               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0813n.06

                                          No. 14-3027
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                          Oct 24, 2014
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       On Appeal from the United States
v.                                                 )       District Court for the Southern
                                                   )       District of Ohio
DAVID G. PAYNE,                                    )
                                                   )
       Defendant-Appellant.                        )
                                                   )
_________________________________/                 )

Before: GUY, CLAY, and WHITE, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Defendant David G. Payne appeals from the

denial of his motion to suppress evidence following his conditional plea of guilty to one count of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Payne moved to

suppress the firearm and drugs seized during a warrantless search of the residence he shared with

Erin Ratleff, who was on post-release control at the time. After an evidentiary hearing, the

district court found the search was reasonable under the Fourth Amendment’s totality-of-the-

circumstances standard articulated in Knights since there was probable cause to believe Ratleff

was living there in violation of the conditions of her release. See United States v. Knights, 534

U.S. 112 (2001). We affirm.
Case No. 14-3027                                                                               2
United States of America v. Payne

                                                 I.

       Payne, a previously convicted felon, was indicted on firearm and drug charges based on

the seizure of evidence, including a loaded .38 caliber Llama revolver and several bags of

cocaine and marijuana, from his residence at 117 Powers Street on August 21, 2012. The district

court summarized its factual findings as follows (citations to the transcript have been omitted):

           In the spring of 2012, the Bellefontaine Police Department (“BPD”) received
       a complaint from a local business concerning potential drug trafficking activity at
       or around 117 Powers Street (“Powers Street Residence”). Following receipt of
       this tip, BPD Detective [Craig] Comstock conducted several spot checks on the
       Powers Street Residence. Officer Comstock wanted to search the Powers Street
       Residence but had no legal justification for doing so. However, during this
       surveillance, Detective Comstock observed female Erin Ratleff (“Ratleff”)
       coming and going from the Powers Street Residence.

          Ratleff was on post release control under the supervision of Parole Officer
       Chris Niekamp of the Logan County office of the Ohio Adult Parole Authority
       (“APA”). At the time she agreed to her conditions of supervision, Ratleff
       provided Officer Niekamp with the residence of her mother as the location where
       she was living. She also acknowledged her obligation to immediately inform
       Officer Neikamp of any changes in residency. Finally, Ratleff agreed that any
       property where she was actually living would be subject to search by Officer
       Niekamp.

           During the time that Detective Comstock was surveiling the Powers Street
       Residence, he ran across Ratleff in the Bellefontaine community. Detective
       Comstock observed Ratleff driving cars associated with the Powers Street
       Residence approximately 20 or 25 times. The cars that Detective Comstock
       associated with the Powers Street Residence were registered with Payne or
       Ratleff’s mother. Finally, Detective Comstock knew that Ratleff was on post
       release control.

           In 2012, Detective Comstock contacted the owners of the Powers Street
       Residence and obtained the current rental agreement. This Rental Agreement is
       for the period of July 1, 2011 through June 30, 2012, [and] automatically renewed
       at the termination of each 12 month lease period. Payne and Ratleff are listed as
       the tenants and both signed the Rental Agreement. Included [on the second page]
       is a handwritten addendum dated 8/11/12 which states that, “Tenants agree to rent
       month to month while home is listed for sale. Tenant will receive 30 days to
       vacate home when home sells. Agrees to all other terms of rental agreement.”
       Finally, the owners of the Powers Street Residence told Detective Comstock that
       they were aware that Payne and Ratleff were living there together.
Case No. 14-3027                                                                            3
United States of America v. Payne


          Detective Comstock informed Officer Niekamp of the ongoing surveillance
       connecting Ratleff to the Powers Street Residence and of the Rental Agreement.
       Officer Niekamp became concerned that Ratleff had changed her residence
       without notifying the APA.

           On May 8, 2012, Ratleff had met with Officer Niekamp to review the
       conditions of her supervision. Ratleff advised Niekamp that she was staying with
       her mother at that time. Ratleff never informed Niekamp that she had taken out a
       lease on the Powers Street Residence.

           Following [that] meeting, Officer Niekamp stopped by Ratleff’s mother’s
       apartment several times. During these visits, he never made contact with Ratleff
       there.

           On one visit, Officer Niekamp did make contact with Ratleff’s mother.
       Ratleff’s mother told Officer Neikamp that Ratleff lived in the apartment but
       [that] she also stays some with Payne. Also, based upon what Officer Niekamp
       saw and did not see at Ratleff’s mother’s apartment and knowing that Ratleff was
       unemployed, he questioned whether Ratleff actually lived there.

