United States v. David Payne

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0813n.06
No. 14-3027
FILED
UNITED STATES COURT OF APPEALS Oct 24, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) On Appeal from the United States
v. ) District Court for the Southern
) District of Ohio
DAVID G. PAYNE, )
)
Defendant-Appellant. )
)
_________________________________/ )
Before: GUY, CLAY, and WHITE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant David G. Payne appeals from the
denial of his motion to suppress evidence following his conditional plea of guilty to one count of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Payne moved to
suppress the firearm and drugs seized during a warrantless search of the residence he shared with
Erin Ratleff, who was on post-release control at the time. After an evidentiary hearing, the
district court found the search was reasonable under the Fourth Amendment’s totality-of-the-
circumstances standard articulated in Knights since there was probable cause to believe Ratleff
was living there in violation of the conditions of her release. See United States v. Knights, 534
U.S. 112 (2001). We affirm.
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United States of America v. Payne
I.
Payne, a previously convicted felon, was indicted on firearm and drug charges based on
the seizure of evidence, including a loaded .38 caliber Llama revolver and several bags of
cocaine and marijuana, from his residence at 117 Powers Street on August 21, 2012. The district
court summarized its factual findings as follows (citations to the transcript have been omitted):
In the spring of 2012, the Bellefontaine Police Department (“BPD”) received
a complaint from a local business concerning potential drug trafficking activity at
or around 117 Powers Street (“Powers Street Residence”). Following receipt of
this tip, BPD Detective [Craig] Comstock conducted several spot checks on the
Powers Street Residence. Officer Comstock wanted to search the Powers Street
Residence but had no legal justification for doing so. However, during this
surveillance, Detective Comstock observed female Erin Ratleff (“Ratleff”)
coming and going from the Powers Street Residence.
Ratleff was on post release control under the supervision of Parole Officer
Chris Niekamp of the Logan County office of the Ohio Adult Parole Authority
(“APA”). At the time she agreed to her conditions of supervision, Ratleff
provided Officer Niekamp with the residence of her mother as the location where
she was living. She also acknowledged her obligation to immediately inform
Officer Neikamp of any changes in residency. Finally, Ratleff agreed that any
property where she was actually living would be subject to search by Officer
Niekamp.
During the time that Detective Comstock was surveiling the Powers Street
Residence, he ran across Ratleff in the Bellefontaine community. Detective
Comstock observed Ratleff driving cars associated with the Powers Street
Residence approximately 20 or 25 times. The cars that Detective Comstock
associated with the Powers Street Residence were registered with Payne or
Ratleff’s mother. Finally, Detective Comstock knew that Ratleff was on post
release control.
In 2012, Detective Comstock contacted the owners of the Powers Street
Residence and obtained the current rental agreement. This Rental Agreement is
for the period of July 1, 2011 through June 30, 2012, [and] automatically renewed
at the termination of each 12 month lease period. Payne and Ratleff are listed as
the tenants and both signed the Rental Agreement. Included [on the second page]
is a handwritten addendum dated 8/11/12 which states that, “Tenants agree to rent
month to month while home is listed for sale. Tenant will receive 30 days to
vacate home when home sells. Agrees to all other terms of rental agreement.”
Finally, the owners of the Powers Street Residence told Detective Comstock that
they were aware that Payne and Ratleff were living there together.
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United States of America v. Payne
Detective Comstock informed Officer Niekamp of the ongoing surveillance
connecting Ratleff to the Powers Street Residence and of the Rental Agreement.
Officer Niekamp became concerned that Ratleff had changed her residence
without notifying the APA.
On May 8, 2012, Ratleff had met with Officer Niekamp to review the
conditions of her supervision. Ratleff advised Niekamp that she was staying with
her mother at that time. Ratleff never informed Niekamp that she had taken out a
lease on the Powers Street Residence.
Following [that] meeting, Officer Niekamp stopped by Ratleff’s mother’s
apartment several times. During these visits, he never made contact with Ratleff
there.
On one visit, Officer Niekamp did make contact with Ratleff’s mother.
Ratleff’s mother told Officer Neikamp that Ratleff lived in the apartment but
[that] she also stays some with Payne. Also, based upon what Officer Niekamp
saw and did not see at Ratleff’s mother’s apartment and knowing that Ratleff was
unemployed, he questioned whether Ratleff actually lived there.
Given his concern that Ratleff did not actually live at her mother’s apartment
but had not reported a change of residence, Officer Niekamp and Detective
Comstock established surveillance of the Powers Street Residence during the
morning of August 21, [2012]. Detective Comstock had agreed to assist Officer
Niekamp investigate . . . Ratleff’s possible parole violation. Detective Comstock
also believed that the surveillance may advance his own investigation of potential
drug trafficking activity at the Powers Street Residence, which potentially
implicated Ratleff.
