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United States v. Scharschell

United States District Court, W.D. Missouri, Western Division

January 30, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANK T. SCHARSCHELL, Defendant

For Frank T. Scharschell, Defendant: Carie Allen, LEAD ATTORNEY, Federal Public Defender's Office - KCMO, Kansas City, MO; FPD, Federal Public Defender, Kansas City, MO.

For USA, Plaintiff: Don Michael Green, LEAD ATTORNEY, United States Attorney's Office-KCMO, Kansas City, MO.

REPORT AND RECOMMENDATION

SARAH W. HAYS, UNITED STATES MAGISTRATE JUDGE.

This matter is currently before the Court on defendant's Motion to Suppress Evidence With Suggestions in Support. (Doc. # 26) For the reasons set forth below, it is recommended that this motion be denied.

I. INTRODUCTION

On April 29, 2014, the Grand Jury returned a one count indictment against Frank Scharschell alleging that on or about February 6, 2014, he possessed with the intent to distribute methamphetamine in an amount of 50 grams or more. On December 10, 2014, the undersigned conducted an evidentiary hearing on the motion to suppress. Defendant Scharschell was represented by Assistant Public Defender Carie Allen. The Government was represented by Assistant United States Attorney D. Michael Green. The Government called as a witness R.J. Cook, Special Investigator for the Kansas Department of Corrections. The defense called no witnesses to testify.

II. FINDINGS OF FACT

On the basis of the evidence adduced at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

1. R.J. Cook is employed as a Special Investigator for the Kansas Department of Corrections, stationed out of the U.S. Marshal's office in Kansas City, Kansas. (Tr. at 2-3) Special Investigator Cook, a twenty-two year employee of the Department, testified that his duties involve investigating violations of parole conditions, arresting fugitives from parole and returning them to the correctional facilities. (Tr. at 3)
2. Special Investigator Cook became involved in the investigation of Frank Scharschell after the Department of Corrections issued a felony parole warrant for him for absconding from parole. (Tr. at 3) Cook and his partner were trying to locate the defendant. (Tr. at 3)
3. An arrest warrant was initially issued for Mr. Scharschell on November 27, 2013. (Tr. at 3) He was arrested a short time later and returned to supervision, but then he absconded from his supervision again and another arrest warrant was issued on January 8, 2014. (Tr. at 4, 21) (See Gov. Ex. 8 and the attached Violation Report for a list of the conditions defendant was alleged to have violated.) The arrest warrant was issued by the Kansas Department of Corrections and not a judge. (Tr. at 21)
4. Government Exhibit 2 set forth the conditions of Mr. Scharschell's parole when he was released from the Kansas correctional facility. (Tr. at 5) These are standard conditions that everyone who is under supervision with the Kansas Department of Corrections must sign. (Tr. at 5) Mr. Scharschell signed these standard conditions on September 13, 2013. (Gov. Ex. 2; Tr. at 5)
5. Paragraph 12 of the Conditions of Release for Parole and Post-Incarceration Supervision provides:

12. Search:

o Be subjected to a search of my person, residence, and any other property under my control by parole officers, any authorized parole staff, and department of corrections enforcement, apprehension and investigation officers with or without a search warrant and with or without cause.
o Be subjected to a search of my person, residence, and any other property under my control by any law enforcement officer based on reasonable suspicion of violation of conditions of post-incarceration ...

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