United States v. Henry ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0450p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 04-6382
v.
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ANTONIO R. HENRY, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 03-00109—Edward H. Johnstone, District Judge.
Argued: September 19, 2005
Decided and Filed: November 22, 2005
Before: DAUGHTREY and MOORE, Circuit Judges; ALDRICH, District Judge.*
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COUNSEL
ARGUED: Elgin L. Crull, CRULL & CRULL, Louisville, Kentucky, for Appellant. Terry M.
Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Elgin L. Crull, CRULL & CRULL, Louisville, Kentucky, for Appellant. Terry M.
Cushing, Brian Butler, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Antonio R. Henry
(“Henry”) appeals his conviction for possession of ammunition by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). Henry argues that the district court erred first by denying his
motion to suppress evidence obtained during a probation officer’s search of a bag found at his
residence and then by treating the United States Sentencing Guidelines as mandatory while
sentencing him. Henry also contends for the first time on appeal that § 922(g)(1) exceeds
Congress’s power under the Commerce Clause.
*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by
designation.
1
No. 04-6382 United States v. Henry Page 2
Because the probation search was founded upon neither reasonable suspicion nor consent,
we REVERSE the district court’s denial of Henry’s motion to suppress and VACATE Henry’s
conviction and sentence. This result makes it unnecessary for us to reach the sentencing issue.
Finally, we reject Henry’s commerce-power argument.
I. BACKGROUND
On October 8, 2003, Henry was discharged from a Kentucky prison pursuant to a grant of
shock probation. See KY. REV. STAT. ANN. § 439.265. The following day, Henry reported to
Probation Officer Michael Havens (“Officer Havens”) for the first time. At that meeting, Henry
filled out a releasee’s report, indicating that he was unemployed, received SSI payments, and resided
at 2821 Northwestern Parkway. A condition of Henry’s probation forbade Henry either to change
the residence listed on this report without the approval of his probation officer or to have more than
one residence at a time. Joint Appendix (“J.A.”) at 53 (Conditions of Supervision ¶ VI.D). Henry
also was required either to maintain full-time employment or to seek employment when
unemployed. J.A. at 51 (Order on Motion for Shock Probation ¶ 8), 53 (Conditions of Supervision
¶¶ VI.B, VII.A.4).
Subsequent to the initial meeting on October 9, 2003, Officer Havens made three visits to
2821 Northwestern Parkway in order to verify that Henry resided there. On October 13, 2003,
Officer Havens made two visits to the reported address: the first in the morning and the second in
the afternoon.1 On October 20, 2003, Officer Havens made one visit at some time between 8:00
A.M. and 4:30 P.M., but he could not recall a more precise time. On each occasion, nobody
answered Officer Havens’s knocks on the front and back doors, and Officer Havens observed no
movement or noise. Officer Havens made no other efforts to verify Henry’s residence: Officer
Havens made no attempt to reach Henry at his reported phone number, either before or after his
home visits, and he did not ask any neighbors whether Henry lived at the residence. Officer Havens
testified that, in his experience, it is “relatively common” for probationers to live somewhere other
than the addresses they report, and he concluded that Henry “probably didn’t live at that address.”
J.A. at 80-81 (Suppression Hr’g Tr. at 8-9) (Havens Test.).
On October 22, 2003, Henry made his next scheduled report to Officer Havens. At that
meeting, Henry filled out another releasee’s report and once again indicated that he was
unemployed, received SSI payments, and resided at 2821 Northwestern Parkway. Officer Havens
informed Henry that he was going to send two officers home with Henry in order to verify his
residence. Officer Havens testified that upon hearing this news, Henry “acted very erratic, very
nervous.” J.A. at 83 (Suppression Hr’g Tr. at 11) (Havens Test.).
At Officer Havens’s request, Probation Officers Melanie McClish (“Officer McClish”) and
Christopher Tally (“Officer Tally”) went with Henry to 2821 Northwestern Parkway in order to
verify that Henry lived there. Henry let the officers in, but neither officer recalled whether Henry
had a key to the house. While Officer Tally remained downstairs with Henry, Officer McClish went
upstairs to examine Henry’s room.
1
The district court appears to have credited Officer Havens’s initial assertion on direct examination, J.A. at 80
(Suppression Hr’g Tr. at 8) (Havens Test.), that his second visit of October 13, 2003, was in the evening. J.A. at 69
(Mem. & Order at 2). This finding was clearly erroneous, because on both cross-examination and redirect examination,
Officer Havens clarified that his second visit was in the afternoon. J.A. at 89 (stating that his second visit on “the 20th
of October” — the context makes it clear that he actually was referring to the 13th — was “in the afternoon”), 95
(answering that he “went once in the morning and once in the afternoon” when asked to state to “the best of [his]
recollection” when he went on October 13th) (Suppression Hr’g Tr. at 19, 27) (Havens Test.). In any event, at oral
argument the government conceded that the second visit was in the afternoon.
No. 04-6382 United States v. Henry Page 3
Officer McClish saw that the room that Henry claimed was his had a dresser and was
“cluttered with clothes,” but it did not have a bed. J.A. at 101 (Suppression Hr’g Tr. at 33) (McClish
Test.). Officer McClish had the impression that the room “just didn’t look like it was occupied.”
Id. Officer McClish began looking in the room for items — such as “[c]lothes, pictures, . . .
deod[o]rant” — indicating that Henry lived there. Id. Officer McClish saw a gym bag in an open
closet; she picked the bag up, noticing2that it was very heavy. Officer McClish opened the bag and
found in it a firearm and ammunition.
Henry was indicted for possession of ammunition by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). Henry made a motion to suppress the ammunition, arguing that
the officers had neither reasonable suspicion nor consent to conduct the search. The district court
denied Henry’s motion, holding that the officers had reasonable suspicion to conduct the search.
The district court did not address the consent issue.
