United States v. Barner, No. 10-3700 (2d Cir. 2012)
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Defendant was charged with being a previously-convicted felon in possession of firearms and ammunition and seeking forfeiture of the unlawfully possessed property. Defendant's motion to suppress evidence obtained during the search was granted and the government filed an interlocutory appeal seeking review of the suppression order. Because the court found that the search was proper under the "special needs" exception to the Fourth Amendment's warrant requirement, the court reversed and remanded for further proceedings.
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10-3700-cr United States v. Barner 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________ August Term, 2011 (Argued: October 3, 2011 Decided: January 13, 2012) Docket No. 10-3700-cr _________________ UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JIMMY LEE BARNER, Defendant-Appellee. _________________ Before: SACK, RAGGI, Circuit Judges, and EATON, Judge.* _________________ Interlocutory appeal from a suppression order entered in the United States District Court for the Western District of New York (William M. Skretny, Judge). REVERSED AND REMANDED. Judge Richard K. Eaton of the United States Court of International Trade, sitting by designation. * 1 1 2 3 4 5 6 7 8 9 10 11 12 ____________________ JOSEPH J. KARASZEWSKI, Assistant United States Attorney, Of Counsel, on behalf of William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Plaintiff-Appellant. TIMOTHY P. MURPHY (Herbert L. Greenman, on the brief), Lipsitz Green Scime Cambria, Buffalo, New York, for Defendant-Appellee. _____________________ EATON, Judge: Plaintiff-appellant, the United States, appeals from an August 19, 2010 suppression order 13 entered in the United States District Court for the Western District of New York (William M. 14 Skretny, Judge). On July 10, 2008, a federal grand jury returned a two-count indictment 15 charging defendant-appellee Jimmy Lee Barner with being a previously-convicted felon in 16 possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006), 17 and seeking forfeiture of the unlawfully possessed property under 18 U.S.C. §§ 924(d), 3665 and 18 28 U.S.C. § 2461(c) (2006). On August 19, 2010, the court granted Barner s motion to suppress 19 physical evidence obtained during a search. Thereafter, the government filed an interlocutory 20 appeal seeking review of the suppression order pursuant to 18 U.S.C. § 3731. Because we find 21 that the search was proper under the special needs exception to the Fourth Amendment s 22 warrant requirement, we reverse and remand for further proceedings consistent with this opinion. 23 24 I. Background 25 On April 4, 2007, Barner, who was incarcerated in a New York State Correctional 26 Facility following a felony conviction for robbery, executed a Certificate of Release to Parole 27 Supervision in preparation for his discharge from prison to New York State parole supervision. 2 1 Barner s release was therefore subject to the conditions of his parole. One condition was that his 2 person, residence and property [were] subject to search and inspection, and thus he agreed to 3 permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment and . . . 4 permit the search and inspection of [his] person, residence and property. J.A. 279. As a further 5 condition, Barner was subject to a curfew that required him to be at his approved residence 6 between 9:00 p.m. and 7:00 a.m. In addition, he was not permitted to own, possess, or purchase 7 any shotgun, rifle or firearm of any type, to own, purchase, possess or use any type of ballistic 8 vests, body armor, bulletproof vests or ballistic bunker or shield, or to purchase, possess or 9 have control over any ammunition. J.A. 279, 281. During the period of parole, Barner s parole 10 officer, LaSonya Spearman, conducted two visits to Barner s apartment, which was located on 11 the second floor of a house he shared with his mother, who resided on the first floor in the 12 building s only other apartment. 13 On January 29, 2008, Parole Officer Spearman received a phone call from a 14 complainant that Mr. Barner had fired a weapon at him. J.A. 175. In response to this 15 information, at 8:45 p.m. of the same day, Spearman and several other parole officers attempted 16 to visit Barner at his home, but found no one present. The officers remained at the house for 17 about twenty-five minutes, and Spearman sought to call both Barner s cellphone and that of his 18 mother, to no avail. Based on the apparent violation of Barner s parole conditions, Spearman 19 applied for and obtained a parole violation arrest warrant. 