Opinion
No. CR 98-0040 MJM
April 7, 1999.
ORDER
Introduction
The defendant, Jodie Jay Porter, has moved to suppress the introduction of evidence obtained in a search of his residence by his probation officers on May 30, 1997. His probation officers went to Porter's residence on that date at the request of an Iowa law enforcement officer. After making "small talk," Porter gave the probation officers permission to "look around." The probation officers ultimately found a marijuana growing operation in Porter's basement. The probation officers took Porter into custody, then notified the law enforcement officer, who seized approximately 200 marijuana plants.
An evidentiary hearing on the motion to suppress was held before the Chief Magistrate Judge, the Honorable John A. Jarvey, on October 30, 1998. In a Report and Recommendation, the magistrate judge recommended denying Porter's motion to suppress. (Doc. #17). The motion now comes before this court on Porter's objections to the Report and Recommendation. (Doc. #21). Porter argues the evidence should be suppressed because (1) the probation officers served as a "stalking horse" for the police when they searched his residence and (2) Porter did not consent to the search of his basement.
When a party objects to a Report and Recommendation on a motion to suppress, it is the duty of this court to conduct a de novo determination of those portions of the report, specific findings, or recommendations to which the party objects. 28 U.S.C. § 626 (b)(1); United States v. Hamell, 931 F.2d 466, 468 (8th Cir.), cert. denied, 502 U.S. 928 (1991). Accordingly, this court has reviewed the motion, the briefs, and the transcript of the hearing before the magistrate judge to determine de novo whether the evidence should be suppressed. The court concludes that the motion to suppress should be denied.
The court accepts the factual findings made by the magistrate judge except to the extent expressly noted in this Order.
Discussion A. Stalking Horse.
Porter argues first that the evidence should be suppressed because, in coming to his house, the probation officers were acting as a stalking horse for the police. The Eighth Circuit has held that "a parole search is unlawful when it is nothing more than a ruse for a police investigation." United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997). "Parole and police officers may work together, however, provided the parole officer is pursuing parole-related objectives and is not merely a 'stalking horse' for the police." Id. (quoting United States v. Harper, 928 F.2d 894, 897 (9th Cir. 1991)).
For purposes of the stalking horse doctrine, there is no difference between parole and probation. United States v. Scott, 945 F. Supp. 205, 209 n. 7 (D.S.D. 1996) (citing, e.g., United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992), and United States v. Harper, 928 F.2d 894, 896 n. 1 (9th Cir. 1991)).
In support of his stalking horse argument, Porter contends that the search conducted by his probation officers was a "ruse for a police investigation." As evidence, Porter cites testimony from one of his probation officers, Christel Olson, and a police officer, Alan Steil, a special agent with the Iowa Division of Narcotics Enforcement. Both Olson and Steil testified that Olson and another probation officer who supervised Porter, Anthony Haughton, went to Porter's residence at Steil's request. (Tr. 7-8, 15; Def. Ex. A at 29-30). In reviewing the record, however, the court concludes (as did the magistrate judge) that the probation officers exercised their independent judgment in deciding to visit Porter's residence and that the probation officers had legitimate probation-related reasons for conducting the search.
Defendant's Exhibit A is a transcript of Porter's revocation hearing in state court before the Honorable August F. Honsell, Judge of the Sixth Judicial District of Iowa, on September 19, 1997.
There is no doubt that the idea to visit Porter's residence was triggered by Steil's call to Olson on May 22, 1997. (Tr. 8). In that call, Steil told Olson he had information that Porter was growing marijuana in his basement. (Tr. 8). Specifically, Steil told Olson that Porter's son "had gone to school and told the teacher that his dad was growing something in the basement and that he [the son] couldn't go down there[.]" (Tr. 8). Steil said he was concerned about the welfare of the child in that environment. (Def. Ex. A at 29).
