IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 26, 2009
No. 08-50114 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DAN LARRY WARD
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM:
Shortly after he received a 10-year federal sentence on a felon in
possession charge, state authorities mistakenly released federal prisoner Dan
Ward, who exploited the situation by absconding. This case presents the
question of whether Ward enjoyed a Fourth Amendment right to privacy that
was violated by a warrantless search of his motel room.
I
Federal marshals learned that Ward had contacted his mother after his
escape and that his car, a maroon Buick, was parked in her driveway. Two
deputies were dispatched to Odessa, Texas where Ward’s mother lived, but found
Ward’s car gone. During their search of area motels, with an eye for the Buick,
No. 08-50114
the marshals located the car in a Days Inn parking lot. The Days Inn clerk
advised that Ward was not a registered guest. The marshals then staked-out the
car.
After a few hours, Ward appeared on the scene, walking briskly towards
the car. The marshals moved in. As Ward got in his car, they pulled in front of
him, flashing the unmarked car’s red police strobe light and honking the car’s
horn. Ward turned his wheel and took off around the marshals who followed in
pursuit. Ward drove towards a nearby residential area, blowing through a stop
sign and turning the wrong way down a one-way street. Concerned they might
cause an accident, the marshals abandoned the chase, but not before seeing
Ward turn into an alley that led back to the strip of motels.
Thinking that Ward may have been trying to retrieve something from a
motel room and not wanting the trail to go cold, the marshals checked other
nearby motels. At the first motel—the Parkway Inn directly next door to the
Days Inn where they first spotted Ward’s car—the manager confirmed that
Ward was a guest, registered under his own name. After obtaining the key, the
marshals knocked and then cautiously entered room 133, with guns drawn.
They cleared the room, determining that Ward was not present, and then
searched for clues of Ward’s whereabouts. The first item they checked was a
bag, described as looking like a camera bag. Unzipping the bag the marshals
found a soft gun case, with a loaded 9mm Beretta semi-automatic handgun, loose
ammunition, an address book, and a pharmacy card.
Ward was soon after apprehended in the nearby town of Midland, and on
the basis of the gun and ammunition found in his motel room, indicted on counts
of felon in possession of a firearm and fugitive in possession of a firearm. Ward
filed a motion to suppress the evidence found in his motel room, which the
district court denied. Ward then pled guilty, retaining the right to appeal the
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denial of his motion to suppress, which he now does. We review the legal
conclusions of the district court de novo.1
II
The question before us is whether Ward, as an escapee, 2 had a right of
privacy in his motel room entitling him to the protection of the Fourth
Amendment against unreasonable searches. Justice Harlan in his oft-quoted
concurrence in Katz v. U.S.3 gives the proper framework for answering the legal
question: whether a person may invoke the Fourth Amendment to suppress
evidence gained through government intrusion not authorized by a warrant
turns on whether that person has a “constitutionally protected reasonable
expectation of privacy.” 4 Such an expectation requires “first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as ‘reasonable.’” 5 It is
1
U.S. v. Ceniceros, 204 F.3d 581, 584 (5th Cir. 2000).
2
Ward asserts that because he was mistakenly released he is not technically an
escapee. Ward is incorrect. In the narrower, but related, context of the federal escape statute,
the Supreme Court noted that “we think it clear beyond peradventure that escape from federal
custody as defined in [the federal escape statute] is a continuing offense and that an escapee
can be held liable for failure to return to custody as well as for his initial departure.” U.S. v.
Bailey, 444 U.S. 394, 413 (1980). Interpreting the same statute, the Eighth Circuit has held,
“[a]lthough there must be an escape from custody, it is not necessary that the escapee at the
time of the escape be held under guard or under direct physical restraint or that the escape
be from a conventional penal housing unit such as a cell or cell block; the custody may be
minimal and, indeed, may be constructive.” U.S. v. Cluck, 542 F.2d 728, 731 (8th Cir. 1976).
These cases give a broad interpretation to “escape” in the federal statute. They read escape
to include a failure to return, even if the initial escape did not involve anything resembling a
physical leap over a prison wall. Thus, we can confidently label Ward as an escapee in the
general meaning of the word. That said, the facts also doom Ward. When the marshals
confronted him in the parking lot, Ward, in the words of the marshal, “gunned it, turned his
wheel to drive around us, and took off.” At the very latest, at this point—which was before the
search of his room—Ward was a convicted felon affirmatively evading arrest.
3
389 U.S. 347 (1967).
4
Katz v. U.S., 389 U.S. 347, 360 (1967) (Harlan, concurring).
5
Id. at 361.
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the second of these two requirements that the Court has emphasized and on
which we focus here.6
Our determination of whether an escapee’s expectation of privacy is
reasonable is informed by related Supreme Court precedent. In Hudson v.
