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United States v. Mann

United States District Court, E.D. Michigan, Southern Division

June 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LEANDER MANN, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS (ECF NO. 29)

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         Defendant Leander Mann (“Mann” or “Defendant”) is charged in a five count indictment alleging firearm and drug charges. (ECF No. 13, Indictment.) At the time of the conduct that is the subject of the Indictment, Mann was on parole, serving a 1-15 year sentence for a 2016 Second Degree Home Invasion conviction, having previously been convicted of First Degree Home Invasion in 1997 and Second Degree Home Invasion 2010. (Indictment Counts I and II.) On June 15, 2017, parole and peace officers visited Mann's residence to conduct a routine parole compliance check and uncovered suspected crack cocaine, marijuana, drug paraphernalia, and firearms, both on Mann's person and in an upstairs bedroom believed to be Mann's and in an adjoining attic space, leading to the charges in the Indictment. Mann now moves to suppress the evidence seized during the parole compliance check. (ECF No. 29, Motion to Suppress.) The government filed a Response (ECF No. 30) and Defendant filed a Reply (ECF No. 31). The Court held an initial evidentiary hearing on April 13, 2018, and ordered supplemental briefing which the parties filed. (ECF Nos. 36, 37.) The Court then ordered an additional evidentiary hearing, which was held on May 25, 2018. The Court DENIES the motion to suppress because the search, conducted pursuant to the “upon demand” search condition in Mann's Parole Order, did not violate the Fourth Amendment.

         I. FACTUAL BACKGROUND

         A. The Conditions of Mann's 2016 Parole

         On January 25, 2016, Defendant was convicted of his fourth home invasion offense and sentenced to 1-15 years of imprisonment. On June 16, 2016, after serving just five months, he was released on parole subject to a number of conditions contained in his Michigan Department Of Corrections (“MDOC”) parole release instructions. Specifically, on the date of his parole, Defendant signed a document entitled “Parole Conditions, ” that provides in pertinent part:

Parole supervision is intended to protect the public while providing assistance and guidance to facilitate the parolee's transition from confinement to free society. To meet these goals, minimum conditions are established which may be enhanced by special individual conditions. A parolee's failure to comply with any condition may result in revocation and return to confinement.
(4) CONDUCT: You must not engage in any behavior that constitutes a violation of any criminal law of any unit of government. You must not engage in assaultive, abusive, threatening or intimidating behavior. You must not use or possess controlled substances or drug paraphernalia or be with anyone you know to possess these items.
***
(6) ASSOCIATION: You must not have verbal, written, electronic, or physical contact with anyone you know to be engaged in any behavior that constitutes a violation of any criminal law of any unit of government.
(7) FIREARMS: You must not own or possess a firearm of any type, including any limitation or simulation of a firearm. You must not be in the company of anyone you know to possess these items unless you have received written permission from the field agent.
(8) OTHER WEAPONS: You must not own or possess a weapon of any type or any imitation thereof, any ammunition, or any firearm components or be in the company of anyone you know to possess these items.
***
(10) SPECIAL CONDITION: You must comply with special conditions imposed by the Parole and Commutation Board and with written or verbal orders made by the field agent.

AGREEMENT OF PAROLE: I have read or heard the parole conditions and special conditions and have received a copy. I understand that failure to comply with any of the conditions or special conditions may result in revocation of parole and return to confinement. I understand and agree to comply with the parole conditions and special conditions. (ECF No. 29-2, Def.'s Mot. Ex. A, PgID 100, MDOC Parole Conditions) (emphasis in original). This document bears Defendant's signature and the date June 16, 2016 and is witnessed. The “special conditions” with which Defendant agreed to comply are set forth in the MDOC Michigan Parole Board Order for Parole, also dated June 16, 2016, and specifically identifying Mann and his twenty-four (24) month term of parole. (Id. at PgID 99, Michigan Parole Board Order for Parole.) Those “special conditions” include in relevant part:

4.2 Written consent to search the parolee's person and/or property, MCL 791.236(19): I voluntarily consent to a search of my person and property upon demand by a peace officer or parole officer. If I do not sign this written consent, I understand that my parole may be rescinded or revoked.

