United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 20, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30331
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME T. LEBLANC,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
________________________________________________
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The defendant, Jerome LeBlanc, pleaded guilty to
possession of a firearm by a felon, 18 U.S.C. § 922(g),
and was sentenced to three years’ probation. He contends
that the District Court erroneously denied his motion to
suppress the firearm, a .410 gauge shotgun, because it
was discovered in violation of the Fourth Amendment by a
1
Louisiana state probation officer during an unlawful
search of his home without a warrant, probable cause, or
reasonable suspicion, and reserved the right to appeal
this issue in his guilty plea. The Government argues,
however, that the shotgun was lawfully seized by the
state officer as a dangerous weapon in plain view in a
home verification visit pursuant to constitutionally
permissible state laws, regulations and probation
conditions. The ultimate issue in this case is whether a
home visit conducted by LeBlanc’s probation officer
violated the Fourth Amendment, which depends on: first,
whether Louisiana’s probation statutes and regulations
are constitutional as reasonable guidelines for
implementing the "special needs” of the state's system
for supervising probationers for purposes of their
rehabilitation and the community's protection; and,
second, whether the home visit and the plain view seizure
at issue here complied with these state guidelines and
with the Fourth Amendment. We conclude that they did and
AFFIRM.
I. Background
2
In 2003, Jerome LeBlanc was convicted in a Louisiana
state court of contractor misapplication of payments
under Louisiana Revised Statutes 14:202, a felony, and
was placed on supervised probation for five years. On
July 29, 2004 a state probation officer, Todd Cruice,
visited Mr. LeBlanc at his small semi-shotgun house in a
rural area near Pointe A La Hac in Plaquemines Parish,
Louisiana. Mr. LeBlanc does not challenge a Louisiana
probation officer’s authority to conduct home visits at
reasonable times and intervals. Rather, he argues that
Officer Cruice exceeded the bounds of his authority by
inspecting his whole house without any reason to suspect
him of a crime or probation violation, instead of
conversing with him in his kitchen as another officer had
done on a previous occasion.
Both Mr. LeBlanc and Officer Cruice testified at the
motion to suppress hearing. The District Court credited
Cruice’s version of the episode and we see no clear error
in its ruling. When Cruice informed LeBlanc that he had
come for a home visit and asked if he could “look
around,” LeBlanc did not object but showed him the entire
3
house while pointing out each respective room and certain
improvements he had made or undertaken.
As they entered the kitchen, Cruice saw a pellet gun,
which he inspected to verify that it was not a firearm.
LeBlanc told him that he used it to ward off snakes and
varmints in his yard. In response to Cruice’s question,
LeBlanc stated that he did not have any other weapon in
the house.
The walk-through inspection resumed and LeBlanc
directed Cruice’s attention to his bedroom. Cruice walked
through the bedroom and inspected an adjoining storage
room. As he turned back to leave the bedroom, Cruice saw
in plain view what he immediately recognized as the
barrel of a .410 gauge shotgun sticking out from under
LeBlanc’s bed. Cruice retrieved the gun, opened it, and
found it loaded with a shotgun shell. When asked about
his earlier denial of having any dangerous weapon on the
premises, LeBlanc said he kept the shotgun, which had
been his grandfather’s, for his own protection and to use
on varmints on his property. Cruice then seized the
firearm as evidence of LeBlanc’s violation of his
4
probation. The home visit lasted for less than ten
minutes, while the “walk-through” portion lasted two to
three minutes. The district court found that Cruice “did
not physically move anything, open drawers, or rifle
through personal belongings; rather, he used only his
eyes.”1
LeBlanc moved to suppress the gun, arguing to the
district court that it was seized pursuant to an unlawful
search. He contended that the probation officer exceeded
the scope of the required home visit by asking to look
around, and that he did not have reasonable suspicion of
a probation violation to support a search of the
premises. The district court denied the motion to
suppress, holding that the actions of the probation
officer did not constitute a search separate from the
home visit and that this visit was permissible under the
Fourth Amendment given the reduced privacy expectations
of probationers.
