United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION AND ORDER
R. Zwart United States Magistrate Judge
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.
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.
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).
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).
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.
shortly before November 2018, Swisher's parole
supervision was transferred to Officer Rochelle Brown. Prior
to that transfer, Brown had not visited or searched
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.
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.
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.
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).
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
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 ...