United States v. Keith

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

For the Fifth Circuit June 22, 2004

Charles R. Fulbruge III

Clerk

No. 03-30723

UNITED STATES OF AMERICA,

Plaintiff - Appellee.

VERSUS

CHAD EDWARD KEITH,

Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before JOLLY, DAVIS, and JONES, Circuit Judges.

W. EUGENE DAVIS:

Keith challenges the district court’s denial of his motion to

suppress. Keith’s appeal presents the question of whether a

warrantless, non-consensual search of the defendant’s home while he

was under supervised probation pursuant to a Louisiana state court

sentence, was constitutional when the search was supported by

reasonable suspicion. Keith argues that the Supreme Court cases of

Griffin v. Wisconsin, 483 U.S. 868 (1987) and United States v.

Knights, 534 U.S. 112 (2001) are distinguishable because unlike

Louisiana, in both states where the searches were conducted in

those cases, the probationer either agreed to a search as a written

condition of probation or a state regulation authorized a

warrantless search by a probation officer upon reasonable

suspicion. Because Louisiana courts authorize searches of a

probationer’s home based on reasonable suspicion, we conclude that

Griffin and Knights control in this case and the district court

correctly denied Keith’s motion to suppress.

I.

In November 1999 Keith constructed and planted five homemade

explosive devices throughout his high school in Coushatta,

Louisiana. At least one of the devices exploded and destroyed a

portion of a school bathroom. He later pled guilty to one count of

possession of a destructive device, was sentenced to a suspended

sentence of two years, and was placed on five year supervised

probation which began in July 2000. One of his conditions of

probation prohibited him from possessing a firearm, destructive

device, or any other dangerous weapon.

In May 2002 the Red River Parish Sheriff’s Office called

Keith’s probation officer, Alvie Myers, and advised Myers that they

had received information from a local building supply retailer (who

was aware of Keith’s involvement in planting bombs in his school)

that Keith had recently purchased two five-inch long and one-and-a-

quarter-inch diameter steel pipe nipples and four one-and-a-

quarter-inch end caps, materials commonly used to construct pipe

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bombs. Due to Keith’s history of making and detonating pipe bombs,

Agent Myers called his supervisor and advised him that he planned

to search Keith’s home. Because Agent Myers suspected that

explosives would be discovered and because he lacked training

necessary to deal with explosives, Agent Myers called the Bureau of

Alcohol, Tobacco and Firearms(ATF) and asked for assistance in his

search.

Agent Myers understood that under Louisiana law he had the

authority to search a probationer’s home if he had reasonable

suspicion that the probationer had violated or was about to violate

a condition of probation. Possession of destructive devices was a

violation of Keith’s probation. Agent Myers also believed that the

information provided him by law enforcement authorities that Keith

had purchased material commonly used to build and detonate pipe

bombs constituted reasonable suspicion of Keith’s violation of his

probation.

Later that day Agent Myers proceeded to Keith’s home to

conduct the search. He was accompanied by another probation agent,

two agents from the ATF, two members of the State Police Hazardous

Materials Squad, and a bomb expert from the Bossier City Fire

Department. The two probation officers went to the house first and

asked Keith and two other individuals with him to come outside.

Then the other agents and law enforcement officials entered the

residence to search for bombs or bomb-making materials. Agent

Myers never asked nor obtained permission from Keith for the

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search.

During the search, bomb-making materials were found. This

included bomb-making magazines, wires and connections, stainless

steel pipe and nipples, nails wrapped together in duct tape, and an

infrared control box with several toggle switches on it. No

assembled bombs, gun powder, or fuses were found at that time.

Keith initially explained his possession of the pipe and

nipples as material he needed to repair his wells. Agent Myers

concluded that this explanation made no sense and arrested Keith

for violating his probation by lying to his probation officer.

A short time later Keith’s father arrived at the house and

Agent Myers gave him permission to speak to Keith. After their

conversation Keith told Agent Myers that black powder and a fuse

were in the house and showed him where they were. Keith then

explained to the Fire Department bomb expert how he had made a

bomb. Also one of Keith’s companions at the scene told the

officers that Keith had thrown three bombs into a pond located on

private property nearby. The next day after receiving permission

from the land owner, the officers drained the pond and found three

bombs which they confiscated.