A jury found Henry guilty. At sentencing, the district court found that Henry was an armed
career criminal who possessed ammunition in connection with a crime of violence. Relying on
Blakely v. Washington, 542 U.S. 296 (2004), Henry objected to his sentence under the Sixth
Amendment. The district court overruled Henry’s objection and sentenced Henry to 280 months’
imprisonment, pursuant to the then-mandatory United States Sentencing Guidelines. Henry now
appeals.
II. ANALYSIS
A. Motion to Suppress
Henry argues that the district court should have granted his motion to suppress because
(1) the officers lacked reasonable suspicion to search the bag containing the ammunition and (2) he
did not consent to the search.3
1. Standard of Review
“‘When reviewing the denial of a motion to suppress, we review the district court's findings
of fact for clear error and its conclusions of law de novo.’” United States v. Oliver, 397 F.3d 369,
374 (6th Cir. 2005) (quoting United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000)). “‘A factual
finding will only be clearly erroneous when, although there may be evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.’” Id. (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.
1999)).
2. Probationary Search
The Supreme Court first addressed the constitutionality of the search of a probationer’s home
in Griffin v. Wisconsin, 483 U.S. 868 (1987). At issue in Griffin was the warrantless search of a
probationer’s apartment conducted by probation officers upon receiving information from a police
2
It was later discovered that the firearm was not real.
3
We need not address at length Henry’s third argument for suppressing the ammunition — that the search
violated the Fourth Amendment because it was not executed in accordance with state regulations. We have explained
that state law has no independent significance in determining whether the Fourth Amendment has been violated. United
States v. Wright, 16 F.3d 1429, 1437 (6th Cir.) (“[T]he appropriate inquiry for a federal court considering a motion to
suppress evidence seized by state police officers is whether the arrest, search, or seizure violated the Fourth Amendment.
The fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed
under the Federal Constitution were not offended.”), cert. denied, 512 U.S. 1243 (1994).
No. 04-6382 United States v. Henry Page 4
detective that “there were or might be guns” there. Id. at 870, 871. The search was conducted
pursuant to a Wisconsin probation regulation that permitted a probation officer to perform a
warrantless search of a probationer’s home “as long as his supervisor approves and as long as there
are ‘reasonable grounds’ to believe the presence of contraband.”4 Id. at 870-71. Accepting as given
the Wisconsin Supreme Court’s determination that the detective’s tip constituted “reasonable
grounds” under the regulation, the Court upheld the regulation because “the special needs of
Wisconsin’s probation system make the warrant requirement impracticable and justify replacement
of the standard of probable cause by ‘reasonable grounds.’” Id. at 875-76. The Court then upheld
the search itself as “‘reasonable’ within the meaning of the Fourth Amendment because it was
conducted pursuant to a valid regulation governing probationers.” Id. at 880.5
When analyzing the validity of a probationary search under the Fourth Amendment, we
follow the Court’s example by applying its “two-pronged inquiry.” United States v. Loney, 331 F.3d
516, 520 (6th Cir. 2003). “First, [we] examine whether the relevant regulation or statute pursuant
to which the search was conducted satisfies the Fourth Amendment’s reasonableness requirement.
If so, [we] then analyze whether the facts of the search itself satisfy the regulation or statute at
issue.” Id. (citations omitted).
a. The Kentucky Search Policy
Applying the two-step Griffin analysis to the instant case, the first question is whether the
Kentucky search policy that authorized the complained-of search is reasonable under the Fourth
Amendment. Pursuant to statutory authority, KY. REV. STAT. ANN. §§ 196.030, 196.035, 439.438,
439.470, the Kentucky Department of Corrections promulgated a policy “[t]o establish guidelines
for Probation and Parole Officers . . . relating to search and seizure” and other issues. J.A. at 56
(KENTUCKY CORRECTIONS POLICIES AND PROCEDURES 27-16-01 (issued May 14, 2001) [hereinafter
CORRECTIONS POLICIES], incorporated by reference in 501 KY. ADMIN. REGS. 6:020 (2003)). As
interpreted by the Kentucky Supreme Court, the policy provides that an officer may conduct a
warrantless search if he has “reasonable suspicion ‘that the performance of the search may produce
evidence to support [an alleged violation of Appellant’s parole].’” Coleman v. Commonwealth, 100
S.W.3d 745, 754 (Ky. 2002) (alteration in original).
We assessed an earlier version of this policy in United States v. Payne, 181 F.3d 781 (6th
Cir. 1999). At the time, “[u]nlike the Supreme Court in Griffin, we [were] without the benefit of a
state court’s interpretation” of the policy’s standard, so we conducted our own interpretation of the
policy. Id. at 786. Based on the policy’s definition of reasonable suspicion, we observed that the
policy “appears to adopt the federal definition of reasonable suspicion,” id., “a standard . . . at least
as demanding as the standard upheld in Griffin,” id. at 787. Therefore, we held the policy to be
reasonable under the Fourth Amendment. The policy we review today retains in substance the same
definition of reasonable suspicion we discussed in Payne, so the reasonable-suspicion aspect of the
policy remains reasonable under the Fourth Amendment.
4
The regulation also set out “a variety of factors” that an officer “should consider . . . in determining whether
‘reasonable grounds’ exist.” Griffin, 483 U.S. at 871.
5
The Court revisited the issue of warrantless searches of probationers’ residences, in the context of investigatory
rather than probationary purposes, in United States v. Knights, 534 U.S. 112 (2001). The Court upheld a search that was
supported by reasonable suspicion and authorized by a search condition that was not limited to probationary searches.
Id. at 116, 122. Because the search of Henry’s residence was conducted for a probationary purpose — to verify that he
was not violating the residency condition of his probation — we apply Griffin instead of Knights. In any event, as we
discuss below, when we apply Griffin to Kentucky’s probation search policy, we are left with the same standard
enunciated in Knights: reasonable suspicion.
