                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2005

USA v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 04-4043




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                                            PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                  _______________________

                        No. 04-4043
                  _______________________

               UNITED STATES OF AMERICA


                                v.

                   SHANNON WILLIAMS,

                                                 Appellant
                   ______________________

        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
              D.C. Criminal No. 03-cr-00292-01
          District Judge: Honorable Sylvia H. Rambo
                  _______________________

       Submitted pursuant to Third Circuit LAR 34.1(a)
                        July 11, 2005

         Before: ALITO and BECKER, Circuit Judges
                and SHADUR, District Judge *

                     (Filed: August 1, 2005)


John F. Yaninek, Esquire
Mette, Evans & Woodside



        * Honorable Milton I. Shadur, United States District Judge
for the Northern District of Illinois, sitting by designation.
3401 North Front Street
Harrisburg, PA 17110-0950
       Counsel for Appellant

Thomas A. Marino
United States Attorney
James T. Clancy
Assistant U.S. Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
       Counsel for Appellee

                 ________________________

                  OPINION OF THE COURT
                 ________________________

SHADUR, District Judge.

       After the district court had denied his motion to suppress
evidence obtained during a warrantless search by parole officers,
defendant-appellant Shannon Williams (“Williams”) executed a
plea agreement with the government pursuant to which he
entered a conditional guilty plea on a charge of felon in
possession of a firearm. That agreement entitled Williams to
appeal the adverse suppression decision and to withdraw his
guilty plea should he prevail on appeal.
       Williams now appeals both (1) the denial of his motion to
suppress and (2) the sentence imposed by the district court. We
affirm the district court’s decision as to suppression, but we
remand the case for resentencing pursuant to our en banc
decision in United States v. Davis, 407 F.3d 162 (3d Cir. 2005).

                               Facts

       Williams began serving a state parole sentence in March
2003 under the supervision of Christine McElhinny, a parole
agent for the Pennsylvania Board of Probation and Parole. As a

                                2
condition of his parole, Williams signed an agreement that
provided in part:

       I expressly consent to the search of my person, property
       and residence, without a warrant by agents of the
       Pennsylvania Board of Probation and Parole. Any items,
       in the possession of which constitutes a violation of
       parole/reparole shall be subject to seizure, and may be
       used as evidence in the parole revocation process.

       During his parole term Williams first lived with his sister, but at the
time relevant to this appeal he was living with his mother. As a condition of
McElhinny’s approval of Williams’ residence there, his mother signed a
written Home Provider Agreement Letter that contained the following
provision:

       I understand the Parole Supervision Staff has a right to
       search the residence at anytime when reasonable
       suspicion exists that parole has been violated. I will not
       deny them access to this residence. I understand that if I
       deny access to Parole Supervision Staff, the laws of
       Pennsylvania give Parole Supervision Staff the authority
       and responsibility to force entry into my residence to
       search for the parolee or contraband without the need of
       a warrant.

       Williams was monitored closely by McElhinny throughout his parole
term. While still living with his sister, he received three warnings for
technical parole violations: failure to make job contacts, violation of curfew
and presence of ammunition at his residence. That last violation followed a
search of Williams’ sister’s home conducted by McElhinny, based on a tip
she had received that Williams was selling drugs. Though she found no
drugs, she did find some ammunition.
       Shortly after Williams moved in with his mother, McElhinny received
another tip that someone was seeking to shoot Williams. McElhinny
responded by arranging a meeting at the mother’s home, where she
discovered that Williams had quit his job, violated his curfew and broken his
leg. Williams also told McElhinny that people were looking for him and that
he wanted to move to Albany, New York.
       McElhinny thought that the information she had obtained about

                                       3
Williams’ activities warranted notification of the local police, and she spoke
to Detective Matthew Luchko (“Luchko”) of the York City Police
Department for that purpose. In response Luchko informed McElhinny that
his investigation of a fatal shooting at a local bar had revealed that Williams
was at the bar when the homicide occurred and that Luchko believed he
might have information about the incident. When Luchko said he would like
to speak with Williams as part of his investigation, McElhinny set up a
meeting at her office.
        Williams did not appear at the appointed time, and while waiting for
Williams to arrive Luchko told McElhinny that Williams might have a gun.
After waiting a half hour Luchko left, and Williams arrived shortly thereafter.
By that time McElhinny had decided that the information conveyed by
Luchko warranted a search of Williams’ residence. After she discussed the
situation with her supervisor, they handcuffed Williams and transported him
to his mother’s home for a search.
        McElhinny, her supervisor and another parole agent began the search
about 2 p.m. September 30, 2003. It did not take long for the second parole
agent to find an ice bucket containing two loaded handguns, cocaine and
Williams’ parole supervision fee receipt. When those items were found, the
parole agents halted the search and called Luchko.
        Luchko and his partner came to Williams’ mother’s house and
retrieved the found items. While the parole officers transported Williams to
the York County Prison, Luchko obtained a search warrant that authorized a
search of Williams’ third-floor bedroom. Although that warrant-authorized
search yielded no additional items, the guns found by the parole officers
during their warrantless search formed the basis for the federal charges
brought against Williams.
        Williams was indicted by a grand jury in October 2003 on charges of
possession of a firearm by a convicted felon and possession of stolen firearms
shipped and transported in interstate commerce. Williams originally entered
a plea of not guilty and filed a motion to suppress all evidence recovered
during the warrantless search. After that motion was denied by the District
Court, Williams entered into the conditional plea agreement and was
sentenced on October 13, 2004.

