United States Court of Appeals
For the First Circuit
No. 07-2299
UNITED STATES OF AMERICA,
Appellee,
v.
DEREK GRAHAM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Baldock*, and Selya, Circuit Judges.
Martin J. Vogelbaum, Assistant Federal Public Defender, for
appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
January 9, 2009
*
Of the Tenth Circuit, sitting by designation.
HOWARD, Circuit Judge. Appellant Derek Graham was on
probation in Massachusetts for various drug offenses. When he
failed to comply with probation reporting requirements, the police
secured a warrant for his arrest. To execute this warrant,
officers entered an apartment, and, after finding Graham in one of
the apartment's bedrooms, they arrested him and searched the room.
The search yielded a sawed-off shotgun and ammunition. Based on
this evidence, a federal grand jury charged Graham with being a
felon in possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1).
Graham sought to suppress the evidence, arguing that the
police violated the Fourth Amendment of the United States
Constitution in acquiring it. After the district court resolved
the suppression motion against Graham, he entered a conditional
guilty plea, reserving the right to appeal the suppression ruling.
He now exercises that right.
Graham argues that both the officers' entry into the
apartment and the subsequent search of the bedroom where he was
arrested violated the Fourth Amendment. He claims that because he
was a social guest in the apartment, the police needed to first
obtain a search warrant to enter the apartment, in addition to the
arrest warrant they had procured. Additionally, he argues that
even if the arrest warrant justified the entry into the apartment,
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the police still needed a search warrant to conduct the search of
the bedroom.
In response, the government argues that the entry by the
officers was permitted under the rule of Payton v. New York, 445
U.S. 573 (1980), because they had a warrant for Graham's arrest,
and they reasonably believed prior to entry that Graham resided at
the apartment. As for the subsequent search of the bedroom, the
government submits that the search was justified as either a valid
probation search or a search incident to arrest. We affirm.
I.
A. Background
We state the relevant facts as the trial court found
them, consistent with record support. United States v. Ruidiaz,
529 F.3d 25, 27 (1st Cir. 2008).
After committing various drug offenses, Derek Graham was
sentenced to probation by a Massachusetts state court. The
probation order, issued in mid-October 2004, required Graham to
comply with several standard conditions. The order also included
the following search condition:
On the basis of a reasonable suspicion that a
condition of the probationer's probation has
been violated, a probation officer, or any law
enforcement officer acting on the request of
the probation office, may search the
probationer's property, his or her residence,
and any place where he or she may be living,
and may do so with or without a search
warrant, depending on the requirements of law.
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Graham signed the probation order, indicating that he had
read and understood the conditions of probation.
Although on probation for drug offenses, Graham had
previously pled guilty to possessing firearms illegally, and the
police connected him with a violent gang in his neighborhood known
as the Crown Path Gang. This gang had an ongoing rivalry with a
gang from a neighboring area known as the Everton Young Guns.
Graham fell out of compliance with the probation order in
late-October 2004, failing to meet the order's reporting
requirements. As a result, Graham's probation officer, Thomas Todd
(Todd), sought and obtained a warrant for his arrest. Todd
understood Graham to be living with his mother in Dorchester,
Massachusetts. The police attempted to execute the warrant at this
location but did not find him there.
Over the next few months, Todd learned that Graham had
potentially violated another one of the conditions of his
probation, this one requiring him to obey all local, state, and
federal laws. Specifically, another probationer told Todd that
Graham had "brandished a weapon on him" and a member of the Everton
Young Guns told Todd that the gang suspected Graham was responsible
for several shootings of their members.
At first unable to locate Graham, in time the authorities
began to hone in on his whereabouts. In May 2005, Todd learned
from another probation officer that Graham had been "staying at" a
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house on the corner of Harvard Street and Harvard Park. The
address of this building was 18 Harvard Street. After receiving
the tip, Todd drove by the house. He recalled having previously
seen another member of the Crown Path Gang on the house's porch.
Todd provided the Boston Police Department with this information.