           Given his concern that Ratleff did not actually live at her mother’s apartment
       but had not reported a change of residence, Officer Niekamp and Detective
       Comstock established surveillance of the Powers Street Residence during the
       morning of August 21, [2012]. Detective Comstock had agreed to assist Officer
       Niekamp investigate . . . Ratleff’s possible parole violation. Detective Comstock
       also believed that the surveillance may advance his own investigation of potential
       drug trafficking activity at the Powers Street Residence, which potentially
       implicated Ratleff.

          While on this surveillance, Officer Niekamp and Detective Comstock
       observed a car parked in front of the Powers Street Residence that Officer
       Niekamp had previously seen Ratleff drive on her visits to the APA. This car that
       Officer Niekamp had previously seen Ratleff driving was registered to Payne.

           Officer Niekamp and Detective Comstock observed Ratleff come out of the
       Powers Street Residence. They approached Ratleff and met her on the sidewalk.
       Officer Niekamp, who was well-known to Ratleff, said “Erin, I need to speak to
       you, . . . The gig is up. I know you are not living where you say you are. I know
       that you are living here.” At that point, Ratleff became very emotional and began
       crying.

           Officer Niekamp told Ratleff that “[w]e need to go in the house.” Based upon
       Ratleff’s reaction when confronted along with the lease agreement for the Powers
       Street Residence, the multiple observations of Ratleff at the Powers Street
       Residence including her presence there on August 21, the fact that Ratleff was not
Case No. 14-3027                                                                                 4
United States of America v. Payne

            denying living at the Powers Street Residence, and not being able to locate her at
            the residence where she said she was living, Officer Niekamp was positive that
            Ratleff was living at the Powers Street Residence.

                Given this belief, Officer Niekamp asked Ratleff to step inside the Powers
            Street Residence. [Ratleff went in first, picking up her 15-month-old daughter in
            the doorway.] As they entered the Powers Street Residence, Officer Niekamp
            observed Payne sitting on a couch preparing to roll a [marijuana] joint. There is
            no evidence that Payne consented to the search of the Powers Street Residence.
            Payne was stood up and handcuffed to ensure everyone’s safety.

                Officer Niekamp then briefly spoke with Ratleff. Ratleff confirmed that she
            lived at the Powers Street Residence. Officer Niekamp then conducted a parole
            [authorized] search of the Powers Street Residence [with the help of Detective
            Comstock]. Officers found a firearm and various controlled substances in the
            [kitchen of the] residence.

Payne was arrested and, as he was being taken to the patrol car, stated that Ratleff “didn’t know

that stuff was in there.” Ratleff admitted to having committed parole violations by failing to

inform the APA of her change of address and by using marijuana.1

            Payne argued in his motion to suppress that the warrantless search violated his Fourth

Amendment rights because Officer Niekamp lacked probable cause to believe Ratleff was living

there at the time of the search. Payne also argued that the “parole search was merely a tool to

gain entry and search Mr. Payne’s home.” The government maintained that the search was

reasonable under Knights, and the district court agreed. Specifically, the district court found that

“[t]he presence and additional motive of Detective Comstock during the search is irrelevant,”

and that, “[b]ecause Officer Niekamp had probable cause to believe that Ratleff was living at the

Powers Street Residence, the search of that residence in her presence did not violate the Fourth

Amendment.”

            Payne entered into a conditional plea agreement under Fed. R. Crim. P. 11(c)(1)(C),

which provided for dismissal of the drug charges and an agreement as to his sentence for being a

1
    Clothing and mail belonging to Ratleff were also found in the residence.
Case No. 14-3027                                                                                               5
United States of America v. Payne

felon in possession of a firearm. Consistent with that agreement, defendant was sentenced to 60

months of imprisonment, to be followed by three years of supervised release. This appeal

followed.2

                                                        II.

        On appeal from the denial of a motion to suppress, we review the district court’s factual

findings for clear error and its legal conclusions de novo. United States v. Foster, 376 F.3d 577,

583 (6th Cir. 2004). The defendant bears the burden to demonstrate “‘a violation of some

constitutional or statutory right justifying suppression.’” United States v. Rodriguez-Suazo,

346 F.3d 637, 643 (6th Cir. 2003) (citation omitted). Also, because the district court denied the

motion to suppress, we review the evidence in the light most favorable to the government.

United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009).

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

Amendment’s requirement that searches be ‘reasonable.’” Griffin v. Wisconsin, 483 U.S. 868,

873 (1987). However, probationers, like parolees, “do not enjoy the ‘absolute liberty to which

every citizen is entitled, but only . . . conditional liberty properly dependent on observance of

special [probation] restrictions.’” Id. at 874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480

(1972)). In fact, “the Supreme Court has made clear that the nature of the relationship between

state actors and individuals subject to state supervision in lieu of or following release from prison

alters the relevant analysis under the Fourth Amendment.” United States v. Herndon, 501 F.3d

683, 687 (6th Cir. 2007).

