Of the District of Maine, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1205

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN SCOTT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Boudin and Lipez, Circuit Judges,

and Singal, District Judge. *

John M. Thompson for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

May 21, 2009
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SINGAL, District Judge. In this appeal from a criminal

conviction following a jury trial, appellant Stephen Scott asserts

that the district court erred in denying his motion to suppress

evidence seized following the execution of a state parole warrant

for temporary custody ("WTC"). Specifically, Scott contends that

the parole action, prompted by information received from law

enforcement and executed with law enforcement officers,

impermissibly circumvented the Fourth Amendment's probable cause

requirement. For the reasons that follow, we affirm.

I.

We recount the relevant facts as the district court found

them, consistent with record support. United States v. Graham, 553

F.3d 6, 9 (1st Cir. 2009).

In 2004, Scott was paroled from a Massachusetts prison

sentence imposed following his conviction for drug trafficking and

unlawful possession of a firearm. Massachusetts Parole Officer

("MPO") Lori Correia supervised Scott. As of October 2005, Scott

was employed by Walmart and reporting as required; Correia believed

him to be in compliance with the conditions of his parole.

In October 2005, a confidential informant told Martin

O'Malley, a Worcester Police Department officer assigned to a joint

federal-state Drug Enforcement Administration Task Force, that

Scott wanted to purchase guns with obliterated serial numbers in

exchange for crack cocaine. O'Malley determined that Scott had
Massachusetts state law authorizes issuance of a WTC on the 1

"belie[f] that a parolee has lapsed or is about to lapse into

criminal ways or has associated or is about to associate with

criminal company or that he has violated the conditions of his

parole . . . ." Mass. Gen. Laws ch. 127, § 149A; see also

Commonwealth v. Hinterleitner, 781 N.E.2d 71, 71 (Mass. App. Ct.

2003) (describing the standard for a temporary custody warrant as

"reasonable belief that a parolee may have engaged in prohibited

conduct and violated parole").

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previously been incarcerated, and the Task Force began an

investigation.

On November 17, 2005, the Task Force arranged a

controlled drug buy between the confidential informant and Scott,

during which Scott allegedly sold the informant crack cocaine.

Within days, O'Malley learned that a warrant had been issued for

the informant's arrest on an unrelated charge. Consequently, the

Task Force suspended its investigation of Scott.

During a monthly meeting of law enforcement agencies at

Worcester Police Department headquarters on November 28, 2005,

O'Malley confirmed with MPO John Deignan that Scott was on parole.

He then asked Deignan whether the information obtained during the

Task Force investigation could justify revocation of Scott's

parole. Deignan suggested that it could, and requested copies of

the Task Force's report regarding the controlled buy. He later

conveyed the substance of this conversation to Correia.

On December 6, 2005, Correia received a faxed copy of the

report. She then discussed the matter with her supervisor Felix

Claxton, who authorized the WTC. The district court characterized 1
The Indictment charged possession with intent to distribute 2

50 grams or more of cocaine base, in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(A)(iii) (Count One); possession of a firearm

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this decision as "essentially routine" under the circumstances.

The WTC issued within two days.

On December 8, 2005, Correia, Deignan, and Claxton went

to the Worcester Police Department headquarters to coordinate

execution of the WTC with law enforcement. Four or five law

enforcement officers, including O'Malley, planned to accompany the

three parole officers to Scott's apartment. The district court

later concluded that O'Malley's involvement was "not a

coincidence."

That morning, the officers went to Scott's apartment.

Correia knocked several times. After Scott did not respond, the

officers forcibly breached the door and found Scott lying in bed;

they also discovered marijuana in plain view. O'Malley advised

Scott of his Miranda rights and asked if there were additional

weapons or drugs in the apartment. Scott responded that crack

cocaine and a firearm were present. After the apartment was

secured, O'Malley sought and procured a judicial search warrant,

the execution of which revealed crack cocaine and a firearm with an

obliterated serial number.

On February 15, 2006, a federal grand jury in the

District of Massachusetts returned a four-count indictment against

Scott. On September 28, 2006, Scott filed a motion to suppress 2
in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (Count Two); unlawful possession of a firearm

with an obliterated serial number, in violation of 18 U.S.C. §

922(k) (Count Three); and possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1) (Count Four).

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the physical evidence discovered, as well as any statements made,

during the December 8th search of his apartment. The district

court conducted an evidentiary hearing, after which it denied the

motion orally. With regard to Scott's allegation of improper

coordination between the parole officers and law enforcement, the

district court concluded that the Massachusetts Parole Board

"initiated the warrant and arrest process." Furthermore:

The fact that the police had initiated the

investigation and supplied the information to

the Mass[achusetts] Parole Board up to that

point was not improper. To the contrary, it

was routine and normal . . . . In other

words, the Parole Board was not acting as

agents [sic] of the police; to the contrary,

the parole board was making the decisions, was

in charge, and had what was in effect a police

escort, even if that escort included an

officer, who was the most knowledgeable about

the activities of the defendant.

