfully arrested him, the parties dispute whether Lally could then enter the residence in the manner he did.

A. Whether Defendant Was Still Under Conditional Release

The government “prefaces its objections by stating that defendant never made the argument in his suppression motion that he no longer was on conditional release at the time of the arrest and search,” but rather “made this argument for the first time at the suppression hearing.” (Doc. # 31, pp. 1-2.) While this is true, the government fails to assert what significance should be attached to this procedural posture. Defendant's motion to suppress relied upon the lack of a search warrant or an applicable exception under the Fourth Amendment. (Doc. # 16.)

The government's Response (Doc. # 18) asserted for the first time that the police activities were lawful given defendant's status as a person under conditional release. At the suppression hearing, defense counsel made an opening statement noting both that defendant was on parole at the time of the offense, (Doc. # 26, p. 4), and that defendant was no longer on parole status because the term of his supervision had lapsed and expired. (Doc. # 26, p. 5.) The Court finds the issue of defendant's status as a conditional releasee was fairly presented.

It is undisputed that defendant was released from prison on conditional release on April 29, 2006, that an arrest warrant was issued for violation of his conditional release on June 23, 2006, that his conditional release was scheduled to terminate on July 16, 2006, and that the events in question occurred on August 24-25, 2006. The Magistrate Judge found that defendant was not on conditional release after July 16, 2006, and therefore Lally's entry into the residence could not be justified by the conditions of defendant's conditional release. The Court agrees, and adopts that portion of the Report and Recommendation. (Doc. # 28, pp. 6-9.) The government's objections to the contrary are overruled.

B. Reasonable Suspicion/Probable Cause

The government argues that the Magistrate Judge should have made a finding as to whether Lally had reasonable suspicion/probable cause of criminal activity when he entered the residence to conduct the search. (Doc. # 31, p. 2.) The government further argues that there was “reasonable suspicion of criminal activity (if not probable cause)” at the time of the search because defendant was a convicted felon who had been seen in the same room where firearms were in plain view on shelves and on a table. ( Id.)

Reasonable suspicion would not have justified Lally's entry into the residence. As the government later notes, both probable cause and exigent circumstances are required to excuse a search warrant. ( Id. at pp. 3-5.) To the extent the government intends to argue that reasonable suspicion alone is sufficient, that argument is rejected.

C. Protective Sweep

The government also argues that Lally's entry into the residence was justified as a protective sweep. The government asserts that Lally had the dual purposes of securing the weapons as evidence of a new conditional release violation and conducting a protective sweep for safety reasons. ( Id. at pp. 2-3.)

In Maryland v. Buie, the Supreme Court held that a protective sweep may be lawfully undertaken pursuant...