Opinion
Case No. 2:02-CR-503 W
May 27, 2003
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
This matter is before the court on Defendant's Motion to Suppress. On February 5, 2003, the court conducted an evidentiary hearing on the motion. Defendant Leroy Trujillo ("Trujillo") was present with his counsel, Sharon L. Preston. The government was represented by Eric D. Petersen. Following the hearing, the court ordered a transcript as well as supplemental briefing from the parties. At defense counsel's request, the court heard oral argument on the matter on May 8, 2003. After thorough review and consideration of the pleadings submitted by the parties, the testimony presented at the evidentiary hearing, and the arguments of counsel, the court enters the following memorandum decision and order.
BACKGROUND
The court finds the relevant facts as follows. Trujillo was paroled from the Utah State Prison in October of 2000. Shortly thereafter, on October 31, 2000, Trujillo was placed under the supervision of Agent James Hudspeth with the Utah State Department of Adult Probation and Parole (APP). (Tr. at 7.) As a condition of his parole, Trujillo signed a Parole Agreement on September 12, 2000, outlining the conditions of his parole. (Tr. at 22; Pl's Exs. 1 2.) Paragraph 5 of the Parole Agreement states that Trujillo "will permit agents of Adult Probation and Parole to search my person, residence, vehicle or any other property under my control, without a warrant, at any time, day or night, upon reasonable suspicion to ensure compliance with the conditions of my parole." (Pl's Exs. 1 2.)
Reference to the transcript of the evidentiary hearing conducted on February 5, 2003, will be cited as "Tr. at ___."
In November of 2001, Trujillo provided a urine sample which tested positive for the use of a controlled substance. (Tr. at 15.)
In approximately February or March of 2002, Detective Dain of the West Valley City Police Department contacted Agent Hudspeth concerning Trujillo. (Tr. at 17, 34.) Detective Dain was, at that time, investigating Trujillo for drug distribution. Once Dain became aware that Trujillo was on parole, Dain contacted APP to inform Hudspeth of his investigation. (Tr. at 32.) Thereafter, Hudspeth and Dain maintained periodic contact regarding Dain's investigation. (Tr. at 18, 34.)
On April 2, 2002, Trujillo reported to the APP office and was asked to provide a urine sample. (Tr. at 8.) Trujillo was given an hour and a half to provide a sample but failed to do so. (Tr. at 8.) Trujillo complained of stomach pain and said he needed to go to the doctor. (Tr. at 8.) Hudspeth told Trujillo that his failure to provide a sample would be treated as a "refusal." (Tr. at 8.) Trujillo left the APP office without providing a sample. (Tr. at 8.)
Hudspeth testified that as of April 2, 2002, Trujillo had also failed to make restitution payments and had failed to provide proof of the required mental health therapy. (Tr. at 8.)
The following day, on April 3, 2002, Hudspeth submitted a parole violation report and warrant request to the Board of Pardons. The warrant request cited Trujillo's failure to submit to urinalysis in violation of condition number nine of the Parole Agreement; failure to make restitution payments in violation of special condition numbers one, two, three, and four of the Parole Agreement; and failure to provide documentation concerning substance abuse therapy in violation of special condition number five of the Parole Agreement. (Pl's Exs. 1 2; Tr. at 16-17.) The Board of Pardon's issued a warrant for Trujillo's arrest. (Tr. at 8.)
Prior to executing the arrest warrant, Agent Hudspeth contacted Detective Dain of the West Valley Police Department to inform him that he was going to arrest Trujillo and to request West Valley's "assistance in searching the residence." (Tr. at 10, 27.) Hudspeth told Dain that regardless of whether West Valley agreed to assist, he was going to proceed with the search and arrest of Trujillo. (Tr. at 36.) Detective Dain agreed to assist Hudspeth. (Tr. at 36.)
Prior to arriving at Trujillo's residence, Hudspeth held a "briefing" with West Valley Police. Hudspeth explained that the Board of Pardons had issued a parole violation arrest warrant and that they were going to search the residence for further violations of his parole in accordance with the Parole Agreement. (Tr. at 10, 28.) Hudspeth specifically indicated that they were looking for drugs and narcotics related contraband. (Tr. at 28, 39.)
