                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                   September 4, 2013

                                                                       Elisabeth A. Shumaker
                                  TENTH CIRCUIT                            Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                   No. 12-3036
 BRUCE A. MABRY,

       Defendant-Appellant.




                    Appeal from the United States District Court
                             for the District of Kansas
                        (D.C. No. 6:11-CR-10102-EFM-01)


John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for
Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.


Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.


EBEL, Circuit Judge.


                                  INTRODUCTION

      Bruce A. Mabry was arrested for a parole violation. While arresting Mr. Mabry,

the officers found a sawed-off shotgun and subsequently charged Mr. Mabry with its
possession. He moved to suppress the evidence of the weapon on the basis that his

Fourth Amendment rights were violated by the search. The district court denied his

motion to suppress, and Mr. Mabry appeals.

       We conclude that the officers had a reasonable suspicion that Mr. Mabry had

violated his parole. In light of Mr. Mabry’s diminished expectation of privacy and the

State’s strong interest in monitoring Mr. Mabry’s behavior and preventing his recidivism,

this court affirms the district court’s denial of Mr. Mabry’s motion to suppress on the

basis that it was a valid search under the totality of the circumstances. 1

                                     BACKGROUND

       Prior to the incident involved in this appeal, Mr. Mabry was released from state

prison, placed on parole, and assigned to be supervised by Kansas Parole Officer Garcia.

At that time, Mr. Mabry signed a form entitled, “Conditions of Release for Parole and

Post Release Supervision.” This form listed the standard conditions of parole. These

conditions included that Mr. Mabry obtain permission to travel outside of Kansas; that he

notify his parole officer of any contact with law enforcement; that he not possess, use, or

traffic in any controlled substances or drugs; and that he not associate with anyone

1
  Because we conclude that the contested evidence was obtained through a valid search of
a parolee under the totality of the circumstances, we need not resolve whether the search
was a valid protective sweep. Elwell v. Byers, 699 F.3d 1208, 1213 (10th Cir. 2012)
(“We can affirm a lower court’s ruling on any grounds adequately supported by the
record, even grounds not relied upon by the district court.”).




                                              2
actively engaged in illegal activity. Moreover, Mr. Mabry agreed to “[b]e subjected to a

search by parole officers or designated law enforcement officers of [his] person,

residence, and any other property under [his] control.” R.O.A., Vol. I at 30.

       Several months after Mr. Mabry’s release, he violated his parole by leaving the

state of Kansas. He was discovered by police in Utah in a car, driven by another parolee,

which contained twenty-two pounds of marijuana. The other parolee was arrested, but

Mr. Mabry was not arrested at that time. While Parole Officer Garcia was away on

vacation, his partner, Parole Officer Marquez, learned about the incident in Utah and

issued an “Order to Arrest and Detain” on the basis that Mr. Mabry had violated his

parole by traveling out of state. The “Order to Arrest and Detain” was given to Special

Enforcement Officer (“SEO”) Evans, a special agent employed by the Kansas Parole

Office who was also assigned to the U.S. Marshals Task Force.

       The next day, SEO Evans contacted two officers of the Wichita Police

Department, Officer Tiede and Officer Norton, and went with them to Mr. Mabry’s last

reported address, which was the address of his girlfriend. When they arrived, SEO Evans

and Officer Tiede went to the front door of the residence, while Officer Norton went

around back. When SEO Evans knocked, a woman who was later identified as Mr.

Mabry’s girlfriend answered the door.

       The district court found that “[Mr.] Mabry’s girlfriend appeared nervous and tried

to shut the door to the residence when SEO Evans and Officer Tiede came to the front

door.” R.O.A., Vol. 1 at 54. SEO Evans informed the girlfriend who he was and that he
                                            3
needed to speak to Mr. Mabry. The girlfriend indicated that Mr. Mabry was unavailable,

claiming that he was somewhere like the shower or bathroom. But at that point, Mr.

Mabry walked into view from the back kitchen area. Accordingly, SEO Evans and

Officer Tiede entered the residence.

       SEO Evans arrested Mr. Mabry, had Mr. Mabry sit on the couch in the living

room, and asked the girlfriend to stay in the living room as well. According to the

testimony of SEO Evans, at the time he placed Mr. Mabry under arrest, he saw a tray

underneath the coffee table that appeared to contain marijuana.

       SEO Evans and Officer Tiede proceeded to search the residence. SEO Evans

searched the bedroom nearest the living room, while Officer Tiede went to search the

basement. Officer Tiede testified that before she went downstairs, the girlfriend “was

real nervous” and advised Officer Tiede that the basement was her children’s room.

