PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4440

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JAVION SCOTT,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00136-H-1)

Argued: September 18, 2019 Decided: October 25, 2019

Before KING and KEENAN, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Keenan and Judge Goodwin joined.

ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. KING, Circuit Judge:

Defendant Javion Scott pleaded guilty in the Eastern District of North Carolina to

possession of a firearm after having been convicted of a felony, in contravention of

(g)(1). As part of a conditional guilty plea, Scott reserved his right to appeal

the denial of his motion to suppress the firearm evidence underlying his conviction. On

appeal, he maintains that the firearm evidence was seized during an unconstitutional

warrantless search of his apartment.

At the time of the contested search, Scott was a North Carolina post-release

supervisee. As part of his supervision, Scott was subject to a statutory search condition

(the “statutory condition”) that authorized warrantless searches of his residence by a

probation officer. He was also subject to a search condition contained in his supervision

agreement (the “agreement condition”) that authorized warrantless searches of his

residence by his assigned probation officer. Scott claims that the agreement condition —

rather than the statutory condition — must control, and that his Fourth Amendment rights

were violated because his assigned probation officer did not attend the search of his

apartment. He also contends that, regardless of which condition controls, his Fourth

Amendment rights were contravened because the search was conducted for purposes not

reasonably related to his post-release supervision and without any individualized suspicion

of criminal activity. As explained below, we reject Scott’s contentions and affirm the

district court’s denial of his motion to suppress.

2 I.

A.

In June 2010, Scott was convicted in the Superior Court of Cumberland County,

North Carolina, of violating North Carolina General Statute section 14-27.5(A), which

resulted in an adjudication of guilt on a second-degree sexual offense. The state court

sentenced Scott to a term of imprisonment ranging from 60 to 81 months. Upon his release,

Scott was placed on state post-release supervision, which the North Carolina Post-Release

Supervision and Parole Commission (the “Commission”) administered.

North Carolina General Statute section 15A-1368.4 governed Scott’s post-release

supervision. That statute lists a bevy of requirements, some mandatory and others

discretionary. For example, section 15A-1368.4(b) — entitled “Required Condition” —

mandates that the Commission impose an express condition forbidding supervisees from

committing additional crimes while on supervision. Section 15A-1368.4(c), on the other

hand, lists several discretionary conditions that the Commission “may impose” on any

supervisee.

Scott’s adjudication of guilt subjected him to more required conditions than the

average post-release supervisee. Section 15A-1368.4(b1) — entitled “Additional Required

Conditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,

Mental, or Sexual Abuse of a Minor” — lists eight additional controlling conditions that

apply to individuals, like Scott, who were convicted of certain sexual offenses. Scott’s

3 appeal involves one of those additional controlling conditions — the statutory condition.

The statutory condition provides that a supervisee shall

[s]ubmit at reasonable times to warrantless searches by a post-release supervision officer of the supervisee’s person and of the supervisee’s vehicle and premises while the supervisee is present, for purposes reasonably related to the post-release supervision, but the supervisee may not be required to submit to any other search that would otherwise be unlawful. For purposes of this subdivision, warrantless searches of the supervisee’s computer or other electronic mechanism which may contain electronic data shall be considered reasonably related to the post-release supervision.

N.C. Gen. Stat. § 15A-1368.4(b1)(8) (emphasis added).

In drafting Scott’s supervision agreement, however, the Commission failed to recite

the statutory condition verbatim. Instead, the Commission came up with the agreement

condition, which required that Scott “[s]ubmit at reasonable times to searches of my person,

premises, or any vehicle under my control by my supervising officer for purposes

reasonably related to my supervision.” See J.A. 38 (emphasis added). 1

B.

In November 2016, Courtney Thomas, a probation and parole officer with the North

Carolina Department of Public Safety (“NCDPS”), took over supervision of Scott from

another NCDPS officer. 2 When Thomas began supervising Scott, he was classified as a

1 Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by the parties in this appeal. 2 In reviewing the denial of a motion to suppress, we “defer to the district court’s factual findings and do not set them aside unless [they are] clearly erroneous.” United States v. Stevenson,

(4th Cir. 2005). We thus accept the facts related in the magistrate judge’s Memorandum and Recommendation, which the district court

4 validated gang member due to his refusal to remove or cover gang-related tattoos. And

Thomas knew that Scott had previously violated his curfew and had been disrespectful to

NCDPS officers. Although Thomas had no such issues with Scott, his failure to obtain

employment or enroll in continuing education classes bothered her. Thomas became

concerned when she later observed Scott wearing “flashy” things — a necklace, mouth

grill, watch, and “expensive looking” shoes — because she did not understand how Scott

could afford those luxuries without a job. See J.A. 300.

