United States v. Freeman

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 8, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 05-3437
D EA N D RE A . FR EEM A N ,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 05-CR-10102-M LB)

Kurt P. Kerns of Ariagno, Kerns, M ank & W hite, LLC, W ichita, Kansas, for
Defendant-Appellant.

M atthew T. Treaster, Assistant United States Attorney (Eric F. M elgren, United
States Attorney, with him on the brief), W ichita, Kansas, for Plaintiff-Appellee.

Before H E N RY, HOL LOW A Y, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

The Kansas Department of Corrections (KDOC) has established criteria for

the search of the person or property of parollees in the state. These criteria are

contained in a policy statement called the Internal M anagement Policies and

Procedures (IM PP). They specify that “w ith the exception of pat-down and plain
view searches, special enforcement officers are the only personnel authorized to

conduct a more extensive search of offenders’ person or property.” Supplemental

Vol. I, IM PP 14-164, 1. The IM PP permit warrantless searches under the

follow ing circumstances: “If the Special Enforcement Officer (SEO) has a

reasonable suspicion that evidence of a condition violation can be found on the

person, or in the property in possession of the offender, the officer may conduct a

search of the person or property without a warrant.” Id. at 7.

Upon being released on parole from Kansas state prison, defendant Deandre

Freeman signed a Conditions of Post Release Supervision agreement, which read:

“I agree to subject [sic] to a search by parole officer(s) of my person, residence,

and any other person under my control.” United States v. Freeman, No. 05-

10102-01-M LB, slip-op at 2 (D . Kansas Aug. 11, 2005).

On O ctober 1, 2004, law enforcement officers conducted a w arrantless

search of M r. Freeman’s residence without his consent and discovered a firearm,

body armor, and a small quantity of marijuana. No SEO was present at the time

of the search. The district court held that the search was lawful because, at the

time of the search, the police officers had reasonable suspicion to believe that M r.

Freeman was violating the conditions of his parole.

Following the denial of his motion to suppress, M r. Freeman pled guilty to

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A s

part of the plea agreement, he preserved his right to appeal the district court’s

-2-
denial of his motion to suppress, which he does in the instant appeal. For the

reasons stated below, we REVERSE the district court’s denial of the motion to

suppress.

I.

M r. Freeman was paroled on October 3, 2002. W hile on parole, M r.

Freeman violated curfew and was placed under more intensive supervision by the

W ichita Day Reporting Center (DRC), a parolee monitoring company employed

by the Kansas Department of Corrections (KDOC). On the night of September

30, 2004, the D RC, with the assistance of several local law enforcement agencies,

conducted a sw eep of parolees designed to determine whether parolees w ere in

compliance with curfew and to verify that their GPS- tracking ankle bracelets

were functioning. DRC instructed law enforcement to obtain written consent to

search the residence of each parolee visited, but also instructed them that refusal

to consent constituted a violation of the parolee’s parole agreement. Although

some of the parolees selected for curfew check were chosen because of specific

concerns of their parole officers, others, including M r. Freeman, were chosen at

random.

Around 1:00 AM the morning of October 1, 2004, four police officers from

the W ichita Police Department knocked on M r. Freeman’s front door. Bridgette

Franklin, a representative from DRC, accompanied the officers to check M r.

Freeman’s ankle bracelet and GPS unit. However, she was not an SEO authorized

-3-
to conduct parolee searches under the KDOC IM PP. W hen M r. Freeman

answ ered the door, Officer Little explained that they were there to conduct a

curfew check and to ensure that the ankle bracelet monitoring device was

functioning. M r. Freeman invited the officers into his home.

As M s. Franklin checked the monitoring device, Officer Little informed

M r. Freeman of their intention to search the premises. M r. Freeman told him that

the officers had no right to search. W hen Officer Little replied that they could

search because M r. Freeman had agreed to the search as part of the terms of his

parole, he became agitated and began to walk quickly out of the living room

toward the bedroom. As he w alked, he told the officers that he needed to inform

his girlfriend, M aria Coleman, of the officers’ search because she was in bed and

possibly undressed. Out of concern for officer safety, Officer Little followed M r.

Freeman to prevent him from entering the bedroom. He instructed M r. Freeman

to tell M s. Coleman of the search from the hallway and then to return to the living

room. M r. Freeman complied with his request.

From the hallway, Officer Little could see M s. Coleman reaching for

something in the dresser. After ensuring that M r. Freeman was returning to the

living room, Officer Little entered the bedroom and proceeded to search. M s.

Coleman left the bedroom as O fficer Little entered. Although the police officers

had obtained written consent for all previous searches conducted that evening,

they did not obtain M r. Freeman’s consent.