        The Supreme Court has identified two justifications under which a parole-authorized

warrantless search may be found reasonable under the Fourth Amendment. First, the Court in

2
 The district court accepted the agreement as to Payne’s sentence, although with an offense level of 25 and criminal
history category of III the advisory guidelines range for the firearm offense was 70 to 78 months.
Case No. 14-3027                                                                                                 6
United States of America v. Payne

Griffin recognized 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.” Griffin, 483 U.S. at 873-74. The Court upheld the search of a probationer’s

home pursuant to a state regulation that authorized a warrantless search when a probation officer

had “reasonable grounds” to believe the probationer was in possession of contraband. Id. at 870-

71. Then, in Knights, the Court recognized that a police officer’s search of a probationer’s home

pursuant to a probation condition authorizing the search with or without a warrant or probable

cause could be reasonable under the “totality of the circumstances.” United States v. Knights,

534 U.S. 112, 118-19 (2001). If a warrantless search is reasonable under either Knights or

Griffin, it need not pass muster under the other. Herndon, 501 F.3d at 688.3

         Payne’s principal contention is that the parole search was a ruse for the police

investigation because the parole officer acted as a “stalking horse” for the police simply to evade

the Fourth Amendment’s warrant and probable-cause requirements. See United States v. Martin,

25 F.3d 293, 296 (6th Cir. 1994). Because his motion to suppress asserted that the search was

just such a ruse, albeit without explicitly referencing Griffin or the stalking-horse theory, we

reject the government’s claim that the argument was either waived or forfeited. See United

States v. Caldwell, 518 F.3d 426, 430 (6th Cir. 2008).

         Some courts, including this one, applied Griffin’s special-needs exception with the caveat

that the parole officer could not be acting merely as a “stalking horse” for a police investigation.

Martin, 25 F.3d at 296; see also United States v. Watts, 67 F.3d 790, 794 (9th Cir. 1995), rev’d

on other grounds, 519 U.S. 148 (1997). This court in Penson questioned, but did not decide,


3
  The Court extended application of Knights to parolees, holding that a statute requiring parolees to submit to search
or seizure with or without a warrant and with or without cause was reasonable under the totality of the
circumstances. Samson v. California, 547 U.S. 843, 857 (2006); see also United States v. Smith, 526 F.3d 306, 309-
10 (6th Cir. 2008) (upholding suspicionless search of defendant under community confinement).
Case No. 14-3027                                                                                                7
United States of America v. Payne

whether the stalking-horse argument has continued validity after Knights. See United States v.

Penson, 141 F. App’x 406, 410 n.2 (6th Cir. 2005). More recently, this court suggested in dicta

that, although not relevant under Knights, an officer’s motivations do still matter when the

government relies on Griffin’s special-needs exception to justify the search. See United States v.

Lykins, 544 F. App’x 642, 648 n.2 (6th Cir. 2013). We need not resolve this question because, as

in Lykins, the government did not rely on the special-needs doctrine to justify the search in this

case. Id.4

        However, the stalking-horse argument has no application when, as here, a search may be

justified under Knights’ totality-of-the-circumstances standard.                  Any doubt is dispelled by

Knights itself:

            Because our holding rests on ordinary Fourth Amendment analysis that
        considers all the circumstances of a search, there is no basis for examining official
        purpose. With the limited exception of some special needs and administrative
        search cases, see Indianapolis v. Edmond, 531 U.S. 32, 45 (2000), “we have been
        unwilling to entertain Fourth Amendment challenges based on the actual
        motivations of individual officers.” Whren v United States, 517 U.S. 806, 813
        (1996).

Knights, 534 U.S. at 122; see also United States v. Williams, 417 F.3d 373, 378 (3d Cir. 2005)

(citing cases holding that the stalking-horse theory does not survive Knights). Thus, the district

court did not err by disregarding Payne’s arguments about the motivation for the search in

denying his suppression motion.

        Defendant asserts that the warrantless search may not be justified under Knights because

that exception only applies when the search is based on suspicion of new criminal activity as

4
 This court explained in Penson that “it is wholly permissible for law enforcement officers and probation officers to
‘work together and share information to achieve their objectives.’” Id. at 410 (citation omitted). This means
“probation officers may properly request police assistance in executing their duties as probation officers.” Id. “The
only type of cooperation which the Fourth Amendment prohibits is the use of the probation system for investigatory
purposes in order to permit law enforcement officers to evade the Fourth Amendment warrant requirement.” Id.; see
also United States v. Russ, 23 F. App’x 245, 247 (6th Cir. 2001) (finding no evidence that probation officer was
acting as “stalking horse” for police).
Case No. 14-3027                                                                               8
United States of America v. Payne

opposed to a violation of the conditions of parole or probation. However, this court explicitly

rejected this same argument in Herndon. Specifically, we held that

       the object of [the probation officer’s] suspicion-Herndon’s potential violation of
       the terms of his probation as opposed to a generally applicable criminal statute-
       does not impact the availability of the Knights framework. For the purposes of
       our Fourth Amendment inquiry here, a probationer’s violation of the terms of
       probation is comparable to his violation of a criminal statute.

