United States District Court, D. Nevada
For Terrance Christopher, Defendant: Rebecca A Levy, LEAD ATTORNEY, Federal Public Defender, Las Vegas, NV.
For USA, Plaintiff: Alexandra M. Michael, LEAD ATTORNEY, United States Attorneys Office, Las Vegas, NV.
C.W. Hoffman, Jr., United States Magistrate Judge.
This matter was referred to the undersigned Magistrate Judge on Defendant's Motion to Suppress Evidence for Fourth Amendment Violations (#20), filed October 31, 2014; the Government's Response (#23), filed December 1, 2014; and Defendant's Reply (#24), filed December 5, 2014. An evidentiary hearing was conducted on December 23, 2014.
On August 13, 2014, Terrance Christopher was indicted on one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924 (a)(2). (#1). The indictment stems from the search of Christopher's vehicle and home on July 31, 2014. The searches occurred on the same day that Christopher reported to the Nevada Division of Parole and Probation (" Probation") to meet with a probation officer regarding a sentence received from a state court judge on June 24, 2014. Christopher contends that both searches were illegal and that the evidence seized as a result of the searches must be suppressed.
At the evidentiary hearing, Officer Gregory Kenyon (" Kenyon") testified that he has been employed by the Nevada Division of Parole and Probation for about one year. On July 31, 2014, Christopher reported to Probation for the purpose of enrolling and becoming subject to supervision. Kenyon testified that he was generally aware of Christopher's state case through a records review. One of those records indicated that Christopher had admitted to the use of marijuana on or about June 25, 2014. The admission resulted from a drug test administered immediately after Christopher had been convicted and reported to Probation. Another record contained Christopher's address, and indicated that he had been convicted of larceny from a person and had been sentenced on June 24, 2014.
At the July 31, 2014 intake meeting, Officer Kenyon administered a routine drug test which was positive for marijuana. Christopher then completed a form admitting that he had used marijuana. Kenyon discussed the prohibition against the use of drugs during probation applied even if Christopher had a medical marijuana card, as he claimed. Kenyon then conducted an intake interview to orient Christopher on his responsibilities and to obtain his signature on what were characterized as standard forms and documents. Kenyon testified that he was provided with documents to conduct the intake process, including an " Order Admitting Defendant to Probation and Fixing the Terms thereof." The form was unsigned and undated at the time of the intake meeting. It was issued by the Nevada Department of Public Safety and indicated that Christopher had been found guilty of Larceny from a Person, sentenced to imprisonment for 12-36 months, owed $1, 225 in restitution, that execution of the sentence was suspended, and that " Defendant is hereby admitted to probation for an indeterminate period not to exceed 3 years." See Gov't Ex 3. The form then lists 12 conditions of probation and incorporates a second page containing six additional special conditions of probation. Id.
Officer Kenyon testified that he reviewed all of the probation conditions with Christopher, asked him if he had any questions, and that Christopher signed both pages of the form indicating that he agreed to abide by the terms of probation. Kenyon testified that if Christopher failed to sign the form he could be arrested for failure to comply with condition eight, which requires that the probationer comply with the directives of Probation. Kenyon was not present when Christopher was sentenced and was not aware of what the judge said during sentencing. He testified that the form is normally sent to probation without signatures, and is returned to the judge for signature after it is signed by the probationer. In this case, the form which Christopher signed on July 31, 2014, appears to have been signed by Judge Villani on September 8, 2014, and e-filed on September 11, 2014. Id.
Condition six on the form provides as follows:
" Search: You shall submit your person, property, place of residence, vehicle or areas under your control to search including electronic surveillance or monitoring of your location, at any time, with or without a search warrant or warrant of arrest, for evidence of a crime or violation of probation by the Division of Parole and Probation or its agent."
During the intake meeting, Christopher was asked how he had gotten to the intake appointment. He told Officer Kenyon that he had taken the bus. When asked to show a bus pass, Christopher changed his story and said that he had driven his vehicle to the meeting. Due to the change in story, Kenyon testified that he became suspicious and assumed that Christopher had something to hide in his vehicle. On cross-examination, he indicated that it was his training officer, Officer Adrian Lindquist, who was also present, who decided to conduct the search of Christopher's vehicle. Christopher provided the keys to his vehicle, was handcuffed, and accompanied the probation officers to his vehicle.
The officers conducted a search of the vehicle, recovering a pink purse containing identification cards for a female from the trunk. When questioned, Christopher indicated he thought the purse and its contents belonged to a woman he had met the previous evening, but he could not identify the woman. The inability to identify the woman made Officer Kenyon suspicious and triggered the decision to search Christopher's home. Kenyon informed Christopher that they were going to search his residence. Kenyon further testified that probation officers typically conduct a home visit within 30 days of intake, but that a visit for Christopher had not yet been scheduled. Christopher provided the key allowing access to the apartment. Officers recovered a firearm, evidence of financial crimes (passports and credit cards), marijuana, and other items linking Christopher to the specific room in which the evidence was discovered during the search. Thereafter, Metropolitan Police Firearms Division and Financial Crimes were contacted to follow up on the investigation and, eventually, obtained a search warrant authorizing the seizure of the evidence now sought to be suppressed.
Officer Adriana Lindquist (" Lindquist"), an employee of the Nevada Probation and Parole Division for eight years, testified that she was serving as Officer Kenyon's Training Officer on July 31, 2014. She observed the intake meeting conducted by Kenyon. She testified that she was familiar with the form completed by Christopher, and that the general rules of probation, identified as conditions one through thirteen on the first page of the form are the same for all probationers. She further testified that the additional six special conditions were specific to Christopher as set by the sentencing judge. She testified that probationers generally are asked how they arrived at Probation to obtain information about whether they own a vehicle and ...