The police then informed Todd of a report of a domestic incident at
18 Harvard Street, identifying Graham as the offender. The report
stated that Chanice Meadows (Chanice) alleged that she had been
threatened by her daughter's boyfriend, Derek Graham. The report
listed Graham's address as 18 Harvard Street.
Based on this information, a magistrate added the 18
Harvard Street address to the arrest warrant for Graham. Todd
again contacted the Boston Police Department and requested that the
warrant be executed. Todd informed the police that Graham might be
armed, that Graham was subject to a probation search condition, and
that a probation officer would be available to perform the
probation search if Graham were found. The police informed Todd
that the warrant would be executed the next day, a Saturday.
Around 7 a.m. on Saturday morning, police officers went
to 18 Harvard Street with the arrest warrant. They showed a
picture of Graham to the person who answered the door and were
directed to the third-floor apartment. Chanice answered the door
to the apartment but denied that Graham was present. The officers
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informed Chanice that they had a warrant and entered the apartment
to look for Graham.
They discovered Graham in the apartment's rear bedroom.
The officers noticed a number of items in the room, including men's
clothes on the floor and in a duffel bag, several boxes of shoes
against a wall, men's toiletries on a bureau next to a bed, and a
newspaper clipping and several pictures on a wall in the room. The
newspaper clipping concerned the murder of a member of the Everton
Young Guns -- the Crown Path Gang's rival gang -- and the pictures
were of individuals making hand-signs associated with the Crown
Path Gang.
The officers arrested Graham, handcuffed him, and brought
him to the living room, which was in the front of the apartment.
They then contacted the probation officer on duty, who arrived at
the apartment fifteen minutes later with copies of Graham's
probation documents. The probation officer asked the officers to
search the bedroom where Graham was found. In the course of this
search, the police found a sawed off shotgun and ammunition in the
drawer of a dresser. The officers also discovered a small safe
underneath the bed. Using a knife, an officer opened the safe and
discovered various types of ammunition.
B. State court proceeding
Massachusetts charged Graham with possession of a shotgun
and ammunition in violation of state law. Graham moved to suppress
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the evidence. After a suppression hearing, the state court granted
Graham's motion.
The state court concluded that the officers' entry into
the apartment was justified under Payton because the officers
reasonably believed that Graham resided at the apartment. The
court, however, determined that the subsequent search of the room
where Graham was found violated Graham's rights under the
Massachusetts Declaration of Rights in the Massachusetts
constitution. The court explained that article 14 of the
Massachusetts constitution, as interpreted by the Supreme Judicial
Court of Massachusetts in Commonwealth v. LaFrance, 525 N.E.2d 379
(1988), barred probation searches executed without a search warrant
unless "one of the established exceptions to [the search warrant]
requirement" applied. Finding that no such exception applied in
Graham's case, the state court suppressed the evidence.1
C. Federal district court proceeding
Subsequent to the state court's resolution of the
suppression issue, the United States charged Graham in federal
court with being a felon in possession of a firearm and ammunition.
Like the state court, the federal court concluded that
the police entry into the apartment was permissible under Payton.
The court ruled in the alternative that the probation order itself
1
Although a search incident to arrest is an established exception
to the warrant requirement, state prosecutors did not argue that
the evidence was seized as a result of a search incident to arrest.
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allowed the officers to enter the apartment. Unlike the state
court, however, the district court concluded that the police did
not need a search warrant to search the room where Graham was
found.
The district court determined that the police collected
the evidence from the bedroom pursuant to a valid probation search.
Relying on United States v. Knights, 534 U.S. 112 (2001) and Samson
v. California, 547 U.S. 843 (2006), two cases analyzing warrantless
searches of defendants on conditional release,2 the court concluded
that as a probationer, Graham had such a reduced expectation of
privacy that a warrantless search was reasonable under the Fourth
Amendment. The court rejected Graham's argument that the search
violated the Fourth Amendment because the police, in defiance of
state law, failed to obtain a search warrant. The court determined
instead that the admissibility of evidence in a federal proceeding
is governed solely by federal law, and federal law did not require
a search warrant.