No. 04-6382 United States v. Henry Page 5
We cannot simply rely on Payne to conclude that the whole policy is reasonable, however,
because another part of the policy has been modified to make its scope broader. While the policy
in Payne provided for a warrantless search “upon reasonable suspicion that the [probationer] is in
possession of contraband,”6 181 F.3d at 786, the new policy permits a warrantless search upon
reasonable suspicion that the probationer has violated any condition of probation. We upheld a
similarly broad search policy in Loney, where an Ohio statute authorized the warrantless search of
a parolee “if a supervising officer has ‘reasonable grounds’ to believe . . . that a parolee ‘is not
complying with the terms and conditions . . . of parole.’” 331 F.3d at 521 (quoting OHIO REV. CODE
ANN. § 2967.131(C)) (second omission in original). Just as the statute in Loney was not limited to
searches for contraband and instead extended to searches for any parole violation, the search policy
here permits searches for any probation violation. In light of Loney, then, the breadth of the
Kentucky search policy is reasonable.
Because Kentucky’s probationary search policy incorporates both the quantum of evidence
(i.e., reasonable suspicion) approved in Payne and the breadth (i.e., not just contraband but any
probation violation) approved in Loney, we hold that the policy is reasonable under the Fourth
Amendment.
b. The Search Itself
Having determined that the Kentucky search policy is reasonable, we turn now to the second
step of the Griffin inquiry: whether the complained-of search 7conformed with the regulations, i.e.,
whether there was reasonable suspicion to conduct the search. “Reasonable suspicion is based on
the totality of the circumstances and has been defined as requiring ‘articulable reasons’ and ‘a
particularized and objective basis for suspecting the particular person . . . of criminal activity.’”
Payne, 181 F.3d at 788 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). The
government argues that Officer Havens had reasonable suspicion that Henry did not live at his
reported residence, in violation of a probation condition. It appears that we have never squarely
determined whether a given set of facts constituted reasonable suspicion that a defendant had
violated a residency condition of his probation.8 Indeed, the question has arisen exceedingly rarely,
with only a few cases from other jurisdictions addressing the issue. In light of this dearth of
precedent, we review the facts of each of these persuasive authorities in detail.
In People v. Lampitok, 798 N.E.2d 91 (Ill. 2003), the defendant’s fiancee was subject to the
following probation condition: “[T]he [probationer] shall keep her Probation Officer advised of her
place of residence and employment at all times, advising the Probation Officer prior to any change
6
The Wisconsin regulation upheld in Griffin also was limited to searches for contraband. 483 U.S. at 870-71.
7
In Payne, we suggested a third step in the analysis. If a search is “not authorized by the regulatory scheme,”
it is “unreasonable unless it independently satisfies traditional Fourth Amendment requirements.” 181 F.3d at 787-88.
“[A]t minimum . . . a [probation] search conducted without statutory authorization [must] meet the federal standard of
reasonable suspicion.” Id. at 788. Because the Kentucky policy already requires reasonable suspicion, however, in this
case the third step collapses into the second.
8
We addressed a related issue in United States v. Carnes, 309 F.3d 950 (6th Cir. 2002), cert. denied, 537 U.S.
1240 (2003). The government argued that it had seized and listened to audio tapes discovered at the defendant-parolee’s
residence in order to establish a residency-condition violation. Id. at 960. We noted, however, that the government did
not listen to the tapes until three months later — after the parole-violation hearing. Id. at 959. We held that the tapes
should have been suppressed, because “there [was] no evidence that the officers . . . were motivated by a desire to
establish a violation of the residency requirement . . . . Rather, the government’s failure to listen to the tapes until well
after the parole hearing suggests some other motivation.” Id. at 961. Carnes is not directly on point here because we
did not consider whether there would have been adequate evidence to justify the search absent the improper motive. Nor
is there is any indication of an improper motive in the instant case.
No. 04-6382 United States v. Henry Page 6
of residence or employment.” Id. at 96. The fiancee had reported to her probation officer that she
resided in an apartment with relatives and other roommates. During a home visit to the apartment,
the fiancee’s probation officer was told by two relatives that the fiancee no longer lived there and
instead was staying with the defendant at a certain motel. Officers went to the motel, where an
employee directed them to a specific room when asked where the fiancee was staying. The
defendant was in the hotel room, and he told the probation officer that his fiancee had been staying
in the room with him. The Illinois Supreme Court held that the officers had reasonable suspicion
that the fiancee had changed residences without prior notification, in violation of her probation. Id.
at 109. The court highlighted several facts supporting a finding of reasonable suspicion: (i) the
initial information came from people who were the probationer’s relatives and roommates; (ii) the
relatives gave the specific name of the motel where the probationer was staying, (iii) the information
was corroborated by the motel clerk, and (iv) the information was corroborated by the defendant.
Id. at 108-09.
In United States v. Dally, 606 F.2d 861 (9th Cir. 1979), one defendant was subject to a parole
condition requiring him to obtain permission from his parole officer before changing his address and
promptly to notify his parole officer of an emergency move. Id. at 862. On January 30, the parole
officer was unable to find the parolee at his reported residence, so he left a message with the
parolee’s nephew asking the parolee to get in touch with him. On February 2, ATF agents saw the
parolee at the co-defendant’s apartment; he was taking out the garbage, bringing in laundry, and
talking to neighbors. On February 6, the parole officer received this information from a state special
agent, reported that the parolee had not returned his message, and asked the special agent to conduct
a parole search if the parolee had a new residence. On the morning of February 8, ATF agents saw
the parolee’s car near the co-defendant’s apartment; the car’s windows were fogged, suggesting that
the car had been there overnight. On February 9, ATF agents saw the parolee come out of the co-
defendant’s apartment in the morning; drive away in a car that had been parked overnight; return
with dry cleaning; change his clothes and leave the apartment with laundry; return again with more
dry cleaning, and use a key to open the door. The Ninth Circuit upheld the search because officers’
observations supported a “reasonable belief” that the parolee had another residence, in violation of
his parole.9 Id. at 863.
