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United States v. Swisher

United States District Court, D. Nebraska

September 20, 2019

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

          FINDINGS, RECOMMENDATION AND 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. For the reasons contained herein, the motion to suppress should be denied.

         STATEMENT OF FACTS

         In lieu of an evidentiary hearing, the parties filed stipulated facts. (Filing No. 38). The parties agreed 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). The court nonetheless requested an evidentiary hearing, outlining certain topics to be covered during that hearing. (Filing No. 40). The following outlines the relevant facts as presented in the parties' stipulation and the credible testimony presented at the evidentiary hearing.

         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). Swisher's first parole officer, Officer Johnson, prepared Swisher for parole. Candidates for parole review, sign, and initial the parole agreement before their release. 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).

         Once an individual is paroled and processed out of prison, the parolee, known to the officers as the “client, ” goes to the parole office for orientation. At orientation, the general conditions are read aloud to the client, as well as any special conditions which are tied to a specific client. The search provision is a general provision and all individuals placed on parole are subject to that condition. Brown was not present when Swisher signed her agreement or when Johnson read the provisions aloud. However, the procedure is the same in all cases, and there are no circumstances in which the agreement would not have been reviewed with a client. The policy described is the current policy and the policies of the parole office have not recently changed. Parole clients are required to fill out monthly reports. Swisher regularly prepared and submitted her reports, in English.

         In or shortly before November 2018, Swisher's parole supervision was transferred to Officer Rochelle Brown. Prior to that transfer, Brown had not visited or searched Swisher's home.

         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). Brown did not intend to search Swisher's home. Rather, she was planning to do a routine walk through to look for any obvious parole violations, see how things were going for Swisher, and identify any concerns. November 19 was not a holiday and the visit occurred during the day.

         After parking adjacent to Swisher's apartment, 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, and she suspected that Swisher was attempting to delay the home visit.

         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. In Brown's and Lopez' experience, the odor outside of the home had a burning or chemical odor consistent with the smell of burning methamphetamine. The odor further raised the officers' suspicion of unlawful activity, in part because Swisher had been convicted of possession with intent to distribute methamphetamine. 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. The burning odor was stronger, as was the odor of perfume, as if someone was trying to cover up the burning odor. Upon questioning by Lopez, the male identified himself as Jeffrey Halvorsen, a parolee supervised by another Nebraska parole officer. When asked to explain the smoke and smell in the apartment, Halvorsen claimed a grinder he was using to repair the door had overheated and started smoking. But Lopez noticed the tools ...


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