The court also stated that an alternative basis for
upholding the search, viz., that it was a valid search incident to
arrest. Although Graham had been handcuffed and removed from the
room prior to the search, the court determined that the areas
2
Probation, parole and supervised release are forms of conditional
release. United States v. Weikert, 504 F.3d 1, 7 n.4 (1st Cir.
2007).
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searched and items seized were within his reach at the time of his
arrest.
II.
When reviewing the disposition of a suppression ruling,
we review the district court's factual findings for clear error and
its ultimate constitutional conclusion de novo. United States v.
Nascimento, 491 F.3d 25, 50 (1st Cir. 2007).
A. The entry into the apartment
Graham first challenges the initial entry into his
apartment, understanding that if we find this entry unjustified the
evidence discovered subsequent to it must be suppressed. Graham
contends that because he did not "reside" at the apartment, because
he was merely an overnight guest, the police needed a search
warrant in order to enter the apartment, in addition to the arrest
warrant that they procured. He also argues that the entry into the
apartment was not permissible under Payton, because the officers
did not "reasonably believe" that he resided in the apartment. The
government disagrees, contending that the arrest warrant itself,
coupled with evidence supporting a reasonable belief that Graham
resided in the apartment, was sufficient under Payton to permit
entry into the apartment.
Payton is the lodestar. In that case, the Supreme Court
held that police armed with an arrest warrant for a suspect founded
on probable cause may enter the dwelling of that suspect when
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"there is reason to believe [he] is within." 445 U.S. at 602.
Subsequent to Payton, courts have held that even where it is
discovered after entry that the dwelling is not the suspect's, the
initial entry may be justified under Payton provided the police
reasonably believed, prior to entry, that the suspect did reside at
the dwelling. United States v. Lovelock, 170 F.3d 339, 343-44 (2d
Cir. 1999) (observing that although Payton requires that the
entering officers reasonably believe that the subject of the arrest
warrant resides at the place entered, that belief need not
ultimately be correct); United States v. Risse, 83 F.3d 212, 216
(8th Cir. 1996) ("The officers' assessment need not in fact be
correct; rather, they need only 'reasonably believe' that the
suspect resides at the dwelling to be searched and is currently
present at the dwelling.") (citations omitted)); United States v.
Route, 104 F.3d 59, 63 (5th Cir. 1997) (same).
Whether Graham actually "resided" at the apartment, then,
is not dispositive so long as the police "reasonably believed"
prior to entry that he (1) resided at the apartment and (2) would
be present. See United States v. Weems, 322 F.3d 18, 22 (1st Cir.
2003) (citing Unites States v. Gay, 240 F.3d 1222, 1226-27 (10th
Cir. 2001), for the proposition that "Payton allows entry because
officers had a reasonable belief that subject of arrest warrant
lived at the house they entered")); see also United States v.
Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005). At issue in this case
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is whether the police had a "reasonable belief of residence," and
not the second requirement, whether they had "reason to believe"
Graham was within the apartment when they entered.
In determining whether the officers possessed a
reasonable belief that Graham resided at the apartment, we examine
the basis for that belief. United States v. Bervaldi, 226 F.3d
1256, 1263 (11th Cir. 2000) (examining "the facts and circumstances
within the knowledge of law enforcement agents . . . viewed in the
totality") (citation omitted)); Lovelock, 170 F.3d at 343. Of
course, certain facts will almost always give rise to a reasonable
belief that the subject of an arrest warrant resides at the place
entered. For example, in United States v. Route police concluded
that the subject of the arrest warrant resided at the house entered
because his credit card applications, utility bill, car
registration, and mail were directed to the house. 104 F.3d 59, 62
nn.1 & 63 (5th Cir. 1997). However, the police need not posses
such rock-solid indicators of residence in order to form a
"reasonable belief" that a suspect resides at a given place.
Two cases from the Eighth Circuit, United States v.
Clayton, 210 F.3d 841 (8th Cir. 2000) and United States v. Risse,
83 F.3d 212 (8th Cir. 1996), are instructive. In Clayton, a police
record indicated that the defendant resided in a particular house.
