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United States v. Swisher

United States District Court, D. Nebraska

August 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LINZY M. SWISHER, Defendant.

          ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE.

         Defendant Swisher has moved to suppress all evidence found during the search of her apartment. (Filing No. 28). Swisher was on parole at the time of the search and was subject to conditions of parole, including a search and seizure condition. Nonetheless, Defendant claims her parole officer's entry and search of her apartment violated the Fourth Amendment.

         STATEMENT OF FACTS

         In lieu of an evidentiary hearing, the parties filed stipulated facts. (Filing No. 38). The parties agree that if a suppression hearing was held, Swisher's parole officer, Rachele Brown, would testify consistent with her report. (Filing No. 38, at CM/ECF p. 5-6).

         Defendant Swisher was convicted on March 17, 2017, in the District Court of Cherry County, Nebraska, on a charge of possessing methamphetamine with the intent to deliver. She was sentenced to serve three to eight years in prison. (Filing No. 38, at CM/ECF p. 1).

         As of May of 2018, Defendant was incarcerated within the Nebraska Department of Correctional Services. On May 23, 2018, a certificate of parole was issued which allowed her to be released provided she agreed to conditions of parole and to supervision by a Nebraska parole officer. (Filing No. 38, at CM/ECF pp. 3-4). The Certificate of Parole included a search and seizure requirement which stated:

Your parole officer and/or personnel of the Division of Parole Supervision is permitted to conduct routine searches of your person, residence, vehicle or any property under your control, at such times as they deem necessary.

(Filing No. 38, at CM/ECF p. 3). Defendant agreed to comply with the terms of parole on June 8, 2018, including a search and seizure condition. (Filing No. 38, at CM/ECF pp. 3-4). She was released on parole in June of 2018. (Filing No. 38, at CM/ECF p. 1).

         At approximately 3:00 p.m. on November 19, 2018, Brown and parole officer Oscar Lopez drove to Swisher's residence for an unannounced home visit. (Filing No. 38, at CM/ECF p. 5-6). After arriving at the residence and before exiting the vehicle, Brown called Swisher and asked what she was doing. Swisher paused, then stated she was at CVS and putting money on her debit card to pay for her vehicle's licensing. Brown suspected this statement was not true because Swisher was unemployed.

         Brown directed Swisher to return to her residence so the officer could inspect it. Swisher again paused at length, then asked the officer to come back another time because a friend was fixing Swisher's door. Brown denied this request and stated Swisher must immediately return to the apartment; that the officers were waiting. Swisher agreed to do so.

         By now, Brown suspected Swisher was trying to hide something. So, Brown and Lopez exited their vehicle and approached the apartment. In the hallway outside of Swisher's apartment, they smelled the odor of something burning and could hear someone in Swisher's apartment. Brown knocked on the apartment door several times, and when no one answered, she knocked loudly and announced, "This is parole, you need to open the door." (Filing No. 38, at CM/ECF p. 5-6).

         A man opened the door. Brown stated she was there to see Swisher. The man said Swisher was not home, he did not know when she would return, and he was there to fix the door. Brown identified herself as Swisher's parole officer, explaining she had just talked to Swisher on the phone and the officers were going to enter the apartment and wait for Swisher's return.

         The officers entered the apartment and noticed the air was very smoky with a strong scent of perfume. When asked to explain the smoke, the man claimed a grinder he was using overheated and started smoking. Upon questioning by Lopez, the male identified himself as Jeffrey Halvorsen, a parolee supervised by another Nebraska parole officer.

         As Lopez continued his interview of Halvorsen, Brown began a walkthrough of the apartment. She found a small "shooter" bottle of Jagermeister in the freezer and advised Halverson that the bottle would be confiscated. As Brown approached a closet in the apartment, the closet door flew open. Swisher jumped out and began yelling at Brown. Brown and Lopez asked her why she was in the closet; if there was a back door to the apartment or if Swisher had been hiding in the closet all along.

         Even after being reminded of the search condition of her parole, Swisher was agitated, yelling that the officers were not allowed to enter her home and they had no right to search. Brown and Lopez advised Swisher that she would be restrained for the remainder of the apartment search, and they commanded her to put her hands behind her back. Swisher remained agitated and refused to comply. The officers pat-searched Swisher, finding a cell phone in her left front pocket along with some dollar bills and change. In her right pocket, the officers found a set of keys and a small baggie with a white crystal-like substance. Swisher admitted the baggie contained "meth." (Filing No. 38, at CM/ECF p. 5-6). Brown contacted her supervisor and the Lincoln Police Department for assistance.

         Brown asked Swisher if there was anything else the officer would find in the apartment. Swisher claimed she did not know, explaining people come and go from her apartment. Brown searched a backpack that was on the floor next to the closet. Inside ...


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