20 On the morning of January 31, 2008, Barner reported for his weekly parole office 21 appointment, where he was handcuffed and taken into custody. Officer Spearman then informed 22 him of the allegations she had received regarding the firearm violation of his parole conditions. 3 1 Barner denied having any firearms and responded no when the parole officers asked if he had 2 a problem with them conducting a search of his residence. Although no search had yet been 3 undertaken, Barner also signed a Property Receipt form, which is used by parole officers to 4 inventory property obtained during a search, and which Spearman testified was used in this case 5 to document Barner s consent to the search. At Spearman s request, Barner gave her a key ring 6 with three keys, including one to the outside door of the apartment house, a key to his apartment 7 within, and, what turned out to be, a key to a storage area adjacent to his apartment. Barner was 8 taken to his residence by the officers for the search. 9 During the search, Barner was seated in his apartment s kitchen. While in the apartment, 10 the officers seized various items, including a quarter bottle of brandy, a switchblade knife 11 without a blade, and a baggie containing crack cocaine. While searching the apartment, an 12 officer noticed a storage room door across the hallway, approximately ten feet away from the 13 entrance to Barner s apartment, and asked another officer to hand him the key ring. Using one 14 of the keys on the ring, the officer entered the storage room where he found four firearms, a 15 bulletproof vest, two loaded magazines of ammunition, a scale, and some marijuana. The 16 firearms and ammunition served as the basis for the felon-in-possession charge in the indictment. 17 Following his indictment, Barner filed a motion to suppress the items seized from the 18 storage room, arguing that his parole conditions did not include a consent-to-search condition, 19 and even if they did, the search of the storage area exceeded the scope of any such consent. The 20 pretrial proceedings were referred to a magistrate judge, who held an evidentiary hearing. After 21 the hearing, Barner further argued that, because he had been placed under arrest prior to the 22 search, he was no longer released to parole when the search took place, and, as a result, the 4 1 release conditions were no longer in effect. The magistrate judge agreed, and issued a Report, 2 Recommendation, and Order on May 5, 2010 recommending that the suppression motion be 3 granted because at the time of the search[,] defendant s release to parole supervision had been 4 revoked. Report, Recommendation, and Order at 6, United States v. Barner, No. 08 CR. 170 5 (W.D.N.Y. May 5, 2010) ( RRO ). As to the oral and written consent purportedly given by 6 Barner on the day of the search, the magistrate judge concluded that the scope of any such 7 consent extended only to Barner s apartment proper, and not to the adjacent storage room. 8 Over the government s objections, the district court entered a text order adopting the 9 RRO, thereby granting Barner s motion to suppress. On September 14, 2010, the government 10 timely filed this interlocutory appeal seeking review of the suppression order, contending that 11 the evidence ordered suppressed was substantial proof of a material fact in the proceeding, 18 12 U.S.C. § 3731, which, if suppressed, would end the government s case against Barner. 13 14 II. Standard of Review 15 When evaluating a district court s grant of a motion to suppress evidence, we review 16 that court s findings of fact for clear error, considering them in the light most favorable to the 17 government, and we review questions of law de novo. United States v. Julius, 610 F.3d 60, 64 18 (2d Cir. 2010) (citing United States v. Howard, 489 F.3d 484, 490 91 (2d Cir. 2007)); see also 19 United States v. Newton, 369 F.3d 659, 664 (2d Cir. 2004) ( We review de novo the legal issues 20 presented by a motion to suppress. ). 21 22 5 1 III. Discussion 2 A. The Fourth Amendment Prohibition of Unreasonable Searches and Seizures 3 The Fourth Amendment protects the right of private citizens to be free from 4 unreasonable government intrusions into areas where they have a legitimate expectation of 5 privacy. Newton, 369 F.3d at 664 (citing U.S. Const. amend. IV; Kyllo v. United States, 533 6 U.S. 27, 33 34 (2001)). To this end, the Fourth Amendment restrains the government from 7 engaging in unreasonable searches and seizures, U.S. Const. amend. IV, hence, the 8 touchstone in evaluating the permissibility of any search is reasonableness. Julius, 610 F.3d 9 at 64 (quoting United States v. Lifshitz, 369 F.3d 173, 178 (2d Cir. 2004); Griffin v. Wisconsin, 10 483 U.S. 868, 873 (1987)). Reasonableness is determined by assessing, on the one hand, the 11 degree to which [a search] intrudes upon an individual s privacy and, on the other, the degree to 12 which it is needed for the promotion of legitimate governmental interests. United States v. 13 Knights, 534 U.S. 112, 118 19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 14 (1999)). Reasonableness generally requires a warrant and probable cause[,] Julius, 610 F.3d 15 at 64 (quoting Lifshitz, 369 F.3d at 178), but the law recognizes certain exceptions to this rule. 16 Newton, 369 F.3d at 665. 