210 F.3d at 842-43. Officers were also told by an anonymous caller
that the defendant resided at this house and were told by a person
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leaving the house, immediately prior to their entry, that the
defendant was inside. The Eighth Circuit concluded that this
information "gave police a reasonable belief that Clayton lived at
the residence." Id. at 844. In Risse, the subject of the arrest
warrant told police that she was "staying" at a certain place and
that officers could contact her there. 83 F.3d at 214-15. A
confidential informant further told police that the subject was
"living" at the same place with another person, and police had been
unable to contact the subject at a different, permanent residence
she maintained. Id. at 215. The court concluded that this
information supported a reasonable belief of residence. Id. at
216-17; see also Case v. Kitsap County Sheriff's Dep't, 249 F.3d
921 (9th Cir. 2001) (discussing information giving rise to
reasonable belief); Lovelock, 170 F.3d at 343 (same).
Similarly, we can safely conclude here that the police
possessed a reasonable belief that Graham resided at the apartment.
The police based their residence determination on five pieces of
information. First, they possessed a police report describing a
domestic incident that occurred at the apartment. The report
listed Graham as the offender and, critically, listed the apartment
as Graham's address. Second, another probationer told Todd,
Graham's probation officer, that Graham was "staying at" the
apartment. See Risse, 83 F.3d at 216-17 (noting police could
reasonably interpret colloquial phrase "staying with" to mean
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"living with"); see also Lovelock, 170 F.3d at 344. Third,
immediately prior to entering the apartment, officers showed a
picture of Graham to a person outside the apartment who pointed the
officers towards the apartment. Fourth, Todd, on a prior occasion,
saw a member of the gang Graham was associated with on the porch of
the apartment. Fifth, officers had been unable to locate Graham
where previously he had been living. See Risse, 83 F.3d at 217
(noting that police's inability to locate subject of arrest warrant
at a location previously associated with the subject could support
a reasonable belief that subject was residing at a different
location). Taken together, this information supported a reasonable
belief that Graham resided in the apartment.
In challenging this conclusion, Graham criticizes
individually each piece of information the officers relied on in
forming their belief. But, as established above, we examine the
information known to the officers in the totality and not in
isolation. See Lovelock, 170 F.3d at 344 (rejecting defendant's
argument that police did not possess reasonable belief of residence
where defendant sought to "segment, isolate, and minimize each item
of evidence that contributed to the existence and reasonableness of
the officers' belief").
Graham also points to a litany of facts to support his
contention that he did not reside at the apartment. He notes that
he did not have a key to the premises, that his clothing was on the
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floor and in a duffle bag and not put away in closets and dressers,
that he had decorated the bedroom with only a few photos and a news
clipping, and that both his shotgun and the safe where he kept his
ammunition were "readily portable items." This Monday-morning
quarterbacking does nothing to assist our analysis. What the
police discovered after they entered the apartment cannot help us
determine what the officers could have reasonably believed before
entering the apartment. Based on the reasoning provided above, we
conclude that the officers were justified in believing Graham
resided at the apartment.
Graham also argues that Payton does not determine the
outcome here, but rather two other Supreme Court cases, Steagald v.
United States, 451 U.S. 204 (1981) and Minnesota v. Olson, 495 U.S.
91 (1990), should govern the analysis.
This argument is easily dismissed. Steagald and Olson
merely establish, as relevant to this case, that certain
individuals have standing to object to a warrantless entry and
search.3 Those cases did not establish that those challenges would
3
In Steagald, the police, armed with an arrest warrant for a man
named Ricky Lyons, entered a home "based on their belief that []
Lyons might be a guest there." 451 U.S. at 213. On these facts,
the Supreme Court concluded that the defendant, Gary Steagald, a
resident of the house who was not named in the arrest warrant,
could challenge the police's failure to obtain a search warrant
prior to entering the residence to search for Lyons. See id. at
223. In Olson, the police entered a home for the purpose of
arresting Olson, the defendant. 495 U.S. at 94. The police
possessed neither an arrest warrant nor a search warrant and did
not claim to possess a reasonable belief that Olson resided at the
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necessarily be successful where police entered a premises with both
a warrant for an individual's arrest and a reasonable belief that
the individual resided at the premises entered. In such a case,
Payton permits entry for the limited purpose of arresting the
subject of the arrest warrant. See Bervaldi, 226 F.3d at 1267
n.11 (where police "had a reasonable belief" that the subject of
the arrest warrant resided at the place entered "Payton, not
Steagald, applies"); Pruitt, 458 F.3d at 487-88 (rejecting
defendant's argument that Olson required a search warrant where
police possessed both an arrest warrant and the reasonable belief
that the subject of the arrest warrant resided at the place
entered).4 Here, as established above, Payton's dictates permitted
the police to enter the apartment for the purpose of arresting
Graham.