(Id.) Mich. Comp. Laws § 791.236, in turn, governs the issuance of parole orders under Michigan law and sets forth a number of conditions that “shall” be contained in a parole order, including the condition contained in Mann's parole order requiring a parolee to consent to a search of his person or property “upon demand:”

The parole order shall require the parolee to provide written consent to submit to a search of his or her person or property upon demand by a peace officer or parole officer. The written consent shall include the prisoner's name and date of birth, his or her physical description, the date for release on parole, and the ending date for that parole. The prisoner shall sign the written consent before being released on parole. The department shall promptly enter this condition of parole into the department's corrections management information system or offender management network information system or into a corresponding records management system that is accessible through the law enforcement information network. Consent to a search as provided under this subsection does not authorize a search that is conducted with the sole intent to intimidate or harass.

Mich. Comp. Laws § 791.236(19).

         B. The June 15, 2017 Parole Compliance Check at Mann's Residence

         On June 15, 2017, peace and parole officers arrived at Mann's residence at 306 Kenilworth Street in Detroit, Michigan to conduct a parole compliance check. Sgt. Cary Glazer testified at the May 25, 2018 evidentiary hearing regarding the June 15, 2017 parole compliance check at Mann's residence. Sgt. Glazer is a supervisor of Wayne State's crime abatement team. He has held that position for four years and has been a member of the crime abatement team for seven years. Sgt. Glazer has worked in law enforcement for over seventeen years, having previously worked for the Pontiac Police Department. (ECF No. 40, Transcript of May 25, 2018 Evidentiary Hearing 6:21-7:8, “5/25/18 Hr'g Tr.”.) Sgt. Glazer has had training in recovery of firearms and narcotics and has personally recovered narcotics or firearms over one hundred times. (Id. at 7:16-8:11.)

         On June 15, 2017, Sgt. Glazer was working with abatement team members Ed Viverette and Julian Gherasim, as well as MDOC Agent Ed Parker, along with Alcohol Tobacco and Firearms Agents (“ATF”) and the Detroit Police Department Officers (“DPD”). (Id. at 8:12-23.) As part of his duties that day, Sgt. Glazer was performing parole compliance checks, which are a routine and regular part of his duties. His team assists MDOC in doing compliance checks to make sure that parolees are adhering to the conditions of their parole, to make sure that they don't have contraband or, if they are sex offenders, that they do not have access to computers, cell phones, or the Internet.

         On June 15, 2017, Sgt. Glazer and his team were scheduled to do 10-15 parole compliance checks. (Id. at 9:2-10:2.) Sgt. Glazer arrived at Mann's residence at 306 Kenilworth Street, Detroit, Michigan at approximately 10:30 to 11:00 a.m. As Glazer and his team, i.e Viverette, Gherasim, and Agent Parker arrived, Agent Parker observed Leander Mann walking with a female near the Kenilworth residence. (Id. at 10:3-11:14.) After they had identified Mann, the team exited their vehicles and Agent Parker made contact with Mann. Because Sgt. Glazer and Officers Viverette and Gherasim are assisting MDOC, they stay back a bit and let MDOC make the initial contact. (Id. at 25:22-26:1.) Sgt. Glazer testified that Mann's demeanor was nervous and a little evasive, and Mann was not making eye contact with Agent Parker who had initiated contact. (Id. at 11:15-12:6.) Agent Parker asked if they could proceed with the home compliance check and Mann said he could not get into the house. Mann stated that he did not have a key and that his mother or grandmother would have to let him in at some later time. Sgt. Glazer asked Mann if he was just planning to wait outside until someone let him in, to which Mann responded “yes, ” which Sgt. Glazer found odd. (Id. at 12:7-25.) Sgt. Glazer asked Mann if it takes hours to get in are you just going to wait? And Mann replied “yeah.” (Id. at 28:21-29:1.)