17 18 19 20 B. The District Court s Findings The district court focused primarily on an analysis of each form of consent argued by the government, RRO at 6, finding that none of them rendered the warrantless search 6 1 constitutional. RRO at 6 10.1 In particular, as to the government s claim that, by agreeing to 2 the parole conditions, Barner consented to the search of the storage room, the district court found 3 that the consent-to-search provision was not operative at the time of the search because the 4 court determined that after Barner s arrest, his release to parole supervision had been revoked. 5 RRO at 6 7. The court supported this conclusion by pointing to other parole conditions that 6 could only be in effect if Barner were not in physical custody (e.g., that Barner would proceed 7 directly to the area to which [he had] been released, would not leave the State of New York . . . 8 without permission, and that he would permit [his] Parole Officer to visit [him] at [his] 9 residence and/or place of employment ), and observed that the fact that the parole officers felt 10 it necessary to obtain another consent from defendant [by having him execute the Property 11 Receipt] strongly suggests that even they did not believe that the Conditions of Release were 12 applicable at the time. RRO at 7. It is worth noting that the government s unresponsiveness during and following the suppression hearing may have contributed to the decision of the district court to grant the motion to suppress. Indeed, as noted in the RRO, the magistrate judge 1 directed the parties . . . to address in their post-hearing briefs the question of whether a reference to a residence includes adjacent storage areas and repeated this directive in a Text Order. The failure of the government (which bears the burden of proof on the issue of scope of consent) to submit any authority or argument on this issue is a further reason for granting the motion to suppress. RRO at 8 n.5 (citations to record omitted). The RRO also notes that [a]t the close of the hearing, [the magistrate judge] asked the parties in their post-hearing briefing to address the effect, if any, of even a temporary revocation of release . . . on the conditions of release including consent to search [and] repeated that directive in a Text Order. The government, which bears the burden of proof on the issue of consent, has failed to directly respond to that inquiry. RRO at 7 (citations to record omitted). 7 1 C. The Special Needs Doctrine 2 In the context of parole and probation, the 3 4 5 6 7 8 9 Supreme Court has explained that [a] State s operation of a probation system[2] . . . presents special needs beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. As a result, probationers may be subject to a degree of impingement upon privacy that would not be constitutional if applied to the public at large. United States v. Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (citation omitted) (alterations in 10 original) (quoting Griffin, 483 U.S. at 873 75). Indeed, the Supreme Court has found that 11 parolees . . . have severely diminished expectations of privacy by virtue of their status alone. 12 Samson v. California, 547 U.S. 843, 852 (2006); see also United States v. Massey, 461 F.3d 177, 13 178 179 (2d Cir. 2006) ( A parolee s reasonable expectations of privacy are less than those of 14 ordinary citizens . . . . (citing Knights, 534 U.S. at 119 20)). As a result, [o]n several 15 occasions, the Supreme Court has indicated that searches of probationers may be pursued 16 without a warrant and under a standard lower than that of probable cause. Lifshitz, 369 F.3d at 17 179; see also Grimes, 225 F.3d at 258 ( Parole is meted out in addition to, not in lieu of, 2 As this Court stated in Newton, [p]robation, parole, and supervised release systems are charged with similar duties: (1) to assist the offender in the rehabilitation process; (2) to protect the public from persons whose release proves threatening to the community; and (3) to provide information and recommendations to the court or parole board so that it may make appropriate decisions regarding continued freedom for the individual released. Accordingly, it is appropriate to draw from the law on probation and supervised release in considering whether the warrantless parole search of [a parolee s] residence was reasonable under the special needs exception to the warrant requirement. Newton, 369 F.3d at 665 n.2 (citation omitted) (quoting United States v. Reyes, 283 F.3d 446, 455 (2d Cir. 2002); 1 Neil P. Cohen, The Law of Probation and Parole § 17:1, at 172 (2d ed. 1999)). 