June 26, 2019

Tenth Circuit: Drug Dog Search Illegal Where Warning Given for Speeding and Consent to Search Refused

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 milers per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going from California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

Colorado Supreme Court: Statements to Military Investigator Considered Voluntary

The Colorado Supreme Court issued its opinion in People in Interest of Z.T.T. on Monday, May 22, 2017.

Criminal Law—Evidence Suppression.

This interlocutory appeal required the Colorado Supreme Court to determine whether a defendant’s confession to an Army investigator during basic training was the product of coercion. The court held that, where a defendant knowingly and intelligently waived his Miranda rights, knew he was free to leave an interview, and confessed to committing a crime during the course of a conversational, friendly interview devoid of coercive promises or threats, he gave his statements voluntarily. The court therefore reversed the trial court’s suppression order and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Reasonable Person Would Not Have Felt Free to Leave When Stopped by Officers

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Thursday, February 9, 2017.

Phillip Hernandez was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). The district court granted his motion to suppress the evidence, as it was obtained in violation of the Fourth Amendment’s prohibition against unlawful seizure during his encounter with two police officers. The government appealed, claiming that the court should apply the subsequent decision in Utah v. Streiff, and arguing that the district court failed to properly apply the Spence factors to the seizure.

On October 20, 2014, two police officers observed Phillip Hernandez walking near a construction site in a known high crime area. The uniformed officers asked Hernandez if they could speak to him, and began asking him questions while driving along side him in their marked police car as Hernandez continued walking. The officers eventually asked Hernandez to stop so they could ask him additional questions. While questioning Hernandez, the officers discovered an active warrant against him and that Hernandez was in possession of a firearm. Hernandez filed a motion to suppress the firearm evidence, which the district court granted.

On appeal, the government asserted that the Supreme Court’s decision in Utah v. Streiff should apply to this case. In Streiff, the Supreme Court ruled that courts may admit illegally obtained evidence as long as the link between the evidence and the illegal method is sufficiently remote, in a case where the evidence in question was obtained by police officers who illegally stop someone and later discover an existing warrant against that person. The Tenth Circuit, however, rejected the application of the decision in Streiff, agreeing with Hernandez that the government had waived the right to present this argument as they had failed to assert it at the district court level.

The court next turned to the government’s argument that the lower court improperly applied the Spence factors to Hernandez’s encounter with the two officers because officers are free to approach individuals and question them. The court stated that the crucial test to determine if an unlawful seizure has occurred is if the officer’s conduct would lead a reasonable person under similar circumstances to believe they were not free to ignore the police presence and leave the situation. The court agreed with the district court’s application of the factors enumerated in United States v. Spence, stating that once the police officers asked Hernandez to stop, because there were two uniformed police officers in a police car at night without other witnesses present, a reasonable person would not have felt he could walk away.

Finally, the court addressed if the officers had reasonable suspicion to justify an investigative detention. In considering the reasonableness of the detention, the court looked at if there were “specific and articulable facts and rational inferences drawn from those facts” that gave the officers reasonable suspicion that Hernandez was involved in criminal activity. The court looked at the officer’s stated reasons for suspicion, including that Hernandez was walking near a construction site where there had been prior thefts, Hernandez was in a high crime area, Hernandez chose not to walk on the side of the street with a sidewalk, and Hernandez was dressed in all black clothing and carrying two backpacks. The court ultimately determined that, although the level of suspicion required for a Terry stop is less than that required for an arrest, the circumstances in this case did not rise to the requisite level for the officers to stop Hernandez.

Justice Briscoe dissented, stating that he believed the encounter between Hernandez and the officers was more along the lines of a consensual encounter and did not constitute an unlawful seizure considering the circumstances.

The Tenth Circuit affirmed the district court’s grant of a motion to suppress the evidence.

Colorado Court of Appeals: Statements in Police Interviews Were Not Voluntary and Should Not Have Been Admitted

The Colorado Court of Appeals issued its opinion in People v. Springsted on Thursday, December 30, 2016.

Statements—Police Interviews—Involuntary.