At some point during Thomas’s supervision of Scott, NCDPS asked Thomas to

identify a few supervisees to be searched as part of Operation Spring Sweep, a multi-

agency operation involving federal and state law enforcement agencies. The Sweep had

two main purposes — to locate and arrest individuals with outstanding warrants or who

had absconded from NCDPS, and to conduct warrantless searches of supervisees subject

to search conditions. Thomas decided that Scott should be searched as part of the Sweep

because of her suspicions regarding his extravagant jewelry and because NCDPS policy

mandated a search of Scott within the succeeding forty-five days. 3

On March 29, 2017 — the second day of Operation Spring Sweep — a search team

arrived at Scott’s apartment in Fayetteville at approximately 7:20 a.m. NCDPS officer

adopted by its Order denying Scott’s motion. We recite the facts in the light most favorable to the government. See United States v. Palmer,

(4th Cir. 2016). 3 NCDPS policy requires a search of supervisees with actively validated gang affiliations at least every 180 days. And supervisees convicted of certain sexual offenses must also be searched at least every 180 days. Scott fell into both categories.

5 Becky Staley led the search team. She was accompanied by three other NCDPS officers,

ATF special agent Thomas Wishon, an additional ATF special agent, a deputy sheriff from

the Cumberland County Sheriff’s Office, a K-9 unit from the State Department of

Corrections, an officer from the Fayetteville Police Department, and a trooper from the

North Carolina Highway Patrol. Thomas did not attend the search, though she did attempt

to delegate her authority to conduct warrantless searches of Scott to Staley.

Upon arriving at the apartment building, the four NCDPS officers led the search

team up the stairs to Scott’s apartment. One of the NCDPS officers knocked on Scott’s

door and announced the presence of the search team. The other three NCDPS officers

stood directly outside the door on a landing at the top of the stairs. Wishon and his ATF

colleague stood on the staircase descending from the landing; the remaining officers stood

behind them. After the knock on the door, Staley heard noises coming from inside the

apartment. She then heard the occupants say that they were getting dressed. But several

minutes passed without anyone opening the door. The NCDPS officer who had knocked

on Scott’s door then knocked again. This time, an unclothed Scott opened the apartment

door. Scott’s girlfriend joined him at the door, wearing only her underwear. Staley advised

Scott that the officers were there to conduct a warrantless search of his apartment. Scott

permitted the officers to enter his apartment, though he would have been arrested had he

denied them entry.

The NCDPS officers entered the apartment first, handcuffing Scott and his girlfriend

after allowing Scott to use the restroom. ATF agent Wishon and the remaining law

enforcement officers entered the apartment only after being told to do so by one of the

6 NCDPS officers. Thereafter, the NCDPS and other officers began searching the apartment.

Soon after the search began, Wishon noticed that a door leading out onto the apartment’s

balcony was slightly ajar. As Wishon stepped onto the balcony and looked over the railing,

he noticed two objects resembling firearms on the ground below. Upon further

investigation, Wishon confirmed that the two objects he saw were indeed handguns. He

also located — within the immediate vicinity of the two firearms — a high-capacity

magazine, ammunition, and a purse that contained identification belonging to Scott’s

girlfriend.

Shortly thereafter, Wishon discovered that one of the handguns had been reported

stolen. Because Wishon found the firearms near the identification card of Scott’s

girlfriend, he decided to question her. After waiving her Miranda rights, Scott’s girlfriend

admitted to Wishon that she had purchased the stolen handgun from unknown men in

Fayetteville and that she had purchased the other handgun from a cousin. She told Wishon

that she obtained the firearms because of ongoing threats against Scott’s family and that

she kept them on a chair in the bedroom she shared with Scott. She also admitted that Scott

had previously pulled the slide back on the stolen handgun to “check it.” See J.A. 305.

As Wishon conducted his investigation into the two firearms, the other members of

the search team continued to search Scott’s apartment. The officers located several items

during the search, including marijuana. Pursuant to the statutory condition, officers also

searched Scott’s cell phone after he provided the phone’s access code. The search of the

phone revealed a photograph of Scott holding a handgun. But the handgun in the

photograph did not match either of the firearms Wishon had located and seized from the

7 ground outside the apartment. While searching for the handgun in the photograph, officers

discovered that a Black Kia Optima located outside the apartment was registered to Scott.

A search of the Kia revealed more marijuana and a third firearm that appeared to be the

same make and model as the handgun in the photograph on Scott’s cell phone. Federal law

enforcement officers subsequently arrested Scott.

