United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 22, 2004
Charles R. Fulbruge III
Clerk
No. 03-30723
UNITED STATES OF AMERICA,
Plaintiff - Appellee.
VERSUS
CHAD EDWARD KEITH,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before JOLLY, DAVIS, and JONES, Circuit Judges.
W. EUGENE DAVIS:
Keith challenges the district court’s denial of his motion to
suppress. Keith’s appeal presents the question of whether a
warrantless, non-consensual search of the defendant’s home while he
was under supervised probation pursuant to a Louisiana state court
sentence, was constitutional when the search was supported by
reasonable suspicion. Keith argues that the Supreme Court cases of
Griffin v. Wisconsin, 483 U.S. 868 (1987) and United States v.
Knights, 534 U.S. 112 (2001) are distinguishable because unlike
Louisiana, in both states where the searches were conducted in
those cases, the probationer either agreed to a search as a written
condition of probation or a state regulation authorized a
warrantless search by a probation officer upon reasonable
suspicion. Because Louisiana courts authorize searches of a
probationer’s home based on reasonable suspicion, we conclude that
Griffin and Knights control in this case and the district court
correctly denied Keith’s motion to suppress.
I.
In November 1999 Keith constructed and planted five homemade
explosive devices throughout his high school in Coushatta,
Louisiana. At least one of the devices exploded and destroyed a
portion of a school bathroom. He later pled guilty to one count of
possession of a destructive device, was sentenced to a suspended
sentence of two years, and was placed on five year supervised
probation which began in July 2000. One of his conditions of
probation prohibited him from possessing a firearm, destructive
device, or any other dangerous weapon.
In May 2002 the Red River Parish Sheriff’s Office called
Keith’s probation officer, Alvie Myers, and advised Myers that they
had received information from a local building supply retailer (who
was aware of Keith’s involvement in planting bombs in his school)
that Keith had recently purchased two five-inch long and one-and-a-
quarter-inch diameter steel pipe nipples and four one-and-a-
quarter-inch end caps, materials commonly used to construct pipe
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bombs. Due to Keith’s history of making and detonating pipe bombs,
Agent Myers called his supervisor and advised him that he planned
to search Keith’s home. Because Agent Myers suspected that
explosives would be discovered and because he lacked training
necessary to deal with explosives, Agent Myers called the Bureau of
Alcohol, Tobacco and Firearms(ATF) and asked for assistance in his
search.
Agent Myers understood that under Louisiana law he had the
authority to search a probationer’s home if he had reasonable
suspicion that the probationer had violated or was about to violate
a condition of probation. Possession of destructive devices was a
violation of Keith’s probation. Agent Myers also believed that the
information provided him by law enforcement authorities that Keith
had purchased material commonly used to build and detonate pipe
bombs constituted reasonable suspicion of Keith’s violation of his
probation.
Later that day Agent Myers proceeded to Keith’s home to
conduct the search. He was accompanied by another probation agent,
two agents from the ATF, two members of the State Police Hazardous
Materials Squad, and a bomb expert from the Bossier City Fire
Department. The two probation officers went to the house first and
asked Keith and two other individuals with him to come outside.
Then the other agents and law enforcement officials entered the
residence to search for bombs or bomb-making materials. Agent
Myers never asked nor obtained permission from Keith for the
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search.
During the search, bomb-making materials were found. This
included bomb-making magazines, wires and connections, stainless
steel pipe and nipples, nails wrapped together in duct tape, and an
infrared control box with several toggle switches on it. No
assembled bombs, gun powder, or fuses were found at that time.
Keith initially explained his possession of the pipe and
nipples as material he needed to repair his wells. Agent Myers
concluded that this explanation made no sense and arrested Keith
for violating his probation by lying to his probation officer.
A short time later Keith’s father arrived at the house and
Agent Myers gave him permission to speak to Keith. After their
conversation Keith told Agent Myers that black powder and a fuse
were in the house and showed him where they were. Keith then
explained to the Fire Department bomb expert how he had made a
bomb. Also one of Keith’s companions at the scene told the
officers that Keith had thrown three bombs into a pond located on
private property nearby. The next day after receiving permission
from the land owner, the officers drained the pond and found three
bombs which they confiscated.