R.O.A. Vol. III at 80. Moreover, Officer Tiede testified that she asked the girlfriend if

there was anybody in the basement, but the girlfriend did not answer the question and

instead just repeated that it was her children’s room. In the basement, Officer Tiede

found an open closet containing a firearm in plain view. Because her radio did not

transmit from the basement, Officer Tiede brought the firearm upstairs.

       Mr. Mabry was subsequently charged with the unlawful possession of this

weapon. He moved to suppress the evidence on the grounds that the search had violated

his rights under the Fourth Amendment. The district court denied the motion. Mr. Mabry


                                             4
then pled guilty, was sentenced, and appealed, arguing that the district court erred in

denying his motion to suppress.

                                     JURISDICTION

       Mr. Mabry timely filed this appeal under Fed. R. App. P. 4(b). This court has

jurisdiction pursuant to 28 U.S.C. § 1291.

                               STANDARD OF REVIEW

       “When reviewing the denial of a motion to suppress, we view the evidence in the

light most favorable to the government, accept the district court’s findings of fact unless

clearly erroneous, and review de novo the ultimate determination of reasonableness under

the Fourth Amendment.” United States v. Eckhart, 569 F.3d 1263, 1270 (10th Cir. 2009)

(internal quotation marks omitted). “The credibility of witnesses, the weight to be given

evidence, and the reasonable inferences drawn from the evidence fall within the province

of the district court.” United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004)

(internal quotation marks omitted). But “[w]e can affirm a lower court’s ruling on any

grounds adequately supported by the record, even grounds not relied upon by the district

court.” Elwell, 699 F.3d at 1213.

                                      DISCUSSION

       “A [parolee’s] home, like anyone else’s, is protected by the Fourth Amendment’s

requirement that searches be reasonable.” United States v. Warren, 566 F.3d 1211, 1215

(10th Cir. 2009) (alteration in original) (internal quotation marks omitted). But there are

“exceptions to the warrant and probable-cause requirements” for “searches of
                                             5
probationers and parolees and their homes.” Id. One such exception “authorizes

warrantless searches without probable cause (or even reasonable suspicion) . . . 2 when

the totality of the circumstances renders the search reasonable.” 3 Id. at 1216. We have

explained that “[t]his exception is predicated on (1) the reduced (or absent) expectation of

privacy that the Court would recognize for probationers and parolees and (2) the needs of

law enforcement.” Id.

       Applying this exception, the Supreme Court held in Sampson v. California that

“the Fourth Amendment does not prohibit a police officer from conducting a

suspicionless search of a parolee” when such a search is authorized by state law. See 547

U.S. 843, 857 (2006). But in Sampson, “[t]he Court noted ‘that some States and the

Federal Government require a level of individualized suspicion,’ and strongly implied

that in such jurisdictions a suspicionless search would remain impermissible.” United

States v. Freeman, 479 F.3d 743, 747 (10th Cir. 2007) (quoting Sampson, 547 U.S. at

2201). Thus, “[p]arolee searches are . . . an example of the rare instance in which the

2
  Specifically, the totality-of-the-circumstances exception “authorizes warrantless
searches without probable cause (or even reasonable suspicion) by police officers with no
responsibility for parolees or probationers when the totality of the circumstances renders
the search reasonable.” Warren, 566 F.3d at 1216.
3
 The other exception allows “for a parole officer to search parolees in compliance with a
parole agreement search provision, but without a warrant,” because “[s]upervision [of
parolees] . . . is a special need of the State.” United States v. Freeman, 479 F.3d 743, 746
(10th Cir. 2007) (alterations in original) (internal quotation marks omitted). Because we
uphold the search under the totality of the circumstances, we do not consider the special
needs exception.


                                             6
contours of a federal constitutional right are determined, in part, by the content of state

law.” Id. at 747–48.

       Under Kansas law, a warrantless search of a parolee must be supported by

reasonable suspicion. See id. at 748; accord State v. Bennett, 200 P.3d 455, 462–63

(Kan. 2009) (“The Kansas Legislature has not authorized suspicionless searches of

probationers or parolees. . . . Put another way, parolees in Kansas have an expectation

that they will not be subjected to suspicionless searches.”). Indeed, in Kansas, “parolees

are told that searches must be based on a suspicion of a parole violation.” Bennett, 200

P.3d at 462.