In this murder case, the prosecution presented evidence that the victim was shot by two people. The primary issue at trial was the identity of the second shooter. The shooting occurred inside the home of codefendant Malory (Popeye), who was the first shooter. Springsted was present during the incident. Within an hour of the shooting, Springsted was interviewed by police in a police interview room. Over the next four days, the police interviewed Springsted five more times over the course of more than 11 hours. While some evidence implicated Springsted as the second shooter, the serological evidence implicated only Popeye as a shooter. Springsted was convicted of one count of first degree murder, one count of conspiracy to commit first degree murder, and two counts of violent crime.

On appeal, Springsted challenged the court’s admission of his statements from the police interviews, alleging that they were obtained involuntarily. When a defendant seeks to suppress statements as involuntary, the prosecution must prove by a preponderance of the evidence that the statements resulted from the maker’s free and unconstrained choice. After a careful review of the totality of the circumstances of the more than 11 hours of videotape, the Colorado Court of Appeals determined that the statements from the first two interviews were voluntary and admissible. However, Springsted’s statements in the remaining interviews were involuntary and should have been suppressed. Because there was a reasonable possibility that the statements from these interviews contributed to Springsted’s convictions, the error was not harmless.

The judgments were reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Officer Had Reasonable and Articulable Basis to Conduct Protective Search of Vehicle

The Colorado Supreme Court issued its opinion in People v. Delacruz on Monday, December 5, 2o16.

Fourth Amendment—Traffic Stops—Protective Search of a Vehicle.

In this interlocutory appeal, the Supreme Court reviewed the trial court’s order suppressing a firearm that police seized from a vehicle in which defendant was a passenger. The Court concluded that the firearm was discovered during a valid protective search of the vehicle under Michigan v. Long, 463 U.S. 1032 (1983), given the circumstances confronting the officer at the time of the search. The officer had an articulable and objectively reasonable basis to conduct a protective search of the passenger compartment of the vehicle because (1) the investigatory stop occurred in an area the officer testified was known for frequent criminal activity; (2) defendant appeared to have given the officer a false name; and (3) the officer observed a large knife on the front floorboard near defendant’s feet when the officer asked him to step out of the vehicle for questioning. The Court further concluded that the officer did not exceed the lawful scope of a protective search by looking behind the driver’s seat because the rear floorboard is an area of sufficient size to conceal a weapon and would have been within the reaching distance of a vehicle occupant.

The trial court’s suppression order was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Warrant Establishes Long String of Criminal History Despite Lack of Specific Dates

The Colorado Supreme Court issued its opinion in People v. Cooper on Monday, November 21, 2016.

In September 2015, officers requested and obtained a search warrant for Lonnie Cooper’s residence and vehicles based for illegal drugs. The affidavit supporting the warrant contained information from a confidential informant about the drug activity, but did not contain any specific dates when the activity occurred. An Alamosa County magistrate signed the warrant the day it was presented, and police searched Cooper’s home, finding controlled substances, drug paraphernalia, and weapons. Cooper was charged with multiple counts.

Cooper moved to suppress the results of the search warrant, arguing that the supporting affidavit was so lacking in indicia of probable cause that no reasonable officer could, in good faith, rely on it. The trial court granted the motion. The trial court was particularly concerned about the affidavit’s “staleness,” or the lack of exact dates. The State filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.

The State argued that even if the warrant was stale and issued in error, the good faith exception to the exclusionary rule should apply. The supreme court agreed. The court focused on the “bare bones” situation where the good faith exception would not apply, namely “where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Because in this case there was considerable evidence of ongoing drug trafficking activity, an officer could have a reasonable, good faith belief that the warrant was proper.

The Colorado Supreme Court reversed the trial court’s suppression order. Justice Hood concurred, and Justice Marquez joined in the concurrence.

Colorado Supreme Court: Presence of Juvenile Defendant’s Parent Satisfies Statutory Requirement

The Colorado Supreme Court issued its opinion in People in Interest of A.L.-C. on Monday, October 24, 2016.

The juvenile defendant, A.L.-C., was charged with sexual assault on a child after his little sister, B.O., reported that he had touched her inappropriately and had intercourse with her. Defendant’s mother, also the mother of B.O., had accompanied him to his forensic interview. During a recorded exchange in which Defendant, his mother, and his step-father discussed whether he would waive his Miranda rights, Defendant’s mother asked him if he understood his rights and he said he did. She informed him that she had to protect B.O. and chided him for never paying attention. Defendant told his mother that he would rather keep quiet. It was disputed whether he meant he would rather not talk to his mother or the detective.

