United States v. Midgette

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4765
NICHOLAS OMAR MIDGETTE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Louise W. Flanagan, Chief District Judge.
(CR-04-54)
Argued: October 27, 2006
Decided: February 26, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Traxler and Judge Shedd joined.
COUNSEL
ARGUED: Devon L. Donahue, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
2 UNITED STATES v. MIDGETTE
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
While Nicholas Omar Midgette was on probation for two North
Carolina criminal convictions, New Bern city police officers, under
the direction and supervision of Midgette’s probation officer, con-
ducted warrantless searches for contraband of his person, vehicle, and
house. The police officers found three firearms, ammunition, and
marijuana. Based on this evidence, Midgette was indicted by a federal
grand jury for possession by a convicted felon of firearms, possession
of an unregistered firearm, and possession of marijuana.
Midgette filed a motion to suppress the evidence, contending that
the searches were unreasonable under the Fourth Amendment because
(1) even though Midgette was a probationer, the State still did not
have "reasonable suspicion" that Midgette possessed any contraband,
and (2) the search did not conform to North Carolina law, which
authorized the probation officers, but not police officers, to conduct
warrantless searches of probationers. After a magistrate judge made
proposed findings of fact and recommendations to reject both of Mid-
gette’s arguments, Midgette filed timely objections to the magistrate
judge’s report, but his objections were based only on his second argu-
ment that the searches did not comport with North Carolina’s proba-
tion law. The district court overruled Midgette’s objections and
denied his motion to suppress. Midgette then pleaded guilty pursuant
to a plea agreement to one firearms count, reserving his right to
appeal the suppression order.
On appeal, Midgette challenges the district court’s order denying
his motion to suppress, arguing that the searches violated the Fourth
Amendment because (1) North Carolina’s probation scheme, under
which the searches were executed, allows warrantless searches with-
out requiring "reasonable suspicion"; (2) the probation officer did not
have a reasonable suspicion that Midgette possessed contraband; and
UNITED STATES v. MIDGETTE 3
(3) the probation officer did not comply with North Carolina law,
which authorizes only probation officers, not police officers, to con-
duct warrantless searches of probationers.
Because the police officers’ searches were conducted under the
direction and supervision of Midgette’s probation officer, we con-
clude that they did not violate North Carolina law. Because Midgette
failed to present his other arguments regarding the constitutionality of
the North Carolina probation law and the lack of reasonable suspicion
to the district judge as objections to the magistrate judge’s report, we
conclude that he waived his right to appeal those issues. Moreover,
they fare no better on the merits. Accordingly we affirm.
I
On January 14, 2004, Midgette pleaded guilty to the North Caro-
lina offense of resisting a public officer and was sentenced to 30 days’
imprisonment, which was suspended, and to 36 months of supervised
probation. One month later, on February 18, 2004, Midgette pleaded
guilty to a 2003 North Carolina felony offense for possession of mari-
juana and was sentenced to a three-month term of imprisonment,
again suspended, and to 12 months of supervised probation. Under the
terms of probation imposed in connection with each offense, Midgette
was required to refrain from possessing a firearm; to retain employ-
ment or pursue training for employment; to remain within the juris-
diction of the court unless granted written permission to leave; to
report regularly to a probation officer and permit the officer to visit
him at reasonable times; and to notify the probation officer of any
change in address or employment. Midgette was also subjected to
special conditions requiring him to abstain from possessing or using
illegal drugs; to submit to drug testing; and to "submit at reasonable
times to warrantless searches by a probation officer of the defendant’s
person, and of the defendant’s vehicle and premises while the defen-
dant is present, for the purposes which are reasonably related to the
defendant’s probation supervision."
On March 22 or 23, 2004, Midgette’s probation officer, Tammy
Edwards, was informed by Sergeant Willie Wilcutt of the New Bern,
North Carolina Police Department that Midgette might be in posses-
sion of a firearm. Sergeant Wilcutt pointed out that Midgette had a
4 UNITED STATES v. MIDGETTE
reputation for carrying firearms and had retrieved firearms from the
New Bern Police Department in July 2003. Probation Officer
Edwards thereafter asked police officers to assist her in searching
Midgette during his upcoming meeting with her.