8 1 incarceration[,] . . . ergo, parolees enjoy even less of the average citizen s absolute liberty than 2 do probationers. (quoting United States v. Cardona, 903 F.2d 60, 63 (1st Cir. 1990))). 3 Furthermore, the allegation [of a parole violation] and the resulting issuance of a warrant for 4 retaking . . . operate to remove a parolee one step farther from the constitutional protection 5 enjoyed by ordinary citizens. United States v. Polito, 583 F.2d 48, 55 (2d Cir. 1978). 6 Nonetheless, the law requires that such greater intrusions occur pursuant to a rule or 7 regulation that itself satisfies the Fourth Amendment s reasonableness requirement. Newton, 8 369 F.3d at 665 (quoting Griffin, 483 U.S. at 873). Under New York State law, as announced by 9 the New York Court of Appeals in People v. Huntley, the determination as to whether a 10 warrantless parole search was unreasonable and thus prohibited by constitutional proscription 11 must turn on whether the conduct of the parole officer was rationally and reasonably related to 12 the performance of the parole officer s duty. People v. Huntley, 43 N.Y.2d 175, 181, 401 13 N.Y.S.2d 31, 34, 371 N.E.2d 794, 797 (1977). In Grimes, moreover, this Court held that 14 15 16 17 18 19 20 21 22 the New York rule [articulated in Huntley] is coextensive with the requirements of the Fourth Amendment. A rule indicating that a search of a parolee is permissible so long as it is reasonably related to the parole officer s duties is identical to a rule that parole officers may conduct searches so long as they comport with the Fourth Amendment. This is because the doctrine of special needs permits those searches that are reasonably related to the special needs animated by management of a parole system. Grimes, 225 F.3d at 259 n.4 (internal citation omitted) (citing Chandler v. Miller, 520 U.S. 305, 23 313 14 (1997)); see also Newton, 369 F.3d at 666. Additionally, as we stated in Newton, 24 neither Huntley nor Grimes holds that consent, whether obtained pursuant to parole regulation . 25 . . or otherwise, is required in addition to a reasonable relationship to the parole officer s duty to 26 justify a warrantless parole search. Newton, 369 F.3d at 666; see also id. at 668 ( [T]he rule we 9 1 approved in United States v. Grimes does not require a parolee s consent to permit parole 2 officers to conduct a warrantless search reasonably related to their supervision 3 responsibilities. ).3 4 With these cases in mind, the central issue here is whether the conduct of the parole 5 officer was rationally and reasonably related to the performance of the parole officer s duty. 6 Huntley, 43 N.Y.2d at 181, 401 N.Y.S.2d at 34, 371 N.E.2d at 797; see Grimes, 225 F.3d at 259 7 n.4. As this Court has held, parole officers have a duty to investigate whether a parolee is 8 violating the conditions of his parole, . . . one of which, of course, is that the parolee commit no 9 further crimes. United States v. Reyes, 283 F.3d 446, 459 (2d Cir. 2002). Here, Parole Officer 10 Spearman had received information that Barner (1) possessed a gun, and (2) had fired it at the 11 complainant. These allegations, if true, would have constituted criminal parole violations 12 separate from and far more serious than the curfew breach. Once Spearman had this 13 information, it was clearly reasonable for her to investigate the accusations further. Thus, the 14 ensuing search satisfied the reasonable relationship requirement of Huntley because it was 15 performed in direct response to information that Spearman obtained and that she had a duty to 16 investigate further, both to determine if a crime had been committed, and to prevent the 17 commission of further crimes. See Newton, 369 F.3d at 666 (holding that a search for firearms 18 in a parolee s residence satisfied Huntley because the obligation to detect and prevent parole In Newton, we noted that the reasonableness of the search there at issue was reinforced by a consent rule established by the New York State Division of Parole s Policy and Procedures Manual, which was satisfied by Newton s signed Certificate of Release. See Newton, 369 F.3d at 666. Because that state rule exceeds the reasonable relationship requirement held constitutionally satisfactory in Grimes, id., and is not invoked by Barner here, we do not consider how it applies in this case to a parolee placed under arrest. 3 10 1 violations so as to protect the public from the commission of further crimes is part of a parole 2 officer s duty (internal quotation marks omitted)). Therefore, Parole Officer Spearman s 3 particular conduct . . . [was] substantially related to the performance of duty in the particular 4 circumstances. Huntley, 43 N.Y.2d at 181, 401 N.Y.S.2d at 34, 371 N.E.2d at 797. 