Defendant’s mother was present for the entire forensic interview. At first, Defendant denied B.O.’s allegations, but after being confronted with details from an earlier interview with B.O., Defendant confessed. He was charged with sexual assault on a child.

Before trial, Defendant sought to suppress his statements in the forensic interview, arguing that that his mother’s presence did not satisfy the requirement in C.R.S. § 19-2-511(1) that a parent be present at the interview because his mother did not hold his interests “uppermost in mind.” The trial court agreed and suppressed Defendant’s statements. The People filed an interlocutory appeal with the Colorado Supreme Court regarding whether the statute required more than Defendant’s parent’s presence at the interview.

The supreme court analyzed the statute and determined its plain language required nothing more than a parent’s presence during advisement and interrogation. Defendant argued that the statute requires not only a parent’s presence, but also that the parent hold the defendant’s interest “uppermost in mind,” citing several cases. The supreme court distinguished case law advanced by Defendant, noting that in those cases it was not a parent present at the interview. The supreme court held that the shared interest analysis from the prior cases was inapposite because a parent was already in one of the statutorily defined categories. 

The court noted that although its holding may seem to differ from People v. Hayhurst, 571 P.2d 721 (Colo. 1977), it was actually in line with Hayhurst. In that case, the supreme court held that a parent could not fulfill his statutory role if his interests were adverse to his child’s. However, the court also held that the fact that the father was upset with his son did not necessarily mean their interests were adverse.

The supreme court reversed the trial court’s suppression order and remanded for further proceedings.

Colorado Court of Appeals: Defendant’s Wife Can Initiate Police Interview After Invocation of Right to Counsel

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, September 22, 2016.

Sexual Assault—Custodial Interrogation—Miranda—Right to Counsel—Third Party.

The police executed a search warrant on defendant’s home after the victim reported that defendant had sexually assaulted her. During the search, they recovered a weapon, and defendant was arrested on the charge of possession of a weapon by a previous offender. Defendant promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. Two days later, a police detective conducted another interview of defendant during which defendant admitted to three instances of sexual contact with the victim. An audio recording of defendant’s second police interview was admitted at trial. Defendant was convicted of multiple counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police. To establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have “a generalized discussion about the investigation,” and (2) the police confirmed with the suspect that he had so indicated. Here, the detective’s testimony was clear that defendant’s wife informed him that defendant had questions about the investigation. Further, the detective knew the caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation. The detective then called defendant at the jail and confirmed that defendant desired to speak with him. Therefore, defendant “adequately evinced a willingness and a desire to” reinitiate communication with the police through a third party and there was no error in admitting his inculpatory statements.

Defendant also contended that the statements he made in the second interview were not voluntary and that the court erred in not holding a hearing on the issue of voluntariness. The court of appeals did not reach the merits of this issue because defendant moved to suppress the statements solely on reinitiation grounds and thus waived the voluntariness claims.

Defendant also argued that reversal is required because the recording of the interview admitted at trial included the detective’s assertions that he believed the victim and did not believe defendant’s denials of the victim’s allegations, and because the detective testified that he did not believe defendant. The court discerned no plain error in the admission of this evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

Tenth Circuit: Officers’ Theft During Warrant Execution Does Not Justify Blanket Suppression of Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Webster on Tuesday, January 5, 2016.

Kansas City police officers became suspicious that Ricky Webster was manufacturing and distributing crack cocaine out of his residence and obtained a no-knock search warrant. The Kansas City officers executed the warrant, with a five-minute lead on their entry by three members of the Selective Crime Occurrence Reduction Enforcement (SCORE) unit, special officers whose role was to enter and secure residences prior to the execution of search warrants. The police officers discovered more than 100 grams of crack cocaine, drug paraphernalia, a small amount of marijuana, and numerous pills during the search. They also found eighteen firearms, two of which were located in close proximity to drugs. Webster was indicted on numerous charges, and he pleaded guilty to a conspiracy count and possession of a firearm in furtherance of a drug trafficking crime and agreed to a sentence of 180 months in exchange for the government agreeing to forego filing for a sentence enhancement on Webster’s prior felony drug conviction, which would have required a mandatory minimum 20-year sentence.

