IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
December 15, 2006
UNITED STATES OF AMERICA, PLAINTIFF,
DAMMARO D. PERKINS, DEFENDANT.
The opinion of the court was delivered by: Herndon, District Judge
MEMORANDUM AND ORDER
On September 27, 2004, Defendant was released from Pinckneyville Correctional Center and placed on Mandatory Supervised Release ("MSR").*fn1 As part of the MSR, Defendant signed an agreement, which contained the following provision: "You shall consent to the search of your person or property, or residence under your control." Over the course of the next several months, Defendant tested positive for marijuana on several occasions (September 29, 2004; December 14, 2004; March 22, 2005; and June 5, 2005). Over that same period of time, Defendant consistently informed IDOC that he was not employed. On July 27, 2005, parole agents conducted a warrantless and non-consensual search of Defendant's residence and recovered crack cocaine, marijuana, a box of plastic bags, a scale, over $1000 in cash, a loaded .38 revolver, and additional ammunition. Defendant filed a motion to suppress (Doc. 15) all evidence obtained as a result of the warrantless search of his residence on July 27, 2005. The Government filed a response in opposition. (Doc. 19.) A hearing was held on the motion to suppress (Doc. 15) on October 17, 2006. Following the hearing, the Court granted a motion by Defendant to allow supplemental briefing. (Doc. 20.) Defendant submitted a supplemental brief in support of his motion to suppress (Doc. 24) and the Government submitted a supplemental brief in opposition (Doc. 27).
In the Court's mind, the critical facts of this case center around Defendant's positive drug tests and the information that was conveyed by Defendant's parole officer to the compliance check team.
As stated above, Defendant was released from Pinckneyville Correctional Center on September 27, 2004. Upon his release, Defendant was placed under the supervision of Illinois Department of Corrections Parole Agent John Wiebler. Agent Wiebler had previously supervised Defendant.*fn2 At the first face-to-face visit following Defendant's September 27, 2004 release, Defendant tested positive for marijuana. Defendant tested positive for marijuana on December 14, 2004, March 22, 2005, and June 5, 2005. He also tested positive for cocaine on May 3, 2005. June 5, 2005 was the last visit by Agent Wiebler prior to the search of Defendant's home 52 days later on July 27, 2005. During the June 5th visit, not only did Defendant test positive for marijuana, but he also informed Agent Wiebler that he had smoked five "blunts" that day, two "blunts" the previous day, and three "blunts" the day before that. Defendant's MSR agreement specifically provided: "You shall refrain from the use or possession of narcotics or other controlled substances in any form..."
On July 27, 2005, agents from the Illinois Department of Corrections conducted a "compliance check" at the Defendant's residence. At the suppression hearing, Agent Wiebler explained that on the morning of the scheduled compliance check, parole agents were divided into teams and assigned a group of "parolees" whom they were to visit and conduct a search of their residences. (Tr. at 33.) When agents arrived the morning of the compliance checks, the files of each of the parolees were separated into three groups and assigned to one of the compliance check teams. Defendant was not assigned to Agent Wiebler's team. On that particular day, many of the parolees were under Agent Wiebler's supervision; therefore, he testified that he went through the stack of files for the other teams and then told members of those teams who needed to be "looked at." On direct examination, the Government asked, "Did you have discussions with those agents about your experience with this defendant while he had been on supervised release?" (Tr. at 33, ln. 20-22.) Agent Wibeler responded, "Yes, I did, sir. I went through all the files and the parolees that I know that test positive for drug use continually. I prioritized them and I moved him to the top of the compliance check." (Tr. at 33-34, ln. 23-25.) When questioned further on cross-examination, Agent Wiebler testified, "I went through the stacks of files and said, this guy here needs to be looked at, this guy here needs to be looked at, at the people that were on the individual teams." (Tr. at 41-42.) Agent Wiebler testified that the teams do not always make it through the entire list of parolees, so they have to prioritize the list. (Tr. at 35.)