The magistrate judge erred in finding that Steil contacted Olson on May 3, 1997. In fact, this contact was made on May 22, 1997. (Tr. 8). Porter argues this is significant because, on May 13, 1997, he was arrested for OWI and possession of marijuana. Porter points out that Olson testified she would not have searched his residence solely on the basis of this arrest, (Tr. 7, 17), and that this is further evidence that her visit to his house was as a stalking horse for Steil. However, the magistrate judge did not rely on the erroneous sequence of events in making his recommendation. In any event, any error has been corrected by this court's de novo determination of the issue.
As the Eighth Circuit has recognized, there is nothing wrong with probation officers and police officers sharing information. McFarland, 116 F.3d at 318. The probation officers were legitimately concerned about the information that Steil gave them, not only because it suggested that Porter was violating the terms of his probation, but also because Porter may have been endangering himself and his child. Moreover, the probation officers did not immediately perform the search of Porter's residence as a stalking horse for Steil. Olson testified that on May 23, 1997, she went to her supervisor and discussed Steil's information with him. (Tr. 8). Olson explained that she wanted to go to Porter's residence "to see if, in fact, this was true." (Tr. 8). It was not until May 30, 1997, eight days after Steil contacted Olson, that Olson and Haughton conducted the search. Under the probation agreement, the probation officers were allowed to conduct "visits" to Porter's residence at any time and for any reason. (Tr. 5-6; Def. Ex. B at 1). Law enforcement officers were not involved in the search. Haughton did not call Steil until he had taken Porter into custody. (Tr. 46). After the search, the probation officers filed a Preliminary Parole Information and a Report of Violation and, ultimately, Porter's probation was revoked. (Def. Ex. A at 7, 38). From this record, it is clear that the probation officers had legitimate, independent probation-related reasons for conducting the search of Porter's residence on May 30, 1997.
Porter argues that the lack of police involvement in the search actually supports his stalking horse argument. Under Porter's theory, probation officers acting on behalf of the police — but without the presence of the police — is the essence of the stalking horse doctrine. This argument reflects a mistaken understanding of the doctrine. In the leading case of Smith v. Rhay, 419 F.2d 160 (9th Cir. 1969), the Ninth Circuit held that a warrantless search violated the Fourth Amendment where the parole officer was "acting on the prior request of law enforcement officials and in concert with them." Id. at 162 (emphasis added). In that case, the parole officer, the deputy sheriff, and the sheriff conducted the search together on the basis of the parole officer's authority to search the parolee's possessions at any time without a warrant. Id. Similarly, in United States v. Scott, 945 F. Supp. 205 (D.S.D. 1996), the court held that the probation officer acted as a stalking horse for the police by authorizing a search conducted by the police for law enforcement purposes. Id. at 208-09. In this case, by contrast, the probation officers acted independently of the law enforcement officers and for their own probation-related reasons.
Porter also argues that the magistrate judge overlooked the fact that Olson had not conducted any visits to his residence prior to the request by Steil, suggesting that her visit after Steil's request was inappropriate. The court disagrees for several reasons. First, Olson explained that she supervises many probationers. (Tr. 24). Second, Olson was satisfied with Porter's performance on probation from October, 1996, when she became his probation supervisor, through Porter's arrest on May 13, 1997. (Tr. 25; Def. Ex. A at 5). Third, when Porter was arrested, he contacted Olson "immediately." (Tr. 17). Fourth, his prior supervisor, Haughton, had conducted two visits to Porter's residence. (Tr. 36). Finally, even if Olson's visit was unexpected or unusual, it was appropriate for the reasons stated above in the text of the Order.
