United States District Court, N.D. Georgia, Atlanta Division
TIMOTHY C. BATTEN, SR. UNITED STATES DISTRICT JUDGE
case comes before the Court on Magistrate Judge Linda T.
Walker's Final Report and Recommendation (the
“R&R”) , which recommends denying
Defendant Keola Spence's motions [14, 15] to suppress
statements and evidence. Spence has filed objections  to
the R&R regarding the evidence.
is charged in a one-count indictment with knowingly
possessing a firearm after having been convicted as a felon,
in violation of 18 U.S.C. § 922(g)(1). Spence seeks to
suppress evidence obtained by the police following a
compliance check and search of his residence on December 7,
2016. The facts of the case are not disputed and the Court
adopts the facts as set forth in the R&R.
Legal Standard on Review of a Magistrate Judge's
district judge has a duty to conduct a “careful and
complete” review of a magistrate judge's R&R.
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.
1982) (per curiam) (quoting Nettles v. Wainwright,
677 F.2d 404, 408 (5th Cir. Unit B 1982)). This review may
take different forms, however, depending on whether there are
objections to the R&R. The district judge must
“make a de novo determination of those portions of the
[R&R] to which objection is made.” 28 U.S.C. §
636(b)(1)(C). In contrast, those portions of the R&R to
which no objection is made need only be reviewed for
“clear error.” Macort v. Prem, Inc., 208
Fed.Appx. 781, 784 (11th Cir. 2006) (per curiam) (quoting
Diamond v. Colonial Life & Accident Ins., 416
F.3d 310, 315 (4th Cir. 2005)).
filing objections must specifically identify those findings
objected to. Frivolous, conclusive or general objections need
not be considered by the district court.”
Nettles, 677 F.2d at 410 n.8. “This rule
facilitates the opportunity for district judges to spend more
time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.”
Id. at 410.
conducting a complete and careful review of the R&R, the
district judge “may accept, reject, or modify”
the magistrate judge's findings and recommendations. 28
U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at
732. The district judge “may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1)(C).
Spence's Objections to the R&R
objects to the R&R's conclusion that the warrantless
search in this case was reasonable. Specifically, Spence
objects to the conclusion that no reasonable suspicion was
required. As such, the Court will consider these questions de
R&R relies heavily on Samson v. California, 547
U.S. 843 (2006), in which the Supreme Court held that a
police officer's search of a parolee without reasonable
suspicion was lawful where the parolee was subject to a
California state law providing that parolees “shall
agree in writing to be subject to search or seizure by a
parole officer or other peace officer at any time of the day
or night, with or without a search warrant and with or
without cause.” Id. at 846 (quoting Cal. Penal
Code Ann. § 3067(a)). The magistrate judge pointed out
that Spence, like Samson, was a parolee subject to conditions
imposed by the State Board of Pardons and Paroles that
greatly restricted his freedom and had agreed to, among other
conditions, warrantless searches of his person, papers, and
place of residence.
magistrate judge further pointed to Georgia's concern
that a parolee will be more likely than an average citizen to
engage in criminal conduct and concluded that the focus on
parolees is justified by the state's interest in
protecting potential victims, reducing recidivism, and
promoting reintegration into society. The R&R concluded
that the conditions of Spence's release so diminished his
expectation of privacy that even a suspicionless search did
not violate his Fourth Amendment rights.
objections would require the Court's agreement on two
arguments: (1) that Georgia state law controls the inquiry;
and (2) that Georgia courts require that searches of a
parolee be accompanied by reasonable suspicion. Even if the
Court were to agree with Spence's first argument (which
it does not, see United States v. Bembry, 321
Fed.Appx. 892, 894 (11th Cir. 2009) (“[T]he
admissibility in federal court of the products of state
searches and seizures is controlled by federal law.”)
(alteration in original) (quoting United States v.
Clay, 355 F.3d 1281, 1283 (11th Cir. 2004) (per
curiam)), his second argument fails. The Eleventh Circuit has
clearly held that a parole certificate requiring a parolee to
submit to a search “at any time” without a
warrant authorized a suspicionless search. United States
v. Stewart, 213 Fed.Appx. 898, 899 (11th Cir. 2007).
arguing to the contrary, Spence relies on two cases,
Thomas v. State, 651 S.E.2d 116 (Ga.Ct.App. 2007),
and State v. Cauley, 638 S.E.2d 351 (Ga.Ct.App.
2006), for the proposition that a parolee is entitled to
privacy such that a search requires reasonable suspicion.
However, these cases say no such thing. They quote language
from Samson and earlier cases holding that a search
of a probationer with reasonable suspicion is allowed, and
hold that a similar search of a parolee, whose rights are
less than those of a probationer, certainly is permissible.
They state no holding about whether a search of a parolee
requires reasonable suspicion. In fact, Cauley
explicitly avoids the issue. 638 S.E.2d at 356
(“Pretermitting whether or not reasonable suspicion is
required, we find that the officers did have reasonable
grounds . . . .”). Therefore, the Court concludes that
Georgia law did not require reasonable suspicion before a
search of Spence's property.
further objects to the R&R's reliance on
Samson, arguing that the case is distinguishable for
two reasons: (1) the search provision here does not contain
the “without cause” language in the relevant
portion of the California Penal Code that applied in
Samson; and (2) the search provision here is not a
standard or special condition of parole. Regarding
Spence's first argument, the Eleventh Circuit decided
Stewart based on language similar to that at issue
here (“at any time” without a warrant). 213
Fed.Appx. at 899. Regarding his second, as the magistrate
judge pointed out in the R&R, the DCS website clarifies
that its list of special conditions was not exhaustive; the
State Board of Pardons and Paroles subsequently imposed
additional conditions, and indicated that the search
provision was a standard condition under which parole was to
be granted. Further, Spence has not ...