The grand jury returned a three count indictment charging
Keith with possession of a destructive device in violation of 26
U.S.C. §§ 5822, 5861(c), and 5871; possession of an unregistered
weapon in violation of 26 U.S.C. §§ 5822, 5861(d), and 5871; and
making a destructive device in violation of 26 U.S.C. §§ 5822,
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5861(f), and 5871. Keith filed a motion to suppress the evidence
seized as a result of the search of his residence and statements he
made during the search. A magistrate judge conducted a hearing on
the motion and recommended that Keith’s motion be denied. After
addressing Keith’s objections to the magistrate judge’s report and
recommendations, the district court agreed with the magistrate
judge’s recommendations and denied Keith’s motion to suppress.
Keith then entered a conditional plea of guilty to possession of a
destructive device and reserved his right to appeal the district
court’s denial of his motion to suppress.
II.
A.
The sole question in this appeal is whether Agent Myers’s
warrantless search of Keith’s home violated the Fourth Amendment.
Keith argues first that the district court erred in accepting the
government’s argument that a warrantless search of a probationer’s
home was justified based on nothing more than a probation officer’s
reasonable suspicion that the probationer had engaged in conduct
that had violated or was about to violate the terms of his
probation. He argues further that even if the search were
justified based on reasonable suspicion, the district court erred
in finding that the facts provided to Agent Myers were sufficient
to serve as a basis for such reasonable suspicion.
In reviewing the denial of a motion to suppress this court
reviews finding of fact for clear error while the ultimate
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conclusion as to whether the Fourth Amendment has been violated is
reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699
(1996).
B.
The briefs in this case properly focus on two Supreme Court
cases which specifically deal with the question of whether
probation officers may conduct warrantless non-consensual searches
of probationers’ homes on the basis of reasonable suspicion. In
both cases the Court concluded that such searches were permissible
under the Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868
(1987); United States v. Knights, 534 U.S. 112 (2001). The
government contends that these two cases control and require us to
affirm the ruling of the district court. Keith on the other hand
contends that both cases are distinguishable because in those cases
--unlike this case--there was either a written condition of
probation permitting such a search based on reasonable suspicion or
a state regulation authorizing a warrantless search based on
reasonable suspicion.
In Griffin, the Supreme Court upheld the warrantless non-
consensual search of a probationer’s home based upon a tip from a
police officer that there were or might be guns in the
probationer’s apartment. The probation officer proceeded with the
search pursuant to a state regulation which authorized “any
probation officer to search a probationer’s home without a warrant
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as long as his supervisor approves and as long as there are
‘reasonable grounds’ to believe the presence of contraband--
including any item that the probationer cannot possess under the
probation conditions.” Griffin, 483 U.S. at 870-71.1
The Court concluded that the search did not violate the Fourth
Amendment based on its finding that “a State’s operation of a
probation system . . . presents ‘special needs’ beyond normal law
enforcement that may justify departures from the usual warrant and
probable-cause requirements.” Id. at 873-74. The Court found that
a warrant requirement would “interfere to an appreciable degree”
with the ability of the probation system to adequately supervise
probationers by “mak[ing] it more difficult for probation officials
to respond quickly to evidence of misconduct” and “reduc[ing] the
deterrent effect that the possibility of expeditious searches would
otherwise create.” Id. at 876. This reality, coupled with the
fact that probationers “do not enjoy the ‘absolute liberty to which
every citizen is entitled, but only . . . conditional liberty
properly dependent on observance of special [probation]
restrictions’” led the court to the conclusion that a warrantless,
non-consensual search of a probationer’s home on the basis of less
than probable cause was “‘reasonable’ within the meaning of the
Fourth Amendment[.]” Id. at 874, 880 (citations omitted).
The Supreme Court broadened this holding in Knights. Knights
1
Wisc. Admin. Code H.S.S. §§ 328.21(4), 328.16(1) (1981). See
Griffin, 483 U.S. at 871.
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also involved the warrantless non-consensual search of a
probationer’s home based on reasonable suspicion that criminal
conduct was occurring or about to occur. In Knights, the Court of
Appeals held that a warrant was necessary for the search of the
probationer’s home because it was not conducted for the purpose of
monitoring whether the probationer was complying with probation
restrictions but rather for investigation of suspected unrelated
criminal conduct. Because the search was for “investigatory”
rather than “probationary” purposes the Court of Appeals suppressed
the evidence recovered in the search. The Supreme Court reversed.