B. The search of the room
That the officers were justified in entering the
apartment does not, however, resolve the issue of whether the
home. See id.. The Supreme Court determined that Olson, an
overnight guest, had a reasonable expectation of privacy in his
host's home and thus could challenge the warrantless entry under
the Fourth Amendment. Id. at 100.
4
In addition to arguing that Payton permits officers to enter a
place for the purpose of arresting the subject of an arrest
warrant, the government contends that Graham (a non-resident)
cannot even raise a Steagald claim. Both the Supreme Court and
this court have left this question open, see Steagald, 451 U.S. at
219; Weems, 322 F.3d at 23 n.3, and we have no need to resolve it
today.
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evidence should have been suppressed. Although the officers
possessed a valid arrest warrant, this warrant only permitted them
to seize Graham and did not, standing alone, authorize the search
of the bedroom where Graham was found. It is this search that
yielded the bounty of evidence that the government introduced
against Graham.
The government advances two theories to justify the
warrantless search. First, it argues that the search was a valid
probation search. The government notes that Graham signed a
probation order that allowed law enforcement to search "any place
[the probationer may be living]" if the authorities had reasonable
suspicion that Graham had violated a condition of his probation.
Second, the government contends that even if the search was not a
valid probation search, it was a lawful search incident to arrest.
Graham asserts that neither theory of admissibility
withstands scrutiny. He contends that the search, in order qualify
as a valid probation search, needed to be conducted pursuant to a
search warrant. This is because (1) the Massachusetts constitution
requires the police, absent a "traditional" exception to the
warrant requirement, to obtain a search warrant prior to executing
a probation search and (2) the probation order informed him of the
search warrant requirement. Graham also disputes the government's
claim that the search was a valid search incident to arrest,
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because the police searched the apartment after he had been placed
in handcuffs and removed from the room.
The government leads with its best punch. We therefore
consider first whether the evidence was obtained pursuant to a
valid probation search.
Certain relevant principles are well established. To be
valid under the Fourth Amendment, a search must be "reasonable."
Knights, 534 U.S. at 119 ("The touchstone of the Fourth Amendment
is reasonableness"). Typically, to be considered reasonable a
search of a home must be supported by probable cause and be
executed pursuant to a particularized warrant authorizing the
search. See Weikert, 504 F.3d at 6; United States v. Curzi, 867
F.2d 36, 41 (1st Cir. 1989) ("warrantless searches of a dwelling-
place are presumptively unreasonable"). However, there are
exceptions to the probable cause and warrant requirements, as the
reasonableness of any search is ultimately determined by examining
the "totality of the circumstances" and balancing on one hand "the
degree to which [the search] intrudes upon an individual's privacy"
and on the other "the degree to which [the search] is needed for
the promotion of legitimate government interests." Knights, 534
U.S. at 118-19.
Where a defendant on probation is challenging a probation
search, that fact significantly influences the required balancing.
As a conditional releasee, a probationer has a substantially
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diminished expectation of privacy. Id. at 119 ("Inherent in the
very nature of probation is that probationers do not enjoy the
absolute liberty to which every citizen is entitled"); see also
Samson, 547 U.S. at 848 (noting that Knights court concluded that
probationers have a reduced liberty interest "by virtue of their
status alone"); Weikert, 504 F.3d at 11. This expectation of
privacy can be further shaped by search conditions in the probation
order where the order "clearly express[es]" the conditions and the
probationer is "unambiguously informed" of them. Knights, 534 U.S.
at 119-20; see also Weikert, 504 F.3d at 8 (examining Knights).
