UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 1:14-CR-4-TLS

)

SHAWN C. NORMAN )

OPINION AND ORDER

The Defendant, Shawn C. Norman, is facing three drug-related charges related to events

that occurred in October through December 2013. The Defendant has filed a Motion to Suppress

[ECF No. 58], seeking to “have the Court suppress any and all evidence in this cause directly or

indirectly related to the Defendant’s interactions with alleged purchases of controlled substances

from the confidential informant/confidential human source used by the government in this

cause.” (Mem. in Support 1, ECF No. 85 (referring to conversations, text messages, tangible

evidence from the alleged purchases in the form of currency or controlled substances, or audio or

video recordings).) As grounds for his request, the Defendant argues that his rights were violated

because a confidential human source, Roy Walker, to whom he purportedly sold drugs had not

adhered to his supervised release terms before becoming an informant. Specifically, Walker had

not obtained court approval, which was in direct violation of one of the terms of his supervised

release. When a federal agent realized that Walker was on federal supervised release, as opposed

to state parole, the agent set out to obtain the proper authority. By then, however, Walker had

already purchased drugs from the Defendant under the supervision of law enforcement. This

October 4, 2013, controlled drug buy was used as a basis to obtain a search warrant, and is also

the basis for Count 1 of the Superseding Indictment. Count 2 charges the Defendant with

distributing heroin on November 20, 2013, which was also based on a controlled drug buy
involving Walker. In Count 3, the Defendant is charged with knowingly and intentionally

possessing with intent to distribute heroin on December 20, 2013, which is the date the search

warrant was executed. Count 4 alleges that the Defendant maintained a place for the purpose of

distributing and manufacturing a controlled substance.

The Defendant has not made any claim that Walker was an unreliable source, such that

his participation in the October 4 controlled buy was insufficient to establish probable cause for

the search warrant. Rather, the Defendant invokes the procedural safeguards of the Fifth and

Fourteenth Amendments in support of his suppression request. He maintains that the condition of

supervised release that prohibited Walker from entering into any agreement to act as an

informant or special agent of a law enforcement agency without permission of the court was also

a restriction on the activity of federal law enforcement agents. When the agents failed to adhere

to the restrictions, it upset the governmental system of checks and balances and thus implicated

the Defendant’s due process rights. 

Previously, this Court referred the matter to Magistrate Judge Susan L. Collins to review

the Motion and the Government’s response, to conduct any and all necessary evidentiary

hearings, to order additional briefing, and to issue a report and recommendation that includes

proposed findings of fact and recommendations for the disposition of the Defendant’s Motion to

Suppress. The Magistrate Judge presided over two evidentiary hearings and received posthearing briefs. In the Report and Recommendation, issued on September 25, 2017, the

Magistrate Judge concluded that the Defendant had not produced any case authority in which

evidence was suppressed as a result of due process violations brought about by outrageous

government conduct. Nor had the Defendant disputed the Government’s assertion that the

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Seventh Circuit has not recognized the doctrine of outrageous government conduct as a means to

bar prosecution. What is more, the Magistrate Judge found that the Government’s actions could

not be construed as outrageous conduct. Accordingly, the Report recommends denial of the

Defendant’s Motion to Suppress.

On October 9, 2017, the Defendant filed Objections to Magistrate’s Report and

Recommendation. The Defendant stands by his due process analysis, but asserts that the doctrine

of outrageous government conduct does not provide the appropriate standard. Rather, he claims

that failure to strictly adhere to an order of the United States District Court setting terms and

conditions of supervised release, which was designed to protect the rights of all citizens, requires

suppression of the evidence against him. The Government, in a Notice [ECF No. 92] filed on

October 18, 2017, states that it “will rely upon its previously filed brief and the Magistrate’s

Report and Recommendation.” 

ANALYSIS

Under 28 U.S.C. § 636(b)(1)(A)–(B), a magistrate judge does not have authority to issue

a final order on a motion to suppress evidence in a criminal case. Instead, the magistrate judge

submits proposed findings of fact and recommendations to the district court. If a party files a

timely objection to the magistrate judge’s report and recommendation, § 636(b)(1) provides that

the district judge is to make a de novo determination of those portions of the report

or specified proposed findings or recommendations to which objection is made. The

court may accept, reject, modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge also may receive further

evidence or recommit the matter to the magistrate judge with instructions.

Portions of a recommendation to which no party objects are reviewed for clear error. Johnson v.

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Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). 

The Court finds that the record before the Magistrate Judge is sufficient to allow this

Court to make a de novo determination, where necessary. See United States v. Raddatz, 447 U.S.

667, 673–76 (1980) (holding that de novo review does not require a de novo evidentiary hearing,

even when witness credibility is at issue). The Defendant has not requested a hearing or

challenged the Magistrate Judge’s recitation of the facts. For the most part, his statement of the

facts mirrors that contained in the Report and Recommendation, and the Court ACCEPTS the

Findings of Fact contained in the Report and Recommendation. The Defendant’s disagreement is

with the legal analysis. 