Prior to accepting the plea agreement, Webster informed the court he had recently become aware that his wife had filed a complaint with the Kansas City police, claiming that the SCORE officers had stolen several items of personal property during the search, including a Flip camcorder, a Playstation, an iPhone, and $100 in cash. Webster asked for a continuance so he could discuss the theft with his attorney and reconsider the plea. Webster’s trial counsel informed the court that he believed it was against Webster’s best interest to withdraw the plea, but he nevertheless filed a motion to withdraw the plea after the court granted the continuance. At the next sentencing hearing, the district court denied Webster’s motion to withdraw the plea and sentenced him to 180 months pursuant to his plea agreement. Webster filed a pro se notice of appeal, which the Tenth Circuit dismissed as untimely.

The next day, the Kansas City Police Department and the FBI conducted a sting that caught several members of the SCORE unit stealing personal property during execution of a search warrant. The Flip and Playstation were subsequently discovered at the house of one of the SCORE unit members. Three officers were charged with conspiring to steal property from Webster’s wife and others, and all three pleaded guilty. Based on the indictments, Webster filed a pro se § 2255 petition to vacate his convictions, arguing his trial counsel was constitutionally ineffective for failing to file a motion to suppress all evidence seized during the search of his house.

The district court held that the SCORE officers’ theft amounted to flagrant disregard of the scope of the warrant and found that the egregious conduct justified a blanket suppression of all evidence seized during the search. The district court found that defense counsel’s failure to investigate the claims of theft or file a motion to suppress was unreasonable, and therefore Webster was prejudiced by his counsel’s deficient conduct. The district court vacated the judgment entered pursuant to the plea agreement and denied the government’s subsequent motion to reconsider. Webster then filed a motion to suppress all evidence obtained in the search in the reinstated criminal case, which the district court granted. The government appealed the grant of habeas relief and grant of the motion to suppress.

The Tenth Circuit first considered the motion to suppress, reasoning that the grant of habeas relief was contingent on its success. The Tenth Circuit examined precedent requiring blanket suppression pursuant to the exclusionary rule, specifically addressing the cases on which the district court relied in issuing its order. The Tenth Circuit noted that blanket suppression is an extreme remedy only appropriate in the rarest circumstances, and distinguished its prior cases allowing blanket suppression. Here, the district court made specific findings that the police officers were unaware of the SCORE officers’ conduct, whereas in other cases there was a conspiracy among all involved officers. Further, in prior cases, the officers took vast amounts of property in blatant disregard of the scope of the warrant, whereas here the SCORE officers took only a few high-value items. The Tenth Circuit implied that blanket suppression is only justified when officers take numerous items outside the scope of the warrant, rather than when members of the team executing the warrant commit crimes.

Addressing Webster’s argument that blanket suppression was necessary in deterrence, the Tenth Circuit found that there could be no greater deterrent than criminal prosecution. The Tenth Circuit declined to address the habeas petition, since its reversal of suppression negated the basis for the petition.

The Tenth Circuit reversed the district court.

Tenth Circuit: Exclusionary Rule Applies to Search when Warrant Issued Illegally

The Tenth Circuit Court of Appeals issued its opinion in United States v. Krueger on Tuesday, November 10, 2015.

In 2013, Homeland Security Investigations (HSI) Agent Rick Moore learned that child pornography was being distributed over the internet by Zachary Krueger, a Kansas resident. He obtained a warrant from a U.S. District Court magistrate for the District of Kansas to search Krueger’s home for items such as computers and cell phones that may be used to display child pornography. When Agent Moore attempted to execute the warrant, Krueger’s roommate told him that Krueger was in Oklahoma and had taken his computer and cell phone with him. Agent Moore contacted another HSI agent in Oklahoma, who located Krueger. Agent Moore then went to a different Kansas magistrate and obtained a warrant to search the residence in Oklahoma, as well as Krueger’s vehicle, which was parked outside the Oklahoma residence. Agent Moore transmitted the second warrant (Warrant 2) to the Oklahoma agent immediately after it was issued, and a team of agents went to the Oklahoma residence to execute the warrant.