C.

On April 24, 2017, a grand jury in the Eastern District of North Carolina indicted

Scott for possession of a firearm after having been convicted of a felony, in contravention

of

(g)(1). Scott moved to suppress the evidence seized during the

warrantless search of his apartment (along with the evidence found in his automobile and

on his cell phone), asserting that the search team did not comply with the requirements of

the agreement condition because Thomas — his assigned probation officer — did not

attend the search. Scott also contended that the warrantless search violated the

requirements of the statutory condition because the search was not reasonably related to

his supervision and because the search team lacked any individualized suspicion that he

had engaged in criminal activity.

Approximately three months after Scott filed his motion to suppress, the magistrate

judge conducted a suppression hearing in Greenville. At the hearing, the magistrate judge

heard evidence from Thomas, Staley, Wishon, and Scott’s mother. Thomas, Staley, and

Wishon described the search of Scott’s apartment, explaining how Thomas had selected

Scott for the search and how Staley and Wishon had conducted their aspects of the search.

In seeking to justify Scott’s possession of the firearms, Scott’s mother testified about his

8 tumultuous tenure in prison. And to undercut Thomas’s testimony regarding her suspicions

about Scott’s jewelry, Scott’s mother stated that the “flashy” jewelry likely belonged to

Scott’s deceased brother.

The magistrate judge questioned the lawyers about the discrepancy between the

language of the statutory condition and that of the agreement condition. Scott’s lawyer

asserted that the Commission’s decision to deviate from the specific terms of the statutory

condition in writing the agreement condition amounted to a controlling interpretation of

the ambiguous post-release supervision statute. The government disagreed, contending

that the statutory condition controlled.

After considering the evidence and the arguments, the magistrate judge submitted

her Memorandum and Recommendation to the district court, recommending that the

motion to suppress be denied. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C.

Dec. 20, 2017), ECF No. 43. The magistrate judge agreed with the government that the

statutory condition — not the agreement condition — controlled. The magistrate judge

then concluded that the search did not violate Scott’s Fourth Amendment rights because it

complied with the statutory condition, in that it was conducted by NCDPS officers for

purposes reasonably related to Scott’s post-release supervision. By its Order, the district

court adopted the magistrate judge’s Memorandum and Recommendation, overruling

Scott’s objections. See United States v. Scott, No. 5:17-cr-00136 (E.D.N.C. Feb. 13, 2018),

ECF No. 53.

Scott thereafter pleaded guilty to the single-count indictment, expressly reserving

his right to appeal the denial of his motion to suppress. The district court sentenced Scott

9 to seventy-eight months in prison. Scott timely noted this appeal, and we possess

jurisdiction pursuant to

.

II.

In assessing a district court’s denial of a motion to suppress evidence, “we review

the court’s factual findings for clear error and its legal determinations de novo.” United

States v. Abramski,

(4th Cir. 2013).

III.

A.

Scott first challenges the warrantless search of his apartment on the ground that

Thomas, his assigned probation officer, was not present during the search. In so doing,

Scott points to the agreement condition, which states that Scott must submit to warrantless

searches by his supervision officer — a deviation from the language of the statutory

condition, which only requires that a supervision officer conduct the search.

Scott claims that by changing the wording of the statute in his supervision

agreement, the Commission interpreted an ambiguous statute, and that its interpretation is

entitled to deference under the Supreme Court’s decision in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc.,

(1984). But it is far from clear that

the Chevron deference principles can ever apply to state agency interpretations of state law.

See

(“If Congress has explicitly left a gap for the agency to fill, there is an

express delegation of authority to the agency to elucidate a specific provision of the statute

10 by regulation.” (emphasis added)). Moreover, assuming Chevron applies in the state

context, the Commission’s interpretation of the statutory condition would not be entitled

to any deference, in that it does not bear any of the hallmarks of formal rulemaking or

adjudication necessary to trigger Chevron deference. See United States v. Mead Corp.,

(2001).

Scott next contends that the agreement condition modified the statutory condition

as it applied to him. Because, however, Scott’s post-release supervision stemmed from a

sexual offense conviction, the statutory condition was mandated under state law, and the

Commission was powerless to modify the statutory condition. See N.C. Gen. Stat. § 15A-

1368.4(b1) (listing the statutory condition under the heading “Additional Required

Conditions for Sex Offenders and Persons Convicted of Offenses Involving Physical,

Mental, or Sexual Abuse of a Minor” and noting that the conditions specified in that

provision are “controlling conditions”). That the Commission had no authority to modify

the required statutory condition is further bolstered by the General Assembly’s decision to

include in the post-release supervision statute a section entitled “Discretionary Conditions”

— that the Commission “may impose.” See id. § 15A-1368.4(c).