In United States v. Crew, 345 F. Supp. 2d 1264 (D. Utah 2004), the defendant was subject
to the following parole condition: “I will establish and reside at a residence of record and will not
change my residence without first obtaining permission from my parole agent.” Id. at 1264. On
December 9, the parole officer attempted to contact the defendant at his residence, but the reported
address did not exist and the reported phone number was disconnected. The next time he reported
to the parole officer, the defendant provided a new address and phone number. On January 22,
parole officers visited the defendant’s newly-reported address; when nobody answered their knock,
they left a card in the door for the defendant. On their way back to their car, they asked a woman
about the defendant, and she told them that he lived with her and her husband in a neighboring
trailer. The man who answered the door at that trailer confirmed that the defendant lived there. The
court held that these facts constituted reasonable suspicion that the defendant had violated the
residency condition. Id. at 1268.
In each case, there were articulable, particularized facts supporting the officers’ reasonable
suspicion that the defendant had violated his residency condition. First, there was evidence that the
defendant was living at some unreported address. This evidence was in the form of either the
statements of people who lived with the defendant at the unreported address, as in Lampitok and
Crew, or from officers’ observations of the defendant at the unreported address engaging in activities
9
The Ninth Circuit has since characterized Dally as invoking the reasonable suspicion standard. Moreno v.
Baca, 400 F.3d 1152, 1163 (9th Cir. 2005).
No. 04-6382 United States v. Henry Page 7
indicating that he lived there, as in Dally. In contrast, here there was absolutely no evidence that
Henry lived at some unreported address.
Second, in each case above there was evidence that the defendant was no longer living at his
reported address. This evidence was in the form of the statements of people who had lived with the
defendant at the reported address in Lampitok, the defendant’s failure to respond to a phone message
left with a relative in Dally, or the defendant not being at home during an unannounced visit after
he had already falsely reported his address and phone number on a prior occasion in Crew.
In the case at bar, the government relies on the following facts as evidence that Henry did
not live at his reported address: (1) Henry was not present during the three times that Officer
Havens visited Henry’s reported address; (2) Henry was unemployed and received SSI payments;
(3) in Officer Havens’s experience, it is common for a probationer not to live at the address he
reports to his probation officer; and (4) Henry appeared nervous when Officer Havens informed him
that two probation officers would accompany him home to verify his residence. For the reasons
discussed below, these facts and the inferences that Officer Havens drew from them are inadequate
to constitute reasonable suspicion that Henry no longer lived at his reported residence.
First, Officer Havens inferred from the fact that he received no response during his three
home visits that Henry was not home at those times. But it “is not necessarily true” that someone
is not at home when he or she does not answer the door; Henry “may have simply not answered the
door.” United States v. Sundiata, 3 F. Supp. 2d 682, 687 n.9 (E.D. Va. 1998). There are numerous
reasons why someone may not answer a knock at the door. For example, Henry might have been
sleeping, showering, or simply sitting in a room from which Officer Havens’s knocks were
inaudible. Unlike the officers in Dally and Crew, Officer Havens made no attempt to reach Henry
at his reported phone number, either before or after his home visits. Nor did Officer Havens ask a
neighbor whether Henry lived at the residence, as the officers did in Crew. Indeed, Officer Havens
made no investigation other than the home visits themselves.
Second, even though Henry was required either to maintain full-time employment or to seek
employment when unemployed, Officer Havens inferred from the fact that Henry was unemployed
and received SSI payments that he should have been at home during the day. Officer Havens
testified, however, that Henry had not yet provided verification of his SSI status, and that only upon
providing such documentation would Havens ask the state court to relieve Henry of the employment
conditions. When Henry indicated at his first meeting with Officer Havens that he was unemployed
and receiving SSI payments, Officer Havens presumably informed Henry — as any conscientious
probation officer would do — that Henry would continue to be bound by the employment
conditions. Therefore, one would reasonably expect Henry to be away from his residence during
the day either to work or to seek work. Yet Officer Havens expected Henry to be at home when
Havens visited Henry’s residence during the day. We refuse to let Officer Havens have it both ways.
Moreover, Officer Havens’s inference fails to appreciate that there are any number of reasons
— other than to work or to find work — why Henry might have been out of the house, such as to
shop for groceries, to see a doctor, or to visit with friends. Indeed, Henry could have been
attempting to comply with his probation order’s mandate to obtain a GED, J.A. at 51 (Order on
Motion for Shock Probation ¶ 7), by attending classes during the day. Officer Havens’s inference
is especially suspect in light of his testimony that the probation conditions neither limited when
Henry could leave his residence, J.A. at 86, 90 (Suppression Hr’g Tr. at 16, 20) (Havens Test.), nor
required that he be home when a probation officer planned an unannounced home visit, J.A. at 88,
90 (Suppression Hr’g Tr. at 18, 20) (Havens Test.). Indeed, the probation conditions did not even
place Henry under a curfew condition. J.A. at 52 (Conditions of Supervision ¶ II.A), 86
(Suppression Hr’g Tr. at 16) (Havens Test.). If Henry was free to leave the house at night, why
would he be less free to leave the house during the day? In light of all these possibilities, one
No. 04-6382 United States v. Henry Page 8
wonders why Officer Havens did not leave any indication that he had been trying to reach Henry,
as the officers reasonably did in Dally (by leaving a phone message with a relative) and Crew (by
leaving a card at the door).
Officer Havens’s third inference — that, based on his experience of having other
probationers lie about their residences, Henry probably was lying, too — is not suspect in and of
itself. An officer may make a reasonable suspicion determination “based on the reasonable
inferences he may draw ‘in light of his experience.’” United States v. Foster, 376 F.3d 577, 586 (6th
Cir.) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)), cert. denied, — U.S. —, 125 S. Ct. 635 (2004).
What is problematic, however, is that this experiential inference depended on the reliability of the
prior two inferences, which were faulty for the reasons discussed above.