Midgette reported to Probation Officer Edwards at her office for a
regularly scheduled meeting on March 24, 2004. As Edwards had
requested, two New Bern police officers attended the meeting and
searched Midgette in Edwards’ presence, but they found no contra-
band. Edwards then asked the officers to search Midgette’s vehicle.
Again in the presence of Edwards and Midgette, the officers searched
Midgette’s vehicle, where they found, in the glove compartment, a
pistol magazine containing ten rounds of .40 caliber ammunition.
Because of what was discovered, Probation Officer Edwards decided
that "it probably would be a good idea to search [Midgette’s] house."
The parties drove to Midgette’s residence where, before entering the
house, one of the officers asked Midgette whether there were any fire-
arms inside. Midgette told the officers that there was a firearm on top
of his dresser and "the rest of the weapons" were in his bedroom
closet. Under Probation Officer Edwards’ direction and in Midgette’s
presence, the police officers searched Midgette’s room and recovered
a loaded .20 gauge shotgun, a loaded sawed-off shotgun, a loaded 9-
millimeter pistol, and 51.9 grams of marijuana. The officers then
arrested Midgette for violating the conditions of his probation. A fed-
eral grand jury thereafter indicted Midgette for the offenses charged
in this case — possession by a felon of firearms, in violation of 18
U.S.C. §§ 922(g)(i), 924; possession of an unregistered firearm, in
violation of 26 U.S.C. §§ 5861(d), 5871; and possession of marijuana,
in violation of 21 U.S.C. § 844(a).
Midgette filed a motion to suppress the evidence seized, contend-
ing that the searches violated the Fourth Amendment because the pro-
bation officer lacked the reasonable suspicion necessary to conduct
the searches and because the probation officer did not comport with
North Carolina law in having police officers conduct the searches.
The motion was referred to a magistrate judge under 28 U.S.C.
§ 636(b)(1)(B), and the magistrate judge made findings of fact and
recommended that Midgette’s motion be denied on each ground that
he raised.
UNITED STATES v. MIDGETTE 5
Midgette timely filed three objections to the magistrate judge’s
report, contending (1) that the magistrate judge improperly assumed
that when Midgette was searched in March 2004, he was on probation
for the January 14, 2004 offense; (2) that because the searches were
conducted by police officers, not the probation officer, they violated
North Carolina’s probation law; and (3) that the magistrate judge
clearly erred in finding that the searches were conducted during a reg-
ularly scheduled appointment with the probation officer.
The district court overruled Midgette’s objections by order dated
January 26, 2005, finding that Midgette was under supervised proba-
tion at the time of the search; that the police officers’ participation in
the searches did not violate North Carolina law; and that the searches
were conducted in connection with Midgette’s regularly scheduled
appointment with his probation officer. The court thereupon adopted
the magistrate judge’s proposed findings and recommendation and
denied Midgette’s motion to suppress.
Midgette thereafter pleaded guilty, reserving his right to appeal the
district court’s order denying his motion to suppress under Federal
Rule of Criminal Procedure 11(a)(2). The district court sentenced
Midgette to 46 months’ imprisonment.
On appeal, Midgette contends that the searches were illegal under
the Fourth Amendment for three reasons: (1) North Carolina’s proba-
tion law fails to require individualized suspicion for warrantless
searches; (2) Probation Officer Edwards and the police officers lacked
reasonable suspicion that Midgette possessed contraband; and (3) the
searches violated North Carolina law because they were conducted by
police officers rather than by a probation officer. The government
contends that Midgette waived the first two issues by failing to raise
them as objections to the magistrate judge’s report.
II
We agree with the government that Midgette’s arguments on
appeal are far broader than the issues he presented to the district court
as objections to the magistrate judge’s report. Midgette only chal-
lenged the magistrate judge’s findings that supported his conclusion
that the probation officer complied with North Carolina’s probation
6 UNITED STATES v. MIDGETTE
law. He argued that he was not shown to be on probation for the Janu-
ary 2004 conviction at the time of the March 2004 searches (although
he did not challenge his probation status as a result of his February
2004 sentence); that police officers were not allowed to conduct the
searches; and that at the time of the searches, he was not on a regu-
larly scheduled visit to the probation office. He challenged neither the
constitutionality of the North Carolina law itself, nor the lack of rea-
sonable suspicion. This has prompted the government to contend that
Midgette waived these two arguments on appeal as he did not present
them to the district court as objections to the magistrate judge’s
report.
