United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
This case is before the court on defendant Janet Lynn Flowers' motion to suppress (Doc. # 17) and the government's response (Doc. # 22). For the reasons set out below, the court concludes that the motion is due to be denied.
Defendant Flowers seeks to suppress any "items seized, statements made, and any fruits of those items and statements, obtained as a result of the search conducted at her residence on January 15, 2014." Doc. # 17 at 1. No incriminating statements made by defendant were brought to the attention of the court; however, defendant apparently did give a recorded statement that is reflected in the exhibits submitted at the suppression hearing in this case. G. Ex. 9. During the search in question, officers also found and seized at defendant's residence, inter alia, several different items containing methamphetamine; some ecstasy, alprazolam, and diazepam pills; drug paraphernalia; a sawed-off.20 gauge shotgun; and a considerable number of allegedly stolen tools.
On the date of the search, defendant was serving a three-year term of probation imposed following a 180-day custody sentence on a March 21, 2011 conviction from the Circuit Court of Henry County, Alabama, for unlawful possession of a controlled substance. G. Ex. 5. She began her probation on November 4, 2011. G. Ex. 7. Defendant's 2011 order of probation required, inter alia, that defendant must "[p]ermit the Probation Officer to visit [her] at home or elsewhere, " and must "[s]ubmit to searches by the Probation Officer of [her] person, residence, vehicle, or any property under [her] control." G. Ex. 6. On February 27, 2012, defendant signed an acknowledgment that these "instructions and conditions have been explained to me. I have received a copy of this order, I understand the conditions, and I agree to abide by them." Id . On February 28, 2012, Probation Officer Kenneth Brown verified that "[a] copy of [the probation conditions] has been delivered to the probationer, who has been instructed regarding this order." Id.
On January 14, 2014, a middle-aged white male informant asked to see William Maddox, the sheriff of Henry County, with a complaint about the defendant. The informant was not an anonymous tipster; he gave his name, but neither Sheriff Maddox nor any other officer involved remembers that name now, and no written record was kept of the complaint or the meeting itself. Maddox testified that he receives tips from informants daily.
Maddox invited Investigator Steve Sanders, who happened to be in the office that day, to join him in speaking with the informant. Sanders was the sergeant in charge of the Henry County/Abbeville Criminal Investigative Unit, and he primarily worked narcotics at the time. The informant complained that defendant had taken his property - he said that he had left a trailer at the residence, and some of the tools and other equipment in the trailer had disappeared. He also said that he had information about some narcotics at defendant's residence. The informant indicated that he had resided at the house with defendant and had recent firsthand knowledge of the information he was providing.
The informant brought with him to the meeting a detailed map that he had drawn showing the layout of Flowers' residence, with a second page noting the outbuildings on the property. G. Ex. 15. On this map, the informant indicated where he believed the narcotics could be found, as well as the location of a sawed-off shotgun and a.22 rifle. Specifically, he showed Maddox and Sanders an area in the living room where he said they would find drug paraphernalia such as methamphetamine pipes, and also pointed out the location of a small hutch or cabinet where the weapons would be stored in the dining room. In addition, the informant told Maddox and Sanders about an old barn and shed at the back of the house where he thought stolen property including tools, weed eaters, lawn mowers, and chain saws would be located, either buried or stored in a back room.
Sheriff Maddox was aware that defendant was on probation. Sanders had also previously received information that illegal narcotics were being distributed from defendant's residence. Maddox and Sanders indicated to the informant that they would let defendant's probation officer know about the information that he had provided, and the probation officer would take whatever action he felt was necessary. The officers testified that when a complaint comes in concerning someone on probation, the Henry County sheriff's office routinely refers it to the probation officer first and lets him take charge. The sheriff's office is small; the population of Henry County is around 17, 000, and there are only 15 officers in the Sheriff's office, counting the Sheriff. In addition, the referral is routinely made to the probation officer because that officer is the one who knows the probationer best and is in charge of his or her supervision.
