United States v. Hagenow, Jeremy D. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4175
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY D. HAGENOW,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 CR 134—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED JUNE 3, 2005—DECIDED AUGUST 31, 2005
____________
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Jeremy Hagenow filed a motion
to suppress evidence, including several firearms, seized
during a search of his home. The district court ruled that in
light of the Supreme Court’s decision in United States v.
Knights, 534 U.S. 112 (2001), officers needed
only reasonable suspicion that Hagenow was engaged in
criminal activity in order to conduct the search because he
had signed a waiver of his search and seizure rights while
on probation. Finding that reasonable suspicion existed in
this case, the district court denied the motion to suppress,
and a jury subsequently convicted Hagenow of being a felon
in possession of a firearm. He appeals his conviction and
sentence. Because the district court correctly denied
2 No. 04-4175
Hagenow’s motion to suppress, we affirm his conviction.
However, we remand to the district court for resentencing
as the court improperly considered an affidavit when
determining the nature of Hagenow’s prior conviction for
criminal confinement. In addition, Hagenow should not
have received a criminal history point for his prior convic-
tion for possessing a police scanner.
I. BACKGROUND
As part of his sentence for an August 2000 criminal
confinement conviction, an Indiana state court placed
Jeremy Hagenow on probation. When he was placed on
probation, Hagenow signed a document that read in part:
“You shall waive any and all rights as to search and seizure
during your period of probation, and submit to search of
your person or property by any police officer if a search is
requested by a probation officer of this court.” His condi-
tions of probation also included a prohibition on owning or
possessing firearms and dangerous weapons.
In July 2003, while still on probation, Hagneow was
charged with illegally shooting a deer with a shotgun. After
learning of this charge, Robert Schuster, Hagenow’s
probation officer, asked Hagenow to submit to a lie detector
test. The examiner reported to Schuster that Hagenow was
deceptive in responding “no” when asked if he had shot a
deer with a shotgun. As a result, the local prosecutor’s office
requested an investigation as to whether Hagenow, a felon
on probation, possessed a shotgun, and law enforcement
officials contacted a confidential informant who knew
Hagenow and had provided information in the past that led
to the conviction of other defendants.
The confidential informant told LaPorte County Officer
Joseph Morrison that while outside Hagenow’s home in
early July of 2003, he saw a handgun in Hagenow’s posses-
sion, which Hagenow stated was a .357 revolver. The same
No. 04-4175 3
confidential informant also told Morrison that in late July
or early August of 2003, he was again at Hagenow’s home
when he saw him get out of a pickup truck carrying a long
gun case. Hagenow told the informant that the case con-
tained a shotgun that he had used earlier that day at his
father’s residence. The informant also told Morrison that on
August 19, 2003, the informant was inside Hagenow’s home
when Hagenow showed him a 12 gauge shotgun. In addi-
tion, when the informant inquired about the revolver he
had seen on a previous visit, Hagenow replied that he still
had it.
Two days later, Officer Morrison testified to these facts at
a state court hearing in conjunction with an application for
a search warrant for Hagenow’s home. The court found
probable cause and issued a search warrant authorizing the
search of Hagenow’s residence for “(1) a 12 Gauge Shotgun;
(2) a .357 Caliber Revolver; (3) any and all evidence rele-
vant to the commission of a crime.” On August 22, 2003,
Officer Morrison, accompanied by Probation Officer
Schuster and other officers, executed the warrant. Officers
found a rifle and ammunition inside Hagenow’s home. After
Hagenow gave the officers the keys to his vehicles, the
officers also found a handgun and ammunition parts in each
of two trucks parked in the driveway. The searches did not
produce a .357 handgun or 12 gauge shotgun.
Hagenow was charged with unlawfully possessing
firearms and ammunition. The district court denied
Hagenow’s motion to suppress the firearms and ammuni-
tion. A jury convicted Hagenow of possessing ammunition,
the rifle found in the spare bedroom, and one of the hand-
guns found in one of the trucks. Using the 2004 version of
the United States Sentencing Guidelines, the district court
sentenced Hagenow to 57 months’ imprisonment. Hagenow
now appeals.
