United States of America v. De'shaughn Jahmall Mays

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DE'SHAUGHN JAHMALL MAYS,
Defendant - Appellant.
No. 21-1281
(D.C. No. 1:15-CR-00467-RM-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
De’Shaughn Mays challenges the suspicionless-search condition of his
supervised release, arguing that it is overbroad because it authorizes searches in
locations where weapons could not be found. But because the safety concerns
justifying this search condition extend beyond possession of weapons, we see no
abuse of discretion in the district court’s decision to impose this condition and
accordingly affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
April 6, 2022
Christopher M. Wolpert
Clerk of Court
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Background
In 2016, Mays pleaded guilty to being a felon in possession of a firearm; the
district court sentenced him to 54 months in prison and three years of supervised
release. As relevant to this appeal, the Probation Office recommended imposing a
special condition of supervised release allowing probation officers to search Mays
and his property if they had reasonable suspicion that Mays had violated the terms of
his supervised release. It recommended this condition because of Mays’s conviction
for possessing a gun and his prior violent crimes. According to the Probation Office,
this search condition would help enforce the standard conditions of release and
control the risk to the public.
The district court agreed and imposed a special condition of supervised release
requiring Mays to “submit his person, property, house, residence, papers, computers
. . . , other electronic communications or data[-]storage devices or media, or office, to
a search conducted by a United States probation officer.” R. vol. 1, 18. The condition
further provided that any such search must (1) be supported by reasonable suspicion
that Mays “violated a condition of his supervision and that the areas to be searched
contain evidence of this violation” and (2) “be conducted at a reasonable time and in
a reasonable manner.” Id. The district court justified this condition—over Mays’s
objection—by noting Mays’s history of gang membership, gun possession, violence,
homicidal and suicidal thoughts, and other mental-health struggles. It concluded that
this condition was needed “both to protect the public and to increase the deterrent
[e]ffect . . . for future gun possession, as well as for protection of the probation
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officer.” R. vol. 3, 11. We affirmed Mays’s sentence on direct appeal, rejecting his
substantive-unreasonableness argument. United States v. Mays, 680 F. App’x 674
(10th Cir. 2017).
Mays completed his prison sentence in May 2020 and began serving his term
of supervised release. One year later, his probation officer petitioned to revoke his
supervised release, alleging that between October 2020 and April 2021, Mays failed
seven drug tests, missed two mandatory counseling appointments, failed to
participate in 11 required random drug tests, failed to call a drug-testing line at least
seven times, and failed to take his prescribed psychiatric medications. The petition
additionally noted that Mays had “displayed signs of paranoia.” R. vol. 1, 33.
The petition also described in detail a troubling event that occurred during an
arranged meeting between Mays and two probation officers. The officers met Mays
in a public parking lot, and Mays became agitated after one officer asked Mays about
a recent positive drug test. The petition stated that Mays “instantly and very suddenly
acted out with explosive conduct. His eyes bulged from his head[;] he puffed his
chest[;] he balled his hands into fists[;] and with his right hand began punching the
left palm of his hand.” Id. The petition further noted that Mays yelled loudly that he
had not used any drugs, began pacing, “and then took three aggressive steps towards
the [officers] while yelling” the name of the violent gang he was affiliated with. Id.
Both officers retreated, concerned for their safety, and watched from a distance as
Mays continued to pace and yell for another five minutes. The petition characterized
Mays’s behavior as “pre[]cursors to assault” and concluded by noting that Mays’s
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“erratic behavior and mental instability [wa]s increasing and [wa]s a community and
officer[-]safety risk.” Id.
At the revocation hearing, Mays admitted to the violations, and the two
probation officers testified about their parking-lot encounter with Mays. Mays, for
his part, told the district court that he had apologized to his probation officer after the
parking-lot encounter and said that he did not mean the officers any harm.
As it did in relation to Mays’s initial conviction, the Probation Office
recommended that the district court impose the same special condition authorizing
reasonable-suspicion searches, contending that Mays’s drug use while on supervised
release placed the community and probation officers at significant risk. The district
court agreed but decided that the circumstances warranted a broader search condition,
citing officer-safety concerns arising from the parking-lot encounter. It therefore
imposed a search condition without a reasonable-suspicion requirement, requiring
Mays to submit his “person, property, house, residence, papers, or office, to a search
conducted by a . . . probation officer.” Id. at 42. The only limitation on this condition
is that “[a]ny search must be conducted at a reasonable time and in a reasonable
manner.” Id.
The district court overruled Mays’s objection to the suspicionless-search
condition and ultimately imposed a 14-month prison sentence to be followed by a
new 18-month term of supervised release. Mays appeals, challenging the
suspicionless-search condition as overbroad.
