United States District Court, W.D. Missouri, Western Division
January 30, 2015
UNITED STATES OF AMERICA, Plaintiff,
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.
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:
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 supervision, or reasonable suspicion of criminal activity.
6. The signed conditions of release, Government Ex. 2, was part of Special Investigator Cook's file in February of 2014.
7. On February 6, 2014, at approximately 3:45 p.m., an anonymous call was made to the TIPS hotline which was forwarded to Special Investigator Cook's office in Kansas City, Kansas. (Tr. at 7, 22) The caller indicated that Mr. Scharschell was at the American Inn in North Kansas City, Missouri. (Tr. at 7) The caller did not know the room number, but reported that Mr. Scharschell was driving a silver Suburban. (Tr. at 7-8) The caller indicated that Mr. Scharschell was armed and selling narcotics. (Tr. at 23)
8. Before this tip came in, Special Investigator Cook had received information that Mr. Scharschell was actively selling drugs and that he had a handgun in his possession. (Tr. at 8, 23-24)
9. In response to this information, Special Investigator Cook and several members of the United States Marshal's Task Force from Kansas, as well as Gene Arnold, another special investigator employed by the Department of Corrections, left the Marshal's Office in Kansas City, Kansas and drove to the American Inn located at 1211 Armour Road in North Kansas City, Missouri. (Tr. at 8-9)
10. As the officers drove through the parking lot, their attention was drawn to the east side of the lot where a silver Suburban and a Chevy Impala were parked side by side with their hoods open. (Tr. at 9) A male was working on the Suburban, but he had a hoodie on and Special Investigator Cook could not identify the individual. (Tr. at 9) In addition, Special Investigator Cook had not had any dealings with Mr. Scharschell in several years and was not sure what he currently looked like. (Tr. at 9)
11. Special Investigator Cook radioed Special Investigator Arnold, who was in another car, telling him that there was a man working on a Suburban. (Tr. at 10) Special Investigator Arnold was circling the lot and said that the person working on the car was Frank. (Tr. at 11) The person in the hoodie looked toward the vehicles of the investigators, ran toward the door of the American Inn and went inside. (Tr. at 11)
12. Special Investigator Cook parked next to the Suburban. (Tr. at 11) He did not want Mr. Scharschell to circle back around and take off in the car; therefore, he took the car keys and put them in his pocket. (Tr. at 11-12) Special Investigators Cook and Arnold and one of the deputies tried to gain access to the motel. (Tr. at 11) However, the officers could not gain access to the part of the motel Mr. Scharschell had entered without a key card. (Tr. at 12) Another deputy went towards the office intending to talk to the manager to try and obtain access. (Tr. at 12) However, a female was coming towards the door, and the agents knew her to be Frank Scharschell's girlfriend, Elena Hernandez. (Tr. at 12)
13. The officers told Ms. Hernandez they were looking for Frank. (Tr. at 12) She said that he was there, that they had spent the night at the motel, but that he had run down the hallway. In response to the officers' questions, she told them she was staying in Room 146. (Tr. at 12)
14. The officers went to the room and knocked on the door, but no one came to the door. (Tr. at 12-13) The officers asked Ms. Hernandez for a key, but she said she did not have a key. (Tr. at 13) The officers asked a motel manager for assistance and the manager came down and used a pass key to try and get inside the room. (Tr. at 13) However, the officers could not get in because the deadbolt was engaged. (Tr. at 13) This indicated to the officers that there was someone in the room. (Tr. at 13) The motel manager advised he had a pass key that would bypass the deadbolt lock. He went to the office, got the deadbolt pass key and opened the door. (Tr. at 13) The door opened only about an inch and a half as the latch that can be flipped from inside to keep the door from opening was engaged. (Tr. at 13) This was a further indication that someone was inside the room. (Tr. at 13)
15. The officers asked the motel manager for permission to force the door open and he gave them permission to do so. (Tr. at 14) The officers made entry into the room continuing with commands such as " Police" and " show yourself." (Tr. at 14)
16. Once inside, the officers checked the bathroom and then noticed that the mattress was not level which indicated to them that someone was between the box springs and the mattress. (Tr. at 14) The officers pushed the mattress off to the side and found Frank Scharschell hiding underneath the mattress, on top of the box springs. (Tr. at 14) In response to the officers' commands, Mr. Scharschell rolled over, at which time he was handcuffed and patted down for weapons. (Tr. at 14) When the officers patted Scharschell down, they found a large wad of cash in his pocket. (Tr. at 15) The officers did not find anything illegal on Scharschell's person. (Tr. at 29)