While on this surveillance, Officer Niekamp and Detective Comstock
observed a car parked in front of the Powers Street Residence that Officer
Niekamp had previously seen Ratleff drive on her visits to the APA. This car that
Officer Niekamp had previously seen Ratleff driving was registered to Payne.
Officer Niekamp and Detective Comstock observed Ratleff come out of the
Powers Street Residence. They approached Ratleff and met her on the sidewalk.
Officer Niekamp, who was well-known to Ratleff, said “Erin, I need to speak to
you, . . . The gig is up. I know you are not living where you say you are. I know
that you are living here.” At that point, Ratleff became very emotional and began
crying.
Officer Niekamp told Ratleff that “[w]e need to go in the house.” Based upon
Ratleff’s reaction when confronted along with the lease agreement for the Powers
Street Residence, the multiple observations of Ratleff at the Powers Street
Residence including her presence there on August 21, the fact that Ratleff was not
Case No. 14-3027 4
United States of America v. Payne
denying living at the Powers Street Residence, and not being able to locate her at
the residence where she said she was living, Officer Niekamp was positive that
Ratleff was living at the Powers Street Residence.
Given this belief, Officer Niekamp asked Ratleff to step inside the Powers
Street Residence. [Ratleff went in first, picking up her 15-month-old daughter in
the doorway.] As they entered the Powers Street Residence, Officer Niekamp
observed Payne sitting on a couch preparing to roll a [marijuana] joint. There is
no evidence that Payne consented to the search of the Powers Street Residence.
Payne was stood up and handcuffed to ensure everyone’s safety.
Officer Niekamp then briefly spoke with Ratleff. Ratleff confirmed that she
lived at the Powers Street Residence. Officer Niekamp then conducted a parole
[authorized] search of the Powers Street Residence [with the help of Detective
Comstock]. Officers found a firearm and various controlled substances in the
[kitchen of the] residence.
Payne was arrested and, as he was being taken to the patrol car, stated that Ratleff “didn’t know
that stuff was in there.” Ratleff admitted to having committed parole violations by failing to
inform the APA of her change of address and by using marijuana.1
Payne argued in his motion to suppress that the warrantless search violated his Fourth
Amendment rights because Officer Niekamp lacked probable cause to believe Ratleff was living
there at the time of the search. Payne also argued that the “parole search was merely a tool to
gain entry and search Mr. Payne’s home.” The government maintained that the search was
reasonable under Knights, and the district court agreed. Specifically, the district court found that
“[t]he presence and additional motive of Detective Comstock during the search is irrelevant,”
and that, “[b]ecause Officer Niekamp had probable cause to believe that Ratleff was living at the
Powers Street Residence, the search of that residence in her presence did not violate the Fourth
Amendment.”
Payne entered into a conditional plea agreement under Fed. R. Crim. P. 11(c)(1)(C),
which provided for dismissal of the drug charges and an agreement as to his sentence for being a
1
Clothing and mail belonging to Ratleff were also found in the residence.
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United States of America v. Payne
felon in possession of a firearm. Consistent with that agreement, defendant was sentenced to 60
months of imprisonment, to be followed by three years of supervised release. This appeal
followed.2
II.
On appeal from the denial of a motion to suppress, we review the district court’s factual
findings for clear error and its legal conclusions de novo. United States v. Foster, 376 F.3d 577,
583 (6th Cir. 2004). The defendant bears the burden to demonstrate “‘a violation of some
constitutional or statutory right justifying suppression.’” United States v. Rodriguez-Suazo,
346 F.3d 637, 643 (6th Cir. 2003) (citation omitted). Also, because the district court denied the
motion to suppress, we review the evidence in the light most favorable to the government.
United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009).
“A probationer’s [or parolee’s] home, like anyone else’s, is protected by the Fourth
Amendment’s requirement that searches be ‘reasonable.’” Griffin v. Wisconsin, 483 U.S. 868,
873 (1987). However, probationers, like parolees, “do not enjoy the ‘absolute liberty to which
every citizen is entitled, but only . . . conditional liberty properly dependent on observance of
special [probation] restrictions.’” Id. at 874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480
(1972)). In fact, “the Supreme Court has made clear that the nature of the relationship between
state actors and individuals subject to state supervision in lieu of or following release from prison
alters the relevant analysis under the Fourth Amendment.” United States v. Herndon, 501 F.3d
683, 687 (6th Cir. 2007).
