MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Defendant Jovell Carter is charged within one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). The matter is before the court on Carter's motion to suppress the firearm, which was discovered when Deputy United States Marshals and other law enforcement officers went to arrest Carter for violation of the terms of his supervised release on separate criminal charges.
The evidence at the hearing on Carter's motion establishes that the court issued a warrant on April 16, 2013 for his arrest, based upon a violation of the terms of his supervised release. Under the terms of that release, Carter was supposed to be confined to his home at 1616 S. Gold, in Wichita, Kansas, and subject to electronic confinement. However, the United States Marshal found that Carter was not at this address. At the residence on Gold, Carter's mother told Deputy Marshal Logan Kline that Carter was now living with his girlfriend. Carter's mother was unable to give the girlfriend's name. Through additional investigation, Kline was able to determine that Carter's girlfriend, Helen Ladonna Wood, lived at 1001 Waverly Street in Wichita. Kline showed a photograph of Wood at the house on Gold Street, and one of the residents confirmed that Wood was Carter's new girlfriend.
On May 13, approximately six law enforcement officers, including three Deputy Marshals, went to the Waverly house, where they observed a parked car which was registered to Carter's mother. The officers had identified several vehicles which were associated with Carter. All of them were registered in his mother's name rather than his own. Most of the officers went to the front door of the east-facing house. Deputy Marshal Kline entered the backyard and stood at the southwest corner of the house, while another officer stood near the northwest corner.
After the other officers knocked at the front door, Kline saw Carter enter the bedroom and begin to open the window. He also saw that Carter was carrying a handgun. When he yelled at Carter, the defendant retreated. Through the window, Kline saw Carter place the gun into some bedding in the room.
While this was going on, Wood answered the front door. When the officers stated that they were looking for Carter, Wood hesitated and looked into the back of the house. Hearing the yelling from the rear of the house, the officers in front asked Wood to have everyone in the house exit. Wood, Carter, and three other men and a women left by the front door and were briefly held in the front yard.
At the scene, Carter's girlfriend confirmed that for about a month he had spending several days out of each week at the house on Waverly. She denied having a gun, and consented to the search of the house. In the bedroom, the officers found a.22 caliber revolver hidden between the mattress and box springs. Searching between a mattress and box springs is standard procedure as the Marshals clear a residence, as fugitives in the past have attempted to hide themselves inside the bedding.
In his motion, Carter argues that Kline's entry into the curtilage of the residence violated the Fourth Amendment. Carter acknowledges that the Supreme Court has recognized that, while the homes of parolees are protected by the Fourth Amendment's reasonable search requirement, this protection is subject to exceptions, and that officers may search such a home without a warrant only "when the totality of the circumstances renders the search reasonable." United States v. Warren, 566 F.3d 1211, 1215 (10th Cir. 2009). This exception to the general warrant requirement "is predicated on (1) the reduced (or absent) expectation of privacy that the Court would recognize for probationers and parolees and (2) the needs of law enforcement." Id.
Nevertheless, Carter argues that under the totality of the circumstances Kline was not authorized to enter the back yard of the residence. (Dkt. 11, at 5-6). He also seeks to distinguish the recent case of United States v. Mabry, 728 F.3d 1163 (10th Cir. 2013), in which the Tenth Circuit affirmed Judge Melgren's denial of suppression in another unlawful possession case, in which a firearm was discovered during the search of a parolee's home. The court stressed that in Kansas parolees are subjected to search based upon reasonable suspicion, and that -
"Reasonable suspicion is a less demanding standard than probable cause." United States v. Tucker, 305 F.3d 1193, 1200 (10th Cir.2002) (internal quotation marks omitted). Specifically, "reasonable suspicion is merely a particularized and objective basis for suspecting criminal activity." Id. "To determine whether... investigating officers had reasonable suspicion, we consider both the quantity of information possessed by law enforcement and its reliability, " viewing both factors "under the totality of the circumstances." Id. (footnote omitted).
According to Carter, the Marshals did not have even a reasonable suspicion to enter the backyard.
In its Response, the government does not attempt to support the search under the diminished-but-still-minimal reasonable suspicion standard applicable to parolees. Rather, the government argues that the search is independently supported by either of two grounds, neither of which is grounded on Carter's status as a parolee.
First, the government argues that the entry into the backyard was permissible given the existence of the arrest warrant. The Supreme Court recognized in Payton v. New York, 445 U.S. 573, 603 (1980) that, despite the Constitution's special regard for the home, "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."
The Tenth Circuit has adopted Payton in a two-step test: an arrest warrant also conveys the limited authority to enter a dwelling, if the police "have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of ...