Argued: September 19, 2014.
Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. (1:13-cr-00018-IMK-JSK-3; 1:13-cr-00018-IMK-JSK-1; 1:13-cr-00018-IMK-JSK-2). Irene M. Keeley, District Judge.
Andrew Brooks Greenlee, BROWNSTONE, P.A., Winter Park, Florida; Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia; David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW, Montgomery, Alabama, for Appellants.
Shawn Angus Morgan, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Roger D. Curry, CURRY, AMOS, AND ASSOCIATES, Fairmont, West Virginia, for Appellant Megan Dunigan.
William J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Before DIAZ and THACKER, Circuit Judges, and Paul W. GRIMM, United States District Judge for the District of Maryland, sitting by designation. Judge Diaz wrote the opinion, in which Judge Thacker and Judge Grimm joined.
DIAZ, Circuit Judge:
We consider here the scope of Fourth Amendment protections as applied to individuals on federal supervised release. In February 2013, Eric Barker was serving a term of supervised release in connection with a felony drug conviction. His conditions of supervised release required him, among other things, (1) to notify his probation officer if he moved and (2) to permit probation officers to visit him at home at any time and confiscate contraband in plain view.
Law enforcement officials suspected Barker of moving without notification, obtained a warrant for his arrest, and executed it at his new home. Inside, they found Barker and two other individuals also on supervised release. After the officers had all three in custody and had completed their protective sweep, they conducted a walk-through of the apartment to look for contraband and other evidence of supervised release violations. Officers then had a drug-detection dog sniff around the apartment. Only after the dog alerted did the officers seek a search warrant.
The defendants contend that the walk-through and dog sniff violated the Fourth Amendment. Our precedent required the officers in this situation to have a search warrant rather than merely reasonable suspicion to search Barker's home. Accordingly, we hold that the walk-through and dog sniff were unlawful searches. We also reject the government's contention that the good-faith exception applies with respect to the evidence seized as a result of the dog sniff. Finally, we vacate the judgments and remand for the district court to properly consider whether, pursuant to the " independent source" doctrine, the officers in this case " 'would have sought a warrant' even if they had not conducted the unlawful search[es]."
United States v. Bullard, 645 F.3d 237, 244 (4th Cir. 2011) (quoting Murray v. United States, 487 U.S. 533, 543, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)).
In late January 2013, Officer Vincent Zummo, Barker's probation officer, received a tip from a confidential informant that Barker had moved without notifying him. On February 8, 2013, a magistrate judge issued an arrest warrant for Barker for violating the conditions of his supervised release. Deputy U.S. Marshal Terry Moore assembled a ten-member team to execute the warrant. The team included deputy marshals, local drug task force officers, and the Chief U.S. Probation Officer. They met Zummo at Barker's new residence, a two-story house with a ground-floor apartment and an upstairs apartment. An officer knocked on the door, and a marshal announced the team's identity and purpose. The landlady answered and said " Eric lives upstairs." Zummo and the Chief Probation Officer stayed downstairs. The rest of the team filed up the stairs.
At the top, Moore opened the bathroom door. He saw Barker inside, ordered him to lie down, and handcuffed and arrested
him. Team members then fanned out to conduct a protective sweep. A deputy marshal went left, forced open a locked bedroom door, and found Megan Dunigan hiding behind a bed. An officer went right, entered a second bedroom, and found Robert Hill inside. Dunigan and Hill were both handcuffed. Zummo went upstairs and identified them as also on supervised release. He then called the magistrate judge to tell him that, besides Barker, the officers had found two others in violation of their supervised release conditions. Dunigan and Hill were arrested.
During the protective sweep, the officers saw needles in the bathroom, a homemade tourniquet on Barker's arm, pills on the locked bedroom's dresser, packaging for synthetic marijuana on the kitchen table, and drug paraphernalia on the second bedroom's dresser.
After Barker, Dunigan, and Hill were arrested and the protective sweep had ended, Zummo and other arrest team members conducted a walk-through of the apartment looking for other evidence of supervised release violations. They looked " [o]n top of cabinets, on top of the bed, [and] in the closet" of the second bedroom. J.A. 118. Officers found scales, wax paper, and black electrical tape in the living room. Zummo seized cell phones and an intravenous drug use kit containing needles, cotton balls, and spoons from on top of the bathroom sink. After the walk-through, Zummo requested that a trained drug-detection dog come to the apartment.
About fifteen to twenty minutes later, the dog and his handler arrived. The dog alerted positively in many places. In the bathroom, the dog alerted " high," meaning that he smelled the odor of narcotics above his reach. That alert led officers to an out-of-place ceiling tile, where they saw a plastic bag tucked inside the ceiling.
At that point, the officers stopped the search and secured the apartment. Task Force Agent Robert Root, an arrest team member, applied for and obtained a warrant to search the apartment. Root's accompanying affidavit detailed his law enforcement experience; the circumstances of the arrest warrant execution, protective sweep, and walk-through; the contraband and paraphernalia discovered during those activities; and the drug dog alerts. The officers' subsequent search pursuant to the warrant turned up packaged and unpackaged heroin, prescription pills, suspected LSD, synthetic marijuana, and drug use paraphernalia.
The defendants were charged with conspiracy to possess with intent to distribute heroin, aiding and abetting possession with intent to distribute heroin, and aiding and abetting the maintenance of a drug-involved residence. They filed motions to suppress evidence challenging the lawfulness of the arrest warrant execution, protective sweep, walk-through, dog sniff, and the search warrant's validity. They also sought to exclude evidence found during the execution of the search warrant as fruit of the poisonous tree.
At the suppression hearing, the government conceded that the defendants had standing to press their Fourth Amendment challenges, either because they lived in the apartment (in the case of Barker and Dunigan) or stayed there as an overnight guest (in the case of Hill). The magistrate judge took judicial notice of the defendants' supervised ...