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United States v. McGuire

United States District Court, D. Utah, Central Division

October 16, 2018



          David Nuffer United States District Judge.

         District 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).[1] Mr. McGuire contends that: 1) the warrantless search was illegal under the Fourth Amendment of the United States Constitution;[2] 2) that he was illegally seized in contravention of the Fourth Amendment;[3] and post-search and seizure statements taken from the Defendant are the fruits of that alleged illegal search and seizure.[4]

         The 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.[5]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.

         This order DENIES the motion to suppress.

         RELEVANT FINDINGS OF FACT .............................................................................................. 2

         CONCLUSIONS OF LAW .......................................................................................................... 12

         1. The Search Did Not Violate the Fourth Amendment Because the Special Needs Exception to the Warrant Requirement Applied ............ 12

         A. Agent Combs Had Reasonable Suspicion to Search the Room and the Backpack ........................................................................ 15

         B. The Search was Reasonably Related to Agent Combs's Duties ............... 18

         2. Mr. McGuire Was Not Illegally Seized in Violation of the Fourth Amendment ......... 20

         3. Defendant's Statements Cannot Be Suppressed Because the Search Was Reasonable Under the Fourth Amendment and Because Defendant Was Not Illegally Seized .............................................................................. 22

         ORDER ......................................................................................................................................... 23


         1. Nicholas Erickson was under a probationary requirement to submit to search of his premises and also a requirement that he not possess a firearm.[6]

         2. On March 13, 2018, the on-call supervisory agent for AP&P, Mr. Kiley Willis, [7]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 Genesee Avenue.[8]

         3. The 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.[9]

         4. Mrs. 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.[10]

         5. Mrs. 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 him.”[11]

         6. When 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.[12]

         7. Supervisory Agent Willis then contacted Adult Probation and Parole (“AP&P”) Agent Stuart Combs[13] 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 residence.[14]

         8. Supervisory Agent Willis asked Agent Combs to go to the residence and conduct a probation search.[15]

         9. It 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.[16]

         10. 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.[17]

         11. 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.”[18]

         12. After receiving the call from Supervisory Agent Willis, Agent Combs checked F-track[19] and learned that Mr. Erickson was on probation for a weapons offense and verified where Mr. Erickson lived.[20]

         13. 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 Department.[21]

         14. The officers arrived at the home around 10:30 p.m.[22]

         15. The home is a single-family ranch rambler with a main floor with stairs to a basement.[23]

         16. Agent Combs went to the door and a man he believed to be Mr. Erickson's father answered.[24]

         17. The officers were invited into the home.[25]

         18. Agent Combs also saw a female aged about 50 or 60 and a few little kids.[26]

         19. Agent Combs stated that he was there to see Mr. Erickson, who then came upstairs approximately 30-45 seconds later.[27]

         20. Agent Combs told Mr. Erickson that he was with AP&P and was there to do a compliance check (also known as a home visit).[28]

         21. All four officers went downstairs with Mr. Erickson.[29]

         22. According to Agent Combs, there were three bedrooms and a family room in the basement.[30]

         23. Agent Combs and Sergeant Hansen went into Mr. Erickson's bedroom.[31]

         24. Upon searching Mr. Erickson's bedroom, Agent Combs found, in plain-view, a knife on the floor at the foot of Mr. Erickson's bed.[32]

         25. While being questioned by Sergeant Hansen, Mr. Erickson denied gang involvement, but said that he was a tagger and used the name “Hyst.”[33]

         26. The knife was a probation violation and raised Agent Combs' suspicions that there might be other violations, including gun possession.[34]

         27. Agent Combs then asked Mr. Erickson if he could search Mr. Erickson 's daughter's bedroom and Mr. Erickson replied, “Yes.”[35]

         28. Section six of Mr. Erickson's Probation Agreement[36] permits AP&P agents to search, among other things, the residence of probationers.[37] 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 living rooms.[38]

         29. 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.[39]

         30. 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.[40]

         31. 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).[41]

         32. When Agent Combs turned on the light, it roused Defendant, Tiffany, and George.[42]

         33. Agent Combs did not identify himself, but asked the three to step out of the room for a minute because he needed to search the room.[43]

         34. All three individuals were fully clothed, but were sleeping in the room.[44]

         35. Agent Combs believed Defendant was also wearing shoes at this time.[45]

         36. All three people were calm and complied with Agent Combs' request to leave the bedroom.[46]

         37. None of the three asked to take anything with them as they left.[47]

         38. Agent Combs did not order them not to touch or take anything with them.[48]

         39. Officer Combs did not ask anyone if they had any property there or if they wanted to take any property with them.[49]

         40. After Defendant, Tiffany, and George exited the bedroom, Detective Valdez remained with them from that point on.[50]

         41. The bedroom appeared to be 8 x 6-10 feet[51] and was very messy with clothes strewn all over and garbage scattered within.[52]

         42. There was a twin mattress without a bed frame on the ground, a few pillows, blankets, and a small amount of furniture in the room.[53]

         43. There were not any sleeping bags in the room.[54]

         44. Agent Combs stated that there was “no real way to know which item in the room was [Mr. McGuire's] and which one was not.”[55]

         45. Agent Combs did a cursory search of most of the room, and found a backpack by the closet.[56]

         46. The 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 cinched down.[57]

         47. Before searching it, Agent Combs did not ask any of the individuals who had been sleeping in the room if it was their backpack.[58]

         48. Because the flap's latches were not secured on the bag, Agent Combs could see the cover of a blue notebook inside.[59]

         49. 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 “tagger.”[60]

         50. 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 writing.[61]

         51. 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. Erickson.[62]

         52. 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).[63]

         53. Agent Combs pulled out the plastic bag and by holding/handling it (and based upon his experience) and it appeared to contain a gun.[64]

         54. Agent Combs removed the gun[65] out of the plastic bag.[66]

         55. The firearm was a Sig Sauer .45 caliber pistol.[67] There was a magazine in the pistol which contained rounds of .45 caliber ammunition.[68]

         56. At 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.[69]

         57. 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.[70]

         58. The temporary ID had the Genesee street address on it.[71]

         59. Officer Combs was not sure of the address on the mail.[72]

         60. At 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 in it.[73]

         61. However, after finding these items, Officer Combs began to think the firearm belonged to Mr. McGuire.[74]

         62. As Agent Combs was performing the search of the bedroom, Mr. McGuire, Tiffany, and George remained with Detective Valdez.[75]

         63. At this point in time Mr. Erickson remained in his bedroom with Sergeant Hansen.[76]

         64. Mr. McGuire, Tiffany, and George wanted to go upstairs and outside to smoke.[77]

         65. Detective Valdez took them upstairs and outside.[78]

         66. Mr. McGuire did ask Detective Valdez what was going on and he was told in response that it was an AP&P search.[79]

         67. Mr. McGuire asked Valdez if he was detained, and Valdez said “yeah just while they conduct an investigation.”[80]

         68. By using the word “detained, ” Detective Valdez testified that he was letting everyone, not just Mr. McGuire, know they were detained.[81]

         69. 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.”[82]

         70. 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 completed.[83]

         71. After finding the gun, Agent Combs had Sergeant Hansen put Mr. Erickson in handcuffs and Agent Combs interviewed Mr. Erickson about the firearm.[84]

         72. Sergeant Hansen and Detective Pender were present for this interview.[85]

         73. During the interview, Mr. Erickson referred only to the female individual by name[86] and that he did not know the others, ...

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