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United States v. Lynn

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

September 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY DON LYNN JR., Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS (ECF #12)

          MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

         Defendant Gary Don Lynn, Jr., is charged with possession of child pornography. He has filed a motion to suppress evidence obtained through searches conducted on October 13, 2017, and October 17, 2017. For the reasons explained below, the motion is DENIED.

         Findings of Fact

         In connection with Lynn's motion to suppress, the Court held an evidentiary hearing over the course of two days. Based on the testimony given and other evidence presented at the evidentiary hearing, the Court makes the following findings of fact:

         1. In 2012, Lynn pleaded guilty to Criminal Sexual Conduct, Third Degree, in the Genessee County Circuit Court. On October 26, 2012, that court sentenced Lynn to serve a term of imprisonment of 40 to 180 months.

         2. On March 9, 2016, the Michigan Parole Board issued an order granting Lynn parole (the “Parole Order”). (See Gov't Hr'g Ex. 2, also included in record as ECF #27-3.)

         3. The Parole Order imposed upon Lynn a variety of restrictive parole conditions. These conditions included a prohibition on out-of-state travel, a ban on associating with convicted felons, a requirement that he obtain employment and not change employment without the permission of his parole officer, and a requirement that he obtain permission from his parole officer before changing his residence. (Id. at p. 3, ECF #27-3 at Pg. ID 292.)

         4. The Parole Order also imposed numerous “special conditions” on Lynn. One such condition required Lynn to consent to a search of his person and property on demand by a peace officer or parole officer. More specifically, Special Condition 4.2 of the Parole Order provided: “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 If I do not sign this written consent, I understand that my parole may be rescinded or revoked.”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. at p. 2, ECF #27-3 at Pg. ID 291.)

         5. The statute referenced in Special Condition 4.2 of the Parole Order, MCL 791.236(19), provides:

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.

         6. The Parole Order established March 15, 2016, as Lynn's parole date. On that date, prior to Lynn's actual release from prison, Lynn met with an employee of the Michigan Department of Corrections to discuss the terms of his parole. During that meeting, Lynn signed a document (the “First Acknowledgement”) in which he (1) acknowledged that he had “read or heard the parole conditions and special conditions and [had] received a copy” and (2) “agree[d] to comply with the parole conditions and special conditions.” (Gov't Hr'g Ex. 2 at p. 3, also included in record at ECF #27-3 at Pg. ID 292.)

         7. After Lynn signed the First Acknowledgement, he was released from custody and went directly to his local parole office for a parole orientation meeting.

         8. Parole officer Denise Dutoi conducted Lynn's parole orientation meeting.[1]

         9. During Lynn's parole orientation meeting, Dutoi reviewed with Lynn, among other things, his Parole Order and the special conditions of his parole that were listed in the order. Dutoi specifically reviewed with Lynn Special Condition 4.2. Lynn then placed his initials on the page of the Parole Order containing Special Condition 4.2. (Gov't Hr'g Ex. 1 at p. 2, also included in record at ECF #27-2 at Pg. ID 288.) And Lynn again signed a document (the “Second Acknowledgement”) in which he (1) acknowledged that he had “read or heard the parole conditions and special conditions and [had] received a copy” and (2) “agree[d] to comply with the parole conditions and special conditions.” (Id. at p. 3, ECF #27-2 at Pg. ID 289.)

         10. In addition, during Lynn's parole orientation meeting, Dutoi advised Lynn that he was “subject to search without the need of a warrant at any time during the time that [he was] on parole.” (5/16/19 Mot. to Suppress Hr'g Tr. at p. 49, ECF #24 at Pg. ID 166.) Dutoi also informed Lynn during the meeting that he would be subject to the Michigan Department of Corrections “Nighthawk” enhanced supervision program. (See Id. at pp. 34-35, ECF #24 at Pg. ID 151-52.) That program involves unannounced visits by parole and law enforcement officers during weekend and evening hours. (See Id. at p. 34, ECF #24 at Pg. ID 151.) Dutoi told Lynn that “when we do Nighthawk, we come out with law enforcement and that we search to make sure that [Lynn had] no items that violate the conditions of [his] parole.” (Id. at pp. 34-35, ECF #24 at Pg. ID 151-52.)

         11. During Lynn's two meetings with Michigan Department of Corrections employees on March 15, 2016 - i.e., his meeting at the prison immediately prior to his release on parole and his parole orientation meeting with Dutoi - all of Lynn's parole conditions, including Special Condition 4.2, were clearly expressed to Lynn. And in each of those meetings, Lynn acknowledged that he was aware that he was required to consent to searches by parole officers and peace officers “on demand.”

         12. On January 25, 2017, roughly nine months after Lynn began his parole term, a team consisting of parole officers and Michigan State Police Troopers conducted a compliance check and search of Lynn's mobile home/trailer. During the search, the State Troopers walked through Lynn's whole trailer. (See 7/11/19 Mot. to Suppress Hr'g Tr. at p. 8, ECF #25 at Pg. ID 250.) The search team ...


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