Opinion
A04-125 CR (RRB), Docket No. 21.
March 8, 2005
RECOMMENDATION REGARDING MOTION TO SUPPRESS
Defendant Nai Ching Saelee moves to suppress evidence obtained by the government as a result of a warrantless search of his vehicle on November 16, 2004. Docket No. 21. The motion is opposed by the government. Docket No. 27. An evidentiary hearing on the motion was conducted on February 7, 2005. Upon due consideration of the evidence adduced and arguments of the parties the magistrate judge concludes that the warrantless search of Saelee's vehicle by state probation officers was based upon a reasonable individualized suspicion that Saelee was engaging in criminal conduct in violation of his probation. The motion to suppress therefore lacks merit. It is recommended that the court adopt findings of fact and conclusions of law as set forth below and enter an order denying the motion to suppress.
Findings of Fact
On April 30, 2002, the defendant, Nai Ching Saelee was convicted of assault in the third degree in violation of AS 11.41.220(a)(1) and sentenced to four and one-half years in custody with three years suspended, and placed on probation for five years by Judge Michael Wolverton, Superior Court Judge, in case number 3AN-S01-8431 CR. Condition No. 11 of the General Conditions of Probation included the following language: "Upon the request of a probation officer, submit to a search of your person, personal property, residence or any vehicle in which you may be found for the presence of contraband." Saelee was provided notice of this requirement of probation by Judge Wolverton at sentencing and by his probation officer.
Government's Exhibit 2 at the Evidentiary Hearing. At the same sentencing hearing Saelee was placed on probation for five years concurrent with 3AN-S00-6628 CR.
Judgment, Government's Exhibit 2, p. 3.
Saelee reported to his probation officer, Dan Traxinger on November 15, 2004. Saelee was instructed by his probation officer to provide proof of his registration as a sex offender with the Alaska State Troopers. An appointment for Saelee was scheduled for 11:00 a.m. on November 16, 2004 in order for Saelee to drop off a registration form with his probation officer.
On November 16, 2004, Saelee arrived late for his appointment. After entering the lobby of the State building about 12:15 p.m., Saelee was arrested by FBI agents on a federal arrest warrant. Billy L. Hauser, District Supervisor of the Adult Probation Division for the Department of Corrections, asked Saelee how he had arrived at the building. Saelee told him that someone had dropped him off. An FBI agent told PO Hauser that Saelee had arrived by driving a vehicle which he had parked at Cordova and 8th Street before walking to the State building. The federal officers had observed Saelee exit a Chevy Yukon and walk toward the probation office.
At his arrest Saelee had in his possession a set of keys and a remote vehicle starter for the Chevy Yukon. Officer Hauser told Officer Scott Love to tell Saelee that the State Probation Office was going to conduct a probation search of his vehicle. The federal officers left the probation office with Saelee in their custody.
Officer Hauser proceeded to the location of the vehicle and unlocked it using the remote vehicle starter. The vehicle was unattended and appeared to be legally parked. The search of the Chevy Yukon by the state probation officers disclosed the following items: (1) A glass bowl containing a burned residue consistent with narcotics. (2) A Chevas Regal bag containing $390 in U.S. Currency in a drawer located in the rear of the center console of the vehicle. (3) A cell phone on the driver's side. (4) A federal probation monthly report form bearing information on Saelee for the month of September 2004 located in the glove compartment. (5) A .380 semi-automatic pistol containing two rounds in the magazine concealed in a sock in the console under a plastic tray.
The decision to search the vehicle was made by PO Hauser. Saelee was told that his vehicle would be searched; his consent was not solicited. None of the items seized from the vehicle were visible in plain view when the officers approached the vehicle. Although it was not unusual for a probationer to be late for his appointment it was not an accepted practice. Saelee was still on probation on November 16, 2004.
Between Noon to 1:00 p.m. lunch hour is observed by the state probation office but usually a duty officer and receptionist are there at that time. PO Hauser considered that probationers sometimes intentionally come to the probation office during the lunch hour to avoid contact with their probation officer, and to avoid drug screening (UA's). The officer decided to search Saelee's vehicle because he had shown up late for his appointment and had lied about his method of arrival.