The Supreme Court has identified two justifications under which a parole-authorized
warrantless search may be found reasonable under the Fourth Amendment. First, the Court in
2
The district court accepted the agreement as to Payne’s sentence, although with an offense level of 25 and criminal
history category of III the advisory guidelines range for the firearm offense was 70 to 78 months.
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Griffin recognized that a state’s operation of a probation system “presents ‘special needs’ beyond
normal law enforcement that may justify departures from the usual warrant and probable-cause
requirements.” Griffin, 483 U.S. at 873-74. The Court upheld the search of a probationer’s
home pursuant to a state regulation that authorized a warrantless search when a probation officer
had “reasonable grounds” to believe the probationer was in possession of contraband. Id. at 870-
71. Then, in Knights, the Court recognized that a police officer’s search of a probationer’s home
pursuant to a probation condition authorizing the search with or without a warrant or probable
cause could be reasonable under the “totality of the circumstances.” United States v. Knights,
534 U.S. 112, 118-19 (2001). If a warrantless search is reasonable under either Knights or
Griffin, it need not pass muster under the other. Herndon, 501 F.3d at 688.3
Payne’s principal contention is that the parole search was a ruse for the police
investigation because the parole officer acted as a “stalking horse” for the police simply to evade
the Fourth Amendment’s warrant and probable-cause requirements. See United States v. Martin,
25 F.3d 293, 296 (6th Cir. 1994). Because his motion to suppress asserted that the search was
just such a ruse, albeit without explicitly referencing Griffin or the stalking-horse theory, we
reject the government’s claim that the argument was either waived or forfeited. See United
States v. Caldwell, 518 F.3d 426, 430 (6th Cir. 2008).
Some courts, including this one, applied Griffin’s special-needs exception with the caveat
that the parole officer could not be acting merely as a “stalking horse” for a police investigation.
Martin, 25 F.3d at 296; see also United States v. Watts, 67 F.3d 790, 794 (9th Cir. 1995), rev’d
on other grounds, 519 U.S. 148 (1997). This court in Penson questioned, but did not decide,
3
The Court extended application of Knights to parolees, holding that a statute requiring parolees to submit to search
or seizure with or without a warrant and with or without cause was reasonable under the totality of the
circumstances. Samson v. California, 547 U.S. 843, 857 (2006); see also United States v. Smith, 526 F.3d 306, 309-
10 (6th Cir. 2008) (upholding suspicionless search of defendant under community confinement).
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United States of America v. Payne
whether the stalking-horse argument has continued validity after Knights. See United States v.
Penson, 141 F. App’x 406, 410 n.2 (6th Cir. 2005). More recently, this court suggested in dicta
that, although not relevant under Knights, an officer’s motivations do still matter when the
government relies on Griffin’s special-needs exception to justify the search. See United States v.
Lykins, 544 F. App’x 642, 648 n.2 (6th Cir. 2013). We need not resolve this question because, as
in Lykins, the government did not rely on the special-needs doctrine to justify the search in this
case. Id.4
However, the stalking-horse argument has no application when, as here, a search may be
justified under Knights’ totality-of-the-circumstances standard. Any doubt is dispelled by
Knights itself:
Because our holding rests on ordinary Fourth Amendment analysis that
considers all the circumstances of a search, there is no basis for examining official
purpose. With the limited exception of some special needs and administrative
search cases, see Indianapolis v. Edmond, 531 U.S. 32, 45 (2000), “we have been
unwilling to entertain Fourth Amendment challenges based on the actual
motivations of individual officers.” Whren v United States, 517 U.S. 806, 813
(1996).
Knights, 534 U.S. at 122; see also United States v. Williams, 417 F.3d 373, 378 (3d Cir. 2005)
(citing cases holding that the stalking-horse theory does not survive Knights). Thus, the district
court did not err by disregarding Payne’s arguments about the motivation for the search in
denying his suppression motion.
Defendant asserts that the warrantless search may not be justified under Knights because
that exception only applies when the search is based on suspicion of new criminal activity as
4
This court explained in Penson that “it is wholly permissible for law enforcement officers and probation officers to
‘work together and share information to achieve their objectives.’” Id. at 410 (citation omitted). This means
“probation officers may properly request police assistance in executing their duties as probation officers.” Id. “The
only type of cooperation which the Fourth Amendment prohibits is the use of the probation system for investigatory
purposes in order to permit law enforcement officers to evade the Fourth Amendment warrant requirement.” Id.; see
also United States v. Russ, 23 F. App’x 245, 247 (6th Cir. 2001) (finding no evidence that probation officer was
acting as “stalking horse” for police).
