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February 27, 2004.


The opinion of the court was delivered by: DAVID HERNDON, District Judge


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, Page 2 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 the Page 3 Conditions of Intensive Probation Supervision constituted a bargain between Barnett, St. Clair County and the People of the State of Illinois.

  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 Page 4 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 Office.*fn1

  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 prosecution.

  The Government supports this search based on two theories. First, on the consent entered into by Barnett on March 20, 2003, the Conditions of Intensive Page 5 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 consequence.

  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 Page 6 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 ...

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