Issues Presented
While Nai Ching Saelee was on state probation which required him to submit to a search of his personal property upon request by a probation officer for the presence of contraband, his motor vehicle was searched by state probation officers and items seized therefrom without a search warrant and without Mr. Saelee's consent. The pistol found in the vehicle by state probation officers led to the "felon in possession charge" in Count 6 of the first superseding indictment in the underlying federal prosecution. Saelee argues that the warrantless search of his vehicle was unlawful because it was done without reasonable individualized suspicion of criminal conduct or the presence of contraband. The government argues that the probation officers did not need reasonable suspicion to search the defendant's vehicle, and if they did, the officers had sufficient information to provide them with reasonable suspicion that Saelee was engaged in criminal activity.Conclusions of Law
Both parties cite United States v. Knights, 534 U.S. 112 (2001) wherein the Supreme Court held that a warrantless search of a probationer's apartment, supported by reasonable suspicion, and authorized by a condition of his probation, was reasonable within the meaning of the Fourth Amendment. The Knights court reasoned that a lesser degree of probability than the probable cause standard satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. The high court recognized that inherent in the very nature of probation is the concept that probationers do not enjoy the absolute liberty to which every citizen is entitled.
Knights had been subject to a condition of probation that required him to submit to a search of his person, property, place of residence, vehicle and personal effects at the time by any probation officer or law enforcement officer. The district court had held that the officers had reasonable suspicion to search Knights' residence. The Supreme Court construed the terms of the explicit probation condition to permit a "suspicionless search," but, because the search was supported by reasonable suspicion, it did not reach the question whether a suspicionless search condition was valid. Id. at 120 n. 6. The Knights court weighed the probationer's interest in privacy against the government's interest in the intrusion and held that the "balance of . . . considerations requires no more than reasonable suspicion to conduct a search of this probationer's house." Id. at 121.
Nor did the court in Knights reach the question whether Knights' reported consent to a search contained in the explicit condition of his probation was in itself a valid waiver of his Fourth Amendment rights. Id. at 112.
In Knights the court treated as a salient circumstance in the totality of circumstances test the fact that the probationer was subject to an explicitly stated condition of probation allowing suspicionless searches of his residence of current crimes.Knights at 118. Knights left unresolved whether a search of a probationer's property by a probation officer subject to a search condition in his probation is lawful under the Fourth Amendment in the absence of any individualized suspicion that the probationer is engaged in criminal conduct or a violation of the conditions of his supervision.
The government cites United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004) (en banc) and United States v. Kincade, 379 F.3d 813, 830 (9th Cir. 2004) ((r'hg en banc) in support of their position that suspicionless searches of conditional releasees are constitutional where such searches "meet the Fourth Amendment touchstone of reasonableness as gaged by the totality of the circumstances." United States Opposition, Docket No. 27, p. 5. Kincade is instructive. In the instant case the probation officer's had reasonable suspicion to conduct a search of Saelee's motor vehicle; therefore, the court need not consider whether that search would be valid as a suspicionless search. A. Crawford Decision
The discussion of suspicionless searches referred to as "special needs" searches discussed in Kincade need not further be considered. The government's argument that the instant search and seizure would be valid even in the absence of articulable suspicion was offered as an alternative response to the defendant's motion to suppress evidence.
In the first case, FBI special agent Bowdich intended to use a parole search as a pretext to speak to the defendant, Crawford, about a particular bank robbery. SA Bowdich and several state probation officers arrived at Crawford's home to conduct a parole search. Crawford was currently on state parole in California and as a condition of that parole he had signed a "Fourth Waiver," a document purportedly signifying his consent to a search by any law enforcement officer, with or without cause. 372 F.3d at 1051. One of the arguments made by Crawford before the District Court in support of his motion to suppress was that the search exceeded the scope of the "Fourth Waiver" because it "was conducted for the impermissible purpose of gathering evidence against [him] in the investigation of the bank robbery." For that argument he relied on the Ninth Circuit Court of Appeals opinion in Knights which was later reversed by the Supreme Court.