As the magistrate judge stated, the most persuasive fact in Porter's favor is that Steil called Olson because he thought he would be unable to obtain a warrant to conduct a search of Porter's residence. (Def. Ex. A at 29). Moreover, Olson agreed that Steil understood she had the authority to search Porter's residence. (Tr. 16). From this fact, it could be inferred that Steil told Olson that he wanted her to conduct a search of Porter's residence specifically because Steil did not have the authority to do so. Under the stalking horse doctrine, law enforcement officers run the risk of losing evidence if they specifically ask probation officers to conduct searches they know they cannot conduct themselves, rather than simply sharing incriminating information with the probation officers. In this case, however, the court finds that the probation officers nonetheless exercised independent judgment to visit Porter's residence for their own probation-related reasons. Consequently, the court finds that the stalking horse doctrine does not apply.
B. Consent
"A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be `reasonable.'" United States v. Vincent, 167 F.3d 428, 430 (8th Cir. 1999) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). However, because operation of a state probation system constitutes a "special need," "states may closely supervise probationers and impinge on their privacy to a greater extent than the general public to ensure the probationer observes [his conditions of probation]." Id. (citing Griffin, 469 U.S. at 875). In Vincent, the Eighth Circuit upheld a probation condition, imposed by the sentencing court, which provided for warrantless searches of the probationer's person or home by any probation officer at any time. Id.
Unlike the conditions of probation at issue in Vincent, Porter's probation agreement simply stated: "I will make myself and my residence available for visits at the discretion of my probation officer." (Tr. 6; Def. Ex. B at 1). Porter does not argue that the provision for "visits" in his probation agreement is unreasonable or otherwise unconstitutional. Instead, Porter contends that the probation officers conducted the "visit" in an unconstitutional manner.
Specifically, Porter argues that the magistrate judge erred by finding Porter consented to the search of his basement. Porter's argument assumes that consent was required before the probation officers were allowed to enter the basement to conduct a plain view search. This assumption is not necessarily correct. As Olson testified, probation officers on a "visit" to a probationer's residence "generally do what's called a plain view search. We'll look around to see what's there." (Tr. 6). By contrast, Olson testified that in order to conduct a "probation search, we would have to have reasonable suspicion that the probationer had violated the terms or conditions of [his] probation . . . [and] we have to get the probationer's consent." (Tr. 6-7, 9, 19). If the term "visit" has the meaning which Olson ascribes to it, then the probation officers, under the probation agreement, had the right on their visit to Porter's residence to "look around" the basement to conduct a plain view search without his consent. Nonetheless, the court (like the parties) will assume for purposes of argument that Porter's consent was required.
In this case, there is no question that Porter consented to some kind of a search. Porter testified that while he was engaged in "small talk" with the probation officers, Haughton asked, "[D]o you mind if we look around, and I said no." (Tr. 62). However, Porter argues that the search was unconstitutional because (1) he gave his consent before he was told why the probation officers were visiting and (2) his consent did not extend to the basement.
As to Porter's argument that he was not told why the probation officers were visiting before he consented to the search, both Olson and Haughton testified that Haughton told Porter about their suspicions of a marijuana growing operation before asking to look around the house. (Tr. 11, 31). Although both Porter and his wife testified that Haughton asked to look around before telling him about the rumors he was growing marijuana, (Tr. 54, 63), the magistrate judge found, as this court finds, that Haughton notified Porter of the reason for his request before asking to look around.
Moreover, Porter does not claim that the probation officers affirmatively misrepresented the purpose of their visit or their authority to search. Deceit by law enforcement officers is a factor that can render a consent involuntary, United States v. Carter, 884 F.2d 368, 375 (8th Cir. 1989), but there was no deceit in this case. Even if Haughton did not tell Porter the reason for the visit before asking to look around, such an omission would not render the consent involuntary or otherwise invalid under the overall circumstances of this case. See United States v. Bryson, 110 F.3d 575, 582 (8th Cir. 1997) (failure to disclose that suspect had been indicted did not render consent involuntary).
The court also rejects Porter's argument that his consent did not extend to the basement. It is true that "[a] consensual search may not exceed the scope of the consent given." United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993). However, "[t]he standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). In Jimeno, the suspect consented to a search of his car after the police officer told the suspect that he believed the suspect was carrying narcotics. Id. The Court held under the circumstances that the scope of the consent included paper bags on the floor of the car because "narcotics are generally carried in some form of container" and the police officer would have understood the suspect's consent to include paper bags. Id.