Finally, Scott urges that the district court should have at least read the language of

the statutory condition in concert with the language of the agreement condition. But the

court could not have read the clear language of the statutory condition in concert with the

language in a supervision agreement drafted by the Commission. See Crespo v. Holder,

(4th Cir. 2011) (“It is well established that when the statute’s language

is plain, the sole function of the courts — at least where the disposition required by the text

11 is not absurd — is to enforce it according to its terms.” (internal quotation marks omitted)).

The statutory condition specifically provides that warrantless searches of supervisees may

be undertaken by any post-release supervision officer. That ends our inquiry. Scott’s

reliance on the agreement condition is therefore rejected.

B.

Scott next challenges the warrantless search of his apartment on the ground that it

did not comply with the statutory condition, as he contends that the search was not

conducted for purposes reasonably related to his post-release supervision. Specifically,

Scott recognizes that the statutory condition is generally constitutional under the Supreme

Court’s decision in Griffin v. Wisconsin,

(1987), but he asserts that the search

of his apartment contravened the Fourth Amendment because it did not adhere to the

statutory condition.

The Griffin Court approved the warrantless search of a probationer’s home

conducted in accordance with a Wisconsin regulation authorizing such a search, reasoning

that the search was justified under the “special needs” doctrine. See

(“A State’s operation of a probation system, like its operation of a school, government

office or prison, . . . presents ‘special needs’ beyond normal law enforcement that may

justify departures from the usual warrant and probable-cause requirements.”). As the Court

explained, the warrantless search in Griffin “was ‘reasonable’ within the meaning of the

Fourth Amendment because it was conducted pursuant to a valid regulation governing

probationers.”

. We subsequently relied on the Griffin decision to uphold a North

Carolina probationer supervision statute that is nearly identical to the statutory condition

12 at issue in this appeal, as well as a search conducted in conformity with the probation

statute. See United States v. Midgette,

(4th Cir. 2007). 4

Scott’s contention that the warrantless search of his apartment breached the statutory

condition focuses on the statutory condition’s requirement that a supervision search be

conducted “for purposes reasonably related to the post-release supervision.” See N.C. Gen.

Stat. § 15A-1368.4(b1)(8). As an initial matter, we must discern the meaning of the term

“reasonably related,” as used in the statutory condition. In interpreting that term, “we must

take [the statute] as it has been interpreted by . . . state courts.” See Griffin,

. “Whether or not we would choose to interpret a similarly worded federal [provision]

in [a similar] fashion, we are bound by the state court’s interpretation, which is relevant to

[the] constitutional analysis only insofar as it fixes the meaning of the [statute].”

The state courts in North Carolina have not provided us with a comprehensive

definition of “reasonably related,” as used in the statutory condition. Nevertheless, the

Court of Appeals of North Carolina recently discussed the General Assembly’s decision to

amend the probationer supervision statute, which contains nearly identical language to the

statutory condition. See State v. Powell,

(N.C. Ct. App. 2017). The General

Assembly, in amending the probation statute, replaced the term “reasonably related” with

4 Although the Supreme Court’s Griffin decision and our Midgette opinion involved probationers rather than post-release supervisees, such as Scott, the “special needs” doctrine does not turn on any such distinction. Rather, the doctrine requires a determination of whether the statute “assure[s] that the searches conducted pursuant to it are justified by the State’s special needs.” See Midgette,

.

13 “directly related.”

. In evaluating the effect of that amendment, the court of

appeals observed that “‘[r]easonable’ is defined, in pertinent part, as ‘being or remaining

within the bounds of reason.’”

(quoting Webster’s Third New International Dictionary

1892 (1966)). Because the term “reasonably related” remains in the statutory condition,

we accord the Powell definition some weight in evaluating Scott’s contentions.

Bearing that definition in mind, we proceed to assess Scott’s contention that the

warrantless search of his apartment was not reasonably related to his supervision. Scott

asserts, inter alia, that the search had nothing to do with his supervision because it occurred

as part of Operation Spring Sweep, which he says the U.S. Marshals Service organized for

generalized law enforcement purposes. As evidence of that theory, Scott points to the large

number of law enforcement agencies involved. He also identifies press releases in which

local law enforcement officials thank the Marshals Service for spearheading the operation.

But pursuant to our precedent, the involvement of the Marshals Service and other law

enforcement agencies does not render the warrantless search invalid.