Midgette’s motion to suppress was referred to a magistrate judge
for proposed findings and recommendations, pursuant to 28 U.S.C.
§ 636(b)(1)(B). That provision requires that a party objecting to the
magistrate judge’s report and recommendations file objections with
the district court within ten days, and we have held that "a party who
fails to object to a magistrate’s report is barred from appealing the
judgment of a district court adopting the magistrate’s findings."
Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985); see also United
States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984). The require-
ment to make objections preserves the district court’s role as the pri-
mary supervisor of magistrate judges, see Wright, 766 F.2d at 845,
and conserves judicial resources by training the attention of both the
district court and the court of appeals upon only those issues that
remain in dispute after the magistrate judge has made findings and
recommendations, see Thomas v. Arn, 474 U.S. 140, 147-48 (1985).
While Midgette did timely object to some portions of the magis-
trate judge’s report, he did not object to all of the issues that he now
seeks to argue on appeal.
We have generally applied the waiver rule when a party fails to
make any timely objections to a magistrate judge’s report, without
addressing the situation where a party objects to certain issues but
raises other issues on appeal. See, e.g., Wells v. Shriners Hosp., 109
F.3d 198, 199 (4th Cir. 1997); Schronce, 727 F.2d at 93-94. We now
conclude that a party also waives a right to appellate review of partic-
ular issues by failing to file timely objections specifically directed to
those issues. Not only are the reasons for the general waiver rule
UNITED STATES v. MIDGETTE 7
equally applicable to the waiver of specific issues, the governing stat-
ute itself reveals its intent to have objections focus on specific issues,
not the report as a whole. See 28 U.S.C. § 636(b)(1). Section
636(b)(1) does not countenance a form of generalized objection to
cover all issues addressed by the magistrate judge; it contemplates
that a party’s objection to a magistrate judge’s report be specific and
particularized, as the statute directs the district court to review only
"those portions of the report or specified proposed findings or recom-
mendations to which objection is made." Id. (emphasis added); see
also Fed. R. Crim. P. 59(b)(2) (requiring objecting party to file "spe-
cific, written objections to the proposed findings and recommenda-
tions" (emphasis added)); cf. Fed. R. Civ. P. 72(b) (same).
We have previously applied § 636(b)(1) to effect the waiver of spe-
cific issues, even though timely objections had been filed as to other
issues. See Praylow v. Martin, 761 F.2d 179, 180 n.1 (4th Cir. 1985)
(noting that because "the State did not object to the magistrate’s find-
ing that Brown was appointed on April 22, 1980 [as opposed to April
21, 1980] . . . the State is precluded from arguing this point on
appeal"). We noted in Praylow, however, that the issue waived was
not material to our disposition of the case. See id. Also, we observed
subsequently in Page v. Lee, 337 F.3d 411, 417 n.3 (4th Cir. 2003),
that the waiver of issues had not been specifically addressed in our
circuit in a published opinion, although we did note that "other cir-
cuits have held that the failure to raise an objection sufficiently spe-
cific to focus the district court’s attention on the factual and legal
issues that are truly in dispute waives any appellate review." (Internal
quotation marks and citations omitted). But again in Page we
observed that "petitioner’s failure to object to the magistrate judge’s
recommendation with the specificity required by [Federal Rule of
Civil Procedure 72(b)] is, standing alone, a sufficient basis upon
which to affirm the judgment of the district court as to this claim."
Id. (emphasis added).
To eliminate any suggestion that our previous observations were
dicta, we now hold that to preserve for appeal an issue in a magistrate
judge’s report, a party must object to the finding or recommendation
on that issue with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection. In so holding, we
join the other circuits that have considered the issue. See United
8 UNITED STATES v. MIDGETTE
States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); How-
ard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09 (6th
Cir. 1991); Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988);
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any issue that
was before the magistrate judge, regardless of the nature and scope
of objections made to the magistrate judge’s report. Either the district
court would then have to review every issue in the magistrate judge’s
proposed findings and recommendations or courts of appeals would
be required to review issues that the district court never considered.