Finally, the government offers Henry’s nervousness upon being told that two probation
officers would accompany him home to verify his residence, presumably because it bolsters all of
Officer Havens’s inferences. “[N]ervousness has been considered in finding reasonable suspicion
in conjunction with other factors.” United States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004)
(citing United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995)). Nervousness is, however, “an
unreliable indicator,” as “[m]any citizens become nervous . . . , even when they have nothing to hide
or fear.” Id. at 630-31; see also United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (“It is
certainly not uncommon for most citizens — whether innocent or guilty — to exhibit signs of
nervousness when confronted by a law enforcement officer.”). Therefore, we have repeatedly
discounted the value of nervousness in the reasonable-suspicion calculus. See, e.g., Richardson, 385
F.3d at 630-31; Joshua v. DeWitt, 341 F.3d 430, 445 (6th Cir. 2003); United States v. Smith, 263
F.3d 571, 591 (6th Cir. 2001); Mesa, 62 F.3d at 163; United States v. Grant, 920 F.2d 376, 386 (6th
Cir. 1991); United States v. Andrews, 600 F.2d 563, 566 (6th Cir.), cert. denied, 444 U.S. 878(1979). In light of the unreliability of nervousness, we have explained that while “nervous, evasive
behavior” can justify reasonable suspicion,10 Joshua, 341 F.3d at 445 (quoting Illinois v. Wardlow,
528 U.S. 119, 124 (2000)), mere “nervousness or restlessness” cannot, id. See also Mesa, 62 F.3d
at 162 (“[N]ervousness is . . . not a ground sufficient in and of itself.”). Here, although Officer
Havens testified that Henry appeared nervous, there has been no suggestion that Henry engaged in
any evasive behavior in conjunction with his nervousness. On the contrary, the government — in
support of its consent argument — points to the officers’ testimony that Henry consented to having
the officers visit his house by letting them in. This evidence elides any serious suggestion that
Henry acted evasively. Without evidence of evasive behavior, we give little, if any, weight in the
reasonable-suspicion analysis to Henry’s nervousness.
Because the government has pointed not to “articulable reasons” and “a particularized and
objective basis” that Henry violated the residency condition of his probation but instead to a chain
10
The Supreme Court said in Illinois v. Wardlow, 528 U.S. 119 (2000), that “nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion.” Id. at 124 (emphasis added). We concluded in Joshua that evasion
is a critical component of “nervous, evasive behavior” because the Wardlow Court “cited several of its decisions
involving evasive efforts to escape detection at the Mexico border and airports.” Joshua, 341 F.3d at 444 (citing United
States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or
obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984)
(“The three confederates . . . had spoken furtively to one another. One was twice overheard urging the others to ‘get out
of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion
. . . .”); United States v. Sokolow, 490 U.S. 1, 5, 8-9 (1989) (noting that “[Respondent] appeared to be very nervous and
was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to
avoid a confrontation with an angry acquaintance or with a creditor”)).
Also supporting our conclusion in Joshua is the fact that Wardlow itself involved evasion rather than mere
nervousness. See 528 U.S. at 124 (“[I]t was not merely respondent’s presence . . . that aroused the officers’ suspicion,
but his unprovoked flight upon noticing the police. . . . Headlong flight — wherever it occurs — is the consummate act
of evasion . . . .”). Furthermore, the Court used the phrase “nervous, evasive behavior” rather than “nervous or evasive
behavior.”
No. 04-6382 United States v. Henry Page 9
of tenuous inferences, we hold that the officers did not have the requisite reasonable suspicion to
conduct the search. Having failed the second step of the Griffin probationary-search analysis, the
search was unreasonable under the Fourth Amendment.
3. Consent
The government argues that even if it did not have reasonable suspicion to conduct the
challenged search, Henry consented to it by agreeing to probation conditions that included a search
provision. The Supreme Court has explicitly declined to 11 address whether a probationer consents to
suspicionless searches by agreeing to a search condition. United States 12
v. Knights, 534 U.S. 112,
118, 120 n.6 (2001). Although other circuits have addressed the issue, it remains an open question
in this circuit.13 We need not decide this thorny issue today, however, because even if Henry could
consent to searches by agreeing to his search condition, the complained-of search was not
encompassed by the condition and therefore would not have been included in the consent. The
provision in Henry’s probation order permitted searches when Henry’s probation officer “ha[d]
reason to believe” that Henry had “illegal drugs, alcohol, volatile substance, or other contraband on
[his] person or property,” J.A. at 52 (Conditions of Supervision ¶ V.A). Henry’s putative consent
would therefore extend only to contraband searches. Officers Havens and McClish testified,
however, that they had no reason to believe that Henry possessed such items, establishing that the
instant search was not a contraband search and therefore was beyond Henry’s theoretical consent.
Moreover, no other condition provided for14searches upon belief of a suspected residency violation,
the claimed reason for the instant search. Because the search was not conducted for the limited
reason set out in the search condition, and no other condition provided for searches pursuant to the
government’s asserted reason for the search (i.e., a suspected residency violation), Henry did not
consent to the search by agreeing to the conditions of his probation — even if such consent were
possible.
The government argues in the alternative that even if Henry did not give a blanket consent
by agreeing to his probation conditions, he specifically consented to the instant search itself via his
11
The Court instead considered the condition to be “a salient circumstance” in determining whether the
reasonable-suspicion-based investigatory search of a probationer’s residence was reasonable. Knights, 534 U.S. at 118.
12
The diversity of approaches reflects the difficulty of the issue. The Seventh Circuit has held that a
probationer’s agreement to terms of probation that include a broad search condition constitutes effective consent. United
States v. Barnett, 415 F.3d 690, 691-92 (7th Cir. 2005). A panel of the Ninth Circuit reached the opposite conclusion
with respect to parolees, United States v. Crawford, 323 F.3d 700, 717-19 (9th Cir. 2003), but the en banc court vacated
the decision and declined to reach the issue, United States v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004), cert.
denied, — U.S. —, 125 S. Ct. 863 (2005). In a pre-Knights case, the First Circuit did not reach the consent issue but
“observe[d] . . . that a question of coercion would arise as to any contention that ‘agreement’ to a probation search
condition constitutes a general consent to search.” United States v. Giannetta, 909 F.2d 571, 576 n.4 (1st Cir. 1990).
