In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-4175

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEREMY D. HAGENOW,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 03 CR 134—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED JUNE 3, 2005—DECIDED AUGUST 31, 2005

____________

Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Jeremy Hagenow filed a motion

to suppress evidence, including several firearms, seized

during a search of his home. The district court ruled that in

light of the Supreme Court’s decision in United States v.

Knights, 534 U.S. 112 (2001), officers needed

only reasonable suspicion that Hagenow was engaged in

criminal activity in order to conduct the search because he

had signed a waiver of his search and seizure rights while

on probation. Finding that reasonable suspicion existed in

this case, the district court denied the motion to suppress,

and a jury subsequently convicted Hagenow of being a felon

in possession of a firearm. He appeals his conviction and

sentence. Because the district court correctly denied
2 No. 04-4175

Hagenow’s motion to suppress, we affirm his conviction.

However, we remand to the district court for resentencing

as the court improperly considered an affidavit when

determining the nature of Hagenow’s prior conviction for

criminal confinement. In addition, Hagenow should not

have received a criminal history point for his prior conviction for possessing a police scanner.

I. BACKGROUND

As part of his sentence for an August 2000 criminal

confinement conviction, an Indiana state court placed

Jeremy Hagenow on probation. When he was placed on

probation, Hagenow signed a document that read in part:

“You shall waive any and all rights as to search and seizure

during your period of probation, and submit to search of

your person or property by any police officer if a search is

requested by a probation officer of this court.” His conditions of probation also included a prohibition on owning or

possessing firearms and dangerous weapons.

In July 2003, while still on probation, Hagneow was

charged with illegally shooting a deer with a shotgun. After

learning of this charge, Robert Schuster, Hagenow’s

probation officer, asked Hagenow to submit to a lie detector

test. The examiner reported to Schuster that Hagenow was

deceptive in responding “no” when asked if he had shot a

deer with a shotgun. As a result, the local prosecutor’s office

requested an investigation as to whether Hagenow, a felon

on probation, possessed a shotgun, and law enforcement

officials contacted a confidential informant who knew

Hagenow and had provided information in the past that led

to the conviction of other defendants.

The confidential informant told LaPorte County Officer

Joseph Morrison that while outside Hagenow’s home in

early July of 2003, he saw a handgun in Hagenow’s possession, which Hagenow stated was a .357 revolver. The same
No. 04-4175 3

confidential informant also told Morrison that in late July

or early August of 2003, he was again at Hagenow’s home

when he saw him get out of a pickup truck carrying a long

gun case. Hagenow told the informant that the case contained a shotgun that he had used earlier that day at his

father’s residence. The informant also told Morrison that on

August 19, 2003, the informant was inside Hagenow’s home

when Hagenow showed him a 12 gauge shotgun. In addition, when the informant inquired about the revolver he

had seen on a previous visit, Hagenow replied that he still

had it.

Two days later, Officer Morrison testified to these facts at

a state court hearing in conjunction with an application for

a search warrant for Hagenow’s home. The court found

probable cause and issued a search warrant authorizing the

search of Hagenow’s residence for “(1) a 12 Gauge Shotgun;

(2) a .357 Caliber Revolver; (3) any and all evidence relevant to the commission of a crime.” On August 22, 2003,

Officer Morrison, accompanied by Probation Officer

Schuster and other officers, executed the warrant. Officers

found a rifle and ammunition inside Hagenow’s home. After

Hagenow gave the officers the keys to his vehicles, the

officers also found a handgun and ammunition parts in each

of two trucks parked in the driveway. The searches did not

produce a .357 handgun or 12 gauge shotgun.

Hagenow was charged with unlawfully possessing

firearms and ammunition. The district court denied

Hagenow’s motion to suppress the firearms and ammunition. A jury convicted Hagenow of possessing ammunition,

the rifle found in the spare bedroom, and one of the handguns found in one of the trucks. Using the 2004 version of

the United States Sentencing Guidelines, the district court

sentenced Hagenow to 57 months’ imprisonment. Hagenow

now appeals.
4 No. 04-4175

II. ANALYSIS

A. Motion to Suppress

Hagenow first contends the district court erred when it

denied his motion to suppress firearms and ammunition

seized during the search of his home and vehicle. In our

review of a district court’s denial of a motion to suppress,

we review de novo all questions of law, including the

existence of reasonable suspicion to believe that a crime has

been committed. United States v. Johnson, 383 F.3d 538,

542 (7th Cir. 2004). We review findings of fact for clear

error. United States v. Banks, 405 F.3d 559, 570 (7th Cir.