4 No. 04-4175
II. ANALYSIS
A. Motion to Suppress
Hagenow first contends the district court erred when it
denied his motion to suppress firearms and ammunition
seized during the search of his home and vehicle. In our
review of a district court’s denial of a motion to suppress,
we review de novo all questions of law, including the
existence of reasonable suspicion to believe that a crime has
been committed. United States v. Johnson, 383 F.3d 538,
542 (7th Cir. 2004). We review findings of fact for clear
error. United States v. Banks, 405 F.3d 559, 570 (7th Cir.
2005).
Hagenow argues that the state court improperly issued
the search warrant because it was based on unreliable,
stale information. In addition, he maintains, a warrant was
necessary because probation officers should not be permit-
ted to conduct a warrantless search of a probationer’s
property absent a valid regulatory scheme. The govern-
ment, in contrast, contends that under United States v.
Knights, 534 U.S. 112 (2001), if the officers had reasonable
suspicion that Hagenow was engaged in unlawful activity,
a warrantless search of his residence was authorized. In
addition, the government maintains, the officers had
reasonable suspicion here. We agree with the government
that the search was proper.
The Supreme Court’s decision in Knights forecloses
Hagenow’s argument that any possible infirmities in the
search warrant rendered the search improper. The proba-
tioner in Knights had agreed in writing that while on
probation, he would submit his “person, property, place of
residence, vehicle, personal effects, to search at anytime,
with or without a search warrant, warrant of arrest or
reasonable cause by any probation officer or law enforce-
ment officer.” Knights, 534 U.S. at 114. Reasoning that the
probation condition to which the probationer had agreed
No. 04-4175 5
“significantly diminished” his reasonable expectation of
privacy, the Court held that “no more than reasonable
suspicion” was necessary to search the probationer’s home.
Id. at 121. Further, the Court made clear, when an officer
has reasonable suspicion that a probationer subject to a
search condition is engaged in criminal activity, a war-
rant is not necessary. Id. at 122.
Like the probationer in Knights, Hagenow signed a
specific waiver of rights regarding searches during proba-
tion, agreeing to “waive any and all rights as to search and
seizure” while on probation and to “submit to search of [his]
person or property by any police officer if a search is
requested by a probation officer.” Knights made clear that
the officers needed no more than reasonable suspicion to
justify the search of his home while he was on probation.
“Reasonable suspicion amounts to something less than
probable cause but more than a hunch,” United States v.
Baskin, 401 F.3d 788, 791 (7th Cir. 2005), and exists when
there is some “ ‘objective manifestation’ that a person is, or
is about to be, engaged in prohibited activity.” Knox v.
Smith, 342 F.3d 651, 659 (7th Cir. 2003). Ultimately, a
court’s determination of reasonable suspicion “must be
based on common-sense judgments and inferences about
human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125
(2000).
Here, both federal law and the conditions of Hagenow’s
probation prohibited him from possessing firearms. A
confidential informant who had provided reliable informa-
tion to law enforcement officials in the past reported that on
three occasions in the two months before the search, the
informant was at Hagenow’s home when Hagenow showed
him firearms. One of these instances, when Hagenow
showed the informant a 12 gauge shotgun, occurred only
three days before the August 22, 2003 search. Hagenow also
told the informant that day that he still possessed a
6 No. 04-4175
revolver. In addition, the probation officer knew that
Hagenow had recently failed a lie detector test after he was
charged with shooting a deer with a shotgun. Under these
circumstances, we agree with the district court and the
government that there was reasonable suspicion that
Hagenow unlawfully possessed firearms at his residence,
thereby justifying the search of his home.
Moreover, we recently addressed a question left open by
Knights—whether a waiver like the one Hagenow signed
“so diminished, or completely eliminated, [a probation-
er’s] reasonable expectation of privacy (or constituted
consent) that a search by a law enforcement officer without
any individualized suspicion would have satisfied the
reasonableness requirement of the Fourth Amendment.”
Knights, 534 U.S. at 120 n.6. In United States v. Barnett,
415 F.3d 690 (7th Cir. 2005), we considered an agreement
by a probationer to “submit to searches of [his] person,
residence, papers, automobile and/or effects at any time
such requests are made by the Probation Officer, and
consent to the use of anything seized as evidence in Court
proceedings.” 415 F.3d at 691. We held that this blanket
waiver of Fourth Amendment rights as a condition of
probation—a waiver similar to that signed by
Hagenow—was enforceable, and that the existence of such
a waiver alone justified the search of the probationer’s
home. Id. at 691-92.