1
While LeBlanc’s statement of facts adheres to his original
contention below that Cruice searched his belongings for
pornographic videos and that LeBlanc did not lead Cruice through
the house, he has not expressly challenged the findings of the
district court.
5
II. Analysis
LeBlanc argues that Cruice went beyond the permitted
“home visit” authorized by Louisiana probation policies.
He contends that a home visit is limited to interpersonal
contact, and that Cruice’s actions violated his
expectation of privacy under the Fourth Amendment. In
reviewing the denial of a motion to suppress, we review
findings of fact for clear error and conclusions of law
de novo. United States v. Hicks, 389 F.3d 514, 526 (5th
Cir. 2004).
We think the District Court correctly concluded that
this home visit and seizure of a dangerous weapon in
plain view did not violate the Fourth Amendment. As part
of his sentence for the commission of a crime, LeBlanc
was subjected to supervision pursuant to the state laws,
rules, regulations and conditions governing Louisiana’s
probation system. The visit and inspection of LeBlanc’s
home satisfied the demands of the Fourth Amendment
because it was carried out pursuant to laws and
regulations that themselves satisfy the Fourth
Amendment's reasonableness requirement under
6
well-established principles. See Griffin v. Wisconsin,
483 U.S. 868 (1987).2
A probationer's home, like anyone else's, is
protected by the Fourth Amendment's requirement that
searches and intrusions upon privacy be “reasonable.” Id.
at 873. Although it is usually required that a search be
undertaken only pursuant to a warrant (and thus supported
by probable cause, as the Constitution says warrants must
be, see, e.g., Payton v. New York, 445 U.S. 573, 586
(1980)), the Supreme Court has permitted exceptions when
“special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause
requirement impracticable.” New Jersey v. T.L.O., 469
U.S. 325, 351 (1985) (Blackmun, J., concurring in
judgment). The Court has held on this basis that
government employers and supervisors may conduct
warrantless, work-related searches of employees' desks
and offices without probable cause, O'Connor v. Ortega,
2
The Government argues that LeBlanc’s consent to the search was effective and justified
the seizure of the firearm. Because the district court did not reach this issue or make findings of
fact as to LeBlanc’s consent, and because our analysis makes it unnecessary to do so, we decline
to reach the consent issue as well.
7
480 U.S. 709 (1987), and that school officials may
conduct warrantless searches of some student property,
also without probable cause, New Jersey v. T.L.O., 469
U.S. at 341. However, to conduct a nonconsensual search
of a probationer’s home for ordinary law enforcement
purposes under these limited expectations of privacy, it
is necessary to show reasonable suspicion that the
probationer is engaged in criminal activity. United
States v. Knights, 534 U.S. 112, 121 (2001).
“A State's operation of a probation system, like its
operation of a school, government office or prison, or
its supervision of a regulated industry, likewise
presents ‘special needs’ beyond normal law enforcement
that may justify departures from the usual warrant and
probable-cause requirements.” Griffin, 483 U.S. at 873-
874. The Court further explained:
Probation, like incarceration, is a form of
criminal sanction imposed by a court upon an
offender after verdict, finding, or plea of
guilty. Probation is simply one point (or, more
accurately, one set of points) on a continuum of
possible punishments ranging from solitary
confinement in a maximum-security facility to a
few hours of mandatory community service. A
number of different options lie between those
8
extremes, including confinement in a medium- or
minimum-security facility, work-release
programs, halfway houses, and probation-which
can itself be more or less confining depending
upon the number and severity of restrictions
imposed.
Id. at 874 (citations and quotations omitted). Thus, the
Court concluded, “[t]o a greater or lesser degree, it is
always true of probationers (as we have said it to be
true of parolees) that they do not enjoy ‘the absolute
liberty to which every citizen is entitled, but only ...
conditional liberty properly dependent on observance of
special [probation] restrictions.’” Id. (quoting
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).
The Supreme Court has recognized a “continuum” of
expectations of privacy under the Fourth Amendment based
on the degree of punishment a defendant is subjected to.