For example, in Knights, the Supreme Court noted that a probation
condition that notified the defendant that he could be searched
without a search warrant "significantly diminished [his]
expectation of privacy." Knights, 534 U.S. at 119-20; Weikert, 504
F.3d at 8 (noting that the defendant in Knights had an inherently
reduced expectation of privacy, which the search condition served
to further reduce).
In considering the other side of the balance, that the
government has a legitimate interest in searching probationers is
beyond question. "'[T]he very assumption of the institution of
probation' is that the probationer 'is more likely than the
ordinary citizen to violate the law.'" Knights, 534 U.S. at 120
(quoting Griffin v. Wisconsin, 483 U.S. 868, 880 (1987)). As the
Supreme Court has observed, probationers have "more of an incentive
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to conceal their criminal activities and quickly dispose of
incriminating evidence than the ordinary criminal because [they
are] aware that they may be subject to supervision and face
revocation of probation, and possible incarceration, in proceedings
in which the trial rights of a jury and proof beyond a reasonable
doubt, among other things, do not apply." Id. at 120.
Neither party disputes that these principles control the
constitutional analysis. They do, however, spar over how this
analysis is influenced by one unique aspect of this case. The
search here occurred in the state of Massachusetts. The Supreme
Judicial Court of Massachusetts, in Lafrance, concluded that while
the Massachusetts constitution permits probationary searches
founded on "reasonable suspicion," police executing such searches
must first obtain a search warrant, absent the availability of a
traditional exception to the warrant requirement. 525 N.E.2d at
382.5 In its opinion, the court proposed that a condition be
5
The Supreme Judicial Court offered the following reasoning for
its ruling.
[Requiring officers to possess] a search warrant [issued]
on a proper showing of reasonable cause 'is not an undue
burden on the probation officer and provides the
protection for the probationer guaranteed by the
constitutions [State and Federal] . . . Upholding the
warrant requirements for searches of the probationer's
home does not impede the dual goals of probation,
protecting the public and rehabilitation.
525 N.E.2d at 382-83.
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included in future probation orders to reflect its holding. The
court structured this condition as follows:
On the basis of a reasonable suspicion that a
condition of the probationer's probation has
been violated, a probation officer, or any law
enforcement officer acting on the request of
the probation office, may search the
probationer, her property, her residence, and
any place where she may be living, and may do
so with or without a search warrant depending
on the requirements of law.
Id. at 383 (citation omitted). As it turns out, this is the
precise condition to which Graham was subject.6
Graham and the government draw different conclusions
about the import of LaFrance and the probation condition. Graham,
as he must, concedes that it does not follow that because a search
violates the Massachusetts constitution it necessarily violates the
Fourth Amendment. Nevertheless, he argues that because
Massachusetts law typically requires a search warrant, and because
the search condition in his probation order informed him of this
requirement, his expectation of privacy was sufficiently heightened
that the Fourth Amendment balance must be struck in his favor. The
government, in turn, relies heavily on the uncontroversial
6
We note that the search condition did inform Graham that he could
be searched "with or without a search warrant depending on the
requirements of law." Our resolution of this case does not require
us to construe this language as anything other than reflecting the
Massachusetts court's conclusion that warrantless searches could be
justified if a traditional exception to the warrant requirement
applied.
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principle that "federal law governs the admissibility of evidence
in federal prosecutions," noting that the Supreme Court has
concluded that violations of state laws are not per se violations
of the constitution. See Virginia v. Moore, 128 S. Ct. 1598, 1608
(2008) ("it is not the province of the Fourth Amendment to enforce
state law"). The government also cites a number of decisions from
other circuits that have, in the absence of an applicable law or
search condition, upheld warrantless searches based on a reduced
level of suspicion. See, e.g., United States v. Yuknavich, 419
F.3d 1302, 1311 (11th Cir. 2005); United States v. Keith, 375 F.3d
346, 350-51 (5th Cir. 2004).