         Mann proceeded to walk around the side of the house, responding to the officers request that he try to get into the house, and was knocking very lightly on what appeared to be a door at the side of the house. Sgt. Glazer, who could only see the lower half of Mann's body because he was blocked by some cars parked in the driveway on the side of the house, (Id. at 29:15-30:12, 34:9-22), became concerned for officer safety because he did not know Mann and knew he was on parole and could not see his hands. Sgt. Glazer started to make his way closer to Mann so that he could see his hands and pat him down for weapons. (Id. at 13:1-14:4.) As Sgt. Glazer approached Mann to conduct the pat down, but before Sgt. Glazer began the pat down, Officer Gherasim called Glazer's attention to a large bulge in Mann's pants pocket and Glazer could feel the bulge as he began the pat down. (Id. at 30:19-31:15.) In his experience, based on his feel when squeezing it and hearing the sound of plastic, Sgt. Glazer believed that the bulge was a package containing narcotics. Sgt. Glazer removed the bulging item in Mann's pocket which was, as Sgt. Glazer suspected, narcotics (marijuana) which was individually wrapped in small bags. (Id. at 14:5-16:4.) At some point, Sgt. Glazer followed other officers to the front of the house where a man believed to be Mann's mother's boyfriend (later identified as Kimland Terry) led officers upstairs to what Mr. Terry identified as Mann's bedroom, where officers found suspected cocaine, marijuana, scales, a razor, and ammunition. (Id. at 17:3-12.)

         On cross-examination, Sgt. Glazer testified that he had not made a report or any notes regarding the parole compliance check at Mann's residence on June 15, 2017, and was testifying based solely on his memory. (Id. at 18:21-19:5.) Sgt. Glazer testified that his team of Officer Viverette, Officer Gherasim, and MDOC Agent Parker were working with ATF and the DPD that day, but ATF and DPD were doing their own set of compliance checks and were not with Sgt. Glazer's team at Mann's residence when the pat down search occurred. (Id. at 24:20-25:4.) Sgt. Glazer testified that Mann was not aggressive and was initially cooperative. (Id. at 27:15-25.) Sgt. Glazer testified on cross examination that he found approximately $1, 300.00 and a cell phone in Mann's other pants pocket. Mann was handcuffed and walked to the front of the house. (Id. at 35:5-36:4.) Sgt. Glazer testified that Mr. Terry answered the front door of the house and then officers were led by Mr. Terry around to the back of the house where they were led through another door that led to the upstairs. Sgt. Glazer never spoke to Mr. Terry. (Id. at 40:11-41:2.)

         On redirect, Sgt. Glazer clarified that a photograph of the 306 Kenilworth home that he had been shown on cross examination did not depict the house/driveway as it appeared on June 15, 2017. Sgt. Glazer conceded that what he recalled as having been a door at the side of the house that Mann was knocking on could have been a window. Sgt. Glazer reiterated that from his vantage point, given the cars parked in the driveway the day of the parole compliance check, he could see Mann along the side of the house but could not see his hands. Sgt. Glazer reasoned that if Mann had a weapon, he certainly had cover from the cars parked in the driveway, and could have used the weapon. Concerned at that point for officer safety, he approached to conduct a pat down. (Id. at 42:23-44:10.)

         Inside the upstairs bedroom to which Mr. Terry led them, officers found a number of items including:

• Four 7.62 caliber ammunition rounds on top of a dresser;
• Mail and an MDOC card in Defendant's name inside the dresser;
• Male clothing and shoes;
• Suspected crack cocaine;
• Unknown white powdery substance;
• Narcotic paraphernalia (numerous scales, baking soda, strainer, scissors);
• Suspected marijuana (an estimated 33 grams in one mason jar and 12.5 grams in another mason jar on the floor by the bed);
• An envelope addressed to Defendant at the 306 Kenilworth address from Henry Ford Health Systems.

         The officers also noticed an attic space located directly above the upstairs bedroom that appeared to be partially open. They searched inside and recovered the following additional items:

• A Norinco 7.62 caliber semi-automatic rifle;
• A rifle magazine loaded with twenty five 7.62 caliber ammunition rounds.

(ECF No. 1, Criminal Complaint ¶ 10; Govt's Br. 7-8, PgID 106-07.)

         C. Mann's Testimony at the April 13, 2018 Evidentiary Hearing.

         Mann took the stand at the April 13, 2018 evidentiary hearing and testified regarding the circumstances surrounding his release on parole from the Macomb Correctional Facility on June 16, 2016. Mann testified that he was paroled to custody at the Macomb County Jail, and not to home, because he had to serve a 90-day detainer. (ECF No. 35, Transcript of April 13, 2018 Evidentiary Hearing 24:25-25:14 “4/13/18 Hr'g Tr.”). On June 16, 2016, the day of his release from the Macomb County Correctional Facility, Mann was called to the control center with 8-13 other inmates who were being paroled that day. Inmates waited in the control center for the parolee liaison to come out and present the parolees with their release paperwork. (Id. at 25:21-26:16.)