Finally, the waiver Hagenow signed as a condition of his
probation forecloses his attempt to suppress the evidence
recovered during the search of his home, and the Griffin v.
Wisconsin, 483 U.S. 868 (1987), “special needs” doctrine
does not apply here. In Griffin, the Supreme Court upheld
the warrantless search of a probationer’s residence con-
ducted pursuant to a Wisconsin regulation permitting any
probation officer to search a probationer’s home as long as
there were “reasonable grounds” to believe there was
contraband inside. Id. at 876. The Court held that a state’s
No. 04-4175 7
operation of its probation system presented a “special need”
for the exercise of supervision to assure that probation
restrictions were observed. Id.Relying on Griffin, Hagenow argues that a probation
officer cannot conduct a warrantless search of a proba-
tioner’s property absent a valid regulatory scheme, and that
no “special need” exists here. This argument is unsound.
The Knights Court explicitly rejected as “dubious logic” the
argument that a warrantless search of a probationer’s home
satisfies the Fourth Amendment only if it is a “special
needs” search, stating that it runs contrary to Griffin’s
express statement that its “special needs” holding made it
“unnecessary to consider whether” warrantless searches of
probationers were otherwise reasonable under the Fourth
Amendment. Knights, 534 U.S. at 117-18 (citing Griffin, 483
U.S. at 878). Because Hagenow signed a waiver agreeing to
submit to searches while on probation, this case falls under
Knights and its progeny, not Griffin, and the “special needs”
test does not apply.
B. “Crime of Violence” Enhancement
Hagenow also takes issue with the sentence he received,
a sentence imposed before the Supreme Court’s decision
in United States v. Booker, 125 S. Ct. 738 (2005). Hagenow
first contests the district court’s determination that his
prior conviction for criminal confinement in Indiana state
court constitutes a “crime of violence” under U.S.S.G.
§ 2K2.1(a)(4)(A). This determination increased Hagenow’s
offense level from level 12 to level 20, thereby increasing his
sentence. See U.S.S.G. § 2K2.1(a)(4)(A) (setting base offense
level at 20 if “the defendant committed any part of the
instant offense subsequent to sustaining one felony convic-
tion of either a crime of violence or a controlled substance
offense” and no other provision applies to establish higher
base offense level).
8 No. 04-4175
Citing Booker, Hagenow contends that his Sixth Amend-
ment right to a trial by jury was violated when a judge
rather than a jury determined that his prior conviction
constituted a “crime of violence.” We rejected this challenge
in United States v. Lewis, 405 F.3d 511, 513 (7th Cir. 2005),
pointing to the Supreme Court’s exclusion of prior convic-
tions in Booker: “ ‘Any fact (other than a prior conviction)
which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant
or proved to the jury beyond a reasonable doubt.’ ” Lewis,
405 F.3d at 513 (emphasis in Lewis) (citing Booker, 125 S.
Ct. at 756).
However, we also recognized in Lewis that the district
court in that case made a non-constitutional error when
it evaluated whether the defendant’s prior conviction
constituted a “crime of violence” for the purposes of
U.S.S.G. § 2K2.1(a)(4). Lewis, 405 F.3d at 513. The Guide-
lines define “crime of violence” in this instance to include
any offense punishable by more than one year of imprison-
ment that “involves conduct that presents a serious poten-
tial risk of physical injury to another” or that has as an
element “the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. §
2K2.1(a)(4), cmt. n.1; U.S.S.G § 4B1.2.
A conviction for criminal confinement under Indiana law
is not necessarily a conviction for a “crime of violence.”
Indiana Code § 35-42-3-3 (2004) provides that
(a) A person who knowingly or intentionally:
(1) confines another person without the
other person’s consent; or
(2) removes another person, by fraud, en-
ticement, force, or threat of force, from one
(1) place to another; . . .
commits criminal confinement.
No. 04-4175 9
Criminal confinement does not contain the use, attempted
use, or threatened use of physical force as a requisite
element. In addition, criminal confinement under Indiana
law does not necessarily involve conduct that presents a
“serious potential risk of injury to another.” One could, for
example, confine another person without consent in a
manner that, although unpleasant, does not present “a
serious potential risk of physical injury” to the other.
Therefore, the district court had to look beyond the simple
fact of conviction to determine whether Hagenow’s prior
conviction constituted a “crime of violence.” Shepard v.
