United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING 
DEFENDANT'S MOTION TO SUPPRESS
Nuffer United States District Judge.
Judge David Nuffer Marcus Allen McGuire moves to suppress
evidence obtained during a warrantless probation compliance
search. During the search, a Sig Sauer .45 caliber pistol was
discovered which was used in charging Mr. McGuire with the
crime of felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Mr. McGuire contends that: 1) the
warrantless search was illegal under the Fourth Amendment of
the United States Constitution; 2) that he was illegally seized
in contravention of the Fourth Amendment; and post-search
and seizure statements taken from the Defendant are the
fruits of that alleged illegal search and
issues in the case arise because the probation search was
directed at Nicholas Erickson who was on probation with the
State of Utah. The evidence at issue was in a backpack in a
bedroom in which McGuire was staying at Erickson's
residence in Salt Lake City, Utah.The bedroom was that of Mr.
Erickson's seven-year-old daughter, though she was not
present and the bedroom was occupied the night of the
probation search by McGuire and two other adults.
order DENIES the motion to suppress.
FINDINGS OF FACT
Search Did Not Violate the Fourth Amendment Because the
Special Needs Exception to the Warrant Requirement Applied
Agent Combs Had Reasonable Suspicion to Search the Room and
Search was Reasonably Related to Agent Combs's Duties
McGuire Was Not Illegally Seized in Violation of the Fourth
Amendment ......... 20
Defendant's Statements Cannot Be Suppressed Because the
Search Was Reasonable Under the Fourth Amendment and Because
Defendant Was Not Illegally Seized
FINDINGS OF FACT
Nicholas Erickson was under a probationary requirement to
submit to search of his premises and also a requirement that
he not possess a firearm.
March 13, 2018, the on-call supervisory agent for AP&P,
Mr. Kiley Willis, received a call from Salt Lake City Police
dispatch regarding Mr. Erickson stating that he had a
firearm, was about the age of 36 years, and lived at 836 West
call from dispatch relayed the location of the firearm as in
Mr. Erickson's daughter's bedroom, the room
downstairs to the left in the home.
Catherine Erickson speculated that the tip from dispatch
likely originated from Mr. Erickson's girlfriend Ginger,
who was there on a night before March 13th and was
“very angry, very angry, ” according to Mr.
Erickson, about a gun.
Erickson said that Mr. Erickson told her about the gun on the
day Ginger left angry and “[Ginger] knew about the gun
and she was the only one that could have called [Mr.
Erickson's] [probation officer] and told
Supervisory Agent Willis gets any call about a probationer,
he looks into whether the individual is supervised, what
they're being supervised for, where they live, and what
is presently going on before he does anything.
Supervisory Agent Willis then contacted Adult Probation and
Parole (“AP&P”) Agent Stuart
Combs and gave him the specific information
regarding the location of the firearm and the probationer
involved: that the firearm could be found in Mr.
Erickson's daughter's room, in the downstairs of the
Supervisory Agent Willis asked Agent Combs to go to the
residence and conduct a probation search.
was discovered that the address given to dispatch by the
person calling with the tip was two digits off; it was
actually 838 and not 836.
Agent Combs is experienced in probation searches, attached to
the gang unit, and was sent to the location because the tip
alleged that Mr. Erickson had a firearm.
That night, Agent Combs was wearing a uniform identifying him
as a police officer, including an embroidered badge on his
external carrier with a placard with a flag and
“POLICE” underneath it; an actual metal badge on
his drop leg holster; and the back of his jacket had
“Police Metro Gang Unit.”
After receiving the call from Supervisory Agent Willis, Agent
Combs checked F-track and learned that Mr. Erickson was on
probation for a weapons offense and verified where Mr.
Agent Combs then went to Mr. Erickson's home with three
other metro gang unit officers: Detective Cody Pender,
Sergeant Scott Hansen, and Detective Jerry Valdez, who are
all affiliated with Salt Lake Unified Police
officers arrived at the home around 10:30 p.m.
home is a single-family ranch rambler with a main floor with
stairs to a basement.
Agent Combs went to the door and a man he believed to be Mr.
Erickson's father answered.
officers were invited into the home.
Agent Combs also saw a female aged about 50 or 60 and a few
Agent Combs stated that he was there to see Mr. Erickson, who
then came upstairs approximately 30-45 seconds
Agent Combs told Mr. Erickson that he was with AP&P and
was there to do a compliance check (also known as a home
four officers went downstairs with Mr.
According to Agent Combs, there were three bedrooms and a
family room in the basement.
Agent Combs and Sergeant Hansen went into Mr. Erickson's
Upon searching Mr. Erickson's bedroom, Agent Combs found,
in plain-view, a knife on the floor at the foot of Mr.
While being questioned by Sergeant Hansen, Mr. Erickson
denied gang involvement, but said that he was a tagger and
used the name “Hyst.”
knife was a probation violation and raised Agent Combs'
suspicions that there might be other violations, including
Agent Combs then asked Mr. Erickson if he could search Mr.