Scott filed a renewed motion to suppress, which the district court

denied orally after hearing additional argument.

On October 19, 2007, a jury convicted Scott on Counts

One, Three, and Four, and acquitted him on Count Two. On February

8, 2008, the district court sentenced Scott to a mandatory minimum

term of imprisonment of 240 months followed by ten years of
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supervised release. This appeal of the court's suppression ruling

followed.

II.

When assessing the disposition of a motion to suppress,

we review the district court's factual findings for clear error and

its ultimate legal conclusions de novo. Graham, 553 F.3d at 12.

We will overturn those factual findings "only if, after reviewing

all of the evidence, we have a definite and firm conviction that a

mistake has been committed." United States v. Henderson, 463 F.3d

27, 32 (1st Cir. 2006) (citation and internal punctuation omitted).

Ultimately, we will affirm the denial of a suppression motion "if

any reasonable view of the evidence supports it." United States v.

Rivera-Rivera, 555 F.3d 277, 283 (1st Cir. 2009).

Because Scott did not renew his suppression motion at

trial, our review is limited to the evidence presented during the

suppression hearing. United States v. de Jesus-Rios, 990 F.2d 672,

675 n.2 (1st Cir. 1993).

III.

The sole issue on appeal concerns the propriety of the

law enforcement officers' participation in the parole action.

Scott asserts that the Task Force officers impermissibly influenced

both the acquisition and the execution of the WTC, in order to gain

access to his apartment without first satisfying the Fourth

Amendment's probable cause requirement. In response, the
 Neither party invoked United States v. Knights, 534 U.S. 112 3

(2001), or Samson v. California, 547 U.S. 843 (2006), two

relatively recent cases that modify the law underlying Cardona.

Thus, we have no occasion to consider the implications of those

cases here.

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government maintains that the parole officers independently decided

to seek the warrant and determined how to execute it; the Task

Force officers served in a strictly auxiliary role. Challenges to

the "integrity of a [parole] action" are necessarily "determinable

as a question of fact on a case-by-case basis." United States v.

Cardona, 903 F.2d 60, 65 (1st Cir. 1990).

In United States v. Cardona, we articulated various

principles governing the participation of law enforcement officers

in parole functions. Because such cooperation raises the

possibility of subterfuge designed to evade the Fourth Amendment,

we warned that the police may not use parole officers "as a cat's

paw." Id. However, where "police officers function merely as

instruments of the parole system, not as law enforcers per se," we

determined that "they should be accorded the same privileges

available to other operatives in the system." Id. at 69. 

The core question on appeal, then, is narrow and

inherently fact-specific: did the law enforcement officers'

involvement in the parole action exceed the strictly instrumental

role contemplated in Cardona? As mentioned, Scott's evidence 3

pertains to both the acquisition and the execution of the WTC.

Regarding the preliminary decision to seek the warrant, Scott
 We observe that the involvement of law enforcement in 4

Cardona commenced only after the defendant's parole officer decided

to seek a warrant and after the warrant issued. See 903 F.2d at

60-61.

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points to Officer O'Malley's instigation of the parole

investigation, and subsequent transmittal of the Task Force report.

Regarding the warrant's execution, Scott observes that a majority

of the officers who executed the WTC, including O'Malley, were law

enforcement officers. He also characterizes the officers' decision

to execute the WTC at his apartment, as opposed to the parole

office, as motivated by a desire to create a search opportunity for

law enforcement. Scott insists that these facts, taken together,

compel the conclusion that the parole action "was a law enforcement

decision carried out by law enforcement means for law enforcement

purposes."

We disagree. Considering first Scott's objection to the

initial phase of the parole action, we have long endorsed 4

"mutually beneficial cooperation" between law enforcement and

probation officers. United States v. Giannetta, 909 F.2d 571, 581

(1st Cir. 1990). Likewise, law enforcement officers may share

relevant intelligence about a parolee's criminal activity with

those parole officers responsible for his supervision. See

Cardona, 903 F.2d at 63 (noting that "parolees enjoy even less of

the average citizen's absolute liberty than do probationers").

Abiding these precepts, courts have routinely upheld probationary
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and parole searches initiated on the basis of information provided

by law enforcement. See, e.g., Griffin v. Wisconsin, 483 U.S. 868,

871, 879-80 (1987); United States v. Grimes, 225 F.3d 254, 256, 259

(2d Cir. 2000); Giannetta, 909 F.2d at 573; see also Graham, 553

F.3d at 10 (information shared between probation officer and

police); United States v. Williams, 417 F.3d 373, 375 (3d Cir.

2005) (information shared between parole officer and police);

United States v. Reyes, 283 F.3d 446, 464-65 (2d Cir. 2002)

(observing that "probation officers are quite properly advised that

'[t]he original arresting agency and Federal task forces . . . can

provide valuable assistance to the officer in monitoring the

offender's activities while under supervision'"); 5 Wayne R.

