COURT UPHOLDS WARRANTLESS PRE-TRIAL INTERVENTION SEARCH
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 15, 2016, the Eleventh Circuit Court of Appeals decided Castillo v. United States [i], which answered a question of first impression in the Eleventh Circuit, particularly whether, as a condition of pre-trial intervention, a warrantless search of a defendant’s residence is permitted under the Fourth Amendment. The relevant facts of Castillo, taken directly from the case, are as follows:
In 2008, Reynaldo Castillo entered a pretrial intervention program as part of a deferred prosecution agreement with the State of Florida. Florida offers the program to first-time offenders and some second-time offenders, Fla. Stat. § 948.08(2), who are then supervised by probation officers. Although Castillo did not plead guilty in court, he confessed to five counts of burglary and one count of dealing in stolen property. Castillo's pretrial intervention agreement had several conditions, including that he would "neither possess [nor] carry any firearm or weapon," that he would "truthfully answer all inquiries by [his] Pretrial Intervention Officer," that "the officer may visit [his] home . . . or elsewhere without [his] prior approval," that he would "comply with all instructions he or she may give [him]," and that he would "submit to a urinalysis, breathalyzer, or blood tests at any time requested by [his] Pretrial Intervention Officer." If Castillo violated any of these conditions during the 18 months of the program, Florida reserved the right to prosecute him for the charges to which he had confessed.
While Castillo was in the program, Kimberly Greene, the mother of his ex-wife, informed the local probation office that Castillo had a gun. She faxed the officer on duty a copy of a MySpace page with a photograph of a man who appeared to be Castillo. In the photograph, the man held a gun, wore a mask and goggles, and extended his middle finger. The page was entitled "To all you Greene's F**K YOU! your're [sic] all Reynaldo is having a great time with his friends, cause I hang out with female friends." It mentioned Castillo's ex-wife by name and insulted her and her family members. At the bottom it announced, "I promise i will get all of you before i go."
The probation officer on duty, Louis Kurtz, went to Castillo's house to look for the gun. A police officer who accompanied Kurtz for security felt the hood of Castillo's car, which was hot. Kurtz knocked loudly and called Castillo's home and cell phones, but it took about 15 minutes for Castillo to open the door. Castillo denied that he had a gun and objected to the search. Kurtz nonetheless entered the house and saw in Castillo's bedroom a bolt-action rifle, gun cases, multiple calibers of ammunition, Kevlar helmets, and a mask matching the one in the photo.
Based on Kurtz's observations, two police officers applied for a warrant to search Castillo's house. In their affidavit, they swore that Castillo unlawfully possessed firearms "in violation of the laws of the State of Florida, to-wit: The laws prohibiting the possession of firearms in violation of terms of probation contrary to section 948.06." They also stated the details of Kurtz's search and that the pretrial intervention agreement prohibited Castillo from having a firearm. After a state judge issued the warrant, the police seized 13 firearms and over 7,000 rounds of ammunition from Castillo's house.
Federal agents later arrested Castillo, and a jury convicted him of possession of an unregistered short-barreled rifle, 26 U.S.C. § 5861(d); possession of a short-barreled rifle not identified by serial number, id. § 5861(i); possession of an unregistered machine-gun receiver, id. § 5861(d); making a machine-gun receiver, id. § 5861(f); and making a machine gun, id. § 5861(f). The district court sentenced Castillo to 96 months of imprisonment and 3 years of supervised release. We upheld the convictions on appeal. United States v. Castillo, 409 F. App'x 250 (11th Cir. 2010). [ii]
Castillo then moved to vacate his convictions on various grounds. The district court denied his motion, and he appealed the denial of his motion to vacate his convictions to the Eleventh Circuit Court of Appeals, alleging that his counsel was ineffective for failing to move the court to suppress the evidence found in the warrantless search of his residence. Thus, the crux of issue before the court of appeals was whether, pursuant to the terms of Castillo’s pre-trial intervention program, it was reasonable for the pre-trial intervention officer to conduct a non-consensual, warrantless search of Castillo’s residence.
The Eleventh Circuit first noted that neither the Supreme Court nor they had previously decided the issue presented in this case. The court observed that, in the United States v. Knights [iii], the Supreme Court upheld the warrantless, suspicionless search of a parolee’s residence based on a condition of parole. Further, the Eleventh Circuit also observed that, in the United States v. Carter [iv], they upheld a warrantless search of probationer’s residence that was based upon reasonable suspicion and a condition of probation.