The grand jury returned a three count indictment charging

Keith with possession of a destructive device in violation of 26

U.S.C. §§ 5822, 5861(c), and 5871; possession of an unregistered

weapon in violation of 26 U.S.C. §§ 5822, 5861(d), and 5871; and

making a destructive device in violation of 26 U.S.C. §§ 5822,

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5861(f), and 5871. Keith filed a motion to suppress the evidence

seized as a result of the search of his residence and statements he

made during the search. A magistrate judge conducted a hearing on

the motion and recommended that Keith’s motion be denied. After

addressing Keith’s objections to the magistrate judge’s report and

recommendations, the district court agreed with the magistrate

judge’s recommendations and denied Keith’s motion to suppress.

Keith then entered a conditional plea of guilty to possession of a

destructive device and reserved his right to appeal the district

court’s denial of his motion to suppress.

II.

A.

The sole question in this appeal is whether Agent Myers’s

warrantless search of Keith’s home violated the Fourth Amendment.

Keith argues first that the district court erred in accepting the

government’s argument that a warrantless search of a probationer’s

home was justified based on nothing more than a probation officer’s

reasonable suspicion that the probationer had engaged in conduct

that had violated or was about to violate the terms of his

probation. He argues further that even if the search were

justified based on reasonable suspicion, the district court erred

in finding that the facts provided to Agent Myers were sufficient

to serve as a basis for such reasonable suspicion.

In reviewing the denial of a motion to suppress this court

reviews finding of fact for clear error while the ultimate

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conclusion as to whether the Fourth Amendment has been violated is

reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699

(1996).

B.

The briefs in this case properly focus on two Supreme Court

cases which specifically deal with the question of whether

probation officers may conduct warrantless non-consensual searches

of probationers’ homes on the basis of reasonable suspicion. In

both cases the Court concluded that such searches were permissible

under the Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868

(1987); United States v. Knights, 534 U.S. 112 (2001). The

government contends that these two cases control and require us to

affirm the ruling of the district court. Keith on the other hand

contends that both cases are distinguishable because in those cases

--unlike this case--there was either a written condition of

probation permitting such a search based on reasonable suspicion or

a state regulation authorizing a warrantless search based on

reasonable suspicion.

In Griffin, the Supreme Court upheld the warrantless non-

consensual search of a probationer’s home based upon a tip from a

police officer that there were or might be guns in the

probationer’s apartment. The probation officer proceeded with the

search pursuant to a state regulation which authorized “any

probation officer to search a probationer’s home without a warrant

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as long as his supervisor approves and as long as there are

‘reasonable grounds’ to believe the presence of contraband--

including any item that the probationer cannot possess under the

probation conditions.” Griffin, 483 U.S. at 870-71.1

The Court concluded that the search did not violate the Fourth

Amendment based on its finding that “a State’s operation of a

probation system . . . presents ‘special needs’ beyond normal law

enforcement that may justify departures from the usual warrant and

probable-cause requirements.” Id. at 873-74. The Court found that

a warrant requirement would “interfere to an appreciable degree”

with the ability of the probation system to adequately supervise

probationers by “mak[ing] it more difficult for probation officials

to respond quickly to evidence of misconduct” and “reduc[ing] the

deterrent effect that the possibility of expeditious searches would

otherwise create.” Id. at 876. This reality, coupled with the

fact that probationers “do not enjoy the ‘absolute liberty to which

every citizen is entitled, but only . . . conditional liberty

properly dependent on observance of special [probation]

restrictions’” led the court to the conclusion that a warrantless,

non-consensual search of a probationer’s home on the basis of less

than probable cause was “‘reasonable’ within the meaning of the

Fourth Amendment[.]” Id. at 874, 880 (citations omitted).

The Supreme Court broadened this holding in Knights. Knights

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Wisc. Admin. Code H.S.S. §§ 328.21(4), 328.16(1) (1981). See

Griffin, 483 U.S. at 871.

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also involved the warrantless non-consensual search of a

probationer’s home based on reasonable suspicion that criminal

conduct was occurring or about to occur. In Knights, the Court of

Appeals held that a warrant was necessary for the search of the

probationer’s home because it was not conducted for the purpose of

monitoring whether the probationer was complying with probation

restrictions but rather for investigation of suspected unrelated

criminal conduct. Because the search was for “investigatory”

rather than “probationary” purposes the Court of Appeals suppressed

the evidence recovered in the search. The Supreme Court reversed.

