Documentos de Académico
Documentos de Profesional
Documentos de Cultura
No. 13-4806
No. 13-4811
No. 13-4820
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Irene M. Keeley,
District Judge.
(1:13-cr-00018-IMK-JSK-3; 1:13-cr-00018-IMKJSK-1; 1:13-cr-00018-IMK-JSK-2)
Argued:
Decided:
2013,
in
conditions
Eric
Barker
connection
of
was
with
supervised
serving
felony
release
term
drug
required
of
In
supervised
conviction.
him,
His
among
other
enforcement
officials
suspected
Barker
of
moving
individuals
officers
had
all
also
on
supervised
three
in
custody
release.
and
had
After
completed
the
their
the apartment.
a search warrant.
The defendants contend that the walk-through and dog sniff
violated
the
Fourth
Amendment.
Our
precedent
required
the
reasonable
suspicion
to
search
Barkers
home.
unlawful searches.
that
the
good-faith
exception
applies
with
respect
the
judgments
and
remand
for
the
to
the
Finally, we
district
court
to
the
warrant
even
search[es].
officers
if
in
they
this
had
case
not
would
have
conducted
the
sought
unlawful
Cir. 2011) (quoting Murray v. United States, 487 U.S. 533, 543
(1988)).
I.
A.
In
late
January
2013,
Officer
Vincent
Zummo,
Barkers
On February 8,
Deputy U.S.
at
Barkers
new
residence,
two-story
They met
house
with
An officer
and
purpose.
upstairs.
The
Zummo
downstairs.
landlady
and
answered
the
Chief
and
said
Probation
Eric
lives
Officer
stayed
He saw Barker
sweep.
right,
inside.
entered
second
bedroom,
and
found
An officer
Robert
Hill
Zummo went
called
the
magistrate
judge
to
tell
him
that,
He
besides
the
kitchen
table,
and
drug
paraphernalia
on
the
second
bedrooms dresser.
After
Barker,
Dunigan,
and
Hill
were
arrested
and
the
protective sweep had ended, Zummo and other arrest team members
conducted
walk-through
of
the
apartment
looking
for
other
J.A. 118.
and
an
cotton
balls,
intravenous
and
spoons
drug
from
use
on
kit
top
of
containing
the
needles,
bathroom
sink.
After the walk-through, Zummo requested that a trained drugdetection dog come to the apartment.
About
fifteen
handler arrived.
to
twenty
minutes
later,
the
dog
and
his
In
member,
for
applied
apartment.
Roots
and
obtained
accompanying
warrant
affidavit
to
search
detailed
his
the
law
protective
sweep,
and
walk-through;
the
contraband
warrant
turned
up
packaged
and
unpackaged
heroin,
to
distribute
heroin,
and
aiding
evidence
challenging
the
warrant
execution,
protective
sweep,
and
abetting
the
lawfulness
of
the
arrest
dog
sniff,
walk-through,
defendants
had
standing
to
press
their
Fourth
Amendment
notice
supervised
of
the
defendants
release
terms,
which
to suppress.
7
534
U.S.
112
(2001),
which
upheld
as
reasonable
suspicion
condition
reasoned
and
the
allowing
that,
like
probationer
warrantless
in
Knights,
had
home
agreed
to
searches.
Barkers
a
The
supervision
time
diminished
his
expectation
of
privacy
to
the
point
were
illegal
and
their
results
were
excised
from
the
warrant application. 2
The defendants entered conditional guilty pleas to aiding
and abetting possession with intent to distribute heroin and
preserved the right to appeal the denial of their suppression
motions.
The court
Condition
of
Supervision
No.
will
require
the
II.
A.
When considering a motion to suppress, we review de novo
the
district
courts
legal
conclusions.
United
States
v.
Id.
But because the parties do not dispute the facts, de novo review
is proper.
B.
The defendants contend that once the protective sweep of
the apartment had ended, the officers needed a warrant to go any
further.
The
government
supervised
release
conditions,
so
responds
status,
diminished
that
including
their
the
their
expectation
of
defendants
supervision
privacy
that
officers needed only reasonable suspicion to conduct the walkthrough and dog sniff.
This case is remarkably similar to one we decided thirtysix years ago, United States v. Bradley, 571 F.2d 787 (4th Cir.
1978).
permit
Parole
employment.
alterations
571
Officer
F.2d
omitted).
consent to searches.
to
visit
at
788
No
parole
his
(internal
home
or
quotation
condition
place
marks
required
of
and
him
to
Id.