The arrest warrant was executed on the evening of April 3, 2002, under the direction of Agent Hudspeth. (Tr. at 10, 33.) It was determined that the arrest warrant should be executed in the evening because "public safety was at risk," and because of the possibility of weapons at Trujillo's residence. (Tr. at 19.)
Hudspeth and his partner, Agent Jeremy Poor, arrived at Trujillo's residence as Trujillo was attempting to leave in his vehicle. (Tr. at 11.) Hudspeth stopped the vehicle in the driveway, made contact with Trujillo, and explained why they were there. (Tr. at 10.) After telling Trujillo that the Board had issued a warrant for his arrest, Hudspeth took Trujillo into custody. (Tr. at 10.) Hudspeth then continued to talk with Trujillo in the driveway, explaining the underlying reasons for the warrant. (Tr. at 10.)
While Hudspeth was talking with Trujillo, Agent Poor began to search Trujillo's vehicle and Detective Dain, accompanied by other West Valley Police officers, entered Trujillo's residence to secure the location and search for contraband. Hudspeth testified that the vehicle and residence were searched pursuant to the terms of the Parole Agreement. (Tr. at 21.)
Agent Hudspeth was not involved in the search of the vehicle or the search of the residence as he was responsible for maintaining custody of Trujillo. (Tr. at 14.) While Hudspeth and Trujillo were in the driveway, an agent would periodically come outside to tell Agent Hudspeth what had been located within the residence. (Tr. at 39.)
During the search of the residence, officers discovered a 9mm handgun, 9 mm ammunition, and correspondence addressed to Trujillo in the master bedroom in a night stand next to the bed. In a larger dresser in the master bedroom, officers found additional ammunition, Trujillo's identification, and an owner's manual to a gun. (Tr. at 40.) Narcotics paraphernalia was also found in the residence. (Tr. at 41.)
At some point in time, Hudspeth took Trujillo inside the residence and conducted a urine sample. (Tr. at 13, 25.) The sample tested positive for methamphetamine and THC. Trujillo also admitted to drug use at that time. (Tr. at 13-14.)
Trujillo claims that the search of his residence without a warrant violated the Fourth Amendment. First, Trujillo claims that because he had been arrested at the time of the search, he was no longer subject to the terms of the Parole Agreement and therefore the Agreement could not legally authorize the search. Second, Trujillo claims that even if he was subject to the Parole Agreement, there was not reasonable suspicion to justify the search.
DISCUSSION
Generally, the Fourth Amendment prohibits a search of a residence unless it is pursuant to a search warrant supported by probable cause.See, e.g., Payton v. New York, 445 U.S. 573, 586 (1980). However, inGriffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court recognized an exception to the warrant and probable-cause requirement for probationers, and upheld a search of a probationers residence by a probation officer pursuant to a state regulation which authorized searches "without a warrant . . . as long as there are `reasonable grounds' to believe [that there is] the presence of contraband." Id. at 873. More recently, in United States v. Knights, 534 U.S. 112 (2001), the Supreme Court revisited this exception to the warrant requirement, and concluded that no more than reasonable suspicion was required to search a probationer's residence where the search was authorized by a condition of his probation. Id. at 122. In reaching this conclusion, the Court balanced a probationer's "significantly diminished privacy interest" with the State's interest in "apprehending violators of the criminal law" and "protecting potential victims of criminal enterprise." Id. at 121. The Court reasoned that a probationer's acceptance of a search condition significantly diminishes the probationer's reasonable expectation of privacy in his residence. Id. at 119-20. On the other hand, the state has a heightened interest in monitoring the behavior of a probationer, because a probationer is more likely to violate the law than an ordinary citizen. Id. at 120. Additionally, a probationer has greater incentive "to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things do not apply" Id. see United States v. Tucker, 305 F.3d 1193, 1199 (10th Cir. 2002), cert. denied, 123 S.Ct. 1335 (2003).
The Tenth Circuit has treated parolees and probationers identically for Fourth Amendment purposes. United States v. Tucker, 305 F.3d 1193, 1199 n. 9 (10th Cir. 2002), cert. denied, 123 S.Ct. 1335 (2003); see, e.g., United States v. Lewis, 71 F.3d 358, 361 (10th Cir. 1995) (applying probationer precedent in a case involving a parolee).