In either case, judicial resources would be wasted and the district
court’s effectiveness based on help from magistrate judges would be
undermined.
For these reasons, we conclude that Midgette waived his right to
argue that the North Carolina probation scheme is unconstitutional
and that the probation officer did not have a reasonable suspicion that
Midgette possessed contraband.
III
Alternatively, we reject Midgette’s contention that the North Caro-
lina probation law is invalid. He contends that because the law does
not require "any degree of certainty that the probationer actually pos-
sesses contraband or that he has violated his probation or the law,"
searches conducted pursuant to its warrantless search provision, N.C.
Gen. Stat. § 15A-1343(b1)(7), violate the Fourth Amendment.
The North Carolina probation law requires that a defendant placed
on probation be given a suspended sentence. It also mandates a list
of conditions of probation and authorizes another list of optional, spe-
cial conditions. See N.C. Gen. Stat. §§ 15A-1342(c), -1343(b),
-1343(b1). One of the special conditions authorized by the statute, to
which Midgette was subjected in both probation orders, requires that
the probationer
Submit at reasonable times to warrantless searches by a
probation officer of his or her person and of his or her vehi-
UNITED STATES v. MIDGETTE 9
cle and premises while the probationer is present, for pur-
poses specified by the court and reasonably related to his or
her probation supervision, but the probationer may not be
required to submit to any other search that would otherwise
be unlawful.
N.C. Gen. Stat. § 15A-1343(b1)(7) (emphasis added). Thus, the stat-
ute authorizes the warrantless search of a probationer and his effects
subject to specified criteria of reasonableness that (1) the search be
conducted at a reasonable time; (2) the probationer be present during
the search; (3) the search be conducted for purposes specified by the
court in imposing probation; and (4) the search be "reasonably
related" to probation supervision.
Midgette’s argument that this law lacks sufficient limitations to
render it reasonable under the Fourth Amendment is foreclosed by
Griffin v. Wisconsin, 483 U.S. 868 (1987), where the Supreme Court
upheld an analogous probation scheme against a Fourth Amendment
challenge.
In Griffin, the Supreme Court upheld a warrantless search of a pro-
bationer’s residence conducted pursuant to Wisconsin’s probation
scheme, which permitted such searches if "reasonable grounds"
existed to believe the probationer possessed contraband. 483 U.S. at
871-72. Considering the constitutionality of a scheme that authorized
warrantless searches, the Court noted that Wisconsin’s operation of a
probation system "present[ed] ‘special needs’ beyond normal law
enforcement that may justify departures from the usual warrant and
probable-cause requirements." Id. at 873-74. Particularly, the State
had a "special need" to supervise the probationer’s "observance of
special probation restrictions," which were designed to "assure that
the probation serve[d] as a period of genuine rehabilitation and that
the community [was] not harmed by the probationer’s being at large."
Id. at 874-75 (internal quotation marks and citation omitted). This
goal of the probation system was underscored and promoted by the
fact that probation officers, unlike police officers, were charged with
both promoting the "welfare of the probationer" and protecting the
public interest. Id. at 876. In light of these "special needs," the Griffin
Court found that warrantless searches of probationers’ residences con-
10 UNITED STATES v. MIDGETTE
ducted by probation officers in accordance with the statute were justi-
fied.
In Griffin, a probation officer received a tip from a detective that
"there were or might be guns in Griffin’s apartment." 483 U.S. at 871.
Even though the probation officer had no other corroborating infor-
mation, the Court held that the detective’s tip sufficed to give the pro-
bation officer reasonable grounds to search the apartment, and
therefore, the search comported with the governing probation regula-
tion. Accordingly, "[t]he search of Griffin’s residence was ‘reason-
able’ within the meaning of the Fourth Amendment because it was
conducted pursuant to a valid regulation governing probationers." Id.
at 880.
The same is true in this case. North Carolina has the identical need
to supervise probationers’ compliance with the conditions of their
probation in order to promote their rehabilitation and protect the pub-
lic’s safety. To satisfy this need, North Carolina authorizes warrant-
less searches of probationers by probation officers. But North
Carolina has narrowly tailored the authorization to fit the State’s
needs, placing numerous restrictions on warrantless searches. The
sentencing judge must specially impose the warrantless search condi-
tion, and not all probationers are subject to it; the search must be con-
ducted during a reasonable time; the probationer must be present
during the search; the search must be conducted for purposes speci-
fied by the court in the conditions of probation; and it must be reason-
ably related to the probationer’s supervision. See N.C. Gen. Stat.