Finally, although it did not expressly rely on a consent theory, the Second Circuit has held that a home visit of a federal
supervised releasee is not subject to a reasonable-suspicion requirement because of the combination of the releasee’s
awareness of a broad home-visit condition and the less intrusive nature of a home visit relative to a full search. United
States v. Reyes, 283 F.3d 446, 462 (2d Cir. 2002).
13
This court has addressed the issue only by unpublished opinion. See United States v. Downs, No. 96-3862,
1999 WL 130786, at *2, *4 (6th Cir. Jan. 19, 1999) (unpublished opinion) (holding a probationer’s agreement to “search
without warrant of my person, my motor vehicle, or my place of residence by a probation/parole officer at any time” to
constitute a valid Fourth Amendment waiver).
14
It is the state corrections policies and procedures manual — not the probation conditions — that provides for
searches not just for contraband possession but also for other probation violations, which presumably would include a
residency violation. See J.A. at 57-58 (CORRECTIONS POLICIES 27-16-01 ¶ VI.(1)). There is no evidence, however, that
Henry agreed to or even saw this manual.
No. 04-6382 United States v. Henry Page 10
words and conduct. Officer McClish testified that Henry did not expressly consent to a search of
the bag, so the government’s logic is that Henry consented to the search by consenting to the home
visit. The government cites as support for the purported verbal consent Officer McClish’s testimony
that “[w]e did consent with him beforehand.” J.A. at 107 (Suppression Hr’g Tr. at 39) (McClish
Test.). As evidence that Henry consented to the search through his conduct, both officers testified
that he let the officers into the residence. Because it upheld the search on the basis of reasonable
suspicion, the district court did not reach the consent issue. We need not remand the case, however,
because even if we take as true the government’s factual allegations that Henry consented to a home
visit,15 as a matter of law the scope of Henry’s consent did not include the search of his bag.16 See
United States v. Jenkins, 92 F.3d 430, 436-38 (6th Cir. 1996) (declining to remand to the district
court and instead holding that even if the defendant’s allegations were taken as true, the consent was
valid), cert. denied, 520 U.S. 1170 (1997).
“When law enforcement officers rely upon consent as the basis for a warrantless search, the
scope of the consent given determines the permissible scope of the search.” United States v.
Garrido-Santana, 360 F.3d 565, 575 (6th Cir.), cert. denied, — U.S. —, 124 S. Ct. 2926 (2004).
“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that
of ‘objective’ reasonableness — what would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). “The
scope of a search is generally defined by its expressed object.” Id. In Jimeno, where the defendant
gave the officer permission to search his car, the officer had told the defendant that he would be
looking for drugs. Because “[a] reasonable person may be expected to know that narcotics are
generally carried in some form of a container,” the Court concluded that “it was objectively
reasonable for the police to conclude that the general consent to search respondents’ car included
consent to search containers within that car which might bear drugs.”17 Id. Based on the expressed-
object analysis, one might expect that because Officer McClish was looking for, among other things,
Henry’s personal belongings, it was objectively reasonable to conclude that Henry’s consent
extended to the bag.
There are, however, two important reasons not to hew blindly to the expressed-object
approach in this setting. First, in a search for evidence that a probationer genuinely lives at his
reported address, there is no identifiable “expressed object.” This problem is demonstrated amply
by the instant case. Officer McClish testified that she was looking for “[a]nything” to indicate that
Henry lived at his reported residence. J.A. at 101 (Suppression Hr’g Tr. at 33) (McClish Test.). She
15
Therefore, we need not consider the contradictions and holes in the officers’ testimony, such as Officer
Tally’s testimony that Henry did not give verbal consent and the officers’ failure to recall a fact as basic as whether
Henry had a key to the house.
16
Nor can the government complain that we must remand in order to permit it to put forth more facts on the
consent issue. In his motion to suppress, Henry argued that the search was nonconsensual, J.A. at 28 (Mot. and Mem.
to Suppress ¶ 4), and both parties elicited testimony relevant to the consent issue at the suppression hearing. “When,
as here, it is alleged that the defendant consented to the search, ‘[i]t is the Government’s burden, by a preponderance
of the evidence, to show through ‘clear and positive testimony’ that valid consent was obtained.” United States v.
Haynes, 301 F.3d 669, 679 (6th Cir. 2002) (alteration in original) (quoting United States v. Riascos-Suarez, 73 F.3d 616,
625 (6th Cir.1996)).
17
We have applied the expressed-object principle to hold that consent to search a vehicle for contraband like
drugs or stolen goods encompasses the vehicle’s gas tank. Garrido-Santana, 360 F.3d at 576. We also have held that
consent to search a bag extends to closed containers in the bag, even when the searching officer does not express the
object of the search. United States v. Gant, 112 F.3d 239, 243 (6th Cir. 1997). This seeming inconsistency can be
resolved, however, based on our observation that “the luggage of a typical traveler is likely to include numerous
containers.” Id. Presumably, then, it is objectively reasonable for a traveler to be aware that the object of a search is
as likely to be in a container as it is loose in the bag.
No. 04-6382 United States v. Henry Page 11
listed clothes, photographs, and deodorant as examples but also noted that his bedroom did not have
a bed in it. The great variety in size, shape, and typical location of just these four items illustrates
the far-reaching search that would be authorized if we were to peg the scope of consent simply to
the object of the search. Every time a probationer permitted an officer to enter his home in
connection with a search for proof that he lived there, he would be subjecting to search every space,
paper, and container in his home. We think it plain that no reasonable person would understand a
probationer’s consent to extend so far simply by letting officers visit his home to look for signs of
residence. The fact that the expressed-object analysis seemingly mandates this absurd result
demonstrates its diminished utility in this setting. Therefore, where the expressed-object approach
collides with the reasonable-person approach, the better course is to maintain fidelity to the Court’s
more general principle of reasonableness, which is “[t]he touchstone of the Fourth Amendment” and
is the overall standard by which the scope of consent is measured. Jimeno, 500 U.S. at 250-51.