2005).

Hagenow argues that the state court improperly issued

the search warrant because it was based on unreliable,

stale information. In addition, he maintains, a warrant was

necessary because probation officers should not be permitted to conduct a warrantless search of a probationer’s

property absent a valid regulatory scheme. The government, in contrast, contends that under United States v.

Knights, 534 U.S. 112 (2001), if the officers had reasonable

suspicion that Hagenow was engaged in unlawful activity,

a warrantless search of his residence was authorized. In

addition, the government maintains, the officers had

reasonable suspicion here. We agree with the government

that the search was proper.

The Supreme Court’s decision in Knights forecloses

Hagenow’s argument that any possible infirmities in the

search warrant rendered the search improper. The probationer in Knights had agreed in writing that while on

probation, he would submit his “person, property, place of

residence, vehicle, personal effects, to search at anytime,

with or without a search warrant, warrant of arrest or

reasonable cause by any probation officer or law enforcement officer.” Knights, 534 U.S. at 114. Reasoning that the

probation condition to which the probationer had agreed
No. 04-4175 5

“significantly diminished” his reasonable expectation of

privacy, the Court held that “no more than reasonable

suspicion” was necessary to search the probationer’s home.

Id. at 121. Further, the Court made clear, when an officer

has reasonable suspicion that a probationer subject to a

search condition is engaged in criminal activity, a warrant is not necessary. Id. at 122.

Like the probationer in Knights, Hagenow signed a

specific waiver of rights regarding searches during probation, agreeing to “waive any and all rights as to search and

seizure” while on probation and to “submit to search of [his]

person or property by any police officer if a search is

requested by a probation officer.” Knights made clear that

the officers needed no more than reasonable suspicion to

justify the search of his home while he was on probation.

“Reasonable suspicion amounts to something less than

probable cause but more than a hunch,” United States v.

Baskin, 401 F.3d 788, 791 (7th Cir. 2005), and exists when

there is some “ ‘objective manifestation’ that a person is, or

is about to be, engaged in prohibited activity.” Knox v.

Smith, 342 F.3d 651, 659 (7th Cir. 2003). Ultimately, a

court’s determination of reasonable suspicion “must be

based on common-sense judgments and inferences about

human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125

(2000).

Here, both federal law and the conditions of Hagenow’s

probation prohibited him from possessing firearms. A

confidential informant who had provided reliable information to law enforcement officials in the past reported that on

three occasions in the two months before the search, the

informant was at Hagenow’s home when Hagenow showed

him firearms. One of these instances, when Hagenow

showed the informant a 12 gauge shotgun, occurred only

three days before the August 22, 2003 search. Hagenow also

told the informant that day that he still possessed a
6 No. 04-4175

revolver. In addition, the probation officer knew that

Hagenow had recently failed a lie detector test after he was

charged with shooting a deer with a shotgun. Under these

circumstances, we agree with the district court and the

government that there was reasonable suspicion that

Hagenow unlawfully possessed firearms at his residence,

thereby justifying the search of his home.

Moreover, we recently addressed a question left open by

Knights—whether a waiver like the one Hagenow signed

“so diminished, or completely eliminated, [a probationer’s] reasonable expectation of privacy (or constituted

consent) that a search by a law enforcement officer without

any individualized suspicion would have satisfied the

reasonableness requirement of the Fourth Amendment.”

Knights, 534 U.S. at 120 n.6. In United States v. Barnett,

415 F.3d 690 (7th Cir. 2005), we considered an agreement

by a probationer to “submit to searches of [his] person,

residence, papers, automobile and/or effects at any time

such requests are made by the Probation Officer, and

consent to the use of anything seized as evidence in Court

proceedings.” 415 F.3d at 691. We held that this blanket

waiver of Fourth Amendment rights as a condition of

probation—a waiver similar to that signed by

Hagenow—was enforceable, and that the existence of such

a waiver alone justified the search of the probationer’s

home. Id. at 691-92.

Finally, the waiver Hagenow signed as a condition of his

probation forecloses his attempt to suppress the evidence

recovered during the search of his home, and the Griffin v.