Trujillo acknowledges that the parole agreement he signed contained a search condition. However, he contends that once he had been arrested the Parole Agreement ceased to be "in effect" and could not provide a legal basis for the search. More specifically, Trujillo contends that the exception to the warrant requirement set forth in Griffin and Knights was premised on a probationer's conditional liberty in the community. Therefore, he asserts, once a parolee has been taken into custody, the state no longer has any interest in assuring compliance with parole requirements, protecting the community from the parolee, or supervising the parolee. (Def's Mem. in Support at 4, 8-9.)
Courts that have considered this issue have generally concluded that the authority to conduct a "parole search" of a parolee's residence is not lost simply because the parolee has been taken into custody. In reaching this conclusion, courts have readily determined that the goals and interests of the state's parole system are not diminished, and in some cases are actually intensified, when a parolee has been arrested or taken into custody. See, e.g., United States v. Jones, 152 F.3d 680, 685-86 (7th Cir. 1998) (concluding that a warrantless search of parolee's residence conducted on "reasonable grounds," pursuant to Wisconsin regulation, while parolee was in state custody, did not violate the Fourth Amendment; parolee's expectation of privacy was not heightened as a result of his custodial status, nor was the state's special supervisory need with regard to parolees diminished), cert. denied, 526 U.S. 1059 (1999); United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (upholding search of parolee's vehicle following parolee's arrest where probation officer was properly carrying out official responsibilities);United States v. Hill, 967 F.2d 902, 911 (3d Cir. 1992) (upholding parole search following parolee's arrest and stating that the "interest in inspecting [parolee's] place of residence did not terminate upon his arrest; if anything, it intensified. The evidence seized during the search bore directly upon his potential for rehabilitation, and would figure prominently in decisions on the need for further incarceration." (Citation omitted)); United States v. Dally, 606 F.2d 861, 863 (9th Cir. 1979) (parolee's arrest for parole violation did not end the need for parole search, since state had a continuing interest in parolee's progress in order to determine whether to continue, modify, or revoke his parole); Latta v. Fitzharris, 521 F.2d 246 (9th Cir.) (upholding warrantless search of parolee's home even though parolee had been arrested 6 hours prior and was 30 miles away from home when arrest occurred, stating that although main goal of parole is to provide for supervised rehabilitation outside of prison, parole should also deter recidivism, and therefore parole authorities have a special and unique interest in invading the privacy of parolees under their supervision),cert. denied, 423 U.S. 897 (1975); People v. Johnson, 472 N.E.2d 1029 (N.Y.Ct.App. 1984) (upholding trial court's denial of motion to suppress where, after determining that parolee had been arrested for possession of marijuana, parole officer then searched and seized evidence from parolee's apartment); see also, e.g., 59 Am. Jur.2d, Pardon and Parole § 128 (2002) ("The courts have generally held that the authority to make a search of a parolee's residence is not lost when the parolee is in custody on charges either unrelated or related to the parole status."). Similarly, this court does not believe that the needs and interests of Utah's parole system were diminished or ceased to exist upon Trujillo's arrest.
The search of Trujillo's residence was prompted by his failure to comply with the terms of his Parole Agreement. Although Agent Hudspeth had enough information to successfully obtain an arrest warrant, the arrest of Trujillo did not automatically satisfy Hudspeth's duties as a parole agent nor did it satisfy the needs of the State's parole system. Parole agents have a duty to monitor and investigate compliance with parole conditions. In deciding whether to continue, modify or revoke Trujillo's parole, the parole board would need to know the number and seriousness of Trujillo's parole violations as well as other current information about Trujillo's progress. See Dally, 606 F.2d at 863. The evidence obtained in the search of Trujillo's residence following his arrest is directly relevant to these issues. It is also relevant to Trujillo's potential for rehabilitation. See Hill, 967 F.2d at 911;Dally, 606 F.2d at 863.