Kenneth Brown is the only state probation and parole officer for Henry County. He began supervising defendant in 2013. His office is in Abbeville, in the same building as the Sheriff's office. After their conversation with the informant, Maddox and Sanders went to Brown's office and relayed what the informant had told them, and provided Brown a copy of the map. The sheriff and other law enforcement agents routinely give Brown information on his probationers. Brown recalls that Maddox and Sanders specifically indicated that defendant would be in possession of some drugs, some firearms - including a sawed-off shotgun - and possibly some stolen property. They gave Brown the map of the residence provided by the informant, and Brown understood that informant was an acquaintance of defendant who may have lived there. The sheriff pointed out to Brown the area on the map where the drugs and stolen property would be found, and also the location of the sawed-off shotgun. Specifically, Brown was told that the drugs would be in the living room in the area of two chairs and a table that were marked on the map, and that the sawed-off shotgun would be in a cabinet in a small foyer area that was also marked on the map. Brown understood that Maddox and Sanders had spoken personally with the informant. He was aware of defendant's prior conviction for second degree murder, G. Ex. 1, and her conviction for unlawful possession of a controlled substance. G. Ex. 2; G. Ex. 5. The sheriff did not instruct Brown to do anything in particular with the information; he told Brown to do whatever he felt he needed to do and left. Maddox and Sanders did not tell Brown about prior rumors that narcotics were being distributed from the residence.
Unless there are exigent circumstances, the policies and procedures of the Alabama Board of Pardons and Paroles require a probation officer to request permission before conducting a search. After the visit from Maddox and Sanders, Brown sent his district manager, Rodney Peak, an email requesting permission to search Flowers' residence for drugs, possible stolen property, and a sawed-off shotgun. Peak was out of the office that afternoon, so he did not immediately pick up the email. Brown called Peak around 9 a.m. on the morning of January 15 and orally requested permission to search, and received authorization. According to Peak's notes, Brown sought permission to search defendant's residence due to having a reliable person who had lived with defendant tell him that she had guns and drugs at her residence. Peak approved the search primarily based on the information that the offender had a sawed-off shotgun. He said that a weapon raises the concern to a higher level - without the weapon, he might have directed that defendant be drug-tested and a home visit be conducted with a walk-through for drugs rather than a search.
Brown next met with Steve Culbreath, who was in the courthouse at the time, and asked if Culbreath would accompany him to defendant's residence. Culbreath is the commander of the Henry County/Abbeville Police Department Task Force, which investigates drugs, property crimes, and major crimes. Brown wanted back-up for his safety, and also because he would be searching the residence of a female. He normally asks a law enforcement officer to accompany him - most often, one of the Sheriff's deputies, who are close by - because he is the only probation officer in Henry County. Culbreath had assisted Brown on several other occasions on visits to probationer's homes. Culbreath told Brown that he did not have anything else going on, and would not mind coming with him as back-up. The Sheriff did not instruct Culbreath to go with Brown.
Brown and Culbreath traveled to defendant's residence, where they encountered defendant and a woman named Ashley Griggs. Culbreath remained outside in the yard with Griggs. Brown and defendant went inside the house. Brown did not escort defendant into the residence; he testified that "[w]e just chitchatted and she said, come on in, and we went in." The house was cluttered, with items piled chest high, and a narrow path leading from the main door to a seating area. Brown and defendant walked to the seating area, where he observed a glass smoking device and drug paraphernalia on a table between the two chairs. These were in the location that had been pointed out to him on the map by the sheriff. Brown also observed that there was a black metal box underneath a table in the same area. He retrieved the box, opened it, and saw a white crystal substance in a clear plastic container inside the box, which he did not open. The time that elapsed between Brown's entry into the house and his discovery of the methamphetamine was less than 10 minutes.
Brown took Flowers into custody for violation of her probation. He called in Culbreath and turned the scene over to the Henry County/Abbeville PD Task Force, because he had no way of gathering evidence and because probation officers are instructed that if they find contraband that represents a violation of the law, they should contact the relevant law enforcement agency to come and make a case on it. Culbreath in turn called Sergeant Steven Sanders because Sanders was a narcotics officer, and Sanders came out and conducted a field test. The substance in the plastic container tested presumptively positive for the presence of methamphetamine. By the time that Sanders arrived, ...