         The parolee liaison that day, Ms. Walk, arrived late, around 8:30 a.m. and eventually called out the Defendant and presented him with a folder containing papers for him to sign. (Id. at 26:23-27:14, 28:3-25.) Mann testified that Ms. Walk did not go over each document individually with him and when he asked for time to read the documents, she told him “either you sign it or we can find you a bunk back on the compound.” (Id. at 29:4-14.) Mann testified that he did not actually read the parole conditions before he signed the documents and because he was being paroled to custody, he was not given the opportunity to take the documents he signed with him, as he would have been permitted to do if he had been paroled home. (Id. at 30:2-17.)

         Mann identified a document entitled “Parole Conditions” that he testified he signed on June 16, 2016, at the time he was paroled to the Macomb County Jail. Mann read aloud at the hearing paragraph ten (10) of that document which reads: “SPECIAL CONDITION: You must comply with special conditions imposed by the Parole and Commutation board and with written or verbal orders made by the field agent.” (Id. at 31:21-32:15.) Mann testified that he was not provided with the “special conditions” at that time and stated that he signed only three documents that day: the “Parole Conditions” document, a document acknowledging receipt of his Social Security Card that was held in the facility vault, and a document acknowledging that the money in his prison account would be given to him in the form of a check. (Id. at 32:17-33:3.) Mann was shown a document entitled “Michigan Parole Board Order for Parole, ” bearing his personal information, release date of June 16, 2016, and setting forth a parole term of twenty-four (24) months. Section 4.2 of this Order for Parole set forth the search condition pursuant to which Mann “voluntarily consented to a search of [his] person and property upon demand by a peace officer or parole officer.” Mann testified that he did not recognize this document and stated that he did not have a copy of this sheet and that this sheet was not presented to him on the day he signed his parole conditions while at the Macomb County Correctional Facility. (Id. at 33:4-34:1.)

         Mann testified that he understood that if he chose not to sign the parole conditions, his parole would be rescinded and he would be sent back to prison. (Id. at 34:5-21.) Mann reiterated that Ms. Walk refused to read the papers to him and said “either sign it or we will find you a bunk.” (Id. at 36:9-19.)

         On cross-examination, the government elicited testimony from Mann that he wanted to go home on parole and that seeing Ms. Walk was “a good thing, ” and that he had been paroled before in connection with his previous convictions. Specifically, Mann testified that the was paroled in 2008 after his 1997 conviction for first degree home invasion. (Id. at 38:18-39:20.) In connection with his 2008 parole, Mann testified that a parole compliance officer came to his home, talked to his mother, went to Mann's room, looked around, asked if Mann had a job and left. Mann testified that “[his] understanding was when they come to your home, they come to your room, your area of control.” (Id. at 42:23-25.) Specifically, Mann testified regarding the conditions of his 2008 parole:

Q. That you understand that they could search your area of control while you're on parole? And that's what this officer, Officer Goins did, but you didn't understand that they could search further than that. Is that what you're saying?
A. The understanding was that anything that - my room, my property was in like if it's my property would be in one room, because they asked my mother specifically where does he stay? Where is his room?
Q: Understood. So this officer did that. He came, he looked around your area of control, your room?
A: Michael Goins, yes.

(Id. at 43:1-11.) Mann testified that he did not know if this same condition applied to his June 6, 2016 parole because “[he] never had a chance to go over what it was they wanted.” (Id. at 43:17-24.)

         Mann did testify, however, that after he returned home in 2016 subject to the conditions of his June 16, 2016 parole, he was visited in May, 2017, by parole agent Bonds who conducted a search of Mann's residence. Mann testified to the following understanding of what the search condition of his 2016 parole entailed:

Q: You were assigned eventually a parole agent named Parole Agent Bonds; is that correct?
A. Yes, ma'am.
***
Q: And just like Officer Goins, he came to your residence at some point, correct?
A: Yes, ma'am.
Q: That was in actually May of 2017, ...

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