Wisconsin, 483 U.S. 868 (1987), “special needs” doctrine

does not apply here. In Griffin, the Supreme Court upheld

the warrantless search of a probationer’s residence conducted pursuant to a Wisconsin regulation permitting any

probation officer to search a probationer’s home as long as

there were “reasonable grounds” to believe there was

contraband inside. Id. at 876. The Court held that a state’s
No. 04-4175 7

operation of its probation system presented a “special need”

for the exercise of supervision to assure that probation

restrictions were observed. Id.

Relying on Griffin, Hagenow argues that a probation

officer cannot conduct a warrantless search of a probationer’s property absent a valid regulatory scheme, and that

no “special need” exists here. This argument is unsound.

The Knights Court explicitly rejected as “dubious logic” the

argument that a warrantless search of a probationer’s home

satisfies the Fourth Amendment only if it is a “special

needs” search, stating that it runs contrary to Griffin’s

express statement that its “special needs” holding made it

“unnecessary to consider whether” warrantless searches of

probationers were otherwise reasonable under the Fourth

Amendment. Knights, 534 U.S. at 117-18 (citing Griffin, 483

U.S. at 878). Because Hagenow signed a waiver agreeing to

submit to searches while on probation, this case falls under

Knights and its progeny, not Griffin, and the “special needs”

test does not apply.

B. “Crime of Violence” Enhancement

Hagenow also takes issue with the sentence he received,

a sentence imposed before the Supreme Court’s decision

in United States v. Booker, 125 S. Ct. 738 (2005). Hagenow

first contests the district court’s determination that his

prior conviction for criminal confinement in Indiana state

court constitutes a “crime of violence” under U.S.S.G.

§ 2K2.1(a)(4)(A). This determination increased Hagenow’s

offense level from level 12 to level 20, thereby increasing his

sentence. See U.S.S.G. § 2K2.1(a)(4)(A) (setting base offense

level at 20 if “the defendant committed any part of the

instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance

offense” and no other provision applies to establish higher

base offense level).
8 No. 04-4175

Citing Booker, Hagenow contends that his Sixth Amendment right to a trial by jury was violated when a judge

rather than a jury determined that his prior conviction

constituted a “crime of violence.” We rejected this challenge

in United States v. Lewis, 405 F.3d 511, 513 (7th Cir. 2005),

pointing to the Supreme Court’s exclusion of prior convictions in Booker: “ ‘Any fact (other than a prior conviction)

which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant

or proved to the jury beyond a reasonable doubt.’ ” Lewis,

405 F.3d at 513 (emphasis in Lewis) (citing Booker, 125 S.

Ct. at 756).

However, we also recognized in Lewis that the district

court in that case made a non-constitutional error when

it evaluated whether the defendant’s prior conviction

constituted a “crime of violence” for the purposes of

U.S.S.G. § 2K2.1(a)(4). Lewis, 405 F.3d at 513. The Guidelines define “crime of violence” in this instance to include

any offense punishable by more than one year of imprisonment that “involves conduct that presents a serious potential risk of physical injury to another” or that has as an

element “the use, attempted use, or threatened use of

physical force against the person of another.” U.S.S.G. §

2K2.1(a)(4), cmt. n.1; U.S.S.G § 4B1.2.

A conviction for criminal confinement under Indiana law

is not necessarily a conviction for a “crime of violence.”

Indiana Code § 35-42-3-3 (2004) provides that

(a) A person who knowingly or intentionally:

(1) confines another person without the

other person’s consent; or

(2) removes another person, by fraud, enticement, force, or threat of force, from one

(1) place to another; . . .

commits criminal confinement.
No. 04-4175 9

Criminal confinement does not contain the use, attempted

use, or threatened use of physical force as a requisite

element. In addition, criminal confinement under Indiana

law does not necessarily involve conduct that presents a

“serious potential risk of injury to another.” One could, for

example, confine another person without consent in a

manner that, although unpleasant, does not present “a

serious potential risk of physical injury” to the other.

Therefore, the district court had to look beyond the simple

fact of conviction to determine whether Hagenow’s prior

conviction constituted a “crime of violence.” Shepard v.