The Court pointed out that the probation order which Knights signed

provided that Knights would “submit his person, property, place of

residence, vehicle, and personal effects to search at any time with

or without a search warrant, warrant of arrest or reasonable cause

by any probation officer or law enforcement officer.” Knights, 517

U.S. at 114. The Court rejected appellant’s view and that of the

Court of Appeals that “a warrantless search of a probationer

satisfies the Fourth Amendment only if it is just like the search

at issue in Griffin -- i.e., a ‘special needs’ search conducted by

a probation officer monitoring whether the probationer is complying

with probation restrictions. This dubious logic--that an opinion

upholding the constitutionality of a particular search implicitly

holds unconstitutional any search that is not like it--runs

contrary to Griffin’s express statement that its ‘special needs’

holding made it ‘unnecessary to consider whether’ warrantless

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searches of probationers were otherwise reasonable within the

meaning of the Fourth Amendment.” Knights, 534 U.S. at 117. The

Court reasoned that the state not only has a reasonable interest in

ensuring that a probationer keeps the terms of his probation, but

also in ensuring that he does not commit any further criminal acts.

Id. at 117, 120-121. The Court concluded that “the warrantless

search of Knights, supported by reasonable suspicion and authorized

by a condition of probation, was reasonable within the meaning of

the Fourth Amendment.” Id. at 122.

Keith argues that the search of his home is distinguishable

from both Knights and Griffin. He points out that in Knights there

was a written condition in the probation order--signed by Knights--

authorizing the warrantless search. He also finds it significant

that a state regulation authorized the warrantless search in

Griffin. Because the government points to no such written

condition or explicit state regulation in this case, he contends

that neither Griffin or Knights is helpful to the government. We

are unpersuaded by this argument.

It is true that Keith signed no written order of probation

giving permission to search his home on reasonable suspicion of

wrong doing; nor is there an explicit Louisiana state regulation

permitting such a search. Searches of probationer’s homes on

reasonable suspicion of probation violation, however, have been

sustained by Louisiana courts on numerous occasions. See State v.

Malone, 403 So. 2d 1234 (La. 1981); State v. Drane, 828 So. 2d 107

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(La. Ct. App. 2002), State v. Vailes, 564 So. 2d 778 (La. Ct. App.

1990). Thus, a probationer in Louisiana--where the courts have

consistently approved the practice of searching probationers’ homes

based on reasonable suspicion--is just as aware of the decreased

expectation of privacy that follows from probation as a probationer

in a state with a Griffin-like regulation in place.

Also, we cannot read Knights or Griffin as requiring either a

written condition of probation or an explicit regulation permitting

the search of a probationer’s home on reasonable suspicion. Indeed

as the Court noted in Knights, the Wisconsin regulation that

authorized the search in Griffin was not even promulgated until

after Griffin had been sentenced. 534 U.S. at 117. The core

reasoning of the Court in both cases is directed at explaining why

the needs of the probation system outweigh the privacy rights of

the probationers generally, who inherently “do not enjoy the

absolute liberty to which every citizen is entitled.” Id. at 119

(internal quotations marks omitted). For these reasons we are

unpersuaded that Griffin and Knights can be distinguished on this

basis and conclude that the district court correctly concluded that

the “reasonable suspicion” standard adopted by the Court in those

cases applies to the search of Keith’s home.

C.

We also reject Keith’s argument that the facts available to

Agent Myers at the time of the search were not adequate to support

a reasonable suspicion that Keith was engaging in criminal activity

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that violated his probation. Agent Myers was acting on information

received by the police from a person engaged in the retail business

in the same rural community where the defendant lived, who knew the

defendant and knew of the defendant’s prior involvement in building

and detonating bombs. As the district court noted, this tip was

“right on the money: A person known in the community to handle

pipe bombs has got himself some more pipe.” Supp. Rec. at 33. The

purchase of such legitimate materials as pipe nipples and end caps

when viewed in isolation and without regard to his known criminal

history probably would not create reasonable suspicion. When these

otherwise innocent purchases are considered in light of Keith’s

history of constructing pipe bombs, however, Agent Myers’s

suspicion that Keith might be again constructing bombs was a

reasonable inference. We therefore conclude that the record fully

supports the district court’s conclusion that Agent Myers had

reasonable suspicion that Keith was engaged in constructing pipe

bombs. The district court correctly denied the motion to suppress.

AFFIRMED.

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