-4-
 Officer Little’s initial search of the bedroom did not uncover anything

illegal. W hile he w as engaged in the search, another officer, Sergeant Walker,

entered the room and saw a handgun in plain view on the closet shelf. Further

search of the house uncovered a bullet-proof vest in the same closet as the gun

and marijuana seeds and stems in the basement. Based on this evidence, M r.

Freeman was charged with possession of a firearm in violation of 18 U.S.C.

922(g)(1).

M r. Freeman moved to suppress the evidence found in the search on the

ground that it was the fruit of a warrantless search. The district court found that

the search did not comply with the parole agreement because it was not conducted

by an SEO. It also determined that the police officers had no right to search M r.

Freeman’s home without his consent at the time they arrived. The court found,

however, that M r. Freeman’s parolee status created a diminished expectation of

privacy that allowed law enforcement officers to search if they had reasonable

suspicion that M r. Freeman was violating the conditions of his parole. Based on

M r. Freeman’s agitation in response to hearing the officers’ intention to search,

M s. Coleman’s actions in the bedroom, and M r. Freeman’s status as a convicted

felon and known gang member, the court found that such reasonable suspicion

existed. The district court therefore denied M r. Freeman’s motion to suppress.

-5-
 W e review the facts found by the district court for clear error and its

determination of the reasonableness of the search de novo. United States v.

Tucker, 305 F.3d 1193, 1199 (10th Cir. 2002).

II.

The Supreme Court has created two exceptions to the Fourth Amendment’s

warrant requirement in the context of parolee searches. First, in Griffin v.

Wisconsin, the Supreme Court held that “[s]upervision [of parolees]. . . 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.” 483 U.S. 868, 875

(1987). 1 Because parole has the dual purpose of rehabilitating the offender and

protecting society, it is constitutionally reasonable for a parole officer to search

parolees in compliance with a parole agreement search provision, but without a

warrant. Id. at 875-76. M oreover, this Court has held that “[i]n many cases, the

police may . . . search a probationer’s premises without a warrant at the behest of

the parole officer.” United States v. M cCarty, 82 F.3d 943, 947 (10th Cir. 1996).

Neither this Court nor the Supreme Court has, however, blessed a search by law

enforcement acting independently of the parole officer under this rationale.

1
Though “parolees have fewer expectations of privacy than probationers”,
the Supreme Court instructs us to apply the same balancing test to each in
determining the constitutionality of a search. Samson v. California, ___ U.S. ___,
126 S. Ct. 2193, 2198, (2006).

-6-
 Second, the Court expanded Griffin by holding in United States v. Knights,

534 U.S. 112, 118 (2001), that searches performed in compliance with a valid

parole agreement search provision may be constitutional even if they were not

“conducted by a probation officer monitoring whether the probationer is

complying with probation restrictions.” Id. at 117. To determine whether such a

search is reasonable under the Fourth Amendment, a court must balance “‘on one

hand, the degree to which it intrudes upon an individual’s privacy and, on the

other, the degree to which it is needed for the promotion of legitimate

governmental interests.’” Id. at 119 (quoting Wyoming v. Houghton, 526 U.S.

295, 300 (1999)).

In Knights, a detective suspected that defendant M ark James Knights was

involved in several acts of vandalism and arson against Pacific G as & Electric

because the crimes coincided with a complaint for theft of services PG & E filed

against him and with PG & E’s termination of his electric service. Id. at 114-15.

After observing suspicious objects in the truck of the suspected accomplice,

which was parked at Knights’s apartment complex, the detective decided to

search Knights’s apartment. Id. The detective believed he could conduct the

search without a w arrant because Knights had signed a probation agreement in

conjunction with an unrelated drug offense, which required him to submit to a

search at any time without cause by either a probation or law enforcement officer.

-7-
Id. The search uncovered significant evidence of Knights’s involvement in the

crime. Id.

The Court determined that the detective’s search of Knights’s apartment

was reasonable. Knights had a diminished expectation of privacy because, by

signing the parole agreement, Knights became aware that he was subject to search

by law enforcement. Id. at 119-20. On the other side of the balancing test, the

government’s interest in protecting society was bolstered both by Knights’s status

as a probationer— a group much more likely than an average citizen to commit a

crime— and by the detective’s reasonable suspicion that Knights himself was

involved in criminal activity. Id. at 119-20.

This Circuit has interpreted Knights to mean that “a probation search [is]

permissible so long as supported by reasonable suspicion, regardless of the

motivation for the search.” Tucker, 305 F.3d at 1200. In Tucker, the defendant

argued that the search was merely a subterfuge for law enforcement purposes and

thus not in compliance with the Utah law requirement that the search be

conducted for parole purposes. This court responded that one of the requirements

of Tucker’s parole was that he obey all federal, state, and municipal laws. Id.