Samson v. California, 126 S. Ct. 2193, 2198 (2006). “Just
as other punishments for criminal convictions curtail an
offender's freedoms, a court granting probation may
impose reasonable conditions that deprive the offender of
some freedoms enjoyed by law-abiding citizens.” Knights,
534 U.S. at 119.
9
Consequently, reasonable restrictions upon liberty
and privacy are allowed and are necessary “to assure that
the probation serves as a period of genuine
rehabilitation and that the community is not harmed by
the probationer's being at large.” Griffin, 483 U.S. at
875 (citing State v. Tarrell, 247 N.W.2d 696, 700 (Wis.
1976)). “These same goals require and justify the
exercise of supervision to assure that the restrictions
are in fact observed.... Supervision, then, is a ‘special
need’ of the State permitting a degree of impingement
upon privacy that would not be constitutional if applied
to the public at large.” Id.
Because the permissible degree of a state’s
impingement on probationers’ privacy is not unlimited, we
must determine, first, whether Louisiana’s rules and
regulations for furthering these goals are reasonably
necessary and therefore constitutional, and, second,
whether Officer Cruice exceeded the authority granted him
under these applicable state standards.
Although Griffin differs from the case before us
because it analyzed the propriety of a search regulation
10
permitting warrantless searches of the homes of
probationers for ordinary law enforcement purposes, it
made clear that intrusions upon the privacy of
probationers are reviewed for whether they meet ‘special
needs’ of the state in supervising probationers. “In
determining whether the “special needs” of its probation
system justify [the] search regulation, we must take that
regulation as it has been interpreted by state
corrections officials and state courts.” Griffin, 483
U.S. at 875. We balance the interests of the government
against the probationer’s diminished privacy interests to
determine whether “special needs” justify the
restriction. See, e.g., State v. Guzman, 480 N.W.2d 446,
449 (Wis. 1992).
In determining whether the “special needs” of
Louisiana’s probation system justify its home visit
regulations, we must consider their legislative and
administrative sources as well as their interpretation
and application by state courts and corrections
officials. Griffin, 483 U.S. at 875. Probation
conditions authorized by Louisiana law include requiring
11
probationers to report to the probation officer as
directed; permitting the probation officer to visit him
at his home or elsewhere; requiring him to devote himself
to an approved employment or occupation; refraining from
possessing firearms or other dangerous weapons;
refraining from frequenting unlawful places or consorting
with disreputable persons; remaining within the court’s
jurisdiction; and obtaining the probation officer’s
permission to change addresses or employment. See LA. CODE
CRIM. PROC. ANN. art. 895 (2007).
The supervisory duties required of Louisiana
probation officers to enforce conditions of probation, as
stated in the Louisiana Probation and Parole Manual
submitted as part of Defendant’s record excerpts,
include: “Interpersonal Contact - Face to face contact
with the offender which can occur in the field or in the
office.... During these contacts, the officer will
generally inquire as to the offender’s status in all
relevant areas such as residence, employment, physical
and mental health, marital/family situation, and
financial status to determine any changes or problems.
12
... Residence Verification - Refers to our determination
that an offender (other than a specialized sex offender)
resides at a claimed residence which may be established
through interpersonal contact at the residence,
collateral contacts with other residents or by review of
documentation... or telephone contacts with reliable
collaterals.”
The Louisiana probation conditions and probation
officer duties, similar to those authorized and required
in the federal system, see, e.g., 18 U.S.C. §§ 3563;
3603, clearly are reasonable and necessary measures
designed to promote the rehabilitation of probationers
while protecting the community from harm due to their
being at large. In reading and applying these standards,
the Louisiana courts and corrections administrators have
interpreted them in a natural, straightforward manner.
Further, in evaluating probation officers’ alleged
violations of probationers’ rights under the Fourth
Amendment, the Louisiana Supreme Court has applied a
“test of reasonableness” prescribed by the United States
Supreme Court which in each case “‘requires a balancing
13
of the need for the particular search against the
invasion of personal rights that the search entails....
consider[ing] the scope of the particular intrusion, the
manner in which it is conducted, the justification for
initiating it and the place in which it is conducted.’”
