Carroll, Robert v. Barnack, Joshua

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2006*
Decided February 14, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2412
ROBERT J. CARROLL, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin
v. No. 04-C-535
JOSHUA BARNACK, et al., William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
Wisconsin probation agents searched Robert Carroll’s home after he violated
a condition of his probation. Carroll later challenged the search in a civil action
under 42 U.S.C. § 1983, claiming that it violated the Fourth Amendment. The
district court granted summary judgment for the defendants and Carroll appeals.
We affirm the district court’s decision.
The following facts are undisputed. Carroll was serving a 10-year term of
probation imposed on his Wisconsin conviction for sexually assaulting a child. The
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2412 Page 2
rules of that probation are detailed in a document signed by Carroll. Rule 6 reads:
“You shall make yourself available for searches or tests ordered by your agent
including but not limited to . . . search of residence or any property under your
control.” Other rules prohibited Carroll from having sexual contact with a mentally
impaired individual or establishing a “dating, intimate, sexual relationship” with
any person unless approved in advance by probation officials. Carroll was allowed
to own a computer, but was not allowed to have internet access.
In July 2002, a mentally impaired woman reported to Carroll’s probation
agent, Joshua Barnack, that Carroll had engaged in sexual contact with her. The
woman, whom Carroll had met at a center for the mentally impaired, explained
that she visited Carroll’s home and was given a key to his house. During her visit,
she alleged, Carroll told her that she was meant to marry his son, and pressured
her to promise that she would be with his son forever. Carroll then kissed her,
touched her breasts, removed her shirt, pulled down her pants, and tried to remove
her clothing completely. The woman, who reported that she was very
uncomfortable and scared, told Carroll no and put her clothes back on. Carroll then
attempted to put a vibrating massager between her legs.
Based on this information, officers from the Ashland, Wisconsin, police
department took Carroll into custody. Barnack then completed an application for
supervisory approval in which he sought permission to search Carroll’s residence to
determine whether Carroll had been complying with the rules of his probation.
Barnack’s supervisor, Terry Schemenauer, orally approved the search, but, for
reasons unclear from the record, did not sign the application. Nonetheless,
Barnack, along with fellow agents Kevin Seefeldt and Randy Ruffi, searched
Carroll’s residence. They were accompanied by Ashland officers Michael Brennan,
Michelle Tutor, and Scott Harnisch.
Barnack and the other probation agents seized several items including two
guns, a buck knife, a sword, and a laptop computer that had been used to visit over
150 pornographic websites. The agents then presented this evidence before an
Administrative Law Judge, who found that the weapons had not come into the
house until after Carroll’s arrest and that there was no evidence linking Carroll to
what he said was his son’s laptop. But because the judge found the testimony
regarding Carroll’s sexual encounter with the mentally impaired woman credible,
he revoked Carroll’s probation and remanded him to the trial court. The court
sentenced him to prison, although the record does not indicate the date of his
sentencing or the length of his term.
Carroll then filed a complaint in federal court in June 2004, claiming under
§ 1983 that the probation agents and Ashland police officers violated the Fourth
Amendment by searching his home without a warrant. The district court granted
No. 05-2412 Page 3
summary judgment for the defendants. Our review of that decision is de novo.
Green v. Butler, 420 F.3d 689, 694 (7th Cir. 2005).
Carroll principally argues that the search of his home violated the Fourth
Amendment because it was conducted without a warrant and was therefore
unreasonable. The Supreme Court has explained that a warantless search of a
probationer’s home is reasonable under the Fourth Amendment so long as it is
authorized by a condition of probation and supported by reasonable suspicion.
United States v. Knights, 534 U.S. 112, 121 (2001). We have gone further and held
that a blanket waiver of Fourth Amendment rights as a condition of probation
justifies searching a probationer’s home even without any individualized suspicion.
United States v. Hagenow, 423 F.3d 638, 643 (7th Cir. 2005); United States v.
Barnett, 415 F.3d 690, 691-93 (7th Cir. 2005). Underlying these decisions is the
recognition that a probationer does not enjoy “‘the absolute liberty to which every
citizen is entitled, but only . . . conditional liberty properly dependent on observance
of special [probation] conditions.’” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)
(quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)); accord Knights, 534 U.S. at
119 (“[A] court granting probation may impose reasonable conditions that deprive
the offender of some freedoms enjoyed by law-abiding citizens.”); Barnett, 415 F.3d
at 692 (explaining that probationer is free to waive constitutional rights in
exchange for privilege of living outside prison so long as waiver is knowing and
intelligent).
Here, as in Knights and its progeny, Carroll explicitly agreed to “make
[himself] available for searches” while on probation, which is all that the law
required to render a search of his home by probation agents reasonable; no warrant
was needed. Nor was it necessary for Barnack’s supervisor to sign the search
application, contrary to Carroll’s assertion. Under Wisconsin law, a probation agent
who wishes to search a probationer’s living quarters must obtain “[a]pproval of the
supervisor . . . unless exigent circumstances . . . require search without approval.”
WIS. ADMIN. CODE DOC § 328.21 (2005). There is no statutory requirement that the
supervisor also document his approval in writing. The defendants here presented
evidence that a supervisor orally agreed to the search, and Carroll presented no
contrary evidence. Accordingly, summary judgment was properly granted in favor
of the defendants.1
1
Carroll additionally contends that, if the search of his home was lawful, the
search of his son’s computer was not. We point out, as did the district court, that as
a pro se litigant Carroll may not represent the interests of a third party, see 28
U.S.C. § 1654; Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986), even
if that third party is his son, see Navin v. Park Ridge Sch. Dist., 270 F.3d 1147,
(continued...)
No. 05-2412 Page 4
Given this conclusion, Carroll’s remaining arguments require little
discussion. First, his argument that the district court failed to compel discovery is
contradicted by the record. The court did compel discovery, but simply declined to
grant Carroll’s later motion to extend the discovery deadline because he did not
allege that documents he requested had not been received. We cannot conclude that
the court abused its discretion in not prolonging discovery, especially since it is
clear to us that no amount of further discovery could have overcome the waiver of
Fourth Amendment rights that Carroll accepted as a condition of his probation.
Nor do we discern any abuse of discretion in the court’s refusal to grant Carroll’s
motion to strike the answer of the probation-agent defendants. See Winfrey v. City
of Chi., 259 F.3d 610, 618-19 (7th Cir. 2001). And, finally, we agree with the
defendants that the additional arguments that Carroll raises in this court for the
first time are waived. See King v. Ill. State Bd. of Elections, 410 F.3d 404, 424 (7th
Cir. 2005).
AFFIRMED.
1
(...continued)
1149 (7th Cir. 2001); Devine v. Indian River County Sch. Bd., 121 F.3d 576, 581
(11th Cir. 1997); Osei-Afriyie v. Med. Coll. of Penn., 937 F.2d 876, 882-83 (3d Cir.
1991).