Agent Wiebler also testified that the standard procedure is to ask consent and then conduct a search, once consent has been granted. (Tr. at 46.) If, however, a parolee refuses consent, Agent Wiebler said that "we would have to call our supervisor and get directions from him on how he wants to handle it." (Tr. at 46, ln. 22-24.)
Defendant contends, and the Government agrees, that under Illinois law, the Illinois Department of Corrections ("IDOC") may conduct warrantless searches of the homes of individuals who are on MSR without their consent only if there is reasonable suspicion to support such a search.*fn3 Following the United States Supreme Court's recent decision in Samson v. California, 126 S.Ct. 2193 (2006), this Court declines to adopt Defendant's position so readily. Ultimately, the Court need not decide whether reasonable suspicion is still required to conduct a search of a parolee's residence because the Court finds that the search was, in fact, supported by reasonable suspicion. Nevertheless, the Court believes a more thorough discussion of Samson is warranted.
In determining whether a search is reasonable within the meaning of the Fourth Amendment, the Court begins "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 interest." Id. at 2197. In a series of cases, the United States Supreme Court has held that parolees enjoy a significantly diminished expectation of privacy, due to the salient governmental interest in monitoring parolees. See Id.; United States v. Knights, 534 U.S. 112 (2001); Griffin v. Wisconsin, 488 U.S. 868 (1987). The question before the Court in Samson was whether "a condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment." Samson, 126 S.Ct. at 2196.
After weighing the interests, the Court in Samson upheld a suspicionless search of a parolee's person under a California state law, which requires that parolees agree in writing to be searched with or without cause. The Court held that the "touchstone of the Fourth Amendment is reasonableness, not individualized suspicion." Id. at 2201. This Court reads Samson to say that the Fourth Amendment does not require individualized suspicion. However, Samson does not preclude other States from requiring some form of individualized suspicion. "That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California's supervisory system is drawn to meet its needs and is reasonable...." Id. at 2201. The Majority opinion continues on to note that its holding did not give parole agents "unbridled discretion to conduct searches" because California's case law prohibits "arbitrary, capricious or harassing" searches. Id. at 2202 (citing People v. Reyes, 19 Cal. 4th 743, 752 (Cal. 1998)). Therefore, this Court must examine Illinois law.
Illinois does not have a statute or regulation that requires individualized suspicion. Rather, the "reasonable suspicion" requirement is entirely grounded in case law. See People v. Lampitok, 207 Ill. 2d 231, 252-254 (Ill. 2003) (holding that reasonable suspicion is required to search a probationer's residence). However, Lampitok was decided prior to Samson and involved the search of a probationer's residence, not a parolee.*fn4 And the case the Defendant and the Government rely on, People v. Wilson, 364 Ill.App.3d 762, 847 N.E.2d 753 (1st Dist., March 29, 2006) (holding that reasonable suspicion is required for the search of the residence of an individual on MSR),is not an Illinois Supreme Court decision and therefore is not binding upon this Court. Furthermore, while Wilson was decided post-Samson, it makes no reference to Samson in its discussion of other fourth amendment cases decided by the United States Supreme Court. Id. at 767-68. But see People v. Moss, 217 Ill. 2d 511, (Ill. 2005) (holding that individualized suspicion was not required for a pat-down search of a parolee). Unfortunately, the Illinois Supreme Court has not addressed the issue post-Samson. However, in the past, the Illinois Supreme Court's holding that individualized suspicion is required to search a parolee's residence has been based on that Court's interpretation of the fourth amendment to the United States Constitution.
The Illinois Supreme Court has acknowledged that it "unquestionably has the authority to interpret provisions of our state constitution more broadly than the Unites States Supreme Court interprets similar provisions of the federal constitution." People v. Krueger, 175 Ill.2d 60, 74 (Ill. 1996). However, with few exceptions, the Illinois Supreme Court has held that the Illinois Constitution's search and seizure provision, Ill. Const. art. I, § 6, provides the same level of protection as the fourth amendment. People v. Lampitok, 207 Ill.2d 231, 240 (Ill. 2003). See also People v. Tisler, 103 Ill.2d 226, 243 (Ill. 1984) ("After having accepted the pronouncements of the Supreme Court in deciding fourth amendment cases as the appropriate construction of the search and seizure provisions of the Illinois Constitution for so many years, we should not suddenly change course....") Therefore, it seems unlikely that the Illinois Supreme Court would depart from the United States Supreme Court now.