State v. Malone, 403 So.2d 1234, 1239 (La. 1981)(citing
and quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979) and
State v. Patrick, 381 So.2d 501, 503 (La. 1980)).
Accordingly, we conclude that the Louisiana statutes and
regulations under which the probation officer acted in
this case fully satisfy the Fourth Amendment requirement
of reasonableness.
As a condition of his probation, LeBlanc agreed, and
was required by the court, to permit his probation
officer “to visit him at his home or elsewhere....” LA.
CODE CRIM. PROC. ANN. art. 895(A)(4) (2003). Further, the
Louisiana Probation and Parole Officer’s Manual
authorizes a probation officer to perform a “residence
verification” to determine that an offender resides at a
claimed residence, and it provides that the verification
“may be established through interpersonal contact at the
14
residence....” “Interpersonal contact” is defined as
“[f]ace to face contact with the offender which can occur
in the field or in the office.” The manual lists a
variety of subjects the officer should inquire into
during an interpersonal contact, and notes that
“[i]nterpersonal contacts should be intensified as
necessary to... investigate or verify the offender’s
compliance with conditions of probation/parole.”
LeBlanc argues that Cruice exceeded his authority
under the probation condition and the manual. He urges
that in order to look around his home, Cruice must have
had reasonable suspicion that LeBlanc was engaged in
criminal activity, the standard approved of by the
Supreme Court in the case of a search of a probationer’s
residence for law enforcement purposes. Knights, 534 U.S.
at 121. A properly conducted “home visit” for
supervisory probation purposes, however, is not
equivalent to a law enforcement or criminal investigatory
search.
While this Circuit has not yet considered the
question, other Circuits in similar cases have held that
15
a probation officer properly conducting an authorized
home visit was not bound by the reasonable suspicion
standard. The Second Circuit has held that “because home
visits ‘at any time’ are conducted pursuant to a court-
imposed condition of federal supervised release of which
the supervisee is aware, and because a home visit is far
less intrusive than a probation search, probation
officers conducting a home visit are not subject to the
reasonable suspicion standard applicable to probation
searches under Knights.” United States v. Reyes, 283 F.3d
446, 462 (2d Cir. 2002) (emphasis in original). The court
reasoned that home visits as a condition of probation in
the absence of reasonable suspicion were justified
because of the need of the state to exercise supervision
over probationers, ensuring that they comply with the
conditions of probation and do not return to a life of
crime. Id. at 461. LeBlanc suggests that a case relying
on Reyes, United States v. Massey, No. 03 CR 938, 2004 WL
1243531 (S.D.N.Y. Jan. 21, 2004)(unpublished), implies
that a distinction may be made because a search of the
defendant’s bedroom was not necessary to determine
16
whether LeBlanc lived at the house. In Massey, a parole
officer entered a defendant’s bedroom as part of a home
visit and viewed the room for one to two minutes,
noticing a machete handle in plain view protruding from
Massey’s bed. The defendant lived in a room in his
mother’s apartment. Applying Reyes, the court reasoned
that entry into Massey’s bedroom was necessary to confirm
that he actually resided in the apartment permanently. We
do not read Massey as placing any restrictions on Reyes,
or as distracting from the principle of Reyes that a
short home visit to determine the suitability of the
residence is within the “special needs” of the state in
supervising probationers. Reyes is consistent with a long
line of cases in the Second Circuit holding that
probation officers could enter and view the homes of
probationers as part of their supervisory duties. See
United States v. Trzaska, 111 F.3d 1019, 1021 (2d Cir.
1997) (noting that a probation officer may properly
conduct a warrantless home visit of a probationer for
supervisory purposes); see also United States v. Rea, 678
F.2d 382, 387 (2d Cir. 1982)(same); United States v.