The court also noted that the rationale to uphold such a search was basically premised on three reasons. First, probationers have a diminished expectation of privacy based on their legal status. Second, the state had an important governmental interest in rehabilitating individuals and preventing them from re-offending. And third, reasonable suspicion of a violation was present at the time of the search.
The court then applied the three reasons above to Castillo’s case. First, the court noted that Castillo’s participation in the pre-trial intervention program resulted in a diminished expectation of privacy. The terms of his intervention required him to submit to blood and urine tests, not possess certain items such as guns, and to submit to requests of the pre-trial intervention officer. As such, this, much like probation, amounted to a diminished expectation of privacy.
Second, the noted that the state has interests in rehabilitating participants in pre-trial intervention as well as preventing them from committing additional crimes. The court stated:
The Supreme Court has "repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment." Samson, 547 U.S. at 853. This interest serves both offenders the state hopes to rehabilitate and citizens the state seeks to protect from future crimes committed by the offender. See id. at 853-54; Knights, 534 U.S. at 120-21.The Supreme Court has also recognized that parolees and probationers convicted of a crime are more likely to offend than the typical citizen. See Samson, 547 U.S. at 853; Knights, 534 U.S. at 120-21. Although an individual in pretrial intervention may not be as likely to reoffend as a parolee or probationer, Castillo entered pretrial intervention to rehabilitate himself and prevent recidivism. And Florida could expect that Castillo would be more likely than the average citizen to commit a crime. As a result, Florida could make reasonable intrusions to deter him from offending again.
Warrantless searches of participants in pretrial intervention to ensure compliance with the program can be reasonable under the Fourth Amendment. As an initial matter, the threat of warrantless searches may deter wrongdoing before it begins. Cf. United States v. Kincade, 379 F.3d 813, 838-39 (9th Cir. 2004) (discussing the deterrent effect of DNA tests on supervised releasees). And if deterrence fails, a warrantless search can help catch a wayward participant. [v]
As such, because the Castillo had a diminished expectation of privacy in his status in the pre-trial intervention program, and because the state had an interest in rehabilitating offenders in the pre-trial intervention program and preventing them from re-offending, the court stated that the warrantless search pursuant to a condition of pre-trial intervention is lawful under the Fourth Amendment as long as the officer had reasonable suspicion that Castillo was involved in a crime or a violation of his pre-trial intervention program. Particularly, the court stated:
Officer Kurtz was entitled to conduct a warrantless search of Castillo's house so long as he had reasonable suspicion of a crime or a violation of the pretrial intervention program. "Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term 'probable cause,' a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." Knights, 534 U.S. at 121. The Supreme Court required only reasonable suspicion to search the probationer in Knights, and we likewise required only reasonable suspicion to search the probationer in Carter. See id.; Carter, 566 F.3d at 975. Because the pretrial intervention program reduced Castillo's expectation of privacy and gave Florida strong interests in conducting a search, we conclude that Kurtz too needed only reasonable suspicion. [vi] [emphasis added]
The court then examined whether the pre-trial intervention officer had reasonable suspicion that Castillo was violating the terms of his program or violating the law. The court observed that Castillo’s ex-mother-in-law, provided a faxed MySpace page to the pre-trial intervention officers that showed someone who appeared to be Castillo holding a gun, wearing tactical gear, extending his middle finger, and stating profanity toward his ex-wife’s family, while stating that he would “get all of them.” When the pre-trial intervention officer arrived at Castillo’s residence with a police officer as back-up, it took 15 minutes for Castillo to answer the door. Based on these facts, the Eleventh Circuit held that the pre-trial intervention officer had sufficient reasonable suspicion to believe that Castillo was violating the terms of his pre-trial program.
As such, the court held the search was lawful and since the search was lawful, he cannot show that his previous counsel was ineffective. Therefore, the Eleventh Circuit affirmed the denial of the decision to vacate his sentence.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-11757 (11th Cir. Decided March 15, 2016)
[ii] Id. at 3-5
[iii] 534 U.S. 112 (2001)
[iv] 566 F.3d 970 (11th Cir. 2009)
[v] Castillo at 9-10
[vi] Id. at 10-11