United States District Court, S.D. Illinois
February 27, 2004.
UNITED STATES OF AMERICA, Plaintiff
CURTIS BARNETT, Defendant
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
I. Introduction and Background
On February 17, 2004, the Court held oral argument on Barnett's Motion
to Suppress Evidence/Quash Arrest (Doc. 11). After hearing testimony from
Government witnesses and argument of both parties, the Court took the
matter under advisement. For the reasons set forth below, the Court
denies the motion.
On August 20, 2003, the grand jury indicted Curtis Barnett for being a
felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) (Doc. 1). Specifically, the grand jury charged Barnett
with possessing two firearms on April 15, 2003. Barnett pled not guilty
to the charge on August 26, 2003 (Doc. 2). On February 4, 2004, Barnett
moved to suppress evidence/quash arrest (Doc. 11). Barnett argues that
the search that the St. Clair County Probation office and the St. Clair
County Sheriffs Department made on April 15, 2003 was without a warrant,
probable cause and/or any form of reasonable suspicion of criminal
activity or conduct violative of the terms of his intensive probation. On
February 10, 2004, the Government filed a response arguing that the
search was conducted pursuant to a consent given by Barnett when he was
placed on intensive probation and was based on reasonable suspicion since
Barnett had tried to get the probation officer to leave his house by
lying about his disabled son being inside the home resting (Doc. 13).
Subsequently, the Court held a hearing on the motion on February 17,
2004. The Court rules as follows.
II. Motion to Suppress
In March 2003, Barnett was the subject of two or three felony cases in
St. Clair County, Illinois, during which counsel represented him and he
was the beneficiary of a bargained-for agreement, and Conditions of
Intensive Probation Supervision. The Conditions of Intensive Probation
substituted intensive probation for prison time for this previously
convicted felon. (See Gov. Ex. 1 Par. 10(h) and the testimony of
Probation Supervisor Chester, who testified that Barnett was a five
time-convicted felon). Given the conditions for Barnett's intensive
probation, it is reasonable to infer that while the judge who sentenced
Barnett found that reasonable grounds existed to allow him to receive
such a disposition, that Barnett's case warranted very close scrutiny by
the St. Clair County Probation Department.
During oral argument, defense counsel conceded that Barnett signed and
consented to the Conditions of Intensive Probation Supervision and that
Conditions of Intensive Probation Supervision constituted a bargain
between Barnett, St. Clair County and the People of the State of
Paragraph 10 of the Conditions of Intensive Probation Supervision
outlines the "Specific Rules and Regulations of Intensive Probation
Supervision (Gov. Exhibit 1, ¶ 10). Subparagraph "c" is the
most relevant to this motion and it provides:
Submit to searches of your person, residence,
papers, automobile, and/or effects at any time
such requests are made by the Probation Officer,
and consent to the use of anything seized as
evidence in Court proceedings.
On April 15, 2003, George Chester, the supervisor of the Intensive
Probation Supervision Unit of the Probation Department, sought authority
from the St. Clair County State's Attorney's Office to conduct a
warrantless search of Barnett's residence. Chester felt that Barnett's
actions in his office that day established reasonable suspicion of
illegal contraband or activity. His based his belief on Barnett's
reaction to an arrest effected that day for Barnett's failure to appear
in court on some undisclosed matter. Chester testified that Barnett
"overreacted" to that arrest, for the purported reason that Barnett had a
woman in his car whom he did not want his wife to discover. Following the
encounter with Barnett, Chester looked fully into Barnett's criminal
background and found five felony convictions and numerous domestic
battery issues. Based on these findings, Chester determined that there
was reasonable suspicion that illegal contraband or activity was to be
found at Barnett's house. On the strength of that hunch, Chester
received permission to search Barnett's home from the State's Attorney's
Consequently, in the evening hours of the same day, Probation Officer
Rodney Skinner, was directed to conduct a search of Barnett's residence.