United States, 125 S. Ct. 1254 (2005) and Taylor v. United
States, 495 U.S. 575, 600-02 (1990) hold that in such a
situation, a judge is “ ‘generally limited to examining the
statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented.’ ” Shepard, 125 S. Ct. at 1257 (opinion of the
court); see Lewis, 405 F.3d at 514-15. We explained in
Lewis, which like here involved a district court’s evaluation
of a prior conviction under Indiana law, that “[a]ffidavits
attached to an information as part of Indiana practice are
not part of the ‘charging document’ for this purpose.” Lewis,
405 F.3d at 514-15. The documents listed in Shepard, we
noted, are designed to help identify the crime that was
committed, while affidavits shed light on how a defendant
committed a crime. Id. at 515. An affidavit’s content might
impact where in the sentencing range a district court
chooses to sentence a defendant, a result that would
“misconceive the nature of a recidivist enhancement”, as
“[w]hat matters is the fact of conviction, rather than the
facts behind the conviction.” Id. Because the district court
judge in Lewis had examined the affidavit in determining
whether the prior conviction constituted a “crime of vio-
lence,” we remanded the case for resentencing. Id.Here, the district court judge, acting without the bene-
10 No. 04-4175
fit of the Shepard or Lewis decisions, stated that he looked
to the information and affidavit in support of probable
cause in Hagenow’s prior felony case in order to determine
the nature of his criminal confinement conviction.1 He then
concluded that the prior conviction constituted a crime
of violence. As the government acknowledges, we know after
Lewis that examination of the affidavit was improper. We
therefore vacate Hagenow’s sentence and remand for
resentencing in accordance with Shepard and Lewis.
C. Computation of Criminal History
We also agree with Hagenow that when he is resentenced,
he should not receive a criminal history point for his prior
misdemeanor conviction for possession of a police scanner,
a class B misdemeanor under Indiana state law. The
Sentencing Guidelines provide that when computing a
defendant’s criminal history, sentences for misdemeanor
and petty offenses generally are counted, U.S.S.G. §
4A1.2(c), except as provided in U.S.S.G. §§ 4A1.2(c)(1) and
4A1.2(c)(2). Section 4A1.2(c)(1) states that fifteen enumer-
ated offenses and “offenses similar to them,” are counted
only if: “(A) the sentence was a term of probation of at least
one year or a term of imprisonment of at least thirty days”
(a provision the parties agree does not apply), or “(B) the
prior offense was similar to an instant offense.” In addition,
U.S.S.G. §4A1.2(c)(2) provides that the offenses it enumer-
ates (hitchhiking, juvenile status offenses and truancy,
loitering, minor traffic infractions (e.g., speeding), public
intoxication, and vagrancy), as well as “offenses similar to
them,” are never counted in computing a defendant’s
criminal history.
1
The record in this appeal contains neither the information nor
the affidavit from Hagenow’s criminal confinement case.
No. 04-4175 11
Indiana Code § 35-44-3-12 provides that, with certain
exceptions, an individual who knowingly or intentionally
possesses a police radio commits the crime of unlawful
use of a police radio. Because possession of a police scanner
is not listed in the offenses contained in § 4A1.2(c),
Hagenow’s prior conviction must be counted in determining
his criminal history unless it is “similar to” one of the
enumerated offenses.
Although Indiana state law defines Hagenow’s offense for
possession of a police scanner, whether the offense is
similar to an offense listed in § 4A1.2(c) is a matter of
federal law. See United States v. Roy, 126 F.3d 953, 954 (7th
Cir. 1997) (citation omitted). We have not adopted a formal
test for determining whether an offense is “similar to” an
enumerated offense. Id.; United States v. Binford, 108 F.3d
723, 726 (7th Cir. 1997). Instead, we have employed a
“common sense” comparison. Roy, 126 F.3d at 954; see also
United States v. Harris, 325 F.3d 865, 872 (7th Cir. 2003)
(noting that comparing punishments imposed, perceived
seriousness of the offense, elements of the offense, level of
culpability, and indication of recurring conduct can be
helpful in comparison). Our goal in this inquiry is to
determine whether the prior conviction is “categorically
more serious” than the listed offenses. Harris, 325 F.3d at872 (citing United States v. Booker, 71 F.3d 685, 689 (7th
Cir. 1995)) (quoting United States v. Caputo, 978 F.2d 972,
977 (7th Cir. 1992)). No published federal court decision has
yet addressed whether possession of a police scanner is
similar to one of the enumerated offenses.
