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United States v. Rivera

July 22, 2010

UNITED STATES OF AMERICA
v.
ALEXANDER RIVERA



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

The Government charges Alexander Rivera with one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Rivera moves to suppress evidence that law enforcement officers seized on June 1, 2009, most significantly the firearm and ammunition that he is charged with illegally possessing.

Upon consideration of the testimony and evidence that we heard at yesterday's hearing, we conclude that Rivera's parole officer -- who conducted the initial search on June 1, 2009 and found the gun and ammunition in the trunk of a car that Rivera had been driving -- did not have reasonable suspicion to search the trunk. We will therefore grant the motion to suppress as to the gun and ammunition, but deny it to the other evidence that Rivera seeks to suppress.

I. Findings of Fact

On June 1, 2009, Rivera was a parolee under the supervision of the Commonwealth of Pennsylvania Board of Probation and Parole. Rivera was subject to many parole conditions and, among other things, could not (1) "operate a motor vehicle without a valid Pennsylvania Drivers License, proof of financial responsibility and [his] parole agents [sic] written permission" or (2) "associate with drug users or drug dealers outside of a treatment program." Special Conditions of Parole for Alexander Rivera, Gov't Ex. 1 at 2 (dated August 16, 2008).*fn1 Rivera also signed a form that stated, "I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process." Conditions Governing Parole/Reparole of Alexander Rivera, Def. Ex. D-2.

Rivera's parole officer, Shante Crews, was the sole witness at yesterday's hearing regarding Rivera's motion to suppress. According to her uncontested testimony, Crews supervised Rivera for about ten months before his arrest for this offense. Rivera was obliged to meet with Crews at her office on the first Monday of every month, and he could arrive for the meeting at any time between 8:30 a.m. and 5:00 p.m. He was also subject to a monthly urinalysis test, which apparently happened during these monthly office meetings. Crews also made unscheduled visits to Rivera's home.

As Crews's supervision of Rivera progressed, she became concerned that Rivera was rarely home when she made her unscheduled visits, especially during the times when he was unemployed, and she was annoyed that Rivera often came to her office for their monthly meetings shortly before the office closed at 5:00 p.m. She testified that in her experience parolees arrive late in the day so that she would have little time to spend with them before the office closed. Since Rivera was unemployed during the events at issue here, Crews had asked him to come to their monthly meetings earlier in the day.

But on June 1, 2009, Rivera ignored Crews's requests and appeared for his monthly meeting around 4:45 p.m. He told Crews that he overslept, and she "verbally reprimanded" him for arriving at the office late in the day and for his frequent absences from his house. During their conversation, Crews noticed that Rivera was "antsy" and not paying attention to her. Crews thought that Rivera behaved this way because she reprimanded him. She also believed that Rivera was sending text messages on his cell phone while she spoke with him, but he told her that he was not doing so. Rivera showed Crews the "home screen" of his phone, and Crews did not see any text messages at that time.

Rivera gave Crews a urine sample, and she performed an "instant test" at her desk by inserting a testing card into the sample. Crews testified that if a line appeared on the card, the sample was negative for drug use, but if no line appeared on the card the sample was positive for drug use. She told us that Rivera's sample showed a "faint line" by the marijuana indicator, which was an equivocal or unclear result. Crews asked Rivera if he used marijuana, and Rivera told Crews that he did not use marijuana himself but that he had spent time with friends who did.

Crews recognized that associating with drug users was a violation of Rivera's parole conditions, and she "verbally reprimanded" him for that issue. She told us that she was also concerned that Rivera had committed other unspecified violations and wanted to speak to her supervisor. She placed the defendant in handcuffs and other restraints and searched him. She removed his wallet and a set of car keys from his pockets. Crews had not given Rivera permission to drive any vehicle, so she asked him whose keys were in his pocket. He told her the keys belonged to a friend or girlfriend and that he drove her car to the parole office. She "verbally reprimanded" him again. Another parole officer then took Crews to a holding cell, and Rivera talked with her supervisor. Crews testified that as Rivera was led to the holding cells he was "very adamant" that someone would pick up the car keys. She said this was unusual because detained parolees are typically concerned about whether they will be sent back to jail, not whether their property will be safe.

Crews's supervisor gave her permission to search Rivera's car, but she did not know which car Rivera had driven to the office. She took the car keys that she had found in his pocket, went outside, and pressed the unlocking button on the key fob until she heard a beeping sound from a gold Nissan. Crews unlocked the trunk of that car,*fn2 and a colleague of hers went to the front of the car. She saw a hooded sweatshirt in the trunk and lifted it up. Under the sweatshirt, Crews saw a gun and a drum with ammunition. She then looked in the back seat of the car and saw gloves, a mask, and a shoe string that appeared to be tied in a noose. Crews ran back to her office and told her supervisor what she had found and the supervisor then called the police.

Crews went to her desk and searched Rivera's wallet and cell phone. She found several pieces of paper that had information about guns and related accessories, firearm-related Web sites, and several measurements labeled as, for example, the height, weight, and chest of an unspecified person. When Crews looked at Rivera's cell phone, she discovered that he had sent a text message during their meeting. In the message -- which Rivera sent to an unidentified person -- Rivera wrote that he thought that his parole officer would lock him up and that someone named "Ream" would have the car keys.

At the hearing, we asked Crews several questions regarding her motivation and justification for searching the car and especially its trunk. We had this exchange with Crews:

THE COURT: ... And so the reason that you went to the car was what exactly?

THE WITNESS: The reason why I went to the car -- well, the violation is for the urine -- I mean, no, the violation is for him associating with drug users, his behavior as far as him being antsy, in a rush, him not being home, him coming in late.

THE COURT: Well, what did that have to do with the car?

THE WITNESS: The fact that he didn't have permission to drive. Why are you driving someone's car you ...


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