In Midgette, Judge Niemeyer explained that “[w]hile North Carolina’s probation

law authorizes only probation officers to conduct warrantless searches, that authorization

does not preclude the probation officer from obtaining help from the police department for

the purpose of physically conducting the search.” See

. He further

concluded — after examining two North Carolina state court decisions — that a

probationer search would be valid even if a police officer had suggested the search, “so

long as the search is authorized and directed by the probation officer.” See

.

14 Here, NCDPS initiated and supervised the warrantless search of Scott’s apartment.

Although the Marshals Service organized Operation Spring Sweep, Thomas selected Scott

for a search after her NCDPS supervisor asked her to choose a few supervisees to be

searched as part of the Sweep. And a team of four NCDPS officers led the search team

into Scott’s apartment. Only after the NCDPS officers made initial contact with Scott did

they request that the rest of the search team — comprised of police officers and federal

agents — enter Scott’s apartment to assist with the physical search of the premises.

Additionally, NCDPS officer Staley, the team leader, actually supervised the search of

Scott’s apartment. Because Thomas decided that Scott’s apartment should be searched and

NCDPS officers initiated and supervised the search, Midgette compels the conclusion that

the participation of law enforcement officers in the search did not render it invalid.

Scott also contends that the search was not reasonably related to his supervision

because Thomas’s proffered reasons for deciding to search Scott’s apartment “do not hold

up.” See Br. of Appellant 20. But Thomas’s two reasons for selecting Scott for a search

are reasonably related to his post-release supervision. First, Thomas decided to search

Scott because she had suspicions regarding how he had obtained his “flashy” jewelry

without a job. Though Scott’s mother later testified that the jewelry came from Scott’s

dead brother, the record does not indicate that Thomas had any such knowledge when she

selected Scott for a search. And a search of Scott’s apartment could certainly shed light on

the source of the jewelry and Scott’s employment status. The search based on the

suspicions surrounding the jewelry thus supported the purposes of two conditions of Scott’s

15 supervision — the requirement that he maintain employment and the requirement that he

refrain from engaging in new criminal conduct.

Second, Thomas selected Scott for a search because he was about forty-five days

away from the deadline for a mandatory search pursuant to NCDPS policy. That policy

requires that NCDPS conduct searches of validated gang members and those on

supervision for certain sexual offenses every 180 days. Scott asserts that he should not

have been subject to the 180-day search policy because he repeatedly told Thomas that he

no longer associated with a gang. But Scott remained a validated gang member subject to

the 180-day policy because he declined to remove or cover his gang tattoos. And even if

he had not been a validated gang member, he would have been subject to the 180-day

policy because his supervision stemmed from an adjudication of guilt on a sexual offense.

Additionally, although Scott suggests that the search occurred too soon before the 180-day

mark to be reasonably related to his supervision, NCDPS officers have discretion to decide

precisely when to conduct the mandatory search within each 180-day period. Because

routine searches of gang members and sexual offenders are required for those high-risk

supervisees, Thomas’s decision to search Scott’s apartment under the 180-day policy was

reasonably related to his supervision.

At bottom, the record supports the district court’s determination that the warrantless

search of Scott’s apartment was not for the purpose of furthering general law enforcement

goals. Rather, NCDPS officers undertook the search to ensure Scott’s continued

compliance with the terms of his supervision agreement.

16 C.

Finally, we briefly address Scott’s attack on the warrantless search of his apartment

for lack of individualized suspicion of criminal activity. In the circumstances of this case

— where the search complied with the statutory condition because it was reasonably related

to Scott’s post-release supervision — our Midgette decision makes clear that no such

individualized suspicion is required. See

(observing that Midgette’s

argument that the North Carolina probation statute was unconstitutional because it did not

require reasonable suspicion “misunderstands Griffin’s ‘special needs’ rationale, which did

not make individualized suspicion the sine qua non of a valid probation scheme”). Because

the search of Scott’s apartment complied with the statutory condition, we conclude — in

accordance with the Griffin decision — that no Fourth Amendment violation occurred. 5

IV.

Pursuant to the foregoing, we affirm the district court’s denial of Scott’s motion to

suppress.

AFFIRMED

5 Having concluded that the search of Scott’s apartment did not violate the Fourth Amendment under the framework established by the Supreme Court in Griffin, we decline Scott’s invitation to evaluate the constitutionality of the search under the framework established by the Court in United States v. Knights,

(2001) (applying traditional Fourth Amendment balancing test where warrantless search of probationer did not qualify as Griffin-type “special needs” search).

17