M.D.Pa.: “Stalking horse” theory of police involvement in probation searches is apparently no longer valid

The “stalking horse” theory of police involvement in probation searches is apparently no longer valid. United States v. Flowers, 2015 U.S. Dist. LEXIS 71673 (M.D.Pa. May 14, 2015):

2. “Stalking horse” theory

Defendant’s second contention is that the probation officer’s search was illegal because it was merely a ruse or “stalking horse” for what was actually intended as a police investigation. In other words, defendant contends that Brown’s search was undertaken at the request of and in concert with law enforcement officers, and maintains that Brown used his ability to search under a less stringent standard to help police evade the Fourth Amendment’s warrant and probable cause requirements.

The court cannot agree. Even assuming that a “stalking horse” argument is still viable after the Supreme Court’s decision in Knights, 534 U.S. 112 (2001), in which the Court ruled that in determining the constitutionality of a search of a probationer “there is no basis for examining [the] official purpose” of the search, id. at 122 — and many courts have decided that it is not⁸ — the undersigned finds no evidence to support this theory in the instant case.

Here, law enforcement officers did not instruct Brown to undertake a search. Two officers in an undermanned office – Maddox and Sanders — simply turned over information to Brown about his own probationer, and left it to him to determine what to do with it. Culbreath — a third officer, who received no instructions from the first two — then accompanied Brown to the residence because the probationer was female and because no other probation officer was available for back-up. Culbreath stayed outside during the initial search, and did not enter the residence until after defendant had been taken into custody. Brown had independent reasonable suspicion to search the residence, and it was his own supervisor Rodney Peak, not the sheriff, from whom he sought authorization. Nothing before the court demonstrates that the probation search was a subterfuge or that Brown acted as a stalking horse for other officers, and the court so concludes.

8. See, e.g., U.S. v. Penson, 141 Fed.Appx. 406, 410, 2005 WL 1579499, 3 n. 2 (6th Cir. 2005) (unpublished); U.S. v. Stokes, 292 F.3d 964, 967 (9th Cir. 2002); U.S. v. Gibson, 2013 WL 5366133, 8-9 (S.D. Ohio 2013) (unpublished); U.S. v. Lykins, 2012 WL 1947346, 12 n. 7 (E.D. Ky. 2012) (unpublished); U.S. v. Brown, 2009 WL 112574, 4 (M.D. Ala. 2009) (unpublished); see also U.S. v. Wasser, 586 Fed.Appx. 501, 503-505, 2014 WL 4783157, 3 (11th Cir. 2014) (unpublished).