The Court pointed out that the probation order which Knights signed
provided that Knights would “submit his person, property, place of
residence, vehicle, and personal effects to search at any time with
or without a search warrant, warrant of arrest or reasonable cause
by any probation officer or law enforcement officer.” Knights, 517
U.S. at 114. The Court rejected appellant’s view and that of the
Court of Appeals that “a warrantless search of a probationer
satisfies the Fourth Amendment only if it is just like the search
at issue in Griffin -- i.e., a ‘special needs’ search conducted by
a probation officer monitoring whether the probationer is complying
with probation restrictions. This dubious logic--that an opinion
upholding the constitutionality of a particular search implicitly
holds unconstitutional any search that is not like it--runs
contrary to Griffin’s express statement that its ‘special needs’
holding made it ‘unnecessary to consider whether’ warrantless
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searches of probationers were otherwise reasonable within the
meaning of the Fourth Amendment.” Knights, 534 U.S. at 117. The
Court reasoned that the state not only has a reasonable interest in
ensuring that a probationer keeps the terms of his probation, but
also in ensuring that he does not commit any further criminal acts.
Id. at 117, 120-121. The Court concluded that “the warrantless
search of Knights, supported by reasonable suspicion and authorized
by a condition of probation, was reasonable within the meaning of
the Fourth Amendment.” Id. at 122.
Keith argues that the search of his home is distinguishable
from both Knights and Griffin. He points out that in Knights there
was a written condition in the probation order--signed by Knights--
authorizing the warrantless search. He also finds it significant
that a state regulation authorized the warrantless search in
Griffin. Because the government points to no such written
condition or explicit state regulation in this case, he contends
that neither Griffin or Knights is helpful to the government. We
are unpersuaded by this argument.
It is true that Keith signed no written order of probation
giving permission to search his home on reasonable suspicion of
wrong doing; nor is there an explicit Louisiana state regulation
permitting such a search. Searches of probationer’s homes on
reasonable suspicion of probation violation, however, have been
sustained by Louisiana courts on numerous occasions. See State v.
Malone, 403 So. 2d 1234 (La. 1981); State v. Drane, 828 So. 2d 107
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(La. Ct. App. 2002), State v. Vailes, 564 So. 2d 778 (La. Ct. App.
1990). Thus, a probationer in Louisiana--where the courts have
consistently approved the practice of searching probationers’ homes
based on reasonable suspicion--is just as aware of the decreased
expectation of privacy that follows from probation as a probationer
in a state with a Griffin-like regulation in place.
Also, we cannot read Knights or Griffin as requiring either a
written condition of probation or an explicit regulation permitting
the search of a probationer’s home on reasonable suspicion. Indeed
as the Court noted in Knights, the Wisconsin regulation that
authorized the search in Griffin was not even promulgated until
after Griffin had been sentenced. 534 U.S. at 117. The core
reasoning of the Court in both cases is directed at explaining why
the needs of the probation system outweigh the privacy rights of
the probationers generally, who inherently “do not enjoy the
absolute liberty to which every citizen is entitled.” Id. at 119
(internal quotations marks omitted). For these reasons we are
unpersuaded that Griffin and Knights can be distinguished on this
basis and conclude that the district court correctly concluded that
the “reasonable suspicion” standard adopted by the Court in those
cases applies to the search of Keith’s home.
C.
We also reject Keith’s argument that the facts available to
Agent Myers at the time of the search were not adequate to support
a reasonable suspicion that Keith was engaging in criminal activity
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that violated his probation. Agent Myers was acting on information
received by the police from a person engaged in the retail business
in the same rural community where the defendant lived, who knew the
defendant and knew of the defendant’s prior involvement in building
and detonating bombs. As the district court noted, this tip was
“right on the money: A person known in the community to handle
pipe bombs has got himself some more pipe.” Supp. Rec. at 33. The
purchase of such legitimate materials as pipe nipples and end caps
when viewed in isolation and without regard to his known criminal
history probably would not create reasonable suspicion. When these
otherwise innocent purchases are considered in light of Keith’s
history of constructing pipe bombs, however, Agent Myers’s
suspicion that Keith might be again constructing bombs was a
reasonable inference. We therefore conclude that the record fully
supports the district court’s conclusion that Agent Myers had
reasonable suspicion that Keith was engaged in constructing pipe
bombs. The district court correctly denied the motion to suppress.
AFFIRMED.
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