5 Furthermore, Barner was not restored to full Fourth Amendment protection upon his 6 arrest. If anything, the allegation of a parole violation and issuance of the arrest warrant 7 removed Barner one step farther from the constitutional protection enjoyed by ordinary 8 citizens. Polito, 583 F.2d at 55. Moreover, we conclude that the parole officers having placed 9 Barner under arrest for a parole violation, earlier that same day, did not render the search 10 unreasonable. Huntley did not purport to confine its rule to whether the defendant was on 11 release, but rather on whether the search was rationally and reasonably related to the parole 12 officer s duties. Cf. Huntley, 43 N.Y.2d at 182 83, 401 N.Y.S.2d at 35, 371 N.E.2d at 798 13 (observing that the standard authorization consenting to searches of person, residence or 14 property merely parallels, by way of confirmation, the right of the parole officer . . . to conduct 15 searches rationally and substantially related to the performance of his duty ).4 Indeed, in both 16 Huntley and Grimes, as here, the defendants were taken into custody, pursuant to outstanding 17 parole violation warrants, immediately prior to the challenged search. See id., 43 N.Y.2d at 180, Because we conclude that Huntley controls this case, we need not and do not reach Barner s argument that his arrest terminated his release and revoked the condition that permitted searches of his person, residence, and property. That question is necessarily informed by New York law, which appears to distinguish between liberty from detention and release on parole, providing for the latter to be revoked only after a formal revocation hearing. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 9, § 8005.20 (noting that upon sustaining a violation at the revocation hearing, the presiding officer shall revoke the violator s release. ). 4 11 1 401 N.Y.S.2d at 33, 371 N.E.2d at 796; Grimes, 225 F.3d at 256. A parole officer s duty to 2 investigate violations of parole does not vanish the moment a defendant is taken into custody for 3 a violation. Nor does it alter our analysis that Barner was taken into custody at the parole office 4 and then escorted to his residence, whereas in Huntley and Grimes the parole officers took the 5 defendant into custody at the residence itself.5 6 It is worth noting, however, that we do not here decide whether a search conducted days 7 or weeks after a parolee s arrest and detention may become so attenuated from the parole 8 officers duties so as not to satisfy the Huntley rule. We conclude only that this is not that case. 9 Therefore, we find that, notwithstanding the district court s findings regarding consent, under the 10 special needs exception, the storage room search was proper because it was rationally and 11 reasonably related to the parole officers duties, and was performed in furtherance of the special 12 needs of the New York State parole system. 13 14 15 D. Remaining Issues Having found that the search of the storage room was proper under the special needs 16 exception to the Fourth Amendment warrant requirement, we do not address whether Barner 17 consented to the search. Nor need we decide in this case whether the search could have been It is further immaterial to our analysis that the parole officers searched a storage room near Barner s apartment, whereas in Huntley and Grimes, the officers searched the defendant s residence. Given the information that Barner possessed a gun, it was reasonably related to the parole officers duties to search this storage room containing Barner s property. That New York law required Barner to consent to the search of his person, residence, and property as a condition of release further reinforces this conclusion. See N.Y. Comp. Codes R. & Regs. tit. 9, § 8003.2(d). 5 12 1 justified under Samson, 547 U.S. 843 (holding lawful a suspicionless search based upon a release 2 condition), without resort to our past special needs jurisprudence applying the Huntley 3 standard. See, e.g., United States v. Watts, 301 F. App x 39, 42 n.2 (2d Cir. 2008) ( [H]aving 4 determined that the search in this case satisfied the requirements of Huntley[,] . . . the search 5 would have also satisfied the lower bar imposed in Samson . . . . We therefore save any further 6 analysis for a case where a distinction between Huntley and Samson would make a difference. ). 7 8 Finally, we have considered Barner s remaining arguments and find them to be without merit. 9 10 11 12 IV. Conclusion For the foregoing reasons, the order of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. 13
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