17
Newton, 181 F. Supp. 2d 157, 161 (E.D.N.Y. 2002)(holding
that “[a] home visit is not a search, even though a visit
may result in seizure of contraband in plain view”).
The Ninth Circuit has also considered the issue,
concluding in an unpublished opinion that the reasonable
suspicion standard did not apply because “[s]ince the
inception of the probation and parole systems,
probationers and parolees have understood that they are
subject to home visits from time to time by their
probation and parole officers.” United States v. Hedrick,
146 Fed. App’x. 871, 872 (9th Cir. 2005) (unpublished).
Because the probationer in that case was informed of the
home visit condition, and because of the state’s need to
“determine the conditions and circumstances of the
probationer's living arrangements,” the probationer’s
diminished expectation of privacy did not bar home visits
conducted without reasonable suspicion of criminal
activity. Id.
Several state courts have considered the issue as
well. A Maryland court has upheld a home visit that
involved a fifteen to twenty minute long tour of a
18
probationer’s home. See Volkomer v. State, 897 A.2d 276,
279-80 (Md. Ct. Spec. App. 2006). The probation officer
saw in plain view boxes of ketamine, which had been
stolen recently from a local animal hospital in a
burglary in which the probationer was a suspect. Id. The
court held that, crediting the probation officer’s
testimony as true, the conduct involved in following a
probationer around in a tour of the home did not
constitute a search. Id. at 287. The Montana Supreme
Court has considered the issue generally, noting that
home visits are a commonly imposed condition of probation
and are important to ensure that probationers are
complying with the conditions of probation and that they
play a large role in reducing recidivism. State v. Moody,
148 P.3d 662, 666 (Mont. 2006). It adopted the holding of
Reyes that a home visit, without more, does not
constitute a search. Id. at 666-67.
While the state law we encounter is not identical to
those confronted by these courts, we find the reasoning
of these cases persuasive. Home visits, as defined as
under Louisiana law, as a condition of LeBlanc’s
19
probation, and as conducted on these facts, do not
constitute as invasive a burden on a probationer’s
expectations of privacy as does a search. A probationer
is subject to state supervision as part of the “special
needs” doctrine, including verification of where he
lives, and cannot expect to be free from “interpersonal
contact” at his residence. Were we to impose a
requirement that a probation officer show reasonable
suspicion of criminal activity before visiting a
probationer at his home, supervision would become
effectively impossible.
Accordingly, we must determine whether Cruice, by
asking to look around LeBlanc’s house, crossed the line
from a home visit into a search requiring proof of
reasonable suspicion. We conclude that he did not.
LeBlanc argues that the Probation Officer’s Manual draws
a sharp distinction between “residence verifications” and
“residence checks.” Unlike a residence verification,
which involves interpersonal contact at the probationer’s
residence, a residence check applies only to specialized
sex offenders and imposes additional requirements. In a
20
residence check, a probation officer is instructed to
“request entry and look around for anything suspicious
(toys, dolls, pornography, etc.).” LeBlanc argues that by
asking if he could “look around,” Cruice conducted a
form of search that was not imposed as a condition of
LeBlanc’s probation. We disagree.
The Louisiana Supreme Court has noted that in
supervising a probationer, a probation officer may have
to take actions to accomplish a home visit that would
intrude upon the liberty of an ordinary person, but not
a probationer:
An individual on probation does not have the
same freedom from governmental intrusion into
his affairs as does the ordinary citizen. In the
case before us, the probation officer was not
following a tip that defendant was engaging in
criminal activity. [The probation officer] was
simply doing his job supervising defendant's
probation. It surely is not impermissible for a
probation officer to walk into the yard of the
person he is supervising.
State v. Malone, 403 So.2d 1234, 1239 (La. 1981). The
manual at issue instructs that a probation officer may
verify an offender’s residence by having “[f]ace to face
contact with the offender” at that residence. LeBlanc
21
argues that Cruice went beyond the purposes of a home
visit, conducting a “plain view search” of the residence.