Erickson 's daughter's bedroom and Mr. Erickson
Section six of Mr. Erickson's Probation
Agreement permits AP&P agents to search, among
other things, the residence of probationers. Specifically,
the probation agreement allows probation agents to search
areas that belong to the probationer, areas that the
probationer has access to, and common areas, kitchens, and
Agent Combs believed that he could search Mr. Erickson's
daughter's bedroom under the terms of the probation
agreement, but he asked Mr. Erickson about searching just to
get Mr. Erickson's permission as that was Agent
Combs' standard practice.
Before Agent Combs went into Mr. Erickson's
daughter's room, Mr. Erickson did not say anything about
what Agent Combs might see in that room or whether anyone was
in the room.
Agent Combs went to the daughter's bedroom, opened the
closed door, turned on the light, and was surprised to find
three people sleeping there, who were later identified as
Tiffany (last name unknown), Defendant (Marcus McGuire), and
George (a/k/a Mad Dog).
When Agent Combs turned on the light, it roused Defendant,
Tiffany, and George.
Agent Combs did not identify himself, but asked the three to
step out of the room for a minute because he needed to search
three individuals were fully clothed, but were sleeping in
Agent Combs believed Defendant was also wearing shoes at this
three people were calm and complied with Agent Combs'
request to leave the bedroom.
None of the three asked to take anything with them as they
Agent Combs did not order them not to touch or take anything
Officer Combs did not ask anyone if they had any property
there or if they wanted to take any property with
After Defendant, Tiffany, and George exited the bedroom,
Detective Valdez remained with them from that point
bedroom appeared to be 8 x 6-10 feet and was very messy with
clothes strewn all over and garbage scattered
There was a twin mattress without a bed frame on the ground,
a few pillows, blankets, and a small amount of furniture in
There were not any sleeping bags in the room.
Agent Combs stated that there was “no real way to know
which item in the room was [Mr. McGuire's] and which one
Agent Combs did a cursory search of most of the room, and
found a backpack by the closet.
backpack was a drawstring backpack; the drawstring was not
tightened but the backpack's flap was draped over the top
of the pack with none of the flap's latches secured or
Before searching it, Agent Combs did not ask any of the
individuals who had been sleeping in the room if it was their
Because the flap's latches were not secured on the bag,
Agent Combs could see the cover of a blue notebook
When Officer Combs lifted the bag's flap, he saw the blue
notebook was tagged with graffiti and this strongly suggested
to Agent Combs that it might be Mr. Erickson's bag
because he talked about being a
Officer Combs removed the notebook, opened or flipped the
notebook over, and saw on the back cover more graffiti
writing with the word “HYST” and some other
Because Mr. Erickson had admitted to Agent Combs that he was
a tagger, Agent Combs continued to think that the notebook
and the backpack likely belonged to Mr.
Agent Combs continued searching in the backpack and found a
white plastic bag (like a kitchen garbage can liner, that was
not tied, but the top had been wrapped).
Agent Combs pulled out the plastic bag and by
holding/handling it (and based upon his experience) and it
appeared to contain a gun.
Agent Combs removed the gun out of the plastic
firearm was a Sig Sauer .45 caliber pistol. There was a
magazine in the pistol which contained rounds of .45 caliber
this point, Agent Combs believed the gun belonged to Mr.
Erickson because of the information from his AP&P
supervisor; where the weapon was found; and the graffiti
(including the HYST name) on the notebook.
Agent Combs continued to search the backpack and he found a
temporary Utah ID (which had been issued the day before
(March 12, 2018)) issued to Mr. McGuire, and a piece of mail
addressed to Mr. McGuire.
temporary ID had the Genesee street address on
Officer Combs was not sure of the address on the
the time of the backpack search, there was no one in the room
to claim or disclaim ownership of the bag or any items found
However, after finding these items, Officer Combs began to
think the firearm belonged to Mr. McGuire.
Agent Combs was performing the search of the bedroom, Mr.
McGuire, Tiffany, and George remained with Detective
this point in time Mr. Erickson remained in his bedroom with
McGuire, Tiffany, and George wanted to go upstairs and
outside to smoke.
Detective Valdez took them upstairs and
McGuire did ask Detective Valdez what was going on and he was
told in response that it was an AP&P
McGuire asked Valdez if he was detained, and Valdez said
“yeah just while they conduct an
using the word “detained, ” Detective Valdez
testified that he was letting everyone, not just Mr. McGuire,
know they were detained.
Detective Valdez also engaged in small talk with Mr. McGuire
and remembered that “Mr. McGuire and his girlfriend
just arrived in Utah, they weren't actually staying at
the house (on Genesee Avenue) but that they were just
visiting. Kind of passing through.”
Detective Valdez also stated that Mr. McGuire did not ask to
go back into the house or obtain any possessions, but he did
ask or was told that he was detained until the search was
After finding the gun, Agent Combs had Sergeant Hansen put
Mr. Erickson in handcuffs and Agent Combs interviewed Mr.
Erickson about the firearm.
Sergeant Hansen and Detective Pender were present for this
During the interview, Mr. Erickson referred only to the
female individual by name and that he did not know the