In reaching their decision whether Crawford's confession was admissible, the en banc Ninth Circuit Court in Crawford assumed that the parole search of Crawford's residence, and his detention during the search were illegal under the Fourth Amendment. The en banc court did not decide whether the suspicionless parole search violated the Fourth Amendment. 372 F.3d at 1054. That court held that the FBI had probable cause to arrest Crawford by the time the FBI agent contacted him. The court found that the parole search was intended to "buy time" for a conversation with Crawford, not to produce evidence of the old Robbery. Id. at 1057. The court reasoned that although the officers had probable cause to arrest Crawford, they did not have probable cause to search his home. The majority in Crawford found Knights as a controlling authority for its en banc ruling.
Crawford was not subject to any explicit condition of parole that allowed suspicionless searches to investigate pre-parole crimes. Crawford at 1089. In Crawford Judge Trott filed a concurring opinion joined by four circuit judges holding that the search of the parolee's home (Crawford's home) and his detention were constitutionally permissible and therefore Crawford's statements were admissible without regard to the analysis in the majority opinion. Judge Trott's approach clarified the constitutional relationship of states and parolees and found significant the California Supreme Court's authority in People v. Rayes, 968 P.2d 445 (1998). The Rayes court held that under California law "[w]hen involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subject's person or property."Crawford, 372 F.3d at 1065, citing Rayes 968 P.2d at 450.
Judge Trott wrote that the California court reasoned that in connection with its own state's system of parole a state's operation of a probation system presents a special needs situation beyond normal law enforcement. Under Judge Trott's view the term "special needs" as used in Griffin v. Wisconsin, 483 U.S. 868 (1987) creates an exception to the Fourth Amendment warrant which of course does not proscribe all searches and seizures, but only those that are unreasonable. It is axiomatic that what is reasonable depends on all the circumstances surrounding a search or seizure and the nature of the search or seizure itself. Thus, the court must balance an intrusion on the individual's Fourth Amendment interest against its promotion of legitimate governmental interests. Recognizing the interest of a state and the management of its parole system as "overwhelming," the concurring opinion noted the responsibility of the State to constrain and to mentor parolees who as a category are comprised of people who have demonstrated a propensity to break the law in connection with public safety. 372 F.3d at 1071. Judge Trott would find California's parole search conditions eminently reasonable and in applying a reasonableness standard would recognize the California Parolee's retention of the right of privacy against government searches and seizures that are arbitrary, a right of privacy against searches and seizures that are capricious, and a right of privacy against searches and seizure that are harassing. In addition, he recognizes the Due Process Clause protection of parolees against any search or seizure that shocks the conscience or is offensive because it does not comport with traditional ideas of fair play. 372 F.3d at 1072. Judge Trott would specifically hold that the conduct of the officers was demonstratively reasonable under the totality of the circumstances, citing Knights 534 U.S. at 118.
Judge Trott suggested the appropriate framework for analyzing the issue was that of "special needs" cases. In his last footnote Judge Trott cited the Supreme Court's description of the specific interest of a state and the management of its parole system as being "overwhelming." See Penn. B.D. of Prob and Parole v. Scott, 524 U.S. 357, 365 (1998).
In a special concurring opinion Judge Kleinfeld cautioned that probationers and parolees should be treated differently for purposes of probation and parole searches in some instances. But even the dissenting judges in Crawford did not believe that there was any difference in the two categories for purposes of the Fourth Amendment, particularly as applied in Crawford. 372 F.3d at 1091. The dissent in Crawford concluded that the officers needed reasonable suspicion to justify the search of Crawford's residence and that the officers lacked such suspicion. 372 F.3d at 1091-92.
Knights teaches that the key to a Fourth Amendment analysis is a balancing of interests. The reasonableness of a search is determined by assessing and balancing the degree to which it intrudes upon an individual's privacy and the degree to which is it needed for the promotion for legitimate governmental interests. 534 U.S. at 118-19.