Herndon, 501 F.3d at 689. We added that “our sister circuits have consistently applied the

Knights regime to searches undertaken to investigate potential violations of probation or parole.”

Id. (citing cases). Thus, we held that it was irrelevant for the purposes of the Knights analysis

whether the probation officer sought evidence of a probation violation or proof of a violation of a

generally applicable criminal statute. Id. at 690. Accordingly, we turn to the district court’s

application of the Knights framework to this case.

       Whether a search is reasonable under the totality of the circumstances “is determined by

assessing, on 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 interests.”

Knights, 534 U.S. at 118-19. “Just as other punishments for criminal convictions curtail an

offender’s freedoms, a court granting probation may impose reasonable conditions that deprive

the offender of some freedoms enjoyed by law-abiding citizens.” Id. at 119. The Court found

that it was reasonable to conclude that the search condition would further the goals of probation,

and imposition of the search condition “significantly diminished Knights’ reasonable expectation

of privacy.” Id. at 120. Balancing the reduced expectation of privacy and the governmental

interest in monitoring probationers, the Court held that reasonable suspicion was sufficient to

conduct a search of a probationer’s house. Id. at 121.
Case No. 14-3027                                                                                                9
United States of America v. Payne

        Here, Ratleff was subject to Ohio Rev. Code § 2967.131(C), which authorized her parole

officer to search her place of residence, with or without a warrant, if the officer had “reasonable

grounds to believe that [she] has left the state, is not abiding by the law, or otherwise is not

complying with the terms and conditions of [her] conditional pardon, parole, transitional control,

other form of authorized release, or post-release control.” There is no dispute that, as Ratleff

acknowledged, she was required as a condition of supervision to advise her parole officer of any

change of address from her mother’s apartment. We have no difficulty concluding that Officer

Niekamp had at least reasonable suspicion that Ratleff was not in compliance with that condition

at the time of the search. The district court also required that there be probable cause to believe

Ratleff was a resident of the premises to be searched, in reliance on United States v. Bolivar, 670

F.3d 1091, 1094-95 (9th Cir. 2012). The government does not argue that it was error to require

probable cause to believe Ratleff resided at the premises to be searched. Because we agree that

probable cause existed, it is not necessary to decide whether reasonable suspicion connecting a

parolee or probationer to the premises to be searched would be sufficient under the balancing

called for by Knights. See, e.g., United States v. Crutchfield, 444 F. App’x 526, 528 (3d Cir.

2011) (declining to reach the issue because probable cause existed).5

        Disputing that there was probable cause to believe Ratleff resided at the Powers Street

Residence, Payne emphasized that Ratleff had not signed the handwritten addendum to the lease

(although she had signed the lease itself) and that Ratleff did not affirmatively respond when

confronted outside the Powers Street Residence (but merely started to cry). However, the

5
  The court in Bolivar adhered to its prior holding in Motley that “a condition of parole that permits warrantless
searches provides officers with the limited authority to enter and search a house where the parolee resides even if
others also reside there. But they have to be reasonably sure that they are at the right house.” Motley v. Parks, 432
F.3d 1072, 1079 (9th Cir. 2005) (en banc) (involving § 1983 action by non-parolee who claimed there was not
sufficient basis to believe the parolee lived with her). The court explained that requiring officers to have probable
cause to believe they are at the parolee’s residence protects the interests of third parties who also reside there.
Bolivar, 670 F.3d at 1094-95.
Case No. 14-3027                                                                               10
United States of America v. Payne

information Officer Niekamp possessed at the time of the search included: (1) that he had been

unsuccessful in confirming that Ratleff was residing at her mother’s apartment; (2) that Ratleff

had been observed coming and going from and driving cars associated with the Powers Street

address; (3) that Ratleff had signed a lease with Payne for the Powers Street Residence when she

was reportedly living with her mother; (4) that the owners of the Powers Street Residence said

they were aware that Payne and Ratleff were living there together; and (5) that Ratleff did not

deny that she was residing at the Powers Street Residence when confronted outside prior to the

search. The district court did not err in finding that Officer Niekamp had probable cause to

believe Ratleff was living at the Powers Street address in violation of the conditions of her post-

release control at the time he entered to conduct the parole search. The search was reasonable

under Knights, and the district court did not err in denying Payne’s motion to suppress the

evidence seized.

       AFFIRMED.