Second, the expressed-object inquiry ignores the relevance of probation conditions and
regulations in this context. The Court has explained that probation conditions and regulations are
“salient circumstance[s]” to the reasonableness of suspicion-based probationary searches. Knights,
534 U.S. at 118; see also Griffin, 483 U.S. at 880 (“The search . . . was ‘reasonable’ . . . because it
was conducted pursuant to a valid regulation.”). We see no reason why these provisions would be
relevant to the reasonableness of suspicion-based probationary searches but not to the
reasonableness of consent-based probationary searches. Therefore, we look to the probation
conditions and regulations to inform what a typical reasonable person would have understood by
Henry’s consent to a home visit.
Henry’s probation conditions included two provisions governing officer conduct at his
residence: the search condition and the visit condition. The search condition provided that Henry
might be subject to search and seizure if his probation officer had reason to believe that he had
“illegal drugs, alcohol, volatile substance, or other contraband” on his person or property. J.A. at
52 (Conditions of Supervision ¶ V.A). The visit condition provided that Henry had to permit his
probation officer to visit his residence at any time but made no provision for search or seizure. J.A.
at 53 (Conditions of Supervision ¶ VI.A). A reasonable person would evaluate the scope of a
probationer’s consent in light of these two conditions. If a probationer consented to officers entering
his residence to look for contraband, a reasonable person would view the consent to encompass that
which the search condition authorizes: a full search of his person and residence. In contrast, if a
probationer consented to officers entering his residence simply to verify his address (a purpose
which is decidedly not within the scope of the search condition), a reasonable person would not view
the consent to extend to a full search of his person and residence because the visit condition does
not give authority to search. Also relevant is the fact that the visit condition requires the probationer
to submit to visits not just of his home but of his place of employment, too. It is inconceivable that
a probationer’s consent to an employment visit would extend to a full search of his place of
employment; because the visit condition draws no distinction between home visits and employment
visits, a reasonable person would expect the same limits on officer conduct to apply to home visits
as well.
The probation regulations (as distinct from the conditions) also reflect a significant
difference between searches and home visits. There is no mention of home visits in the search
policy. See CORRECTIONS POLICIES 27-16-01. This absence is a telling indication that the
Department of Corrections itself does not view home visits and searches as the same type of officer-
probationer interaction. This reasoning is further supported by the “Supervision: Case
Classification” policy, which sets out the types and number of contacts a probation officer must have
with a probationer under his supervision. CORRECTIONS POLICIES 27-12-01. These requirements
vary depending on the probationer’s “supervision classification.” Home visits are mandated for
some levels of supervision. Id. ¶ VI.A.1-2. The other types of contacts required within these same
classifications are “[p]ersonal [c]ontacts in the office,” “[r]ecord [c]heck[s],” and “monthly
No. 04-6382 United States v. Henry Page 12
verification of employment.”18 Id. Each of these contacts represents a minimal invasion of the
probationer’s privacy. The inclusion of home visits (and the notable absence of searches) in this
category of contacts strongly suggests that home visits, too, are meant to be minimally invasive.
In sum, taking the government’s factual allegations as true, Henry consented not to a
contraband search but to a home visit to verify his address. In light of the probation conditions and
regulations reviewed above, it is clear that consent to a home visit does not encompass consent to
a full search. Officer McClish exceeded Henry’s consent by conducting a full search,19 so the
government has failed to carry its burden that the search was consensual.
Because the instant search was authorized by neither reasonable suspicion nor consent, the
district court should have granted Henry’s motion to suppress.
B. Constitutionality of § 922(g)(1)
Section 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court
of[] a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in
interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped or transported in interstate or
foreign commerce.” Henry appears to argue that in light of our recent decision in Waucaush v.
United States, 380 F.3d 251 (6th Cir. 2004), the statute is unconstitutional as applied to him because
the prosecution failed to show that Henry’s possession of the ammunition had a substantial effect
on interstate commerce.
1. Failure to Raise Below
Henry did not raise his challenge to § 922(g)(1) below. “It is the general rule . . . that a
federal appellate court does not consider an issue not passed upon below.” Pinney Dock & Transp.
Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.) (quoting Singleton v. Wulff, 428 U.S. 106,
120 (1976)), cert. denied, 488 U.S. 880 (1988). A court of appeals has discretion, however, to
address issues not raised in the district court in “exceptional cases or particular circumstances” or
when declining to do so would create “a plain miscarriage of justice.” Id. (quoting Hormel v.
Helvering, 312 U.S. 552, 557, 558 (1941)).
In United States v. Chesney, 86 F.3d 564 (6th Cir. 1996), cert. denied, 520 U.S. 1282 (1997),
we exercised our Pinney Dock discretion to rule on the constitutionality of § 922(g)(1). Id. at 567-
68. In Chesney, we found “exceptional circumstances” in the fact that the appellant’s argument was
unavailable below because the Supreme Court decided United States v. Lopez, 514 U.S. 549 (1995),
only after the district court had entered judgment. Chesney, 86 F.3d at 568. Consideration of the
issue was further justified by the fact that the issue was purely a legal question that the parties had
fully briefed. Id. (citing United States v. Real Property Known & Numbered as 429 South Main
Street, New Lexington, Ohio, 52 F.3d 1416, 1419 (6th Cir. 1995)). We used similar reasoning to
exercise our discretion to address a Lopez-based challenge to another federal criminal statute. See
United States v. Tucker, 90 F.3d 1135, 1139 (6th Cir. 1996) (addressing and ultimately denying a
Lopez-based challenge to 21 U.S.C. § 860(a)).
18
“Personal contacts” simply means “face to face contact between the [o]fficer and the offender.”