17. After Mr. Scharschell had been taken from the room and placed in a secure vehicle, the officers looked around the room. On a nightstand to the left side of the bed, was a marijuana grinder and green leafy material which appeared to be marijuana. (Tr. at 16, 34) Additionally, the officers observed money and a glass pipe on a coffee table. (Tr. at 16) Special Investigator Cook testified that based upon his training and experience, he believed the pipe would be used for smoking either marijuana, crack cocaine or methamphetamine. (Tr. at 16)
18. The officers did not ask Mr. Scharschell for his consent to search the room and he did not give his consent. (Tr. at 24) Based on Mr. Scharschell's conditions of parole, as well as the information they had received from the TIPS call and the individuals they had talked to about the possibility of Scharschell selling drugs and having a handgun in his possession, they searched the room. (Tr. at 16) Special Investigator Cook believed that the search of Mr. Scharschell's motel room was authorized by his parole conditions. (Tr. at 32-33)
19. There was a dresser next to the TV area in the motel room and in the bottom drawer, the officers found a plastic ammunition box with a padlock on it. (Tr. at 16) Elena Hernandez then told the officers that she had seen Frank open the box at 5:00 a.m. that morning, that it was Frank's box and that he was the only one who used it. (Tr. at 17) The officers looked around for keys to open the box. (Tr. at 17) None of the keys in the room worked. However, one of the keys Special Investigator Cook had picked up from the Suburban opened the padlock. (Tr. at 17) Upon opening the box, the officers discovered a bag, like a purple Crown Royal bag, inside the box. (Tr. at 17) Inside the Crown Royal bag was another plastic bag and then several other bags with a white powdery substance inside them. (Tr. at 17) There was also a digital scale in the box. (Tr. at 17) Special Investigator Cook testified that based upon his training and experience, he thought the powder was an illegal drug. (Tr. at 18)
20. The Clay County Sheriff's Department drug squad was contacted and they took custody of the items found in Room 146. (See Gov. Ex. 3; Tr. at 19)
Defendant seeks to suppress all evidence obtained a result of the warrantless search of his motel room on February 6, 2014. In support of his motion, defendant argues that while the authorities could enter the motel room to execute the arrest warrant, the search of the room, including looking in drawers and a locked box following his arrest, does not meet any exception to the warrant requirement as it did not qualify as a search incident to arrest nor as a protective sweep. (Doc. # 26 at 3-4) Defendant also argues that " [w]hile Mr. Scharschell was clearly in violation of his parole for refusing to submit to a warrantless search as required by his conditions of parole, he did not sign a blanket consent to search." (Doc. # 26 at 5)
Contrary to defendant's arguments, this is not a case in which defendant was asked for consent to search, but refused in violation of the conditions of his parole. Special Investigator Cook acknowledged that the officers did not ask defendant for consent to search the motel room. (Fact No. 18) The government maintains that the search at issue was lawfully conducted pursuant to Paragraph 12 of defendant's Conditions of Release for Parole and Post-Incarceration Supervision which authorizes a search of defendant's " person, residence, and any other property under [his] control" by parole or other enumerated officers " with or without a search warrant and with or without cause." (Fact No. 5)
Government counsel cites numerous cases in which courts have upheld warrantless searches of probationers or parolees pursuant to conditions of supervision similar to that contained in Paragraph 12 of defendant Scharschell's conditions of release. For example, in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), upon being placed on probation, the defendant was subject to a condition of supervision almost identical to that imposed on defendant Scharschell. Pursuant to that condition, a sheriff's detective, based upon reasonable suspicion, searched Knights' apartment. On the basis of evidence recovered during that search, Knights was indicted on new charges. He then sought to suppress the evidence recovered during the warrantless search of his apartment. The Supreme Court concluded that " the reasonableness of a search is determined by assessing, on the 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." Id. at 118-19 (internal quotation marks and citation omitted).
