Monday, February 26, 2007

North Carolina's Law Allowing Warrantless Searches of Probationers is VERY Constitutional

UNITED STATES v. MIDGETTE, USCA-4 No. 05-4765, , on appeal from USDC-NCED, before USCJs Niemeyer, Traxler, and Shedd, opinion by Niemyer, filed 26 Feb 2007.

LONG STORY SHORT: North Carolina statute allowing probation officers to search their probationers without a warrant is reasonable under the Fourth Amendment, and probation officers may request police assistance in such searches. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant pleaded guilty to North Carolina state offenses and accepted suspended sentences and supervised probation. The judge at his sentencing ordered orally and in writing that a special condition of Defendant's probation was that he "submit at reasonable times to warrantless searches by a probation officer of the defendant's person, and of the defendant's vehicle and premises while the defendant is present, for the purposes which are reasonably related to the defendant's probation supervision." Two months later, SGT Wilcutt of the New Bern Police Department told Defendant's probation officer, PO Edwards, that he knew Defendant well and that Defendant had a reputation for carrying firearms, and that Defendant had retrieved firearms from the New Bern PD eight months before.

At Defendant's next regular meeting with PO Edwards, two New Bern officers searched Defendant without finding any contraband, then searched Defendant's vehicle, finding a pistol magazine loaded with ten live rounds of .40-caliber ammunition. PO Edwards then took Defendant and the officers over to Defendant's house, where she directed the officers to search for any other contraband. The officers found two shotguns and a pistol, all loaded, and 59.1g of marijuana. One of the shotguns had a barrel less than 18 inches long. The officers arrested Defendant on the spot.

PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon, possession of an unregistered firearm (short-barreled shotguns are subject to registration and taxation under the National Firearms Act), and possession of marijuana. Defendant moved to suppress all the contraband, on grounds that only probation officers are allowed to conduct warrantless searches of probationers under NC law, and that no reasonable suspicion supported the search. A U.S. Magistrate Judge of the Eastern District of North Carolina heard the motion and recommended that it be denied. Defendant objected to the report, but not on grounds that the NC statute was unconstitutional or that no reasonable suspicion supported the search. The assigned U.S. District Judge overruled him and adopted the USMJ's report. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received a 46-month sentence, on condition that he could appeal the denial of suppression to the U.S. Court of Appeals for the Fourth Circuit. On appeal, Defendant argued that the NC statute violated the Fourth Amendment and that no reasonable suspicion supported the search of Defendant's vehicle and house.

DECISION: Objections to a magistrate judge's report must be specific; a general objection will not suffice, because the district judge needs to have reasonable notice of what issues are not satisfactory, and the true grounds for such objections. Parties may not appeal issues in a report without specifically and timely objecting to them. Since Defendant did not tell the district court that he objected to the constitutionality of the warrantless serach statute or that no reasonable suspicion supported the search, he waived his right to appeal on those issues.

However, Defendant's arguments were meritless anyway. NC needs to be able to supervise probationers' compliance with their conditions of probation, both to promote probationers' rehabilitation and to protect the public. Though the statute did not require "individualized suspicion" as do some other states' laws that have survived constitutional review, the state's special need to supervise probationers justifies the reduced privacy expectations and rights of probationers. Searches conforming to NC's probation statutes are eminently reasonable under the Fourth Amendment.

In this case, reasonable suspicion, that is, a particularized and objective basis for suspecting criminal activity, was present because SGT Wilcutt was an experienced, knowledgeable, and trustworthy officer that PO Edwards was entitled to rely on, just as a court would have. Other courts have upheld searches of probationers without any suspicion at all. Though the statute requires probation officers to authorize and direct warrantless searches of probationers, regular police officers may suggest them in the first place, and may assist in the actual search. Probationers can be very dangerous people and probation officers need all the help they can get. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Good decision, but since the Fourth Circuit started out by observing that this guy wasn't supposed to be appealing those issues at all, the next probationer who gets his house tossed is going to argue that this apparent papal blessing of NCGS § 15A-1343(b1)(7) really means nothing. The first thing to remember about a successful appeal is that it starts in the trial court. If you don't say something when it happens, then appellate courts figure it couldn't have been as bad as all that. At best/worst, appellate courts will say that if you didn't object at trial because you didn't want to look like a jerk in front of the jury, then doom on you if the jury recognized you as a jerk anyway.

This is yet another reminder to keep on the good side of probation officers no matter what side of the law you're on. For regular officers, taking a PO along can be a ticket to busting somebody you can't quite get a warrant on. Just make sure the PO is the one to decide on the search and asks you for help.

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