July 20, 2019

Tenth Circuit: Fourth Amendment Rights are Personal and Cannot be Asserted Vicariously to Benefit Defendant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Paetsch on Wednesday, April 8, 2015.

On Saturday, June 2, 2012, a masked and armed man robbed a Wells Fargo bank in Aurora, Colorado. One of the stacks of money he grabbed contained a GPS tracking device. Seconds after the robber took the money from the teller’s drawer, it began sending a silent signal to the Aurora Police Department, which allowed the police to follow the device’s movement on a computer monitor to within a 60-foot radius. Soon after the robbery, police began dispatching field officers based on the tracking device. Following the signal’s movements, police determined the device was in a car in traffic and was stopped at a traffic signal. Police who arrived on the scene blocked the intersection so that 20 cars that were stopped at the light could not leave.

Because the responding officers did not know the robber’s physical appearance, they called an FBI task force to get a homing beacon that would narrow the range of the tracking device’s alert to 10 feet. Before the FBI agent arrived with the beacon, officers had removed the sole occupants from two of the cars near the back of the 20 because they were behaving suspiciously, including defendant Christian Paetsch. They removed the sole occupant from a third car for tactical reasons. It had been about 30 minutes since the intersection was blocked.

Approximately one hour after the intersection was blocked, the FBI agent arrived with the beacon, but he did not know how to operate it correctly. Nevertheless, it gave a weak signal at Paetsch’s vehicle. Officers then cleared every car of its occupants and did a “secondary search,” looking through car windows. This secondary search revealed a money band in Paetsch’s car. Shortly thereafter a state trooper who knew how to use the beacon arrived and quickly got a strong signal from inside Paetsch’s car. Officers searched Paetsch’s car and found $22,956 cash, two handguns, boxes of ammunition, a mask, a wig, a pair of gloves, an empty air horn package, two fake license plates, and the GPS tracking device.

Paetsch was indicted on two counts: armed bank robbery and brandishing a firearm in relation to a crime of violence. Paetsch moved to suppress statements made to police and the evidence seized from his car, arguing the initial stop was unconstitutional because police lacked individualized suspicion that any person at the intersection had committed a crime, and that the stop violated his Fourth Amendment rights because the intrusion on individuals’ interest outweighed the government’s interest. After a three-day hearing, the district court granted suppression of statements Paetsch made after invoking his right to an attorney but denied the motion to suppress evidence from Paetsch’s car. Paetsch conditionally pleaded guilty, reserving the right to appeal the denial of the suppression order.

On appeal, Paetsch argued the barricade was unreasonable at its inception, unreasonable in its duration, and unreasonable in the means used to carry it out. The Tenth Circuit determined the stop was reasonable at its inception because it was appropriately tailored to catch a fleeing bank robber. Although police lacked individualized suspicion of a particular person, it was reasonable for law enforcement to barricade the intersection since they knew the stolen money was in a car idling at the intersection. The Tenth Circuit further found justification in the stop because police knew an armed bank robber was at the intersection and because the stop was effective in finding the bank robber. And, while the Tenth Circuit sympathized with the 29 innocent people detained before officers developed individualized suspicion of Paetsch, it determined that this intrusion on their liberty interests was reasonable and justified by the circumstances. The Tenth Circuit also declined to allow Paetsch to rely on the intrusion suffered by the 29 innocent car occupants, noting that to do so would “violate the principle that ‘Fourth Amendment rights are personal rights that cannot be asserted vicariously.'”

The Tenth Circuit similarly disagreed that the duration of the detention was unreasonable, finding the officers could only act on the information they had at the time. Because the officers knew the beacon would arrive “soon” and were concerned about the possibility of a high-speed chase should they allow all 20 cars to leave, it was not unreasonable for the officers to wait until the beacon and a suitable user arrived.

The Tenth Circuit affirmed the district court’s denial of Paetsch’s motion to suppress. Chief Judge Briscoe concurred with the result but disagreed about how long it took police to develop individualized suspicion of Paetsch.

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