Because the search was premised on reasonable suspicion that he had violated the

law, the search complied with the parole agreement search provision, which made

the case “materially indistinguishable from Knights.” Id.

-8-
 In Samson v. California, 126 S. Ct. 2193 (2006), the Supreme Court

extended the principle of Knights to uphold a warrantless search of a parolee even

in the absence of reasonable suspicion, where the parolee had signed a parole

agreement that allowed parole officers or other peace officers to search the

parolee “with or without a search warrant and with or without cause.” Id. at

2196. The Court noted “that some States and the Federal Government require a

level of individualized suspicion,” and strongly implied that in such jurisdictions

a suspicionless search would remain impermissible. Id. at 2201. Parolee searches

are therefore an example of the rare instance in which the contours of a federal

constitutional right are determined, in part, by the content of state law.

W e interpret the Griffin line of cases, based on “special need,” as resting on

the rehabilitative relationship between the parolee and the parole officer, and thus

not extending to other law enforcement officers unless they are acting under the

direction of the parole officer. W e interpret the Knights-Samson line of cases as

resting on the parolee’s diminished expectation of privacy stemming from his ow n

parole agreement and the state regulations applicable to his case. As we shall see,

neither rationale justifies the search in this case.

III.

The search of M r. Freeman’s residence was conducted by ordinary officers

from the W ichita Police Department. No parole officers (denominated SEOs in

the jargon of the Kansas D epartment of Corrections) w ere present, and no parole

-9-
officer instructed the officers to conduct the search. Bridgette Franklin, a

representative of the private parolee monitoring agency, accompanied the officers

during the initial entry, but she was not an SEO and, in any event, she left the

premises before the search.

This is legally significant in two respects. First, because the search was

conducted by ordinary law enforcement agents and not by M r. Freeman’s parole

officer, the search cannot be justified under the special needs rationale of Griffin.

Second, because the Kansas parole agreement signed by M r. Freeman allowed

searches only by SEOs, the search of M r. Freeman’s residence did not comply

with the search provision in his parole agreement or with the KDOC’s relevant

parolee search policies. M oreover, the K DOC rules specify that a warrantless

search may be conducted only on reasonable suspicion that the parolee has

violated his parole agreement. Thus, when ordinary law enforcement officers

conducted a search without reasonable suspicion of a parole violation, the search

exceeded reasonable expectations in two respects, and was impermissible under

the Fourth Amendment balancing test described in Samson.

The government argues that the search of Mr. Freeman’s residence was

valid under Knights because he had a diminished expectation of privacy as a

result of his parole agreement, even though the search conducted did not comply

with the search provision in that agreement. It further argues that based on

Samson, the officers did not need reasonable suspicion to conduct the search.

-10-
However, unlike the search provision in M r. Freeman’s parole agreement, the

search provision in the California parole agreements in Samson allowed any law

enforcement officer to search for any purpose without reasonable suspicion. This

significantly diminished the expectation of privacy for those on parole in the

California system. Samson does not represent a blanket approval for warrantless

parolee or probationer searches by general law enforcement officers without

reasonable suspicion; rather, the Court approved the constitutionality of such

searches only when authorized under state law. Kansas has not gone as far as

California in authorizing such searches, and this search therefore was not

permissible in the absence of reasonable suspicion.

IV.

The district court upheld the search of M r. Freeman’s home on the ground

that the officers had reasonable suspicion that he was in violation of the terms of

his parole. “[R]easonable suspicion is merely a particularized and objective basis

for suspecting criminal activity.” Tucker, 305 F.3d at 1200. Although an officer

must have “‘some minimal level of objective justification,’” INS v. Delgado, 466

U.S. 210, 217 (1984), the justification is less than that requirement for a showing

of probable cause. See United States v. Sokolow, 490 U.S. 1, 7 (1989). To

determine w hether reasonable suspicion for suspecting a parole violation exists,

we consider the quantity and reliability of the information possessed by law

-11-
enforcement and consider this information in light of the totality of the

circumstances. Id. at 8.

The district court found that the officers had no reasonable suspicion when

they entered M r. Freeman’s home, but that circumstances that developed during

the course of the officers’ encounter with M r. Freeman gave rise to such

suspicion. The district court pointed to three reasons to suspect M r. Freeman of

wrongdoing: his agitation on learning of the officers’ intention to search the

home, M s. Coleman’s reach to the bedside table, and M r. Freeman’s criminal

record. Considering the totality of the circumstances, we disagree with the

district court and find that officers had no objective justification for reasonable

suspicion to conduct a search of M r. Freeman’s residence.