                             Motion To Suppress

       We review the denial of a motion to suppress for clear error as to the
underlying factual determinations and exercise plenary review over the
application of the law to those facts (United States v. Lockett, 406 F.3d 207,

                                       4
211 (3d Cir. 2005)). Because the basis for denial of the motion was a
determination that the search that produced the evidence was valid, we must
review the propriety of the warrantless search that led to the discovery of
incriminating evidence.
       In that regard we begin with the Supreme Court’s unanimous teaching
in United States v. Knights, 534 U.S. 112, 118-19 (2001)(internal quotation
marks omitted):

       The touchstone of the Fourth Amendment is
       reasonableness, and the reasonableness of a search is
       determined by assessing, on the 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 government interests.

That balance generally requires that a warrant be obtained upon a showing of
probable cause before a residence is searched. But when a parolee is
involved and has signed a consent agreement such as the one at issue here,
both sides of the balance are affected: the parolee’s reasonable expectation of
privacy is decreased and the government’s reasonable need to monitor
behavior is increased (Knights, 534 U.S. at 119; see also Griffin v. Wisconsin,
483 U.S. 868, 871-72 (1987)).1 As a result, “no more than reasonable
suspicion” (Knights, 534 U.S. at 121) is required to justify a search in these
circumstances.2


        1 Both Knights and Griffin both involved searches of
probationers rather than parolees. But we have treated both
situations identically because “there is no constitutional difference
between probation and parole for purposes of the fourth
amendment” (United States v. Hill, 967 F.2d 902, 909 (3d Cir.
1992)(internal quotations omitted)).

        2 Two additional points bear mention. First, although the
actual language of the agreed-upon parole condition did not speak
in terms of “reasonable suspicion,” we have previously interpreted
that same condition “to include an implicit requirement that any
search be based on reasonable suspicion” (United States v. Baker,
221 F.3d 438, 448 (3d Cir. 2000)). And that means we need not
address a question that Knights, 534 U.S. at 120 n. 6 left
unanswered: whether a parole search can be based on something

                                        5
         To decide whether “reasonable suspicion” exists, we consider the
totality of the circumstances to determine whether the “officer has a
particularized and objective basis for suspecting legal wrongdoing” (United
States v. Arvizu, 534 U.S. 266, 273 (2002)(internal quotations marks
omitted)). Here there can be no doubt that the totality of the circumstances
supports a conclusion that McElhinny initiated the search on the basis of
reasonable suspicion. She obviously had knowledge of Williams’ numerous
parole violations, which included storing ammunition at his residence; she
had received earlier tips that Williams was dealing drugs and that someone
wanted to shoot him; she had heard from Williams himself that people were
looking for him; and she had received information from Detective Luchko
that Williams might have information about a homicide. Based on all of that,
we find that McElhinny reasonably suspected that Williams was violating his
parole (and indeed that he was engaged in criminal conduct) when Luchko
told her that Williams was suspected of having a gun.
         Williams responds that the search should nevertheless be declared
invalid because its true purpose was to further a criminal investigation rather
than to examine possible parole violations. Put differently, Williams asserts
that McElhinny was merely acting as a “stalking horse” for the police. In
United States v. Watts, 67 F.3d 790, 794 (9th Cir. 1995) (internal citations
omitted) the Ninth Circuit described the “stalking horse” theory in these
terms3 :

       A probation officer acts as a stalking horse if he
       conducts a probation search on prior request of and in
       concert with law enforcement officers. However,
       collaboration between a probation officer and police
       does not in itself render a probation search unlawful.


less than reasonable suspicion. Second, the “reasonable suspicion”
standard also applies to searches of Williams’ mother’s residence --
and in that respect she had earlier agreed to such searches generally
(there is no argument that her consent was not effective), and the
government’s heightened interest in monitoring Williams
reasonably extended to his mother’s residence while he was living
there.

       3 Although Watts was reversed on other grounds at 519
U.S. 148 (1995), the Court of Appeals’ opinion remains useful for
purposes of analyzing the proposition advanced there.