B. Kincade Decision
In United States v. Kincade, supra, the issue was whether the defendant, Thomas Kincade, could be sentenced for violating the terms of his supervised release by refusing to submit to compulsory DNA (deoxyribonnucleic acid) profiling, in absence of individualized suspicion that he had committed additional crime as required by the DNA Analysis Backlog Elimination Act. Knights left unresolved the question whether special needs analysis controlled suspicion less searches of probationers at all. 379 F.3d at 830 citing Knights at 120 n. 6. The en banc opinion in Kincade suggests that the quantum of suspicion supporting the search of Knight's apartment was not what pushed the court beyond special needs analysis. 379 F.3d at 829.
In the instant case the government points out that Saelee had a reduced expectation of privacy in light of the eleventh condition of his probation requiring him to submit to a search of his personal property or vehicle in which he may be found for the presence of contraband upon the request of a probation officer. Although there was no specific requirement of probation that Saelee refrain from committing a federal, state or local crime, as a citizen he was obliged to abide by local, state and federal criminal law. Possession of contraband would clearly constitute a violation of federal and state law. The conditions of probation authorize the probation officer to request a search of the vehicle for the presence of contraband. Probation Officer Hauser testified that probationers will sometimes appear at the probation office during the usual lunch hour rather than their scheduled appointment in order to avoid contact with their probation officer. The probation officer monitoring the individual probationer would know the background of the probationer and be able to ask more pointed or detailed questions as a part of normal supervision.
PO Hauser was not relying only upon Saelee's tardiness for his appointment. Rather, he considered the fact that Saelee lied about how he arrived at the building for his appointment, thus appearing to deliberately be concealing the fact that he had arrived by driving a vehicle. The vehicle had been parked several blocks away which would have made it less obvious to an uninformed officer as to how he arrived at the probation office. Moreover, PO Hauser was entitled to take into consideration the fact that Saelee was being arrested on a federal warrant which suggested prior involvement in some criminal activity. The federal arrest involved alleged drug sales between the defendant and a confidential informant. Although drug sales were allegedly conducted from the defendant's vehicle the evidence at the suppression hearing does not address whether the state probation officer was aware of that specific factual allegation. Nevertheless, the probation officer could consider the defendant's alleged pattern of continued criminal behavior and the likelihood of the probationer wanting to conceal the location of his vehicle.
Saelee had a reduced expectation of privacy regarding his vehicle. As the government argues, courts have recognized that the ready mobility of an automobile justifies a lesser degree of protection than that for example of fixed realty. See California v. Carney, 471 U.S. 386, 391 (1985). Society clearly has an enhanced interest in insuring that a probationer complies with the requirements of his release and that citizens in general are protected against any violations of criminal laws by a person such as a probationer who has shown a propensity to violate the law.
A probationer is more likely than an ordinary citizen to violate the law. See Griffin v. Wisconsin, 483 U.S. 868, 880 (1987). As the government argues, a probationer has an enhanced incentive to conceal any criminal activity because he may face revocation of probation and possible incarceration in a proceeding in which the rights to a jury trial and proof beyond a reasonable doubt do not apply. Probation serves to encourage rehabilitation of convicted offenders as well as to protect society from future victimization. Id. at 839. Saelee was on notice that his vehicle was subject to a search by his probation officer upon request. The search of the defendant's vehicle was reasonable applying the reasonable suspicion standard and considering the totality of the circumstances.
Because the court determines that the search by the probation officer of the defendant's vehicle satisfies the reasonable suspicion standard and thus meets the requirements of the Fourth Amendment, the court need not and therefore does not, address the government's argument that the officers did not need reasonable suspicion to search the defendant's vehicle.
I determine that the immediate objective of the search by the probation officer was not to generate evidence for federal law enforcement purposes but rather to address the State of Alaska's concern with Saelee's behavior while on State probation. Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every other citizen is entitled. Knight, ___ U.S. at 120-21, 122 S.Ct. 587.
Wherefore, the motion to suppress brought by defendant Saelee should be denied. IT IS SO RECOMMENDED.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than Close of Business, March 10, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before 3:00 PM Friday, March 11, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).