§ 15A-1343(b1)(7). These criteria impose meaningful restrictions,
guaranteeing that the searches are justified by the State’s "special
needs," not merely its interest in law enforcement.
Midgette attempts to distinguish North Carolina’s probation
scheme from the Wisconsin scheme upheld in Griffin on the basis that
the Wisconsin scheme required that the probation officer have indi-
vidualized suspicion that the probationer possessed contraband before
conducting the search, whereas the North Carolina scheme requires
no such suspicion. This argument, however, misunderstands Griffin’s
"special needs" rationale, which did not make individualized suspi-
cion the sine qua non of a valid probation scheme. Rather, the Griffin
Court’s analysis first evaluated Wisconsin’s "special need" for effec-
UNITED STATES v. MIDGETTE 11
tive supervision of probationers, and then it tested whether that need
justified the "degree of impingement upon privacy" authorized by the
probation scheme. See id. at 875. Indeed, this very approach has been
repeated in numerous other "special needs" cases, many of which
have found that the governmental need justified even suspicionless
searches pursuant to a program that was, considered as a whole, rea-
sonably tailored. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 837-
38 (2001) (upholding suspicionless drug testing of students involved
in extracurricular activities); Mich. Dep’t of State Police v. Sitz, 496
U.S. 444 (1990) (affirming suspicionless sobriety checks of motorists
in order to reduce the safety hazards posed by drunk drivers); Skinner
v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) (upholding
suspicionless urine and blood tests of certain railroad employees);
Bell v. Wolfish, 441 U.S. 520, 558-61 (1979) (upholding suspicionless
visual body-cavity searches of detainees following contact visits).
The restrictions that North Carolina’s probation statute place on
probationer searches undoubtedly assure that the searches conducted
pursuant to it are justified by the State’s special needs. We readily
conclude, therefore, that searches conducted in conformity with the
statute are reasonable under the Fourth Amendment.
IV
We also reject, again ruling alternatively, Midgette’s contention
that the probation officer did not have a reasonable suspicion of crim-
inal activity. Midgette argues, independent of his challenge to the
North Carolina law, that the probation officer in this case did not have
"reasonable suspicion that Mr. Midgette possessed contraband when
she permitted police to search him and his car" and therefore the
searches were unreasonable under the Fourth Amendment. See United
States v. Knights, 534 U.S. 112, 122 (2001).
In Knights, the Supreme Court held that a warrantless search by a
police officer of a probationer conducted pursuant to the conditions
of his probation and supported by reasonable suspicion satisfied the
Fourth Amendment. 534 U.S. at 122. As the Court stated:
When an officer has reasonable suspicion that a probationer
subject to a search condition is engaged in criminal activity,
12 UNITED STATES v. MIDGETTE
there is enough likelihood that criminal conduct is occurring
that an intrusion on the probationer’s significantly dimin-
ished privacy interests is reasonable.
Id. at 121. But because of the existence of facts giving officers rea-
sonable suspicion, the Court stopped short of deciding whether a
suspicionless search of a probationer would violate the Fourth
Amendment. Id. at 120 n.6. Similarly, we do not need to decide that
issue, because in this case, Probation Officer Edwards had a reason-
able suspicion that Midgette may be in possession of firearms, as pro-
hibited by his conditions of probation and by law.
Reasonable suspicion requires "a particularized and objective basis
for suspecting the person [searched] of criminal activity." Ornelas v.
United States, 517 U.S. 690, 696 (1996). It is "a less demanding stan-
dard than probable cause and requires a showing considerably less
demanding than preponderance of the evidence." Illinois v. Wardlow,
528 U.S. 119, 123 (2000). Reasonable suspicion may be based simply
upon a tip that has "some particular indicia of reliability." United
States v. Perkins, 363 F.3d 317, 324-26 (4th Cir. 2004). Indeed, in
Griffin, the Court noted that a tip received by a detective that "there
were or might be guns in [the probationer’s] apartment" provided the
probation officer with reasonable suspicion. 483 U.S. at 871.
