           18-3713-cr
           United States v. Michael Elder

18‐3713‐cr
United States v. Michael Elder

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 9th day of March, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,

                              ‐v‐                                                  18‐3713‐cr

MICHAEL ELDER,
                                        Defendant‐Appellant.

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FOR DEFENDANT‐APPELLANT:                                     C. DIXON WALLACE, Law Student (Patricia
                                                             E. Roberts, Afton J. Paris, Law Student,
                                                             Natsumi Antweiler, Law Student, on the brief),
                                                             for the Appellate and Supreme Court Clinic,
                                                             William and Mary Law School, Williamsburg,
                                                             Virginia; and Tillman J. Breckenridge and
                                           Pierce Bainbridge, for Beck, Price & Hecht LLP,
                                           Washington, D.C.

FOR APPELLEE:                              TIFFANY H. LEE, Assistant United States
                                           Attorney, for James P. Kennedy, Jr., United
                                           States Attorney for the Western District of New
                                           York, Rochester, New York.

              Appeal from the United States District Court for the Western District of

New York (Arcara, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Michael Elder appeals a judgment, entered

November 30, 2018, following his conviction at a jury trial, sentencing him principally

to 210 monthsʹ imprisonment for possession with intent to distribute cocaine and

fentanyl in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C), as well as

maintaining a drug‐involved premises in violation of 21 U.S.C. § 856(a)(1) and 856(b).

On appeal, Elder challenges the district courtʹs denial of his motion to suppress the

physical evidence found during a warrantless search of his home. Specifically, Elder,

who was on supervised release for a prior conviction at the time of the search, argues

that the search was not supported by reasonable suspicion and thus violated the Fourth

Amendment. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.

              In 2005, Elder was sentenced to a term of imprisonment and supervised

release for firearms offenses and bank robbery. After completing his prison term, he
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began his supervised released under the supervision of U.S. Probation Officer James

Dyckman. As a supervisee, Elder was subject to the following special search condition:

ʺ[Elder] shall submit to a search of his person, property, vehicle, place of residence or

any other property under his control and permit confiscation of any evidence or

contraband discovered.ʺ Appʹx at 19. Elder indicated by his signature that he

consented to the search condition.1 During the course of Elderʹs supervision, Dyckman

received an email from the Drug Enforcement Agency (ʺDEAʺ) advising that it had

received four anonymous emails over the course of two months alleging that Elder was

selling drugs from his home. On the basis of these tips, Dyckman, along with eight

other probation officers and DEA agents, searched Elderʹs home and discovered drugs,

cash, and drug paraphernalia. Following the filing of charges, Elder moved to suppress

the evidence seized during the search. The district court denied the motion, holding

that although the search was not supported by reasonable suspicion, Elderʹs special

search condition authorized suspicionless searches.




1       It is not clear whether Elder understood the search condition to permit suspicionless
searches. Indeed, when describing Elderʹs signing of the special conditions, Dyckman testified
that he (Dyckman) understood the condition as ʺallow[ing] us to search his property, his
residence that he reports to us, any property under his control upon reasonable suspicion to
exercise that right.ʺ Dist. Ct. Dkt. No. 24 at 19‐20.
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                                       DISCUSSION

I.     Standard of Review

               ʺOn appeal from a district courtʹs ruling on a motion to suppress

evidence, we review legal conclusions de novo and findings of fact for clear error.ʺ

United States v. Berschansky, 788 F.3d 102, 108 (2d Cir. 2015). Mixed questions of fact and

law are reviewed de novo. Id.

II.    Applicable Law

              The Fourth Amendment protects the right of the people to be free from

unreasonable government intrusion into areas where they have ʺa legitimate

expectation of privacy.ʺ United States v. Newton, 369 F.3d 659, 664‐65 (2d Cir. 2004).

Persons on supervised release have a diminished expectation of privacy. See United

States v. Edelman, 726 F.3d 305, 310 (2d Cir. 2013) (noting that supervisees ʺwho sign

[waivers] manifest an awareness that supervision can include intrusions into their

residence and, thus, have a severely diminished expectation of privacyʺ (quoting

Newton, 369 F.3d at 665)); United States v. Balon, 384 F.3d 38, 44 (2d Cir. 2004) (noting

that an individual on supervised release has a ʺdiminished expectation of privacy that is

inherent in the very term ʹsupervised releaseʹʺ).

              With few exceptions, a search is ʺnot reasonable unless it is accomplished

pursuant to a judicial warrant issued upon probable cause.ʺ Skinner v. Ry. Labor Exec.ʹs

Assʹn, 489 U.S. 602, 619 (1989). One exception to this general rule is when ʺspecial

needs, beyond the normal need for law enforcement, make the warrant and probable‐
                                              4
cause requirement impracticable.ʺ Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).

Supervision is one such special need. Id. at 875.

              Suspicionless searches of a parolee do not violate the Fourth Amendment

if the parolee has expressly consented to them. See Samson v. California, 547 U.S. 843, 846

(2006) (holding that a suspicionless search did not violate the Fourth Amendment

where the defendant was a state parolee and California law required that parolees

ʺagree in writing to be subject to search . . . with or without causeʺ). Though we have

upheld a search premised on a search condition that did not explicitly provide for

searches without reasonable suspicion, see United States v. Massey, there we noted that

the search was in fact supported by reasonable suspicion. 461 F.3d 177, 178‐79 (2d Cir.