United States, 125 S. Ct. 1254 (2005) and Taylor v. United

States, 495 U.S. 575, 600-02 (1990) hold that in such a

situation, a judge is “ ‘generally limited to examining the

statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant

assented.’ ” Shepard, 125 S. Ct. at 1257 (opinion of the

court); see Lewis, 405 F.3d at 514-15. We explained in

Lewis, which like here involved a district court’s evaluation

of a prior conviction under Indiana law, that “[a]ffidavits

attached to an information as part of Indiana practice are

not part of the ‘charging document’ for this purpose.” Lewis,

405 F.3d at 514-15. The documents listed in Shepard, we

noted, are designed to help identify the crime that was

committed, while affidavits shed light on how a defendant

committed a crime. Id. at 515. An affidavit’s content might

impact where in the sentencing range a district court

chooses to sentence a defendant, a result that would

“misconceive the nature of a recidivist enhancement”, as

“[w]hat matters is the fact of conviction, rather than the

facts behind the conviction.” Id. Because the district court

judge in Lewis had examined the affidavit in determining

whether the prior conviction constituted a “crime of violence,” we remanded the case for resentencing. Id.

Here, the district court judge, acting without the bene-
10 No. 04-4175

1 The record in this appeal contains neither the information nor

the affidavit from Hagenow’s criminal confinement case.

fit of the Shepard or Lewis decisions, stated that he looked

to the information and affidavit in support of probable

cause in Hagenow’s prior felony case in order to determine

the nature of his criminal confinement conviction.1

 He then

concluded that the prior conviction constituted a crime

of violence. As the government acknowledges, we know after

Lewis that examination of the affidavit was improper. We

therefore vacate Hagenow’s sentence and remand for

resentencing in accordance with Shepard and Lewis.

C. Computation of Criminal History

We also agree with Hagenow that when he is resentenced,

he should not receive a criminal history point for his prior

misdemeanor conviction for possession of a police scanner,

a class B misdemeanor under Indiana state law. The

Sentencing Guidelines provide that when computing a

defendant’s criminal history, sentences for misdemeanor

and petty offenses generally are counted, U.S.S.G. §

4A1.2(c), except as provided in U.S.S.G. §§ 4A1.2(c)(1) and

4A1.2(c)(2). Section 4A1.2(c)(1) states that fifteen enumerated offenses and “offenses similar to them,” are counted

only if: “(A) the sentence was a term of probation of at least

one year or a term of imprisonment of at least thirty days”

(a provision the parties agree does not apply), or “(B) the

prior offense was similar to an instant offense.” In addition,

U.S.S.G. §4A1.2(c)(2) provides that the offenses it enumerates (hitchhiking, juvenile status offenses and truancy,

loitering, minor traffic infractions (e.g., speeding), public

intoxication, and vagrancy), as well as “offenses similar to

them,” are never counted in computing a defendant’s

criminal history.
No. 04-4175 11

Indiana Code § 35-44-3-12 provides that, with certain

exceptions, an individual who knowingly or intentionally

possesses a police radio commits the crime of unlawful

use of a police radio. Because possession of a police scanner

is not listed in the offenses contained in § 4A1.2(c),

Hagenow’s prior conviction must be counted in determining

his criminal history unless it is “similar to” one of the

enumerated offenses.

Although Indiana state law defines Hagenow’s offense for

possession of a police scanner, whether the offense is

similar to an offense listed in § 4A1.2(c) is a matter of

federal law. See United States v. Roy, 126 F.3d 953, 954 (7th

Cir. 1997) (citation omitted). We have not adopted a formal

test for determining whether an offense is “similar to” an

enumerated offense. Id.; United States v. Binford, 108 F.3d

723, 726 (7th Cir. 1997). Instead, we have employed a

“common sense” comparison. Roy, 126 F.3d at 954; see also

United States v. Harris, 325 F.3d 865, 872 (7th Cir. 2003)

(noting that comparing punishments imposed, perceived

seriousness of the offense, elements of the offense, level of

culpability, and indication of recurring conduct can be

helpful in comparison). Our goal in this inquiry is to

determine whether the prior conviction is “categorically

more serious” than the listed offenses. Harris, 325 F.3d at

872 (citing United States v. Booker, 71 F.3d 685, 689 (7th

Cir. 1995)) (quoting United States v. Caputo, 978 F.2d 972,

977 (7th Cir. 1992)). No published federal court decision has

yet addressed whether possession of a police scanner is

similar to one of the enumerated offenses.