Palmer the Court made plain that because society is not prepared to recognize
a prisoner’s expectation of privacy in his prison cell, the Fourth Amendment, as
a bright line rule, does not restrict searches and seizures in the cell.7 The Court
found the privacy right irreconcilable with both the institutional concern of
security in the prison and with the punitive objectives of incarceration, namely
retribution and deterrence.
That Ward would have had no right to privacy in his prison cell does not
a fortiori mean that he has no right to privacy in his motel room. The interests
at play for determining whether the Fourth Amendment applies to an escapee
in society may differ from those applicable in the prison cell context. In other
words, although the privacy right is personal, defining the specific content and
incidents of the right often requires reference to a place—hence the Hudson
opinion’s repetition of the clause “in his prison cell.” The Court’s holding,
specific to the cell, does not by its own force reach a motel room.
Exchanging the prison environment for a motel room 8 and the prisoner for
a prison escapee, we find that the balance of interests weighs against finding a
constitutionally protected reasonable expectation of privacy. We acknowledge
that the consideration of internal security recognized in Hudson loses much its
6
Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984).
7
Id. at 525–26.
8
That the search was of a motel room, and not of a private house or apartment, does
not effect the analysis. See Stoner v. California, 376 U.S. 483, 490 (“No less than a tenant of
a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to
constitutional protections against unreasonable searches and seizures.”) (citing Johnson v.
U.S., 333 U.S. 10 (1948) (internal citations omitted)).
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force when applied to justify circumscribing an escapee’s privacy right. This
justification is place specific. As explained in Hudson, “[a] right of privacy in
traditional Fourth Amendment terms is fundamentally incompatible with the
close and continual surveillance of inmates and their cells required to ensure
institutional and internal order.” 9 It is the challenge of the unique prison
environment—exemplified by the prison administrator’s constant fight to keep
dangerous contraband out of the hands of a population that has demonstrated
a proclivity for violence—that partially justifies that the privacy right in the cell
be among the rights ceded by a convicted felon.
However, while institutional security loses some of its justifying force once
a prisoner breaches the prison wall, we believe it remains indirectly at play.
Recognizing a privacy right in the motel room of an escapee who legally belongs
in a cell would “offer judicial encouragement to the act of escape.” 10 Rewarding
successful escapees by restoring previously ceded rights would embolden the
escape plots that prison administrators already must work vigilantly to deter.
Indirectly, then, society’s interest in the security of its penal institutions remains
relevant to determining whether an escapee has a reasonable expectation of
privacy.
We need not however rely on indirect justifications. The institutional
demands of the prison environment are not the sole justification for the
prisoner’s loss of liberty. Even assuming the justification of internal order and
security falls away once a prisoner escapes the institution, an escapee privacy
right remains incompatible with the objectives of incarceration. The loss of
significant rights is an incident of imprisonment; the deprivation of privacy is
a component of society’s punishment.
9
Id. at 527–28.
10
U.S. v. Roy, 734 F.2d 108, 112 (2d Cir. 1984).
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The rationales of punishment retain their full force both inside and outside
the prison. A federal escapee remains in legal custody of the Federal Bureau of
Prisons even when outside the prison walls. A prisoner cannot by escape rewrite
his sentence such that his punishment no longer includes a loss of Fourth
Amendment protected privacy. Society, through our system of justice, has
retracted this privacy right from prisoners as a necessary incident of
incarceration, imposed for the purposes of retribution, deterrence, and
rehabilitation. We cannot find that this same society would recognize the
escapee’s expectation of that right as reasonable.11
There remains the additional consideration of protecting society.
Incarcerated persons have demonstrated their propensity to engage in illegal,
and often violent, behavior. The facts of this case exemplify this risk. Ward had
a significant criminal history, including burglary and illegal firearm possession,
and his recent behavior fleeing federal marshals in a dangerous automobile
chase evidenced his willingness to place lives at risk. Ward’s imprisonment was
partially justified by incapacitation—removing his ability to inflict additional
crimes on society. Prisoners that escape have frustrated this purpose, at the
same time self-selecting themselves into an even more crime-prone subset.12
Allowing an escapee to invoke the privacy right would be inconsistent with
protecting society from a demonstrably dangerous person who is fleeing from law
enforcement outside of the structured environment that the criminal justice
11
We do not address privacy interests beyond those protected by the Fourth
Amendment such as may be protected by the Eighth Amendment.