Neither argument perfectly resolves the issue. Graham
appears to argue that because conditions of probation shape a
defendant's expectation of privacy, searches in violation of those
conditions must violate the Fourth Amendment. This is a somewhat
more muted version of the easily dismissed argument that state law
controls in federal court. Turning to the government's arguments,
the government's first salvo, that the Fourth Amendment and not the
Massachusetts constitution, controls the analysis, though accurate,
somewhat obscures the controlling principles. The Fourth
Amendment's totality of the circumstances test does account for a
probationer's expectation of privacy, which in turn may be shaped
to some degree by state law and by what the state has communicated
to the probationer. The Supreme Court appears to have established
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as much in cases like Knights and Samson. Knights, 534 U.S. at
119-20; Samson, 547 U.S. at 852. And although the government cites
to a number of cases where courts have upheld searches of
probationers based on a reduced level of suspicion in the absence
of a relevant law and search condition, we find those cases to be
of little help in considering this case where there exists both on
point state law and a search condition consistent with that law.
Ultimately, that Graham was notified that Massachusetts
state law requires police to possess a search warrant when
conducting a probation search is neither dispositive nor
inconsequential in the constitutional analysis. Rather, it is one
factor in considering the totality of the circumstances. This
conclusion is unremarkable. See United States v. Chirino, 483 F.3d
141, 149 (2d Cir. 2007) ("While state-law rules and practices may
inform our evaluation of the totality of the circumstances, 'the
appropriate inquiry for a federal court considering a motion to
suppress evidence by state police officers is whether the arrest,
search, or seizure violated the Fourth Amendment . . . because the
exclusionary rule is only concerned with deterring Constitutional
violations.") (citing United States v. Wright, 16 F.3d 1429, 1437
(6th Cir. 1994)); see also United States v. Gonzales, 535 F.3d
1174, 1182 (10th Cir. 2008) ("Although [] we have indicated that
compliance with state law may be relevant to our Fourth Amendment
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reasonableness analysis, we have never held it to be determinative
of the constitutionality of police conduct.") (citation omitted).
With the state pronouncements given their proper place in
the analysis, the balancing of the relevant interests leads us to
conclude that the search in this case was reasonable. As we have
noted, the government has a significant interest in monitoring
probationers, given their proclivity to both commit and cover up
crimes. And Graham's expectation of privacy was greatly diminished
by both his status as a probationer and the probation condition in
his probation order that expressly informed him that the government
could force him to submit to random drug testing and could search
him, his property, his residence or a place he may be living based
on reasonable suspicion rather than the more protective probable
cause standard. Although Graham's probation order did further
inform him that police would go through the formal process of
obtaining a search warrant before executing a search, that the
officers failed to do so does not merit suppression considering the
important governmental interests at stake and Graham's inherently
diminished expectation of privacy.
Put plainly, we cannot say that where, as here, the
police possess reasonable suspicion that a probationer is violating
the terms of probation, the Fourth Amendment demands that the
police secure a search warrant before executing a probation search.
See Moore, 128 S.Ct. at 1606 ("A state is free to prefer one
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search-and-seizure police among the range of constitutionally
permissible options, but its choice of a more restrictive option
does not render the less restrictive ones unreasonable, and hence
unconstitutional."); see also Lovelock, 170 F.3d at 343-44 ("What
a citizen is assured by the Fourth Amendment . . . is not that no
government search . . . will occur in the absence of a warrant or
an applicable exception to the warrant requirement, but that no
such search will occur that is 'unreasonable'") (citing Illinois v.
Rodriguez, 497 U.S. 177, 183 (1990) (some internal quotations
omitted))); Chirino, 483 F.3d at 149-50 (holding that probation
search did not violate Fourth Amendment even though the search was
conducted without prior court authorization as required under state
law).7 Because we conclude that the evidence was obtained pursuant
a valid probation search, we need not reach the government's search
incident to arrest argument.
III. Conclusion
For the reasons provided above, the district court's
ruling is affirmed.
AFFIRMED.
7
The district court suggested that the police could have conducted
a valid probation search even absent any suspicion that Graham had
violated the terms of his probation order. It noted, however, that
there was ample evidence in the record to support a finding that
the police had reasonable suspicion that Graham had done so. As
that conclusion has not been challenged, we need not examine
whether a suspicionless search would offend the Fourth Amendment.
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