In
reaching
this
conclusion,
we
recognized
Id. at
that
the
interest
is
diminished.
Id.
We
also
noted
the
societys
interest
properly supervised.
in
having
Id. at 790.
10
the
parolee
closely
and
Id.
probation
officer
but
not
warrantless
searches.
Unlike
plain
view.
difference,
Bradley,
as
did
This,
the
not
however,
fact
consent
remains
to
is
that
distinction
the
warrantless
without
defendants,
home
as
searches
a
in
as
condition of supervision.
Thus, Bradley controls the outcome here unless intervening
case law from our court sitting en banc or the Supreme Court has
explicitly or implicitly overruled it.
246.
home
without
warrant
if
the
officer
had
The
the
warrant
requirement.
483
11
U.S.
at
873-80.
Notably,
warrantless
search
pursuant
to
an
express
regulation
home
decided
in
predicated
solely
on
reasonable
suspicion.
Bradley,
namely,
whether
parole
officer
may
The
U.S.
at
118.
Importantly,
the
Court
found
the
search
determine
the
searchs
reasonableness,
the
Id.
Court
the
search
to
promote
its
legitimate
interests.
Id. at 119.
12
Court
concluded
that
[t]he
probation
condition . . .
Id.
at
119-20.
On
the
need
side,
the
Court
because
of
their
greater
likelihood
of
Id. at 121.
committing
In
our
authorizing
holding.
view,
warrantless
Indeed,
referenced
however,
the
at
the
specific
searches
the
probation
was
close
probation
critical
of
condition
to
condition
the
the
opinion,
in
holding
Courts
the
Court
that
the
authorized
by
condition
of
probation,
also
expressed
underscored
the
search
informed of it.
that
the
condition
and
Id. at 119.
was
Id. at 122.
probation
Knights
reasonable
order
was
The
clearly
unambiguously
to
confiscate
contraband
in
plain
13
view.
But
no
843
(2006),
Knights,
it
warrantless
Amendment
prisoner
writing
also
emphasized
search
eligible
be
not
the
vitiate
parolees
condition.
challenge
to
did
to
for
California
to
notice
Samson
release
subject
Bradley
on
of
an
involved
statute
state
warrantless
because,
like
express
Fourth
requiring
every
parole
to
agree
in
searches
by
parole
or
cause.
547
U.S.
at
846
(quoting
Cal.
Penal
Code
release
or
can
so
diminish
eliminate
released
prisoners
law
enforcement
Amendment.
Id.
at
officer
847.
would
But
as
not
was
offend
the
the
case
in
Fourth
Knights,
central to the Courts holding was the undisputed fact that the
California
parole
condition
had
been
clearly
expressed
to
Id.
good
law
in
our
circuit,
and
thus
law
enforcement
officers
Here,
the officers did not have a warrant when they conducted the
walk-through and dog sniff, and those searches were therefore
unlawful.
III.
A.
The
exclusionary
rule
generally
renders
inadmissible
United States v.
Mowatt, 513 F.3d 395, 403 (4th Cir. 2008), abrogated in part by
Kentucky v. King, 131 S. Ct. 1849 (2011).
With respect
to
the
the
dog
sniff,
the
government
contends
that
officers
that
the
independent
source
doctrine
rescues
from
reasonable suspicion);
United States v. Yuknavich, 419 F.3d
1302, 1310-11 (11th Cir. 2005) (same).
Of course, those
circuits were writing on a clean state, while we are constrained
by Bradley.
4
sniff
because
the
officers
later
conducted
search
of
the
we
argument,
explain,
and
remand
we
disagree
the
case
with
to
the
the
governments
district
first
court
for
binding
sniff.
appellate
precedent
when
they
conducted
the
dog
therefore
no
warrant
was
required.
As
result,
the
We cannot agree.
After the dog sniff in this case, the Supreme Court held in
Jardines that a dog sniff of a homes curtilage is a search
within the meaning of the Fourth Amendment.
Ct. at 1417-18.
Jardines, 133 S.
16
depends
on
the
binding
appellate
precedent
that
pre-dated
Jardines.
The government points us to United States v. Jeffus, 22
F.3d
554
(4th
precedent.
Cir.