Common sense tells us that the crime of possessing a
police scanner under Indiana law is similar to offenses
listed in § 4A1.2(c)(2). The United States Sentencing
Commission did not attempt to survey every misde-
meanor and petty offense in every state when it listed
offenses in this section, nor did it purport to. Rather, the
Commission promulgated guidelines stating that the
12 No. 04-4175
listed offenses and those “similar to” them were to be
excluded from the criminal history computation, so long
as, in the case of § 4A1.2(c)(2), the sentence did not exceed
certain thresholds. The government’s explanation of why a
police scanner should be counted in determining a defen-
dant’s criminal history—“possessing a police scanner is a
way for individuals engaged in criminal conduct to avoid
being apprehended”—sounds remarkably like a description
for hindering police or resisting arrest. See, e.g., Ind. Code
§ 35-44-3-3(a)(2) (stating that a person commits misde-
meanor resisting law enforcement when he or she “forcibly
resists, obstructs, or interferes with the authorized service
or execution of a civil or criminal process or order of a
court”).
The government has also not identified to us any quality
about possessing a police scanner that makes it more
serious than the enumerated crimes. Cf. Roy, 126 F.3d
at 955 (finding marijuana use not “similar to” public
intoxication because decision to use an illicit drug is
more culpable and involves more criminal intent than
overindulgence in non-controlled substance); United States
v. Dillon, 905 F.2d 1024, 1039 (7th Cir. 1990) (finding
prior conviction for resisting arrest and battery not “similar
to” offenses listed in § 4A1.2(c)(1), where none of the listed
offenses was similar to battery). We find it hard to believe
that possessing a police radio is more serious than hinder-
ing or failing to obey a police officer, leaving the scene of an
accident, furnishing false information to a police officer,
resisting arrest, reckless driving, or contempt of court, all
of which are enumerated in § 4A1.2(c)(2). A person commits
misdemeanor resisting arrest in Indiana, for example, when
that person “knowingly or intentionally forcibly resists,
obstructs, or interferes with a law enforcement officer or a
person assisting the officer while the officer is lawfully
engaged in the execution of his duties as an officer.” Ind.
Code § 35-44-3-3(a)(1). The Indiana Supreme Court has
No. 04-4175 13
held that one “forcibly resists” within the meaning of the
statute when “strong, powerful, violent means are used to
evade a law enforcement official’s rightful exercise of his or
her duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind.
1993). In addition, misdemeanor resisting arrest in Indiana
is a class A misdemeanor, carrying with it a punishment of
up to one year in prison and a $5000 fine. Ind. Code §§ 35-
44-3-3(a); 35-50-3-2. Hagenow’s prior conviction, in contrast,
was a class B misdemeanor with a lower maximum punish-
ment of only 180 days in prison and a $1000 fine. Ind. Code
§§ 35-44-3-12; 35-50-3-3. Common sense tells us that
possessing a police scanner is not “categorically more
serious” than resisting arrest, and if resisting arrest can be
excluded from a defendant’s criminal history, so should the
mere possession of a police scanner.
The inclusion of a criminal history point for Hagenow’s
prior conviction for possessing a police scanner placed
him in Criminal History Category IV and resulted in a
sentencing range of 51 to 63 months. The district court
selected a sentence at the middle of this range, 57 months.
Had the conviction been properly excluded, Hagenow’s
criminal history would have placed him in Criminal History
Category III, with a sentencing range of only 41 to 51
months. Therefore, even under the plain error standard of
review the government advocates, Hagenow should not
receive a criminal history point for his conviction for
possessing a police scanner. See United States v. Spears,
159 F.3d 1081, 1088 (7th Cir. 1998) (improperly including
prior conviction in criminal history computation that
resulted in increase to defendant’s sentence constituted
plain error); United States v. Wallace, 32 F.3d 1171, 1174-75
(7th Cir. 1994).
14 No. 04-4175
III. CONCLUSION
For the foregoing reasons, Jeremy Hagenow’s conviction
is AFFIRMED. We VACATE his sentence and REMAND for
resentencing in accordance with this opinion. The district
court should resentence Hagenow in accordance with
United States v. Booker, 125 S. Ct. 738 (2005).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-31-05