In this case, the probation officers were entitled to visit the residence under the provisions of Porter's probation agreement. Each of the officers had a long-standing relationship with Porter. The probation officers informed Porter they were looking for marijuana. Porter told them they could "look around." A basement is ordinarily considered an "integral part of the house." United States v. Dominguez, 911 F. Supp. 261, 263 (S.D. Tex. 1995) (quotation omitted), aff'd without published opinion, 103 F.3d 126 (5th Cir. 1996), cert. denied, 117 S. Ct. 1347 (1997). Porter did not expressly limit the scope of his consent. Under these overall facts, the probation officers could have reasonably understood Porter's consent to allow them to look in the basement. United States v. Coffman, 148 F.3d 952, 953 (8th Cir. 1998).
Nonetheless, Porter argues that Haughton asked if he could look in the basement, which, he claims, shows that Haughton did not believe he had authority to enter the basement. Further, Porter contends that he withdrew any consent to search the basement by telling the officers that the basement door was locked and that he could not find the key.
Upon this court's review of the record, it is clear that after looking around on the main floor, Haughton did ask if he could look in the basement. Both Porter and his wife testified that Haughton asked if he could look in the basement. (Tr. 55, 63). On her direct examination, Olson testified that Haughton "asked if we could go into the basement." (Tr. 12). On cross-examination, Olson first agreed that Haughton said, "Can I look in the basement," (Tr. 20), but then said she could not recall whether Haughton specifically asked it. (Tr. 23-24). Finally, Haughton's cross-examination contains the following exchange:
Now, at some point you followed up with a very specific question to Jodie Porter, which was "Can I look in the basement," is that right?
Correct, that is correct.
That question followed your general question of "Can I look around?"
Actually, I had asked if there was a basement, and he said there was.
And then you asked if you could look in the basement?
And I said — right.
So you asked that specifically?
Correct.
(Tr. 42). Because Haughton asked specifically for permission to see the basement, Porter's argument that Haughton must have believed he did not have permission to enter the basement has some force.
The court concludes, however, that Porter consented to the search of the basement by his response to Haughton's request to look in the basement and by his subsequent conduct. According to Olson, "He [Porter] said the door was locked and he looked for the key, and then he said he . . . didn't have the key." (Tr. 20-21). Porter testified that he "was genuinely looking for the key. I didn't know where it was. I thought the door was locked." (Tr. 73). As Haughton and Olson prepared to leave the house, Haughton said, "Just out of curiosity, where is the basement door?" (Tr. 44). Porter pointed to the door. (Tr. 22, 44). Haughton then went to the door, turned the door knob, opened it, and began walking down the stairs. (Tr. 22, 44-46). Porter did not object as he followed Haughton into the basement. (Tr. 14, 33, 59, 71). In the basement, Haughton found potting soil, garden tools, a "grow light," and marijuana in plain view.
As the magistrate judge found, the fact that Porter was looking for the key was an objective sign to the probation officers that he consented to the search of his basement. So too was the fact that Porter pointed out the location of the basement door and did not object as Haughton went to the door, turned the door knob, and entered the basement. In light of the probation agreement and Porter's earlier consent to "look around," it was objectively reasonable for Haughton to believe that Porter consented to his entering the basement. Porter's failure to object in such circumstances is evidence that the plain view search of the basement did not exceed the scope of his consent. United States v. Lyton, 161 F.3d 1168, 1171 (8th Cir. 1998); Martel-Martines, 988 F.2d at 858. Under these overall circumstances, the court finds that Porter consented to the probation officer's entry into the basement.
ORDER
For the foregoing reasons, the defendant's objections to the Report and Recommendation of the magistrate judge (Doc. #21) are OVERRULED and the defendant's motion to suppress (Doc. #12) is DENIED.