Moreover, the fact that a parolee has been taken into custody does not eliminate the state's interest in preventing and deterring harm to its parolees and to society. Using the case at bar as an example, simply removing Trujillo from the streets by arresting him did not eradicate all potential danger. The evidence obtained during the search of his residence revealed both guns and ammunition which could present a continued threat to society. See Jones, 152 F.3d at 686 (recognizing that accessible firearms and narcotics left behind by a parolee who has been taken into custody may present a continued threat to society). It was within the officers' normal duties to ensure that Trujillo's activity posed no lingering threat to public safety. See Hill, 967 F.2d at 911.
In United States v. Jones, 152 F.3d 680 (7th Cir. 1998), cert. denied, 526 U.S. 1059 (1999), the Seventh Circuit rejected an argument identical to Trujillo's. The Jones court began by reiterating that parolees have a significantly limited expectation of privacy as a result of the supervisory relationship and restrictions imposed by the State. Given this, the court could not conceive of any reason why a parolee's limited expectation of privacy in his residence would or should be "heightened when he is in the State's custody for the purpose of determining whether the supervisory relationship has broken down and the parolee has violated the conditions of his parole." Id. at 686. Considering the rehabilitative purposes of the state's parole system as well as the state's interest in deterring and preventing unlawful conduct by parolees, the Seventh Circuit did not believe "that the State's special supervisory need is diminished when a parolee is in custody, or that the parolee enjoys a heightened expectation of privacy in his home due to his custodial status." Id. Like the Seventh Circuit, this court can see no reason why the reduced expectation of privacy Trujillo had in his residence should be heightened as a result of his being taken into custody. Trujillo's status as a parolee was not altered by his arrest. Under Utah law, Trujillo remains a "parolee" until the Board of Pardons renders a decision regarding his status. See Utah Code Ann. § 77-27-11.
In addition, although acknowledging that the defendant was correct that the Supreme Court's holding in Griffin was supported by the "need to act quickly to prevent harm to the probationer and society," 483 U.S. at 875, the Seventh Circuit stated: "We do not accept his twin premises that this is the only justification supporting Griffin and that the prevention of harm is not implicated when the parolee is in custody at the time of the search." Jones, 152 F.3d at 686.
The search in this case was prompted by Trujillo's failure to comply with the terms of his Parole Agreement. The search occurred immediately upon his arrest, and yielded information directly relevant to his parole and future parole decisions. Given the facts of this case, the court concludes that the Parole Agreement continued to govern the terms of the relationship, and the officers were entitled to search Trujillo's residence in accordance with the search condition.
II. Reasonable Suspicion
Trujillo claims that even if he remained subject to the search condition of the Parole Agreement, there was not reasonable suspicion to justify the search. "Reasonable suspicion is a less demanding standard than probable cause" United States v. Treto-Haro, 287 F.3d 1000, 1004 (10th Cir. 2002). While probable cause means "a fair probability that contraband or evidence of a crime will be found," reasonable suspicion is merely a particularized and objective basis for suspecting criminal activity. United States v. Sokolow, 490 U.S. 1, 7 (1989). To determine whether the investigating officers had reasonable suspicion, the court considers both the quantity of information possessed by law enforcement and its reliability. See Alabama v. White, 496 U.S. 325, 330 (1990);Tucker, 305 F.3d at 1200. Both factors must be viewed under the totality of the circumstances. Tucker, 305 F.3d at 1201. "Reasonable suspicion may exist, however, on information less reliable than that needed to establish probable cause." Id.
Agent Hudspeth had reason to believe that Trujillo was continuing to use illegal drugs in violation of his parole. He also had reason to believe Trujillo was in violation of additional conditions of his parole. Trujillo had tested positive on a prior urine sample and had refused to provide a sample on April 2, 2002. Beyond this, Detective Dain provided Hudspeth with information concerning alleged drug distribution by Trujillo. Dain testified that he initially received information about Trujillo through a tip and that he thereafter conducted significant surveillance which corroborated that information. Moreover, Agent Hudspeth testified that at the time of the search he believed that they "had already met the reasonable suspicion standard" by having successfully established the higher standard of probable cause which was necessary to obtain the arrest warrant from the Board of Pardons.
Given these facts, the court concludes that the search of Trujillo's residence, conducted pursuant to the search condition in the Parole Agreement, was supported by reasonable suspicion.
Therefore, based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that defendant's motion to suppress is DENIED.