LaFave, Search and Seizure § 10.10(e), at 472 (4th ed. 2004)

(describing probation and parole officers' salutary reliance on the

police as a source of investigatory information). Here, the

district court characterized the Task Force's initiation of and

contribution to the parole investigation as "routine and normal."

Scott offers no reason to question that assessment.

Moreover, the district court's determination that the

parole officers "initiated the warrant and arrest process" is amply

supported by the record. MPO Correia testified that she and

Claxton decided to seek the WTC, that no law enforcement officer

asked her to obtain the warrant, and that no law enforcement

officer was present when the decision was made. None of Scott's
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evidence speaks to this critical decisionmaking phase, which we

have previously identified as the Fourth Amendment's central

concern in the context of parole. Cardona, 903 F.2d at 65-66; see

Giannetta, 909 F.2d at 581 (focusing on the identity of

decisionmaker in rejecting a "stalking horse" challenge to police

officer's involvement in probation search). Thus, we conclude that

the law enforcement officers' influence during the initial phase of

the parole action was appropriate.

Scott also objects to the manner in which the WTC was

executed. Our decision in Cardona effectively forecloses this line

of argument. In that case, a parole violation warrant issued on a

showing of reasonable suspicion in accordance with state law.

Cardona's parole officer then asked the local police to execute it;

as a result, three police officers, unaccompanied by any parole

official, executed the warrant at the defendant's apartment. Upon

entering the apartment, the police officers arrested the defendant

and seized a firearm discovered in plain view.

In the course of affirming Cardona's arrest and

conviction, we went so far as to state that had a single parole

officer been present at the arrest, "Griffin would unarguably apply

to defeat appellant's suppression claim." Cardona, 903 F.2d at 64.

Here, three parole officials–Correia, Deignan, and Claxton–went to

the Worcester Police Department headquarters to seek law

enforcement assistance in executing the WTC, and then accompanied
 "Common sense" continues to "suggest[] that retaking 5

parolees is apt to be a hazardous duty," which often requires law

enforcement participation. Cardona, 903 F.2d at 68; see also

United States v. Brown, 346 F.3d 808, 812 (8th Cir. 2003); Reyes,

283 F.3d at 468-70. And not only common sense: here, MPO Correia

testified that parole officers always request police assistance

when a parolee is allegedly involved in drug or firearm offenses,

and MPO Deignan stated in his affidavit that parole officers

routinely seek police assistance when making high-risk arrests.

The arrest of Scott, who had been convicted of a firearm offense

and was then reportedly seeking additional firearms, satisfies that

standard.

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four or five law enforcement officers to Scott's apartment. This

sequence (and ratio) suggests significantly greater parole

involvement than we licensed in Cardona. Moreover, Scott offers 5

no record evidence to substantiate his claim that "Task Force

Officer O'Malley led the action" during the arrest itself. The

mere fact that O'Malley questioned Scott about the presence of

drugs or firearms, the basis of the possible parole violation, does

not demonstrate that he was acting independently of the parole

officers.

Finally, Scott invests the site of the arrest–his

apartment–with excessive significance. It is true that MPO Correia

might have requested Scott's presence at the parole office and

executed the WTC there. But surely parole officials retain the

discretion to execute a warrant in the manner they deem most likely

to minimize the threat of violence, destruction of evidence, or

flight. Furthermore, the decision to execute the WTC at the

apartment did not, as Scott implies, create a full-blown search
 Although a valid probation search may qualify as such an 6

exception, it is not clear on the record that Scott was subject to

this condition. See Graham, 553 F.3d at 15-18 (probationer

informed of and consented to probation search condition). Thus, we

cannot assume that law enforcement officers arrived at Scott's

apartment empowered to conduct a search of the premises.

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opportunity: a valid parole arrest warrant permits only the seizure

of a parolee, not the search of the room in which he is found. See

Graham, 553 F.3d at 15; Cardona, 903 F.2d at 65 (requiring that

"the executors, whoever they may be, will serve merely as agents of

the decisionmaker, doing what the decisionmaker authorized,

augmented only by the constitutionally permissible"). Thus,

excepting the opportunity to seize evidence in plain view or

pursuant to some other exception to the warrant requirement,6

execution of a WTC at a parolee's home will not in most

circumstances directly serve what Scott characterizes as "law

enforcement purposes." We therefore conclude that the manner in

which the warrant was executed complied with Cardona's insistence

that police officers serve merely "in an agentival capacity" to the

primary "decisionmaker," the parole officer. 903 F.2d at 65.

In sum, neither the acquisition nor the execution of the

WTC violated the Fourth Amendment's probable cause requirement.

Although law enforcement may not control the decisions of parole

officers during either phase of a parole action, it may serve, in

an auxiliary capacity, during both. On the record before us, we
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conclude that the Task Force officers so served, and therefore

affirm the district court's denial of Scott's motion to suppress.