Shortly after entering the residence, one of the agents noticed that Warrant 2 had been issued by a magistrate in Kansas, rather than in the Western District of Oklahoma, and asked another agent if that was acceptable. After speaking with Agent Moore and an AUSA in Kansas, the agents decided to refrain from searching the computer until they had consent. A few weeks later, a Kansas police officer visited Krueger and obtained his written consent to search the computer. As a result, Krueger was charged with distribution of child pornography.

Krueger then filed a pretrial motion to suppress the evidence obtained in the search in Oklahoma as well as the statements he made to law enforcement. Krueger argued suppression was necessary because Warrant 2 violated Fed. R. Crim. P. 41, which only allows magistrate judges to issue warrants to persons and property located within their districts. Krueger argued Warrant 2 was illegal from the outset, necessitating suppression because the search was warrantless and unconstitutional. Krueger also argued that even if Warrant 2 was not void at the outset, he was prejudiced by the Rule 41 violation in the sense that he would not have cooperated with law enforcement had he known that the warrant was illegal. The district court granted Krueger’s suppression motion after a hearing. The government appealed.

On appeal, the government conceded that Warrant 2 was invalid because the magistrate judge in Kansas had no authority to issue a warrant concerning property in Oklahoma. However, the government urged the Tenth Circuit to reverse the suppression order, arguing the district court applied the wrong legal standard in determining Krueger had suffered prejudice as a result of the Rule 41 violation. The Tenth Circuit disagreed. The Tenth Circuit declined to consider an issue of first impression in the circuit—whether an out-of-district warrant issued by a magistrate who lacks authority rises to the level of a Fourth Amendment violation—because the warrant’s constitutionality would not affect the outcome of the appeal. The Tenth Circuit noted that the government abandoned all of its arguments except that Krueger failed to establish prejudice, and found that Krueger did indeed establish prejudice. Because suppression is the appropriate remedy for purposes of the exclusionary rule seeking to deter law enforcement from obtaining illegal warrants, the Tenth Circuit affirmed the district court.

Tenth Circuit: DEA Agent’s Removal of Luggage from Common Storage Area Constituted Illegal Seizure

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, November 9, 2015.

Kelvin Hill boarded an eastbound Amtrak train in Los Angeles. When it made a regularly scheduled stop in Albuquerque, DEA Agent Kevin Small boarded the train and entered the common luggage area. He found a small black and white “Coogi” brand bag with no tag. He took the suitcase into the passenger area and asked each passenger whose bag it was. No one responded, including Hill, so Agent Small deemed the bag abandoned. He searched the suitcase, finding a large quantity of cocaine as well as clothing linking the bag to Hill.

A grand jury indicted Hill of possession with intent to distribute 500 grams or more of cocaine. He moved to suppress the cocaine, asserting Small’s actions in taking the bag from the common luggage area and moving it about the coach amounted to an illegal seizure, rendering Hill’s abandonment of the bag invalid. The district court denied Hill’s motion, instead concluding Small did not seize the bag at any time before Hill abandoned it. Hill entered a conditional guilty plea, reserving the right to appeal the district court’s denial of his suppression motion.

On appeal, the Tenth Circuit analyzed the following question: “Did Small’s actions in removing Hill’s bag from the train’s common luggage area and carrying it through the coach as he questioned passengers constitute a seizure of the bag?” The Tenth Circuit concluded that it did. The Tenth Circuit found that Small’s actions interfered with Hill’s possessory interest in the bag, because by taking the bag for his own purposes, Small interfered with Hill’s right to access the bag for his own purposes, on his own time, and at the place where unchecked baggage is properly stowed. The Tenth Circuit noted that the more difficult question was whether Small’s interference was meaningful for Fourth Amendment purposes.

The Tenth Circuit could not find any case law dealing with a fact scenario similar to the one at hand. Instead, most cases dealing with luggage presented two situations: when luggage is seized directly from a person, or when it is seized while checked at an airport. The Tenth Circuit found that the owner’s possessory interest was greatest when the bag was in his or her direct control and least when the bag was checked. Because the scenario at hand was somewhere in-between those two points, the Tenth Circuit analyzed the facts independently, finding that Hill would have reasonably expected other passengers to perhaps shift his bag’s position but would not have expected anyone to carry the bag through the coach. The Tenth Circuit therefore concluded that Agent Smart’s actions constituted a seizure.

The Tenth Circuit reversed the district court’s decision and remanded for further proceedings.