12
While there are no ready statistics to document crime rates of escapees, reason warns
it is likely higher than the already alarming recidivism rates for those legally released. In its
most recent recidivism report, the Bureau of Justice Statistics studied recidivism in 272,111
prisoners released in 1994, representing two-thirds of all prisoners released in the United
States that year. It found that 67.5% of released prisoners were rearrested for a new crime
within 3 years, 46.9% were reconvicted for a new crime, and 25.4% were resentenced to prison.
PATRICK A. LANGAN & DAVID J. LEVIN , BUREAU OF JUSTICE STATISTICS , RECIDIVISM OF
PRISONERS RELEASED IN 1994 (June 2002).
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system determined was necessary for him. In this game of hide and seek the
sheriff need not count to ten.
We, therefore, join the Second 13 and Eighth 14 Circuits in finding that
prison escapees cannot invoke the protections of the Fourth Amendment.
III
The Supreme Court has not addressed whether an escaped felon may
invoke the Fourth Amendment. It has held that prisoners have no protection
under the Fourth Amendment from searches of their cell, a per se rule. At the
same time, the Court has taken a different tack in its analysis in the related
cases of paroled felons and probationers.15 In these cases the Court assumed the
petitioner could invoke the Fourth Amendment; that the parolee and probationer
had a right to have the search measured by reasonableness, deploying an ad hoc
“totality of the circumstances” balancing test. Under this test, the Court found
that the balance tipped in favor of the government. “By their status alone,”
probationers and parolees have only a limited privacy right,16 one that when
weighed against the government’s penological interests in restoring rights of
liberty in a measured way yields to warrantless searches.
13
In Roy, 734 F.2d at 108–12, a police officer pulled over an escapee’s car after noticing
it sitting suspiciously in a retail parking lot. Without knowledge that Roy was an escapee, the
officer searched the interior of the car and its locked trunk, uncovering a profusion of illegal
and dangerous items, including sawed off shotguns. Reversing the district court’s grant of
Roy’s motion to suppress, the Second Circuit, analogizing an escapee to a “trespasser on
society,” held that Roy’s “expectation of privacy in the automobile is not one that society is
prepared to recognize as legitimate.”
14
In U.S. v. Lucas, 499 F.3d 769, 779 (8th Cir. 2007) (en banc), the court held that an
escapee “had no legitimate expectation of privacy while hiding out in [a friend’s] apartment.”
15
U.S. v. Knights, 534 U.S. 112 (2001) (upholding the warrantless search of a
probationer’s apartment on probable cause); Samson v. Cal., 547 U.S. 846 (2006) (upholding
the warrantless and suspicionless search of a parolee).
16
“[B]y virtue of their status alone, probationers do not enjoy the absolute liberty to
which every citizen is entitled.” Samson, 547 U.S. at 849–50 (quoting Knights, 534 U.S. at
119) (internal quotations omitted).
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Although the Court employed a “reasonableness” analysis in these cases
instead of the Katz test it had earlier used to determine that prisoners, as an
antecedent matter, could not invoke the Fourth Amendment, the determinative
factor is the same under either approach—the petitioner’s status. It is the status
of probationers and parolees that results in their reduced expectation of privacy,
a diminished right that could be outweighed by government interests. Similarly,
it was status that drove the Katz analysis for prisoners in Hudson v. Palmer; as
a per se rule a prisoner cannot invoke the Fourth Amendment because society
is not prepared to recognize a prisoner’s expectation of privacy in his prison cell.
We do not ponder the precise approach the Supreme Court would take in
this case. Even were we to balance a diminished right against the interest of the
government, the expectation of privacy of the probationer and parolee would
offer no solace to Ward. Escape is a frustration of ordered justice that cannot be
rewarded with rights greater than those held by felons that leave or avoid prison
lawfully.
IV
This said, there remains the nagging risk of invading the privacy rights
of third parties attending the warrantless pursuit of escaped prisoners. By his
legal status an escaped felon is walking probable cause—police can arrest and,
as we have explained, search his dwelling and his bag without a warrant and
without justification under the Fourth Amendment. This makes important the
circumstance that the motel room at issue in this case was Ward’s own, not just
to the presence of probable cause to enter the room, but also in justification of
a warrantless search of the bag when officers learned on entry that Ward was
not then in his room. We pause to remind that in recapturing escaped prisoners,
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law enforcement may well encounter the hurdles of the Fourth Amendment
rights of third parties.17
We are persuaded that Ward, as a prison escapee, could not invoke the
Fourth Amendment to suppress a warrantless search of his motel room and bag.
The district court did not err in rejecting Ward’s motion to suppress. The
judgment of conviction and sentence is AFFIRMED.
17
See Steagald v. U.S., 451 U.S. 204, 215 (1981) (requiring, in the absence of consent
or exigent circumstances, a search warrant before law enforcement could search the home of
a third party for the subject of an arrest warrant).
9