7th Circuit rejects felon’s ‘stalking horse’ argument

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In a case of first impression, the 7th Circuit Court of Appeals denied a “stalking horse” argument made by a convicted felon on parole who was caught unlawfully possessing firearms.

Mark Price shot and killed a man, for which he was convicted of felony aggravated battery. He was convicted later of possessing a firearm as a felon.

In January 2018, Price signed a conditional parole release agreement under which he agreed not to engage in any criminal conduct or possess any firearms or weapons, and consented to “allow [his] supervising officer or other authorized officials of the Department of Correction to visit [his] residence and place of employment at any reasonable time.”

Price caught the attention of law enforcement in October 2018 after he visited a firearms and ammunition dealer, Indy Trading Post, and ordered a Ruger rifle magazine. Consistent with store policy, an employee ran a background check, which revealed Price’s previous felony convictions, so he contacted Special Agent Brian Clancy of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

During a later visit, Price told a store worker that he wished to pick up the Ruger rifle magazine he had ordered. Unknown to Price, his order with the store’s distributor had not been placed pending the ATF’s investigation.

Instead of an operable rifle magazine, the employee gave Price an inoperable magazine shell. While at the store, Price also purchased a box of .40 caliber ammunition and a holster and left with those items.

Price returned to the store the following day, where Clancy posed as a store clerk while two other ATF agents hid in the back. Price said he and his friend wished to use the shooting range, and Price was interested in renting a firearm because “his 40 was too much” for his friend to wield. While examining rental firearms with staff, Price took possession of one of the weapons, examined it, brought it up into a shooting position, then handed it back.

At that point, Clancy escorted Price to a back room where ATF agents were waiting and arrested him.

Clancy did not immediately apply for a search warrant after Price was arrested. Instead, aware that Price was on parole, he contacted the Indiana Department of Correction and told them Price was in custody. Clancy had previously informed parole officers that he was investigating Price, and they were aware of Price’s attempt to purchase the rifle magazine

After Clancy contacted state authorities, three parole officers arrived at Indy Trading Post and searched the Ford Escape that Price had driven to the store. As authorized by the parole agreement, officers searched the vehicle and found a cocked and loaded Smith & Wesson .40 caliber pistol.

Following the search of the vehicle, Clancy and the parole officers drove Price to his residence where he lived with his girlfriend. There, parole officers conducted a search of the house with Price while Clancy waited outside.

During that search, the parole officers discovered ammunition and immediately notified Clancy. Clancy then requested, received and executed a search warrant for the home, a parked Oldsmobile van in the driveway and an outbuilding.

Officers located .40 caliber ammunition purchased at Indy Trading Post, the receipt for that purchase and a key to the Oldsmobile, all in a TV stand in a bedroom. In a toolbox found in the bedroom closet, the officers also located a firearm and various ammunition, including .223 caliber. A search inside the Oldsmobile revealed a Ruger Mini .223 caliber rifle.

A federal grand jury indicted Price on one count of unlawful possession of the .40 caliber ammunition he bought at Indy Trading Post and two counts of unlawful possession of a firearm for the .40 caliber pistol found in the center console of the Ford Escape and the .223 caliber rifle discovered in the Oldsmobile van, all in violation of 18 U.S.C. § 922(g)(1).

Before trial, Price moved to suppress the evidence obtained from the searches of the Ford Escape, the Oldsmobile van and his residence. He argued the warrantless parole searches violated the Fourth Amendment because the parole officers acted as a “stalking horse” on behalf of the ATF, allowing Clancy to circumvent typical warrant and probable cause requirements.

The Indiana Southern District Court denied Price’s motion to suppress and his request for an evidentiary hearing after considering several Supreme Court precedents, including Griffin v. Wisconsin, 483 U.S. 868 (1987), United States v. Knights, 534 U.S. 112 (2001), and Samson v. California, 547 U.S. 843 (2006).

Price renewed his motion to suppress during his two-day trial, but the court again denied his motion, as well as a subsequent motion for acquittal under Federal Rule of Criminal Procedure 29. The jury then convicted on all three counts.

Price renewed his motion for judgment of acquittal and moved for a new trial, arguing there was insufficient evidence to support the conviction. That too was denied.

After three enchantments were applied, Price was sentenced to 92 months for each of the three counts, to be served concurrently, followed by three years of supervised released.

On appeal, Price challenged the district court’s denial of his motion to suppress, its rulings on the sufficiency of the evidence for the second and third counts, and its imposition of the three sentencing enhancements. The 7th Circuit Court of Appeals ruled against Price on each challenge.

As to suppression of evidence, the appellate court found there was reasonable cause to believe Price was in violation of his parole.

“… Price’s status as a parolee and the terms of his parole agreement lessened his privacy expectations while bolstering the government’s legitimate interests in conducting a search,” 7th Circuit Judge Michael Brennan wrote. “The terms of Price’s parole agreement were not breached — either by parole officers, who had ‘reasonable cause’ to believe Price was in violation of parole, or by Clancy, whose searches were authorized by search warrants independent of the parole agreement.”

The 7th Circuit also shot down the “stalking horse” argument.

“We now hold that when the government relies on the totality-of-the-circumstances analysis as articulated in Knights and Samson to justify a parole search under the Fourth Amendment, the stalking horse theory has no application,” Brennan wrote. “We reserve for another day whether the doctrine has viability for searches that rely solely on the ‘special needs’ of a state’s parole system.

“Because the government does not rely on the ‘special needs’ of Indiana’s parole system to justify the searches of Price’s property and residence, it is irrelevant whether parole officers initiated their searches of Price’s vehicle and residence of their own volition or at Clancy’s request.”

Upon further review, the 7th Circuit also determined the district court didn’t err as to the sufficiency of the evidence or in tacking on the three sentence enhancements.

The case is United States of America v. Mark Price, 20-3191.

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