2006).2 We have recognized that in monitoring individuals on supervised release,

probation officers must be given ʺconsiderable investigative leeway,ʺ United States v.

Reyes, 283 F.3d 446, 457 (2d Cir. 2002), for in bringing a superviseeʹs offending conduct

to the attention of the court, they act as the ʺeyes and earsʺ of the court, id. at 455.

               The fact that the Fourth Amendment has been violated does not mean

that the exclusionary rule must be invoked, for exclusion is not a necessary consequence



2       We observe that the language of the search condition here deviates from the sample
language for such conditions provided by both the Administrative Office of the U.S. Courts and
the U.S. Parole Commission, which require reasonable suspicion for warrantless searches. See
Admin. Office of United States Courts Prob. and Pretrial Servs. Office, Overview of Prob. and
Supervised Release Conditions 78‐79 (2016) (warrantless searches permitted ʺonly when reasonable
suspicion existsʺ); U.S. Parole Commʹn R. & Proc. Man. § 2.204‐18(b)(3) (2010) (releasee shall
submit to searches ʺbased upon reasonable suspicionʺ). The absence of such language would
surely increase the risk of abuse.
                                               5
of a Fourth Amendment violation, but rather is intended to deter ʺintentional conduct

that was patently unconstitutional.ʺ Herring v. United States, 555 U.S. 135, 143‐44 (2009);

see also Davis v. United States, 564 U.S. 229, 237 (2011) (noting that while ʺreal deterrent

value is a necessary condition for exclusion . . . it is not a sufficient oneʺ). Accordingly,

ʺexclusion ʹhas always been our last resort, not our first impulse,ʹʺ and thus ʺto trigger

the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price

paid by the justice system.ʺ Herring, 555 U.S. at 140, 144 (internal quotation marks

omitted).

III.   Analysis

              As a preliminary matter, we accept for the purposes of this appeal the

district courtʹs finding that the anonymous tips did not provide reasonable suspicion for

the search.

              While the Supreme Court has held that the suspicionless search of a

parolee does not violate the Fourth Amendment, there the operative statute clearly

stated that the parolee consented to search ʺwith or without cause.ʺ See Samson, 547 U.S.

at 846. Here, however, Elderʹs search condition does not explicitly state that he is

subject to search without reasonable suspicion. Neither the Supreme Court nor our

Court has addressed the issue of the reasonableness of a suspicionless search of a

supervised releaseeʹs home where the supervisee did not explicitly consent to such a

search.
                                               6
               We need not, however, decide the issue here. Even assuming that Elderʹs

Fourth Amendment rights were violated because he did not validly consent to the

suspicionless search, suppression was not warranted in light of the totality of the

circumstances. Weighing the ʺincremental deterrentʺ of excluding the evidence found

in Elderʹs home against ʺthe substantial social costs extracted by the exclusionary rule,ʺ

we conclude that, even absent reasonable suspicion and assuming a Fourth

Amendment violation, the district court did not err in denying the motion to suppress.

Illinois v. Krull, 480 U.S. 340, 352‐53 (1987).

               As a supervisee, Elder had a ʺseverely diminished expectation of privacy.ʺ

Edelman, 726 F.3d at 310. In contrast, the governmentʹs interests were substantial. The

government has an ʺoverwhelming interestʺ in supervising those on supervised release

to ʺreduc[e] recividism and thereby promoting reintegration and positive citizenshipʺ

among supervisees. Samson, 547 U.S. at 853. Moreover, while the anonymous tips did

not support reasonable suspicion, Dyckmanʹs conduct ʺwas rationally and reasonably

related to the performance of [his] duty.ʺ See Newton, 369 F.3d at 666. Indeed, another

law enforcement agency ‐‐ the DEA ‐‐ reported that there were four tips over the course

of two months that Elder, who was under federal supervision, was engaging in the

illegal distribution of drugs. Even assuming Dyckman acted unreasonably in failing to

conduct further investigation before executing the search, this is not the kind of flagrant

or abusive police misconduct that warrants application of the exclusionary rule.

Bearing in mind that the exclusionary rule ʺapplies only where it ʹresults in appreciable
                                                  7
deterrence,ʹʺ Herring, 555 U.S. at 141 (alteration omitted) (quoting United States v. Leon,

468 U.S. 897, 909 (1984), and weighing the deterrent effect against the serious cost of

ʺletting guilty and possibly dangerous defendants go free,ʺ United States v. Julius, 610

F.3d 60, 66 (2d Cir. 2010) (quoting Herring, 555 U.S. at 141), we conclude that, in the

circumstances here, the substantial social costs of suppressing the evidence obtained

during the search of Elderʹs home outweigh the incremental deterrent value of granting

it. Accordingly, we conclude that the district court did not err when it denied Elderʹs

motion to suppress.

                                          *   *   *

              We have considered Elderʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                           FOR THE COURT:
                                           Catherine OʹHagan Wolfe, Clerk




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