       “Reasonable suspicion is a less demanding standard than probable cause.” United

States v. Tucker, 305 F.3d 1193, 1200 (10th Cir. 2002) (internal quotation marks

omitted). Specifically, “reasonable suspicion is merely a particularized and objective

basis for suspecting criminal activity.” Id. “To determine whether . . . investigating

officers had reasonable suspicion, we consider both the quantity of information possessed

by law enforcement and its reliability,” viewing both factors “under the totality of the

circumstances.” Id. (footnote omitted).

       Under the totality of the circumstances, we conclude that the search at issue here

was reasonable, because (1) as a parolee, Mr. Mabry had a diminished expectation of

privacy; (2) there was reliable information that Mr. Mabry had violated his parole and

was involved with distributing drugs, which supports a reasonable suspicion to search the


                                              7
residence; and (3) the State had a strong interest in monitoring Mr. Mabry’s behavior and

preventing his recidivism, especially in light of his recent parole violations.

       First, “[a] parole agreement containing a provision allowing the search of a

parolee’s residence diminishes the parolee’s reasonable expectation of privacy in his

residence.” Id. at 1199; accord Samson, 547 U.S. at 852 (“[A]cceptance of a clear and

unambiguous search condition significantly diminishe[s] [a defendant’s] reasonable

expectation of privacy.” (internal quotation marks omitted)). In this case, in his last

meeting with Parole Officer Garcia, Mr. Mabry listed as his residence the address of his

girlfriend, and Parole Officer Garcia approved the change in address. And when Mr.

Mabry was placed on parole, he signed a form entitled “Conditions of Release for Parole

and Post Release Supervision,” which stated that he agreed to “[b]e subjected to a search

by parole officers or designated law enforcement officers of my person, residence, and

any other property under my control.” R.O.A., Vol. I at 30. Thus, Mr. Mabry was

clearly aware of this condition of his parole, which “significantly diminished” his

expectation of privacy.

       Second, both the information that Mr. Mabry had violated his parole and was

involved in transporting illegal drugs, as well as the circumstances at the residence,

supported the officers’ reasonable suspicion that Mr. Mabry had violated his parole.

Although we have rejected the notion that a defendant’s “parolee status and criminal

history, without other particularized and objective facts, [is] sufficient to form reasonable

suspicion,” Freeman, 479 F.3d at 749, there were “particularized and objective facts” in
                                              8
this case, beyond Mr. Mabry’s general criminal history and parolee status, which support

a reasonable suspicion that Mr. Mabry had violated his parole.4 Parole Officer Marquez

testified that he supervised the parolee who had been driving the car in Utah that

contained twenty-two pounds of marijuana; he contacted the Utah state trooper who had

arrested the other parolee; and he learned from the state trooper that Mr. Mabry had also

been in the vehicle. Based on this information, he prepared the Order to Arrest and

Detain. SEO Evans’s report states:

       I received information from P[arole] O[fficer] . . . Marquez that [Mr.
       Mabry] needed to be arrested on an arrest and detain warrant. Apparently
       this offender and [another parolee] [were] stopped in Utah with a large
       amount of marijuana a few weeks prior but this offender was not arrested
       . . . . I met with [Wichita Police Department] officers Norton/Tiede and
       informed them of the situation.

R.O.A., Vol. 1 at 32. Accordingly, the officers had reliable information that Mr. Mabry

had violated his parole and been involved in transporting illegal drugs.5



4
  We note that this case is easily distinguishable from United States v. Freeman, 479 F.3d
743 (10th Cir. 2007). In Freeman, the defendant was visited by police officers in the
middle of the night as part of a random curfew check, and the district court found that the
officers had no reasonable suspicion when they entered the defendant’s home, but that
circumstances developed to give rise to a reasonable suspicion. Id. at 745, 749. In
contrast to Freeman, in this case, the officers already had reliable information to support a
reasonable suspicion when they arrived to arrest Mr. Mabry.
5
  Mr. Mabry contends that his parole violations in Utah, which occurred two and a half
weeks prior to the search, were too remote in time to support a reasonable suspicion for
the search. We reject this argument. A “reasonable suspicion is merely a particularized
and objective basis for suspecting criminal activity.” Tucker, 305 F.3d at 1200. Parole
Officer Marquez provided reliable information that Mr. Mabry had recently committed
                                                                            Continued . . .
                                             9
       In addition, the circumstances at the house contributed to the officers’ reasonable

suspicion that Mr. Mabry had violated his parole and engaged in illegal activity.