According to the Defendant, his claim is “couched in terms of due process and the

extension of cases such as Chambers v. State of Florida, 309 U.S. 227 (1940), Burns v. United

States, 501 U.S. 129 (1991), and Williams v. United States, 503 U.S. 193 (1992).” (Def.’s Obj.

9.) The Defendant does not provide any meaningful analysis of how the argument he advances to

this Court is an extension of these cases. As noted in the Report and Recommendation, the

Defendant cited Chambers for the general principle that the Fifth and Fourteenth Amendments

were intended to guarantee a criminal defendant with procedural due process. The other two

cases, Burns and Williams, were cited for the Defendant’s suggestion that § 5D1.3 of the Federal

Sentencing Guidelines, which pertains to standard conditions of supervised release, is binding

upon the courts. But that is not an accurate statement of current law. The Sentencing Guidelines

and its policy statements are not binding upon courts. See United States v. Drain, 740 F.3d 426,

431 (7th Cir. 2014). 

In attempting to frame his argument, the Defendant “concedes that the case law from the

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Seventh Circuit does not adequately address the issue at hand.” (Def.’s Obj. 9, ECF No. 91.)

With respect to the Report and Recommendation’s analysis of outrageous government conduct

cases, he “respectfully suggests that this analysis is not appropriate.” (Id.) Rather, his position is

“that a violation of the requirements of supervision for a federal Defendant post-incarceration are

not internal administrative rules and regulations.” (Id.) The Defendant clarifies that he is not

relying on the doctrine of outrageous government conduct, but argues that suppression is

appropriate because to rule otherwise “allows law enforcement agents to ignore the terms and

conditions of a federal Court Order without regard to process and procedure designed to ensure

the protection of the rights of all citizens.” (Id. at 10.)

The imposition of supervised release is governed by 18 U.S.C. § 3583. If a sentencing

court orders a term of incarceration, the court may also impose a term of supervised release to

follow the incarceration. Conditions are either mandatory or discretionary. The condition

requiring prior approval before becoming a confidential informant is not one of the mandatory

condition listed in the statute. See id. § 3583(d) (identifying conditions of supervised release that

the “court shall order”). A discretionary condition must relate to a defendant’s offense, history

and characteristics, and to the goals of punishment, and involve “no greater deprivation of liberty

than is reasonably necessary” to achieve the goals of deterrence, public safety, and rehabilitation.

Id. § 3583(d)(1)–(2); United States v. Thompson, 777 F.3d 368, 376 (7th Cir. 2015). They must

also be “consistent with any pertinent policy statements issued by the Sentencing Commission.”

Id. § 3583(d)(3). 

It is undisputed that Walker, in his dealings with law enforcement, violated one of the

conditions of his supervised release when he did not obtain court approval. The violation was

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eventually corrected for future controlled drug buys he conducted as a confidential human

source. However, the terms of the condition he violated did not define the limits of constitutional

behavior. They were intended to define the limits of his behavior while still under the

supervisory authority of the probation department. If there are consequences to the violation, in

the legal sense, they belong to Walker. See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.3. The Court

can find no basis to conclude that the condition, or the violation thereof, conferred any legal right

on the Defendant to be free from police investigation. That is stretching the concept of due

process too far.

A Federal Judiciary report that provides an overview of the most common conditions of

supervised release recognizes that “[a]cting as a confidential informant or human source is

generally inconsistent with the rehabilitative and re-integrative goals of supervision.” See

Administrative Office of the U.S. Courts Probation and Pretrial Services Office, Overview of

Probation and Supervised Release Conditions (Nov. 2016), http://www.uscourts.gov/services

-forms/acting-confidential-human-source-informant-probation-supervised-release-conditions)

(describing the purpose of the condition prohibiting supervised defendant from making an

agreement with a law enforcement agency to act as a confidential human source or information

without first getting the permission of the court). The confidential source’s activity may also

pose a risk to the supervising probation officer, especially where the officer has limited, or no,

knowledge of the nature of the informant’s activities. Id. However, “there are rare occasions . . .

when the law enforcement benefits to the community justify permitting the defendant to engage

in this high-risk activity.” Id. In those instances, strict monitoring by the court/probation office is

necessary for the safety of the community, the defendant, and the supervising probation officer.”

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Id.

That there are safety concerns implicated by this condition that extend to the community

does not confer a right on the target of an investigation, like the Defendant, to suppress evidence

if the condition is not strictly followed. For this reason, the Court accepts the Magistrate Judge’s

conclusion that the Defendant’s due process rights were not violated, either under the outrageous

government conduct doctrine or otherwise. The Report and Recommendation, in conjunction

with this Opinion and Order, makes up the Court’s justification for denying the Defendant’s

Motion to Suppress.

CONCLUSION

For the reasons stated above, the Court ADOPTS the Report and Recommendation [ECF

No. 90], and DENIES the Motion to Suppress [ECF No. 58]. A separate scheduling order will be

issued.

SO ORDERED on November 1, 2017.

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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