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United States of America v. Payne
opposed to a violation of the conditions of parole or probation. However, this court explicitly
rejected this same argument in Herndon. Specifically, we held that
the object of [the probation officer’s] suspicion-Herndon’s potential violation of
the terms of his probation as opposed to a generally applicable criminal statute-
does not impact the availability of the Knights framework. For the purposes of
our Fourth Amendment inquiry here, a probationer’s violation of the terms of
probation is comparable to his violation of a criminal statute.
Herndon, 501 F.3d at 689. We added that “our sister circuits have consistently applied the
Knights regime to searches undertaken to investigate potential violations of probation or parole.”
Id. (citing cases). Thus, we held that it was irrelevant for the purposes of the Knights analysis
whether the probation officer sought evidence of a probation violation or proof of a violation of a
generally applicable criminal statute. Id. at 690. Accordingly, we turn to the district court’s
application of the Knights framework to this case.
Whether a search is reasonable under the totality of the circumstances “is determined by
assessing, on one hand, the degree to which it intrudes upon an individual’s privacy and, on the
other, the degree to which it is needed for the promotion of legitimate governmental interests.”
Knights, 534 U.S. at 118-19. “Just as other punishments for criminal convictions curtail an
offender’s freedoms, a court granting probation may impose reasonable conditions that deprive
the offender of some freedoms enjoyed by law-abiding citizens.” Id. at 119. The Court found
that it was reasonable to conclude that the search condition would further the goals of probation,
and imposition of the search condition “significantly diminished Knights’ reasonable expectation
of privacy.” Id. at 120. Balancing the reduced expectation of privacy and the governmental
interest in monitoring probationers, the Court held that reasonable suspicion was sufficient to
conduct a search of a probationer’s house. Id. at 121.
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United States of America v. Payne
Here, Ratleff was subject to Ohio Rev. Code § 2967.131(C), which authorized her parole
officer to search her place of residence, with or without a warrant, if the officer had “reasonable
grounds to believe that [she] has left the state, is not abiding by the law, or otherwise is not
complying with the terms and conditions of [her] conditional pardon, parole, transitional control,
other form of authorized release, or post-release control.” There is no dispute that, as Ratleff
acknowledged, she was required as a condition of supervision to advise her parole officer of any
change of address from her mother’s apartment. We have no difficulty concluding that Officer
Niekamp had at least reasonable suspicion that Ratleff was not in compliance with that condition
at the time of the search. The district court also required that there be probable cause to believe
Ratleff was a resident of the premises to be searched, in reliance on United States v. Bolivar, 670
F.3d 1091, 1094-95 (9th Cir. 2012). The government does not argue that it was error to require
probable cause to believe Ratleff resided at the premises to be searched. Because we agree that
probable cause existed, it is not necessary to decide whether reasonable suspicion connecting a
parolee or probationer to the premises to be searched would be sufficient under the balancing
called for by Knights. See, e.g., United States v. Crutchfield, 444 F. App’x 526, 528 (3d Cir.
2011) (declining to reach the issue because probable cause existed).5
Disputing that there was probable cause to believe Ratleff resided at the Powers Street
Residence, Payne emphasized that Ratleff had not signed the handwritten addendum to the lease
(although she had signed the lease itself) and that Ratleff did not affirmatively respond when
confronted outside the Powers Street Residence (but merely started to cry). However, the
5
The court in Bolivar adhered to its prior holding in Motley that “a condition of parole that permits warrantless
searches provides officers with the limited authority to enter and search a house where the parolee resides even if
others also reside there. But they have to be reasonably sure that they are at the right house.” Motley v. Parks, 432
F.3d 1072, 1079 (9th Cir. 2005) (en banc) (involving § 1983 action by non-parolee who claimed there was not
sufficient basis to believe the parolee lived with her). The court explained that requiring officers to have probable
cause to believe they are at the parolee’s residence protects the interests of third parties who also reside there.
Bolivar, 670 F.3d at 1094-95.
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United States of America v. Payne
information Officer Niekamp possessed at the time of the search included: (1) that he had been
unsuccessful in confirming that Ratleff was residing at her mother’s apartment; (2) that Ratleff
had been observed coming and going from and driving cars associated with the Powers Street
address; (3) that Ratleff had signed a lease with Payne for the Powers Street Residence when she
was reportedly living with her mother; (4) that the owners of the Powers Street Residence said
they were aware that Payne and Ratleff were living there together; and (5) that Ratleff did not
deny that she was residing at the Powers Street Residence when confronted outside prior to the
search. The district court did not err in finding that Officer Niekamp had probable cause to
believe Ratleff was living at the Powers Street address in violation of the conditions of her post-
release control at the time he entered to conduct the parole search. The search was reasonable
under Knights, and the district court did not err in denying Payne’s motion to suppress the
evidence seized.
AFFIRMED.