                                    6
       The appropriate inquiry is whether the probation officer
       used the probation search to help police evade the Fourth
       Amendment’s usual warrant and probable cause
       requirements or whether the probation officer enlisted
       the police to assist his own legitimate objectives. A
       probation officer does not act as a stalking horse if he
       initiates the search in the performance of his duties as a
       probation officer.

In a more succinct articulation of the same view, the Eighth Circuit concluded
in United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997) that a
parole search may be invalidated “when it is nothing more than a ruse for a
police investigation.”
        We have never directly decided the validity of the “stalking horse”
theory. In two cases (Hill, 967 F.2d at 911 and Shea v. Smith, 966 F.2d 127,
132-33 (3d Cir. 1992)) we considered “stalking horse” claims, but we
concluded in both instances that the particular claims asserted there were
unpersuasive in light of the demonstrated evidence of reasonable suspicion.
That approach obviated any need to analyze the viability of “stalking horse”
claims as such.
        We might well pursue a similar fact-specific inquiry and result here.
On that score, Williams has presented no evidence of an explicit agreement
between the parole officers and the police. And while there is no doubt that
McElhinny acted in response to information she received from the police, the
mere fact of collaboration is certainly not enough to invalidate a parole
search. Indeed, such collaboration is expected given the similar duties of
parole officers and police officers (see, e.g., United States v. Reyes, 283 F.3d
446, 463-64 (2d Cir. 2002)).
        But we reject Williams’ argument for a more fundamental reason: It is
clear that the Supreme Court’s more recent teaching in Knights precludes the
viability of “stalking horse” claims in this context. “Stalking horse” claims
are necessarily premised on some notion of impermissible purpose, but
Knights found that such inquiries into the purpose underlying a probationary
search are themselves impermissible. Instead, relying on its earlier opinion in
Whren v. United States, 517 U.S. 806, 813 (1996), the Court concluded that
ordinary Fourth Amendment analysis dictates the propriety of a search and
that “there is no basis for examining official purpose” (Knights, 534 U.S. at
122).
        Our reading of Knights to preclude “stalking horse” claims is
consistent with that of the four other circuits that have considered the same

                                       7
issue (United States v. Brown, 346 F.3d 808, 810-12 (8th Cir. 2003); United
States v. Tucker, 305 F.3d 1193, 1199-1200 (10th Cir. 2002); United States v.
Stokes, 292 F.3d 964, 967-68 (9th Cir. 2002); Reyes, 283 F.3d at 463-65).
And it is noteworthy that among those four are the two circuits--the Eighth
and the Ninth--that had explicitly recognized “stalking horse” claims pre-
Knights.
        Beyond that, Williams attempts to attack the search based on his
contention that it did not comply with Pennsylvania law. But the justification
for the propriety of the search here does not rely on its being conducted
pursuant to the special needs of a state parole system that is itself consistent
with the Fourth Amendment. That would be a valid justification under the
Supreme Court’s earlier decision in Griffin, 483 U.S. at 873. But Knights,
534 U.S. at 117-18 clearly offers a second and discrete path to a legitimate
search when a probationer has agreed to a search condition, and that path
involves applying ordinary Fourth Amendment principles rather than any sort
of analysis of special needs; see also Tucker, 305 F.3d at 1200. Moreover,
the Pennsylvania Supreme Court has recently reconfirmed its earlier holding
that “the Pennsylvania Constitution provides a parolee with no greater
protection than the United States Constitution in the area of warrantless
searches of a parolee’s approved residence, where the parolee has signed a
parole agreement in which he agreed to the search of his premises as a
condition to the parole” (Commonwealth v. Hughes, 836 A.2d 893, 899 (Pa.
2003)). Here Williams’ parole agreement explicitly authorized warrantless
searches conducted by parole agents, and the search at issue was conducted
by such agents, not by police.
        In short, the only potential defense against the propriety of the search
that Williams has put forward is a claim that is clearly barred. Instead of
inquiring as to purpose, we ask only whether the search was reasonable under
ordinary Fourth Amendment principles. And as we have already discussed,
reasonableness in this context requires no more than reasonable suspicion,
which clearly was present. Williams’ motion to suppress the evidence on the
ground that the search violated his Fourth Amendment rights must therefore
fail.
                                    Sentencing

       Because Williams was sentenced before the Supreme Court’s decision
in United States v. Booker, 125 S.Ct. 738 (2005), his case comes within the
ambit of our en banc decision in Davis, 407 F.3d at 164-66. And because the
District Court, acting pre-Booker, perforce imposed the sentence governed by
a “Guidelines framework erroneously believed to be mandatory” (Davis, id.

                                       8
at 165), we must vacate Williams’ sentence and remand for resentencing.

                                Conclusion

       Because the search that led to the recovery of evidence was
constitutionally permissible, we AFFIRM the District Court’s denial of
Williams’ motion to suppress. And for the reason just stated, we VACATE
Williams’ sentence and REMAND for consideration of the appropriate
sentence by the District Court in the first instance.




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