In this case, Probation Officer Edwards received a tip identical to
that in Griffin that Midgette may be in possession of firearms. See
Griffin, 483 U.S. at 871. In addition, the tip carried indicia of reliabil-
ity inasmuch as its source was Sergeant Wilcutt of the New Bern
Police Department, an experienced law enforcement officer who
knew Midgette. Just as courts trust "the practical experience of offi-
cers who observe on a daily basis what transpires on the street,"
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993), so also
could Probation Officer Edwards trust that Sergeant Wilcutt had rea-
sonable grounds for suspecting Midgette of possessing firearms.
Additionally, Sergeant Wilcutt provided Edwards with some objective
grounds for his suspicion — that he was familiar with Midgette, that
Midgette had a reputation for carrying firearms, and that Midgette had
personally retrieved some firearms from his police station.
Because Probation Officer Edwards had a reasonable suspicion that
Midgette possessed firearms, the search was reasonable under the
UNITED STATES v. MIDGETTE 13
Fourth Amendment. Knights, 534 U.S. at 121; cf. Samson v. Califor-
nia, 126 S. Ct. 2193, 2202 (2006) (holding that "the Fourth Amend-
ment does not prohibit a police officer from conducting a
suspicionless search of a parolee").
V
Finally, Midgette argues, as he did to the district court through
objections to the magistrate judge’s report, that the search was con-
ducted in violation of North Carolina law and therefore was unreason-
able under the Fourth Amendment. Section 15A-1343(b1)(7) of the
North Carolina General Statutes authorizes probation officers, but not
police officers, to conduct warrantless searches under North Caroli-
na’s probation scheme. Midgette contends that the searches violated
this scheme because police officers, not the probation officer, con-
ducted the searches. He asserts that Probation Officer Edwards com-
pletely capitulated to the "whim of the police" and simply stood by
while officers conducted the search, and therefore the government
cannot claim that she was conducting the search.
While North Carolina’s probation law authorizes only probation
officers to conduct warrantless searches, that authorization does not
preclude the probation officer from obtaining help from the police
department for the purpose of physically conducting the search. In
cases involving the precise statutory scheme under consideration here,
North Carolina courts have held that "the presence and participation
of police officers in a search conducted by a probation officer, pursu-
ant to a condition of probation, does not, standing alone, render the
search invalid." State v. Church, 430 S.E.2d 462, 466 (N.C. Ct. App.
1993); see also State v. Howell, 277 S.E.2d 112, 114 (N.C. Ct. App.
1981). In both Church and Howell, police officers participated in a
warrantless search of a probationer’s residence at the direction of a
probation officer. See Church, 430 S.E.2d at 465; Howell, 277 S.E.2d
at 114. Furthermore, in Church, the court sanctioned a probationer
search even when it was initiated by police officers. The police offi-
cers had viewed marijuana on the probationer’s premises and then
asked the probation officer to conduct a search. 430 S.E.2d at 463-64.
Upon seeing the marijuana herself, the probation officer directed the
police officers to conduct the search. Id. at 464.
14 UNITED STATES v. MIDGETTE
In sum, these North Carolina cases hold that police officers may
conduct the warrantless search of a probationer — indeed may even
suggest the search — so long as the search is authorized and directed
by the probation officer.
The searches at issue in this case fall squarely under the holdings
of these precedents. After receiving the tip that Midgette may have
been in possession of a firearm, Probation Officer Edwards requested
the assistance of the police department to search Midgette during the
course of a regularly scheduled probation appointment. Moreover, it
was Edwards who suggested that the police officers search Midgette’s
vehicle and his residence. While the police officers physically exe-
cuted the searches, Probation Officer Edwards directed them and
maintained supervision over them. The police officers’ execution of
the warrantless searches therefore did not exceed the authorization of
the North Carolina probation statute as construed and applied by the
North Carolina courts.
A different rule would underserve North Carolina’s legitimate
interest in administering its probation system. If probation officers
were unable to enlist the aid of police officers in conducting proba-
tioner searches, they would likely hesitate to conduct certain searches
of particularly dangerous probationers, thus undermining the proba-
tion officers’ ability to supervise probationers effectively.
The judgment of the district court is
AFFIRMED.