Specifically, the district court determined that “[c]ontemporaneous with the arrest, SEO

Evans observed marijuana in plain view on the floor under the table.”6 R.O.A., Vol. 1 at

54. Moreover, Mr. Mabry’s girlfriend behaved nervously and evasively throughout the

encounter—she attempted to close the door while initially talking to the officers; she

indicated that Mr. Mabry was unavailable by claiming he was somewhere like the shower

or bathroom, but at that point he appeared from the back kitchen area; and she would not

answer whether anyone was in the basement.7 In light of these circumstances and the

______________________________________
Cont.

several parole violations. That information is proximate in time and bears on whether the
officers had a reasonable suspicion for searching the home.
6
 Mr. Mabry argues that the marijuana was not observed by SEO Evans until after the
officers searched the house. While it is true that there is conflicting evidence on this
point, we view the evidence in the light most favorable to the Government and give
deference to the factual findings of the district court.

SEO Evans testified that he found the tray of marijuana when he cuffed Mr. Mabry
before the search. There was conflicting evidence, but on this record, we consider the
evidence most favorable to the Government. Eckhart, 569 F.3d at 1270. Even without
the tray of marijuana, we conclude that under the totality of the circumstances the officers
had a reasonable suspicion of a parole violation.
7
  As Mr. Mabry notes, “[r]efusal to consent to a search—even agitated refusal—is not
grounds for reasonable suspicion.” Freeman, 479 F.3d at 749. But “nervousness, even if
it may be a normal reaction [to law enforcement], is still among the pertinent factors a
reasonable law enforcement officer would analyze in investigating possible crimes, and
should not be completely disregarded.” United States v. Johnson, 364 F.3d 1185, 1192
(10th Cir. 2004) (holding that a district court erred in not considering a defendant’s
                                                                               Continued . . .
                                             10
information that the officers possessed about the incident in Utah, we hold that the

officers had a reasonable suspicion that Mr. Mabry had violated the terms of his parole.

       Finally, “a State has an overwhelming interest in supervising parolees because

[they] are more likely to commit future criminal offenses.” Samson, 547 U.S. at 853

(internal quotation marks omitted); accord Tucker, 305 F.3d at 1199. Here, in light of

information regarding Mr. Mabry’s recent parole violations and the circumstances at the

residence, the State had an especially strong interest in monitoring Mr. Mabry’s behavior

and preventing his recidivism.

       On the other hand, Mr. Mabry contends that the search was not lawful because it

did not comply with Kansas Department of Corrections Internal Management Policy and

Procedure Section 14-164 III(a)(1), which requires an SEO executing an arrest warrant to

get prior approval from a supervisor to search the residence. Under the totality of the

circumstances, the failure to comply with state policies governing searches of parolees is

a factor to consider. See Freeman, 479 F.3d at 748. But in Tucker, we rejected a

defendant’s argument that the search of his home was necessarily invalid because it did

not comply with state law governing parole searches. See 305 F.3d at 1200. We stated

that while “a parole search may be upheld if it is conducted pursuant to a state


______________________________________
Cont.

nervousness as part of the totality of the circumstances when evaluating the validity of a
Terry stop).


                                            11
parole/probation system that itself complies with the Fourth Amendment[,] . . . [t]hat . . .

is not the exclusive avenue by which the search may be deemed reasonable under the

Fourth Amendment.” Id. Instead, “a parole search is also valid if reasonable under [the]

general Fourth Amendment principles” that apply to searching parolees. Id. In other

words, in Tucker, we stressed that even assuming a search did not comply with the state

law, because it was a search of a parolee, “it [would be] permissible under general Fourth

Amendment principles if the officers had reasonable suspicion that contraband was

located at [the defendant’s] residence or that a crime had taken place.” Id.

       In this case, when considered in light of the totality of the circumstances, the

alleged failure to get prior permission from a supervisor had a minimal impact on Mr.

Mabry’s expectation of privacy and the State’s interest in supervising him. In light of the

information regarding Mr. Mabry’s recent parole violations and the conditions at the

residence, the officers possessed a reasonable suspicion that Mr. Mabry had violated his

parole, and his limited expectation of privacy was outweighed by the State’s strong

interest in monitoring his behavior and preventing his recidivism.

                                     CONCLUSION

       We hold that Mr. Mabry had a diminished expectation of privacy, which was

outweighed by the State’s strong interest in monitoring him and preventing his

recidivism, and that the officers had a reasonable suspicion that Mr. Mabry had violated

his parole. Accordingly, the search was valid under the totality of the circumstances and


                                             12
we AFFIRM the district court’s denial of Mr. Mabry’s motion to suppress. We also

GRANT Mr. Mabry’s unopposed motion to seal.




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