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Analysis
“We review the district court’s decision to impose special conditions of
supervised release for abuse of discretion.” United States v. Blair, 933 F.3d 1271,
1275 (10th Cir. 2019) (quoting United States v. Wayne, 591 F.3d 1326, 1331 (10th
Cir. 2010)). As a general matter, “district courts have broad discretion to prescribe
conditions on supervised release.” Id. But that discretion is not unlimited. See id. In
addition to being reasonably related to certain sentencing factors and consistent with
the Sentence Commission’s policy statements, a special condition of supervised
release must not be overbroad; that is, it must “involve ‘no greater deprivation of
liberty than is reasonably necessary for’ deterring criminal activity, protecting the
public, and promoting a defendant’s rehabilitation.” Id. (quoting 18 U.S.C.
§ 3583(d)(2)); see also § 3583(d) (explaining process for imposing conditions of
supervised release).
Mays argues that the suspicionless-search condition is overbroad because the
district court imposed it in the interest of protecting officer safety, but it is not
limited to “searches for the purpose of discovering weapons” or “to locations that
weapons might be found.” Aplt. Br. 9. That is, he asserts the condition involves a
greater deprivation of liberty than is necessary to protect the public (and probation
officers) because it authorizes searches of his papers and other areas of property that
are too small to contain a weapon. Yet even though Mays’s underlying conviction is
for being a felon in possession of a weapon, the facts in this case demonstrate that the
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safety concerns motivating the search condition in this case extend well beyond
weapon possession.
As the government explains, “the record shows that Mays’[s] failure to take
his medications as prescribed, his gang affiliation, and his drug use also make him
dangerous.” Aplee. Br. 13–14. For instance, the dangerous parking-lot encounter did
not involve a weapon; instead, the danger stemmed from Mays’s explosive behavior,
physical aggression, and his decision to shout out his affiliation with a gang known
for violence. Further, Mays’s conduct during this incident and while on supervised
release is connected to his substance abuse and failure to take his prescribed
psychiatric medications. His probation officer, after detailing Mays’s many failed
drug tests and discovering that Mays “had not been taking his medication as
prescribed based on the amount of medication remaining in the bottle,” specifically
reported that Mays’s “erratic behavior and mental instability [were] increasing.”
R. vol. 1, 32–33.
And critically, searches of Mays’s papers and property could uncover evidence
of the dangerousness flowing from his medication issues, gang affiliation, and drug
use. For instance, the search of Mays’s prescription bottles led the probation officer
to discover that Mays was not taking his medication as directed. Likewise, the
government points out that searches of Mays’s cellphone (at least potentially
authorized under the word “property” in the search condition) could reveal photos of
Mays with a gun or text messages showing Mays engaging in prohibited
communication with gang members.
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Accordingly, Mays’s position—that the condition involves a greater
deprivation of liberty than necessary to protect the public and his probation officers
because searches of his papers, cellphone, or other small areas of property would not
turn up actual weapons—lacks merit. Indeed, we have previously approved of a
similar suspicionless-search condition. See United States v. Hanrahan, 508 F.3d 962,
971 (10th Cir. 2007). Mays contends that Hanrahan is distinguishable because (1) the
condition there was limited to the defendant’s “person, property, or automobile,” not
extending to his papers, and (2) we did not specifically consider the narrow question
of whether the condition imposed a greater deprivation of liberty than reasonably
necessary. Id. Yet Hanrahan nevertheless supports the conclusion that broad
suspicionless-search conditions of supervised release can be appropriate in particular
circumstances. Id.; see also United States v. White, 244 F.3d 1199, 1201, 1208 (10th
Cir. 2001) (approving special condition authorizing suspicionless searches of home,
automobile, and person). And the district court did not abuse its discretion in
concluding that such circumstances existed here, particularly because part of Mays’s
dangerousness stems from his failure to take psychiatric medications as prescribed,
and the details of those prescriptions could be discovered in a search of his papers.
Moreover, we note that the district court only broadened the special condition to
allow suspicionless searches after a prior search condition requiring reasonable
suspicion failed to adequately deter Mays from violating the conditions of his
supervised release numerous times. See United States v. Perez, 666 F. App’x 735,
737–38 (10th Cir. 2016) (unpublished) (finding no abuse of discretion in special
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condition authorizing reasonable-suspicion searches of defendant’s person, property,
house, residence, papers, and electronic devices given defendant’s “apparent inability
to abide by even standard conditions of supervised release”); 1 United States v. Egli,
13 F.4th 1139, 1148–49 (10th Cir. 2021) (finding special condition barring internet
access not plainly erroneous in part because district court did not impose such harsh
condition until fourth violation of supervised release); United States v. Cervantes,
859 F.3d 1175, 1184 (9th Cir. 2017) (concluding suspicionless-search condition did
not involve greater deprivation of liberty than necessary in part because defendant
had “a lengthy history of violating the conditions of previously imposed terms of
supervision”).
Conclusion
Under the facts of this case, the district court did not abuse its discretion in
imposing the suspicionless-search condition. We affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
1 We rely on the unpublished decision in Perez for its persuasive value. See
10th Cir. R. 32.1(A).
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