Officer Skinner, accompanied by two Sheriff's Department deputies for
assistance, went to Barnett's home. Upon knocking on the door and
obtaining Barnett's attention, Skinner advised Barnett that the officers
were there to search his house pursuant to the condition's of his
probation and to make sure he was abiding by the conditions of his
probation. Barnett advised the officers that his handicapped son was in
the house sleeping and asked if they could come back another time because
he did not want the officers to disturb his son. Skinner responded that
if Barnett would tell them what room the child was in, they would try not
to disturb him, but reminded Barnett that it is a condition of his
probation for them to come in and check his house. Skinner testified that
Barnett "hesitated, but he allowed [them] to enter into the residence."
(February 17, 2004 Motion to Suppress Transcript; Skinner Testimony,
p. 24, lines 3-4). The officers then conducted a search of the
house, finding the evidence which is the subject of this criminal
The Government supports this search based on two theories. First, on
the consent entered into by Barnett on March 20, 2003, the Conditions of
Probation Supervision (Gov.'s Exhibit 1). Secondly, while
not suggesting that reasonable suspicion existed when the instructions
were issued by Supervisor Chester to Officer Skinner for the search, the
Government asserts that once Officer Skinner was on the scene that an
objective officer would have found reasonable suspicion based on
Barnett's conduct at the door: his nervousness and his lie. In so
arguing, the Government proposes that the Court disregard the subjective
attitude of the searching officers.
There is really only one theory to discuss fully, since the Court finds
that the last theory really does not hold water. Clearly, Officer Skinner
was intent on doing what his supervisor instructed him to do, thus,
Barnett's actions at the door relative to reasonable suspicion are of no
The only issue here is consent. The United States Supreme Court,
considering a case similar to the one at bar, left this issue for another
day. In United States v. Knights,534 U.S. 112
(2001), a probationer signed a similar consent to search. However,
the facts of the case were such that the District Court found that
reasonable suspicion supported the search and the Supreme Court did not
need to reach the issue of whether the probationer's consent was adequate
to give away all of his Fourth Amendment rights.
Here, by Barnett's admission, is a true bargained-for consent to
search. The condition was one among many accepted in the place of going
to prison. Along with the search came an agreement that if the search
turned up something found to
be useful in a court of law, there was consent that it could be so
used. Barnett was represented by counsel at the time of this transaction.
A stay out of jail bargain certainly benefits Barnett, until the
Probation Department makes good on its obligation to protect the public
and initiates a search his home. Of course, that is the other
consideration to such matters. Recognized in the Knights case
is the serious recidivism rate of felons on probation and the need,
therefore, to protect society while they attempt to make good on the
chance they have been given in such bargains. Knowing that Probation was
intent on searching his residence, Barnett would have liked nothing
better than to send them away, on any excuse, in order to give him time
to hide the contraband that lands him in federal court now.
What is not present in this case is a defendant who was involuntarily
placed on probation, on whom conditions were imposed by a sentencing
judge, and who has no right to refuse the conditions. Such a difference
was discussed thoroughly with defense counsel during oral argument. While
defense counsel "wished" he could agree with the latter description posed
by the Court, he advised that the bargained-for description of the
previous paragraph was the appropriate way to describe the proceedings
that brought about the consent to search.
Consent has long been an exception to the need for a warrant to search.
Zap v. United States, 328 U.S. 624 (1946), vacated on
other grounds 330 U.S. 800 (1947); Katz v. United
States,389 U.S. 347 (1967); Vale v.
Louisiana,399 U.S. 30 (1969); Schneckloth v.
Bustamonte, 412 U.S. 218 (1973). While not
factually the same, the Zap court, Justice Douglas
speaking, dealt with a very similar issue. In order to do business with
the Navy, a contractor had to agree to "allow its accounts and records to
be open at all times to the Government and its representatives. . . ."
Zap,328 U.S. at 627. Acting on behalf of the Navy,
the FBI conducted an audit of the petitioner's books and records, despite
his protest, seizing a check that was later used against him in a
criminal prosecution. The trial judge denied the motion to suppress the
introduction of the check at trial. Relying on Davis. the
Court found, that one may waive his Fourth and Fifth Amendment rights.
"And when petitioner, in order to obtain the government's business,
specifically agreed to permit inspection of his accounts and records, he
voluntarily waived such claim to privacy which he otherwise might have
had as respects business documents related to those contracts."