1994),
as
the
relevant
pre-Jardines
States v. Place, 462 U.S. 696, 707 (1983), where the Supreme
Court found that a dog sniff of luggage in a public place was
not a search.
According to the government, the officers reasonably relied
on our Jeffus holding when they took a drug dog into the home of
an
individual
consent.
on
supervised
release,
without
warrant
or
the government does not cite to, any pre-Jardines case decided
by
the
Supreme
Court
or
this
circuit
that
approved
of
defendants
Whitehead,
849
F.2d
draw
our
849
(4th
attention
Cir.
to
1988),
United
abrogated
States
on
v.
other
dog
We
sniff
of
held
that
passenger
the
17
sniff
Whitehead involved a
trains
required
sleeping
reasonable
lower
expectations
of
privacy
in
their
sleeping
849 F.2d at
853, 856-57.
Never did we say in Whitehead that the dog sniff was not a
search.
Instead,
narcotics
detection
enjoys
an
we
noted
dog
expectation
that
into
of
an
when
area
privacy,
authorities
in
the
which
the
[F]ourth
bring
occupant
[A]mendment
at
858.
We
made
clear
that
Place
obviously
did
not
Id. at 857.
Therefore, we
case
and
that
the
Davis
good-faith
exception
does
not
apply.
C.
We turn now to the governments claim that the independent
source doctrine saves from exclusion the fruits of the searches
in this case.
and
tangible
evidence
that
would
otherwise
be
have
affected
(1)
the
officers
decision
to
seek
the
U.S. 705, and our decision in United States v. Allen, 631 F.3d
164 (4th Cir. 2011), to support its single-step analysis.
We find that the district court erred in not applying both
Murray prongs.
In Karo, the
Id.
Using
Id. at 710.
Id.
not
the
appeal
that
finding,
19
courts
treated
the
installation
and
monitoring
without a warrant.
of
the
beeper
as
if
conducted
1433, 1436 (10th Cir. 1983), reversed by Karo, 468 U.S. 705.
This situation left the government arguing that no warrant
was needed for the beeper installation and monitoring despite
the fact that the officers had indeed sought a warrant for those
activities.
Id. at 713-14.
unnecessary
because
sufficient
untainted
evidence
in
the
Id. at
719, 721.
Here, the officers conducted the walk-through and dog sniff
before seeking a search warrant.
the
walk-through
warrants scope.
and
dog
sniff
fell
within
the
arrest
Unlike Karo,
20
Id. at 542.
The
cases,
However,
Allen,
like
the
that
employed
Supreme
Court
Karos
in
single-prong
Karo,
we
had
no
631 F.3d at
blood trail into the store, saw that it led to a filing cabinet,
opened a cabinet drawer, and found a revolver inside.
Id.
On
these facts, there was no doubt (and Allen did not contest) that
officers would have sought a search warrant for the store into
which a blood trail led, even without the officers unlawful
search of the filing cabinet. 5
But where the facts call into question whether an illegal
search affected an officers decision to seek a warrant, the
district
evaluating
court
should
whether
the
consider
independent
both
Murray
source
prongs
doctrine
when
applies.
sniff
did
not
affect
the
magistrate
judges
decision
to
issue the warrant, and the defendants have not challenged this
finding.
rely
on
two
exchanges
in
the
In particular, the
record.
The
first
examination:
Q: Who made the decision to apply to the Court for a
search warrant?
A: I did.
Q: And at what point did you make that decision?
Before the drug dog was there and it sniffed, or after
the drug dog was there and it sniffed?
A: It was after.
J.A. 96.
22
He
responded,
No,
didnt.
J.A.
86.
The
when we called for the canine, the canine did a search of the
residence.
Attorney
warrant.
The
Morgan
and
decided
to
apply
for
search
as
merely
J.A. 118.
government
interprets
Roots
testimony
stating a fact, i.e., that he did not seek the warrant until
after the dog sniff, not as describing what Root would have done
had the illegal searches never happened.
officers
conducted
the
walk-through
and
dog
sniff,
thus
supporting the view that Root would have sought a warrant even
if the officers had not conducted the unlawful searches.
We
decline
to
resolve
this
factual
question
on
appeal.
for
the
decision
district
prong
of
to
make
analysis
finding
because
it
on
the
is
the
factual
findings
related
to
the
independent
source
doctrines applicability).
IV.
For
remand
the
to
foregoing
the
reasons,
district
court
we
to
vacate
the
determine
judgments
and
whether
the
24