Common sense tells us that the crime of possessing a

police scanner under Indiana law is similar to offenses

listed in § 4A1.2(c)(2). The United States Sentencing

Commission did not attempt to survey every misdemeanor and petty offense in every state when it listed

offenses in this section, nor did it purport to. Rather, the

Commission promulgated guidelines stating that the
12 No. 04-4175

listed offenses and those “similar to” them were to be

excluded from the criminal history computation, so long

as, in the case of § 4A1.2(c)(2), the sentence did not exceed

certain thresholds. The government’s explanation of why a

police scanner should be counted in determining a defendant’s criminal history—“possessing a police scanner is a

way for individuals engaged in criminal conduct to avoid

being apprehended”—sounds remarkably like a description

for hindering police or resisting arrest. See, e.g., Ind. Code

§ 35-44-3-3(a)(2) (stating that a person commits misdemeanor resisting law enforcement when he or she “forcibly

resists, obstructs, or interferes with the authorized service

or execution of a civil or criminal process or order of a

court”).

The government has also not identified to us any quality

about possessing a police scanner that makes it more

serious than the enumerated crimes. Cf. Roy, 126 F.3d

at 955 (finding marijuana use not “similar to” public

intoxication because decision to use an illicit drug is

more culpable and involves more criminal intent than

overindulgence in non-controlled substance); United States

v. Dillon, 905 F.2d 1024, 1039 (7th Cir. 1990) (finding

prior conviction for resisting arrest and battery not “similar

to” offenses listed in § 4A1.2(c)(1), where none of the listed

offenses was similar to battery). We find it hard to believe

that possessing a police radio is more serious than hindering or failing to obey a police officer, leaving the scene of an

accident, furnishing false information to a police officer,

resisting arrest, reckless driving, or contempt of court, all

of which are enumerated in § 4A1.2(c)(2). A person commits

misdemeanor resisting arrest in Indiana, for example, when

that person “knowingly or intentionally forcibly resists,

obstructs, or interferes with a law enforcement officer or a

person assisting the officer while the officer is lawfully

engaged in the execution of his duties as an officer.” Ind.

Code § 35-44-3-3(a)(1). The Indiana Supreme Court has
No. 04-4175 13

held that one “forcibly resists” within the meaning of the

statute when “strong, powerful, violent means are used to

evade a law enforcement official’s rightful exercise of his or

her duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind.

1993). In addition, misdemeanor resisting arrest in Indiana

is a class A misdemeanor, carrying with it a punishment of

up to one year in prison and a $5000 fine. Ind. Code §§ 35-

44-3-3(a); 35-50-3-2. Hagenow’s prior conviction, in contrast,

was a class B misdemeanor with a lower maximum punishment of only 180 days in prison and a $1000 fine. Ind. Code

§§ 35-44-3-12; 35-50-3-3. Common sense tells us that

possessing a police scanner is not “categorically more

serious” than resisting arrest, and if resisting arrest can be

excluded from a defendant’s criminal history, so should the

mere possession of a police scanner.

The inclusion of a criminal history point for Hagenow’s

prior conviction for possessing a police scanner placed

him in Criminal History Category IV and resulted in a

sentencing range of 51 to 63 months. The district court

selected a sentence at the middle of this range, 57 months.

Had the conviction been properly excluded, Hagenow’s

criminal history would have placed him in Criminal History

Category III, with a sentencing range of only 41 to 51

months. Therefore, even under the plain error standard of

review the government advocates, Hagenow should not

receive a criminal history point for his conviction for

possessing a police scanner. See United States v. Spears,

159 F.3d 1081, 1088 (7th Cir. 1998) (improperly including

prior conviction in criminal history computation that

resulted in increase to defendant’s sentence constituted

plain error); United States v. Wallace, 32 F.3d 1171, 1174-75

(7th Cir. 1994).
14 No. 04-4175

III. CONCLUSION

For the foregoing reasons, Jeremy Hagenow’s conviction

is AFFIRMED. We VACATE his sentence and REMAND for

resentencing in accordance with this opinion. The district

court should resentence Hagenow in accordance with

United States v. Booker, 125 S. Ct. 738 (2005).

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-31-05