However, Samson involved the search of a parolee's person, not his residence. The Samson Court did not specifically address whether its holding extended to the search of a parolee's residence. Defendant argues that this makes Samson distinguishable. And, it is true that at least in Illinois, this has been a significant distinction:
Where the MSR search invades the home, it weighs heavily in the balance that determines whether the search is reasonable and remains a significant, rather than minimal, intrusion on defendant's albeit diminished expectation of privacy. Accordingly, permitting a suspicionless search of defendant's home would offend the significantly protected status of the home, and thus, supports the conclusion that defendant's expectation of privacy is not completely extinguished. (internal citations omitted) Wilson, 364 Ill.App.3d at 771 (citing Lampitok, 207 Ill.2d at 252). But see United States v. Stuckey, 2006 U.S. Dist. LEXIS 58173 (S.D.N.Y. August 26, 2006) ("Defendant attempts to distinguish Samson on the ground that his bedroom was searched -- rather than his person -- neither the holding nor reasoning in Samson suggests that this distinction could sufficiently tip the reasonableness balance, if at all, in his favor.")
In the final analysis, this Court believes that if the issue were before the Illinois Supreme Court, it would most likely hold that a search of a parolee's residence need not be supported by reasonable suspicion. However, because the Court finds that the parole agents had reasonable suspicion to support the search of Defendant's resident, the Court ultimately does not need to decide the issue.
The Court finds that Agent Wiebler had a reasonable suspicion that Defendant was violating the terms of his MSR agreement and that the search of Defendant's residence was based upon this individualized suspicion. "Reasonable suspicion exists when 'articulable facts which, taken together with the rational inferences from those facts...warrant a reasonably prudent officer' to investigate further." Lampitok, 207 Ill. 2d at 255 (quoting Maryland v. Buie, 494 U.S. 325, 335 (1990)).
Agent Wiebler had every reason to believe that Defendant was violating the terms of his MSR agreement: every single drug test that Wiebler had conducted on Defendant was positive. It would have been irrational for Agent Wiebler to not have suspected that Defendant was using and therefore in possession of controlled substances. Again, Defendant's MSR agreement explicitly forbade Defendant from using narcotics or any other controlled substance. On Agent Wiebler's last visit with Defendant, June 5, 2005, Defendantnot only tested positive for marijuana, he also admitted to using the drug over the past three days. The Court is only slightly troubled that 52 days passed between the last positive drug test and the search. However, the Court believes that Defendant's multiple positive drug tests had established a clear pattern of drug use, which translated into reasonable suspicion that Defendant was engaged, on an ongoing basis, in prohibited activity. Where the activity is ongoing, the passage of time is less relevant. See United States v. Lamon, 930 F.2d 1183, 1888 (7th Cir. 1991).
It is unclear to the Court exactly what information members of the compliance team had about the Defendant when they went to his residence. However, the Court believes that Agent Wiebler had clearly conveyed to the team his suspicion that Defendant was not in compliance with the terms of his MSR agreement. From Agent Wiebler's testimony, the Court gleans that it was the practice of the parole agents to alert members of other teams if there was a particular parolee who they suspected was out of compliance. These parolees received priority, based on their agents' belief that they were engaged in prohibited activity. Even if the compliance team did not know all of the facts establishing the individualized suspicion of Defendant, the Court agrees with the Government that the information known to Agent Wiebler may properly be imputed to the other agents through the collective knowledge doctrine. See United States v. Nafzger, 974 F.2d 906, 912-13 (7th Cir. 1992).
For the foregoing reasons, the Court finds that the search of Defendant's residence was supported by reasonable suspicion. Therefore, the motion to suppress (Doc. 15) is DENIED; all of the evidence obtained during the search is admissible. Trial in this matter is set for January 2, 2007.
IT IS SO ORDERED.
David RHerndon United States District Judge