Refusal to consent to a search— even agitated refusal— is not grounds for

reasonable suspicion. United States v. Santos, 403 F.3d 1120, 1125-26 (10th Cir.

2005); U nited States v. William s, 271 F.3d 1262, 1268 (10th Cir. 2001). To be

sure, M r. Freeman became agitated on learning of the officers’ intention to

search. But his agitation can easily be explained by the impending invasion of his

girlfriend’s privacy. W e suspect many innocent men would become agitated if

male officers in the middle of the night stated their intention to enter the bedroom

where their wife or girlfriend was in bed, possibly undressed. The fact that M r.

Freeman knew the officers had no lawful right to search may also have

contributed to his agitation. Still, however agitated M r. Freeman supposedly was,

-12-
he complied with the officer’s instruction to communicate with M s. Coleman

from the hallw ay and then to return to the living room.

The second indication of reasonable suspicion invoked by the district court

was M s. Coleman’s action in response to M r. Freeman’s announcement of the

officer’s presence: she sat up in bed and reached for something in the dresser. To

characterize this as suspicious is not persuasive. The officers had no reason to

assume she was dangerous. Her movements in the bedroom were not threatening

and were entirely consistent with being rousted out of bed at 1:00 in the morning.

It is surely common for a person stirred from bed to reach to the dresser for a

watch, glasses, robe, or other item.

Nor was M r. Freeman’s parolee status and criminal history, without other

particularized and objective facts, sufficient to form reasonable suspicion.

Though officers knew of M r. Freeman’s past association with a gang, he had been

on parole for two years w ith only one violation— missing curfew. Presumably all

parolees have criminal records, and if this w ere sufficient to warrant reasonable

suspicion, there would effectively be no limits on the ability of law enforcement

officers to conduct warrantless searches of parolees’ homes. Such a result

conflicts with the Supreme Court’s decision establishing such limits. See Samson,

126 S. Ct. at 2198 n.2.

Even evaluating these factors based on the totality of the circumstances, as

we must, Santos, 403 F.3d at 1133, we cannot agree with the district court that the

-13-
officers had reasonable suspicion to search M r. Freeman’s home without consent,

without the presence of a parole officer, and in violation of Kansas Department of

Corrections rules governing parolee searches.

V.

The government contends, in the alternative, that the search of M r.

Freeman’s residence should be upheld as a “protective sweep” because the

officers reasonably believed they were in danger. “A ‘protective sw eep’ is a

quick and limited search of premises, incident to an arrest and conducted to

protect the safety of police officers or others.” M aryland v. Buie, 494 U.S. 325,

327 (1990). For a Buie search to be upheld under the Fourth Amendment, officers

must have "possesse[d] a reasonable belief based on specific and articulable facts

which, taken together with the rational inferences from those facts, reasonably

warrant[ed] the officer in believing, that the area swept harbored an individual

posing a danger to the officer or others.” Id. (quoting M ichigan v. Long, 463 U.S.

1032, 1049-50 (1983)) (internal quotation marks omitted).

This Court has interpreted Buie to mean that a protective sweep may be

conducted only if incident to arrest. United States v. Walker, ___F.3d___, W L

259661, at *4 (10th Cir. January 31, 2007); United States v. Davis, 290 F.3d

1239, 1242 n.4 (10th Cir. 2002). Other circuits have allowed protective sweeps

not incident to arrest when officers suspect that a dangerous individual may be

hiding on the premises. United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir.

-14-
2001) (permitting a cursory search of the premises for people who may threaten

an officer’s safety while he waits for a search warrant to be obtained); United

States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993) (allowing cursory search of

the premises for persons w ho may threaten the safety of the officers); United

States v. Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992) (permitting a search

when officers reasonably suspected that an individual on the premises was

trafficking in narcotics). One member of this court has expressed doubts that

Buie “lay[s] down a flat, per se rule banning protective sweeps by law

enforcement in every other context.” United States v. Garza, 125 Fed.Appx. 927,

933 (10th Cir. 2005) (Tymkovich, J., concurring) (unpublished). There may be

merit to that position, but the panel is bound by the precedent of Davis. Even if

this court were to adopt a broader view of the protective sw eep, it is likely this

search would still be invalid because the officers had no objectively reasonable

belief that another person in M r. Freeman’s residence threatened their safety.

Accordingly, we REVERSE the district court’s denial of the M otion to

Suppress and REM AND for proceedings consistent with this opinion.

-15-