The district court noted that Cruice testified that “the
general purpose of a home visit was to verify compliance
with the terms of probation, such as to verify that the
probationer lives where he says and that the residence is
suitable (not overcrowded and not residing with other
felons).”
“A ‘search’ for purposes of the Fourth Amendment
occurs when a reasonable expectation of privacy is
infringed.” Segura v. United States, 468 U.S. 796, 820
(1984). A probationer is subject to diminished
expectations of privacy compared to the general
population. Knights, 534 U.S. at 119. Commentary on the
Fourth Amendment status of probationers has approved of
“[r]outine unscheduled home visits,” noting that:
The unannounced visit, more so than the
scheduled visit of the probationer or parolee to
the office of his supervisor, may provide useful
and relevant information concerning his
progress. Moreover, it is relatively
unintrusive, and thus is perhaps the easiest
technique to justify....
22
WAYNE R. LAFAVE, 5 SEARCH AND SEIZURE § 10.10(d) at 455 (4th
ed. 2004). Others have commented on visits that are
factually identical to what occurred in this case:
In the case of surprise visits, made in the day
time, the invasion of privacy is relatively
minimal. The term surprise visit should by
definition encompass only a situation in which
an officer enters the premises, looks around,
and perhaps talks to the parolee for a few
minutes. Thus defined, a surprise visit is no
more significant an intrusion on the citizen’s
privacy than the brief inspection of the
premises which took place in Camara.
Id. (quoting Welch S. White, The Fourth Amendment Rights
of Parolees and Probationers, 31 U. PITT. L. REV. 167, 187
(1969)).
Taking the facts as found without clear error by the
district court, Cruice did not cross the line from a home
visit into a search. He asked to “look around,” and spoke
casually with LeBlanc as he was led around the house and
through the various rooms. As part of the tour, LeBlanc
led Cruice to his bedroom, opened the door, and announced
that the room was his bedroom, clearly implying his
consent to the visual inspection by Cruice that followed.
The walk-through lasted no longer than it took literally
23
to walk through the home - roughly two to three minutes.
The gun was in plain sight as Cruice walked through the
bedroom.
LeBlanc argues that the interpersonal contact could
have been conducted in a less intrusive way, by sitting
at the kitchen table, and that by entering his bedroom
Cruice violated his expectations of privacy. On the facts
as found by the district court, Cruice did no more than
engage in a brief, roving conversation while being led on
a tour by LeBlanc through his house. While the Probation
Officer’s Manual requires that an officer ask to look
around the home of a sex offender, it does not bar it in
the case of other offenders and does not define face to
face contact. As the Louisiana Supreme Court noted in
Malone, a probation officer will necessarily have to
perform some actions such as walking through a yard to
conduct a home visit. Briefly walking through rooms in
LeBlanc’s home is no different - Cruice did not closely
examine any room, did not rifle through LeBlanc’s
belongings, and merely followed LeBlanc as he was led
24
around the home. His conduct was incidental to and a part
of his interpersonal contact with LeBlanc. LeBlanc, as a
probationer with diminished expectations of privacy,
cannot expect that a probation officer will not view the
various rooms in his home while conducting a home visit
to verify that his residence there is genuine and
suitable.3 Cruice thus did not cross the line from a home
visit to a search, and on these facts was not required to
show reasonable suspicion of criminal activity. We
therefore AFFIRM the district court’s denial of the
motion to suppress the firearm.
3
Among the conditions of LeBlanc’s probation, imposed
pursuant to LA. CODE CRIM. P. ANN. art. 895(A) (2003), were that
LeBlanc:
“[r]efrain from owning or possessing firearms or other dangerous
weapons,” “[m]ake reasonable reparation or restitution to the
aggrieved party,” “[r]efrain from frequenting unlawful or
disreputable places or consorting with disreputable persons,” and
“[r]emain within the jurisdiction of the Court and get the
permission of the probation officer before making any change in
[his] address or [his] employment.” The “special need” of the
state in enforcing these conditions of probation adds to the
reasonability of Cruice’s short walk-through of LeBlanc’s
residence.
25