CORRECTIONS POLICIES 27-12-01 ¶ IV.3. A “record check” is “a local record check which may be completed at the
clerk’s office by reviewing printouts provided by local jails or court systems and using the administrative office of the
courts automated system.” Id. ¶ IV.4. Verification of employment is not defined.
19
There is no question that searching a bag is a full search and therefore exceeds the scope of consent, so we
need not decide today exactly what officer conduct would fall within the scope of consent to a home visit.
No. 04-6382 United States v. Henry Page 13
Application of these factors shows that there are exceptional circumstances here. Henry
bases his argument on Waucaush, a case decided by this court after the district court entered
judgment, such that the argument was unavailable below. Furthermore, the issue is — as it was in
Chesney — purely a legal question that both parties have fully briefed. Therefore, we choose 20 to
exercise our discretion to decide whether the conviction was constitutional in light of Waucaush.
2. Merits
In Waucaush, the defendant and his fellow gang members murdered, conspired to murder,
and assaulted, with intent to murder, members of rival gangs. 380 F.3d at 253. The defendant was
convicted under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(c), which forbids “any person employed by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.”
Waucaush, 380 F.3d at 253. We held that “where the enterprise itself did not engage in economic
activity” — as was true with this gang, which only engaged in “violence qua violence” — the
prosecution had to show a substantial effect on interstate commerce. Id. at 256. The government
failed to make such a showing, leaving “an enterprise whose activity was intrastate, noneconomic,
and without substantial effects on interstate commerce.” Id. at 258.
We explicitly held post-Lopez that a § 922(g)(1) conviction comports with the Commerce
Clause so long as the defendant “possessed a gun that previously had moved in interstate
commerce.” Chesney, 86 F.3d at 572. Henry argues that after Waucaush, this showing no longer
satisfies the Commerce Clause. Such a reversal of course from Chesney would constitute a radical
and unjustified departure from the precedents of the Supreme Court, this court, and our sister
circuits. First, Chesney relied heavily on the Supreme Court’s interpretation of the predecessor to
§ 922(g)(1). Id. at 571 (“The Supreme Court has held that proof that a firearm moved in interstate
commerce at any time is sufficient to meet the government’s burden of proving the ‘in commerce
or affecting commerce’ element of § 1202(a), the predecessor to § 922(g)(1).” (citing Scarborough
v. United States, 431 U.S. 563, 566-67 (1977)); see also id. (discussing the Supreme Court’s
interpretation of § 1202(a) in United States v. Bass, 404 U.S. 336, 339 n.4 (1971)). Second, in cases
decided both before and after Waucaush, we reaffirmed Chesney while rejecting as-applied
challenges to § 922(g)(1). See United States v. Sawyers, 409 F.3d 732, 735-36 (6th Cir. 2005);
United States v. Murphy, 107 F.3d 1199, 1211-12 (6th Cir. 1997). Third, every other circuit to have
addressed the issue has held, consistently with Chesney, that the Commerce Clause requires no proof
other than that the firearm or ammunition traveled in interstate commerce.21 See United States v.
Wilkerson, 411 F.3d 1, 9-10 (1st Cir. 2005) (reaffirming the First Circuit’s case law upholding
§ 922(g)(1) and citing cases from the Second, Fourth, and Fifth Circuits); United States v. Dorris,
20
We do not read Henry’s brief to also argue that § 922(g)(1) is unconstitutional on its face. In any event, we
would decline to exercise our discretion to address such a challenge because Henry had ample opportunity to raise the
argument below: in contrast to the as-applied issue, Henry points to no case decided subsequent to his conviction that
has arguably disturbed our numerous precedents rejecting facial challenges to § 922(g)(1). United States v. Sawyers,
409 F.3d 732, 735-36 (6th Cir. 2005); United States v. Thompson, 361 F.3d 918, 922-23 (6th Cir.), cert. denied, — U.S.
—, 125 S. Ct. 223 (2004); Loney, 331 F.3d at 524; Carnes, 309 F.3d at 954; United States v. Murphy, 107 F.3d 1199,
1210-12 (6th Cir. 1997); United States v. Sanders, 97 F.3d 856, 862 (6th Cir. 1996), cert. denied, 519 U.S. 1132 (1997);
United States v. Murphy, 96 F.3d 846, 847-48 (6th Cir. 1996); Chesney, 86 F.3d at 568-70; United States v. Turner, 77
F.3d 887, 888-89 (6th Cir. 1996); see also Thompson, 361 F.3d at 922 (citing United States v. Williams, 128 F.3d 1128,
1133-34 (7th Cir. 1997) (citing decisions rejecting facial challenges to § 922(g)(1) from all regional courts of appeals
other than the District of Columbia Circuit)); Chesney, 86 F.3d at 568 (citing decisions rejecting facial challenges to
§ 922(g)(1) from all regional courts of appeals other than the Fifth and District of Columbia Circuits).
21
It appears that only the District of Columbia Circuit has not addressed the as-applied constitutionality of
§ 922(g)(1).
No. 04-6382 United States v. Henry Page 14
236 F.3d 582, 586 & n.1 (10th Cir. 2000) (reaffirming the Tenth Circuit’s case law upholding
§ 922(g)(1) and citing cases from the Second, Third, Sixth, Seventh, Eighth, Ninth, and Eleventh
Circuits), cert. denied, 532 U.S. 986 (2001). Fourth, to the extent that Waucaush and Chesney
conflict, we would remain bound by Chesney because it was decided first. See Salmi v. Sec’y of
Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6TH CIR. R. 206. Finally, Waucaush
does not discuss or even cite § 922(g)(1) or Chesney, suggesting that the panel had no intention of
making its holding applicable to the felon-in-possession statute.
Henry concedes that the government satisfied § 922(g)(1)’s jurisdictional element as
interpreted by Chesney. Therefore, Henry’s conviction under § 922(g)(1) was constitutional.
III. CONCLUSION
For the reasons set forth above, we REVERSE the district court’s denial of Henry’s motion
to suppress, VACATE Henry’s conviction and sentence, and REMAND the case for further
proceedings consistent with this opinion.