United States v. Price

28 F.4th 739

UNITED STATES of America, Plaintiff-Appellee,

v.Mark PRICE, Defendant-Appellant.

No. 20-3191

United States Court of Appeals, Seventh Circuit.

Argued September 14, 2021

Decided March 9, 2022

Pamela Sarah Domash, Attorney, Office of the United States Attorney, Evansville, IN, Bob Wood, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Sarah Marie Konsky, Attorney, University of Chicago Law School, Chicago, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Easterbrook and Brennan, Circuit Judges.

Brennan, Circuit Judge.

After a jury trial, Mark Price was convicted of unlawfully possessing firearms and ammunition as a felon. In this appeal he challenges the district court's denial of his motion to suppress evidence located during warrantless searches, arguing that federal law enforcement used parole officers as a "stalking horse" to circumvent the Fourth Amendment's protections. Price also contests the sufficiency of the evidence underlying his convictions as well as the applicability of various sentencing enhancements.

I

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. As a convicted felon, 18 U.S.C. § 922(g)(1) prohibits Price from possessing ammunition or firearms.

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. He also 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 further agreed:

I understand that I am legally in the custody of the Department of Correction and that my person and residence or property under my control may be subject to reasonable search by my supervising officer or authorized official of the Department of Correction if the officer or official has reasonable cause to believe that the parolee is violating or is in imminent danger of violating a condition to remaining on parole.

Price and the Gun Dealer. Over seven days in October 2018, Price caught the attention of law enforcement. Beginning on October 10, 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. The employee contacted Special Agent Brian Clancy of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Over the next several days, Price called Indy Trading Post multiple times asking about his magazine order.

On October 16, Clancy and fellow ATF agents visited Indy Trading Post looking for Price. The agents waited for him, but he did not arrive, so they left. Price arrived later with his girlfriend, who lived with him at the time. He 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 later called the store, complaining the magazine did not fit "his firearm." He arranged to return to the store. Clancy was contacted and informed of Price's purchases and plan. Clancy decided to disguise himself as a store employee for Price's return.

Price arrived at the store the following day, October 17, driving a Ford Escape and accompanied by a friend. Clancy posed as a store clerk while two other ATF agents hid in the back. Price expressed irritation to store staff that the magazine he had picked up the day before did not work. 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, and then handed it back. At that point Clancy escorted Price to a back room where ATF agents were waiting and arrested him.

The Searches. After Price was arrested, Clancy did not immediately apply for a search warrant. Instead, aware that Price was on parole, Clancy contacted the Indiana Department of Correction and told them that 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. In fact, on the day Price was arrested parole officers had already looked for Price at his place of work and had tentative plans to visit his residence.

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. It is unclear whether they searched at Clancy's request or of their own volition. According to one, Clancy had asked them to "initiate the investigation." But Clancy testified he "did not directly ask them to search the vehicle," but only "asked them to the scene so they could do their job." Regardless, as authorized by the parole agreement, the parole officers searched the vehicle and found a cocked and loaded Smith & Wesson .40 caliber pistol in the center console. Review of the firearm's serial number revealed that it was stolen. The parole officers notified Clancy about the weapon and he obtained and executed a search warrant for the vehicle. No further firearms were discovered in the car.

Following the search of the Ford Escape, Clancy and the parole officers drove Price to his residence where he lived with his girlfriend. There, parole officers conducted a search. Once again, it is unclear whether the parole officers initiated the search or whether Clancy requested that they do so. According to one parole officer, they "were asked to go" to Price's home. But Clancy testified that the parole officers "want[ed] to conduct a search of the Defendant's residence," and that Clancy "followed" the parole officers back to Price's home. In any event, parole officers searched the residence 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. In the bedroom officers found mail addressed to Price. Officers also located .40 caliber ammunition purchased at Indy Trading Post, the receipt for that purchase, and a key to the Oldsmobile van, all in a TV stand in the same room. In the bedroom closet, in a toolbox, the officers also located a firearm, and various ammunition, including .223 caliber. A search inside the Oldsmobile van revealed a Ruger Mini .223 caliber rifle.

A federal grand jury indicted Price, a felon, with 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).

Motions to Suppress and Trial. Before trial, Price moved to suppress the evidence obtained from the searches of the Ford Escape, the Oldsmobile van, and his residence. Price 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 government defended the search on multiple grounds. The stalking horse theory was obsolete, the government argued, and the search by the parole officers complied with the parole agreement because they had reasonable cause to believe Price had violated his parole conditions. Even if the stalking horse theory was valid, the government submitted it did not apply here because the parole officers followed standard procedures by conducting a search after receiving information giving rise to reasonable suspicion that Price had violated the terms of his parole. And regardless of the validity of the stalking horse theory, the government invoked the inevitable discovery doctrine because Clancy had probable cause and could have obtained a search warrant at the time he arrested Price, as well as because the Ford Escape would have been subject to an inventory search after Price's arrest.

The 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, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), United States v. Knights , 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), and Samson v. California , 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) —the court concluded that "the stalking horse theory has no application" to Price's case. Instead, the court framed the inquiry as "whether the Parole Officers' search of Mr. Price's vehicle and residence were reasonable under the circumstances." After weighing Price's diminished privacy expectations as a parolee against the government's heightened interest in supervising parolees, the court was satisfied that no Fourth Amendment violation took place.

Price renewed his motion to suppress during the two-day trial, but the court again denied his motion. After the government concluded its case on the second day of trial, Price moved for acquittal on all three counts under Federal Rule of Criminal Procedure 29. The court denied the motion.

The jury convicted Price on all three counts. He renewed his motion for judgment of acquittal and moved for a new trial, arguing there was insufficient evidence to support the convictions. On Count 1, Price...