Zap,328 U.S. at 628. The balance of the case dealt
with the right of the inspector to take the check and to use it in court,
which the Supreme Court decided the trial judge appropriately used his
discretion in allowing. At bar, the consent actually provides for the use
of seized items in court.
In Schneckloth, a case on which the Knights case
relies as the gold standard for what constitutes "consent," the Court
Our decision today is a narrow one. We hold only
that when the subject of a search is not in
custody and the State attempts to justify a search
on the basis of his consent, the Fourth and
Fourteenth Amendments require that it demonstrate
that the consent was in fact voluntarily given,
and not the result of duress or coercion, express
or implied. Voluntariness is a question of fact to
be determined from all the circumstances, and
while the subject's knowledge of a right to refuse
is a factor to be taken into account, the
prosecution is not required to
demonstrate such knowledge as a prerequisite
to establishing a voluntary consent.
412 U.S. 248-249.
Waiving one's constitutional rights is certainly nothing new. Depending
upon the right that is being waived, the safeguards that go along with
that consent vary. Waiving one's right to remain silent requires detailed
warnings. Miranda v. Arizona,384 U.S. 436 (1966). A
trial judge who is considering a defendant's request to waive his Sixth
Amendment right to counsel is well advised to spend time ensuring that
the defendant does so with full knowledge of the pitfalls. Faretta
v. California,422 U.S. 806 (1975), Von Moltke v.
Gillies,332 U.S. 708 (1948), United States v.
Bell,901 F.2d 574 (7th Cir. 1990). However, the judge who
considers the validity of a consent search of a home only needs to know
if the rightful occupant of the search said yes when asked for consent
and not whether that person was first advised of all her rights in detail
as alluded to with the Fifth and Sixth Amendment rights above.
Schneckloth,412 U.S. 218 (1973).
Based on the circumstances of this case, it is abundantly clear that
Barnett entered into the consent to search voluntarily. Not even Barnett
contends that consent need be contemporaneous to the search itself. There
is no suggestion, nor do the facts indicate, in the context of the manner
in which the consent was given, that Barnett, at any time, formally
attempted to withdraw his consent and discuss with the State Circuit
Court and the Probation Department what alternatives were available to
Barnett argues that since the policy of the St. Clair County Probation
Department (Gov. Ex.2) requires reasonable suspicion, that by
some adoption or bootstrapping theory, such policy is naturally part and
parcel to all conditions of probation such as the one signed by Barnett.
However, that theory does not carry the day with this Court. First of
all, that policy is not what was presented to the Barnett. It is what
Barnett knowingly consented to that is at issue. Secondly, that policy is
merely a recitation of constitutional law for any probationer that has
not waived his rights, as Barnett has.
The Court notes that it is entirely possible that the United States
Supreme Court may one day look at this issue and rule, despite the fact
that defendants are allowed to waive both their Fifth Amendment and Sixth
Amendment rights, that as a probationer you cannot waive your Fourth
Amendment right insofar as your home is concerned. However, this Court
does not believe that will be the ruling. That the general policy is more
restrictive for those probationers who do not consent than the actual
consent that was signed by this particular probationer (and others like
him) in a bargained-for deal to stay out of prison is of no consequence.
It is very important to society to maintain a watchful eye on
probationers because of the very real threat of recidivism. For those
probationers on whom conditions of probation are involuntarily imposed,
unlike this case, a search of their premises only upon reasonable
suspicion is appropriate and protects the rights of the probationer while
looking after the interests of society. For this case and others like it,
however, just as one can waive their Fifth and Sixth Amendment rights, so
should the courts recognize the right to waive their Fourth
Amendment right, particularly when it is in a bargain in exchange for
prison time. In fact, it seems only logical that this should
automatically invoke a recognition of the need to respond to the need to
protect the public.
Accordingly, the Court DENIES Barnett's Motion to Suppress
Evidence/Quash Arrest (Doc. 11). The Court SETS this matter for
jury trial on Monday, March 15, 2004 at 9:00 a.m. The time from the
filing of the motion, February 4, 2004, until the date this decision is
excluded from consideration under the Speedy Trial Act.
IT IS SO ORDERED.