The Court in Knights reasoned that " probationers do not enjoy the absolute liberty to which every citizen is entitled. 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." 534 U.S. at 119 (internal quotation marks and citation omitted). In rejecting the defendant's claim that the search violated the Fourth Amendment, the Supreme Court held that:
... Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term " probable cause, " a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.
The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary. See Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (noting that general or individual circumstances, including " diminished expectations of privacy, " may justify an exception to the warrant requirement).
The District Court found, and Knights concedes, that the search in this case was supported by reasonable suspicion. We therefore hold that the warrantless search of Knights, supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment. ...
Id. at 121-22.
Following the decision in Knights, the Eighth Circuit addressed the constitutionality of the search of a probationer's home by task force agents in United States v. Brown, 346 F.3d 808 (8th Cir. 2003). Defendant Brown was placed on probation and subject to a search condition similar to that addressed by the Supreme Court in the Knights case. Unlike the condition of supervision at issue in Knights, and in this case, the search provision in Brown specifically authorized only probation officers to search the defendant's property upon developing reasonable suspicion of criminal activity. Brown, 346 F.3d at 813. However, in Brown, the probation officer brought drug task force agents along to assist with the warrantless search of the defendant's home. Id. at 812. The Eighth Circuit Court of Appeals upheld the search concluding:
... We hold the governmental interest in ensuring probation officer safety outweighs any marginal, additional intrusion into Brown's privacy resulting from the task force agents' presence. In short, when a probationary condition authorizes searches by probation officers, the Fourth Amendment does not require probation officers to choose between endangering themselves by searching alone and foregoing the search because they lacked the resources and expertise necessary to search alone safely. Thus, the Knights balance does not change and the government can prevail if Allison [the probation officer] had a reasonable suspicion that Brown was violating the terms of his probation.
Allison had a reasonable suspicion that Brown was violating the terms of his probation. A drug task force agent called Allison and told her the task force suspected Brown's involvement in illegal activity. The agent also told her the task force had obtained a warrant to search Brown's business. Prior to receiving this call, Allison had been unable to confirm Brown's address. So, at a time Allison was unable to verify her probationer's address, a task force agent told her that the force not only suspected Brown's drug involvement, but also had produced enough evidence to secure a warrant to search Brown's business. Allison's suspicion was reasonable. ...
Id., at 812-13. See also United States v. Becker, 534 F.3d 952, 956-57 (8th Cir. 2008).
Here, the Special Investigators for the Kansas Department of Corrections knew that the defendant had absconded from supervision, and thus, was in violation of the terms of his probation. Further, they had reasonable suspicion that he was also engaging in ongoing criminal conduct. Law enforcement had information from several sources that the defendant was selling narcotics. (Fact Nos. 7 and 8) The information conveyed via the anonymous tip to the hotline was verified in several respects when investigators found both the silver Suburban and the defendant at the American Inn. (Fact Nos. 7, 10 and 11) Not only did defendant attempt to prevent officers from arresting him, but during the course of defendant's arrest, officers found a large wad of cash in his pocket and observed drugs and drug paraphernalia in plain view in the motel room in which defendant was found hiding. (Fact Nos. 14 through 17) All of these facts demonstrate that the investigators had reasonable suspicion that defendant was engaged in criminal activity at the time they searched his room pursuant to the Paragraph 12 of the Conditions of Release for Parole and Post-Incarceration Supervision.
Finally, even if the investigators did not have reasonable suspicion that defendant was engaging in criminal activity, which argument the Court has already rejected, the search pursuant to Paragraph 12 of defendant's conditions of release would still be constitutional. The Supreme Court in Knights left open for later resolution whether a warrantless search of a probationer pursuant to the conditions of his release, but without reasonable suspicion of criminal activity, was constitutional. In Samson v California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Supreme Court held that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee subject to a search condition similar to that imposed on defendant in this case.
For the reasons set forth above, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying defendant's Motion to Suppress Evidence (doc. # 26).
Counsel are reminded they have fourteen days from the date of receipt of a copy of this Report and Recommendation within which to file and serve objections to same. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation which are accepted or adopted by the district judge, except on the grounds of plain error or manifest injustice.