New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

In the same opinion, the Tenth Circuit also approved a search warrant for pornographic images of children, despite no allegation in the search warrant that the images were believed or known to be lascivious. Citing, Illinois v. Gates, 462 U.S. 213 (1983)(probable cause showing in affidavit is less than necessary to convict).

However, the more important aspect of the opinion appears to be how the Tenth Circuit disposed of the defendant's challenge to a government official's search of a personal safe without a search warrant.

The defendant was head of the Electrical Engineering Department at Oklahoma State University. A clerical employee in the same department found a gray, fireproof safe in a department supply room. The clerical employee contended she was unaware of the identity of the owner. From the opinion, it did not appear that the safe was in a private or secure location. The safe was locked, but the clerical employee contended the key was in the lock.

The clerical employee opened the safe, ostensibly to determine who owned it. Inside the safe were "three compact disks, five Polaroid photos, twenty-seven 35mm photos, four personal letters and sixty-three 3.5mm computer diskettes. There were letters addressed to "Michael" and "Dr. Michael Soderstrand," and other letters were signed as "M. Soderstrand." There were also photos of Dr. Soderstrand. The Tenth Circuit failed to comment that the clerical employee undoubtedly knew the identity of the owner of the safe at this point.

Unhappy with merely knowing the identity of the owner, the state employee decided to snoop some more. The clerical employee was curious, so she decided to view one of the good doctor's CD's on her office computer. When she looked, she found "an image that appeared to be several nude Asian children about 10-12 years old." The employee reported the discovery to the dean, who in turn called in the police. The campus cops seized the safe and put it in their safe for - safekeeping. The cops secured a warrant and busted the head of the Electrical Engineering Department (in between breaking up beer parties and combating hooliganism on campus).

The Tenth Circuit casted the state-paid employee, acting on school grounds as a private, curious citizen:

To determine whether a private person's search becomes a Government search, the court examines "(1) whether the Government knew of and acquiesced in the intrusive conduct, and (2) whether the person searching intended to assist law enforcement efforts or to further his [or her] own ends." United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000). Dr. Soderstrand does not contend that law enforcement officers coerced, dominated or directed Al-Harake, or that she otherwise conducted her search pursuant to any law enforcement or other governmental objective. Rather, as he admits, "Al-Harake simply became curious about the safe and its contents."

Am I the only one who noticed that her position as an employee of a public university, acting within her work area at the public university, and using her governmennt owned computer to conduct a search of a private CD, combine to give her the appearance of a state actor and not a private citzen? More to the point, why do we need to determine whether she was coerced by police when she plays on the same team? In sum, a poorly reasoned decision characterized by "conspicuous ignorance" of the obvious. Classic Tenth Circuit reasoning.

The Tenth Circuit had to stretch to get Machine Gun Dennison. The opinion involves issues related to searches incident to arrests, protective sweeps, and reasonable suspicion when in the company of others.

The defendant challenged the initial detention. An officer had asked the defendant what he was doing in the apartment complex. Dennison was waiting for a tow truck to tow his other truck before his girlfriend could bash the bejesus out of it. The officer came around a second time after realizing he had heard a call for a domestic violence offender driving a gold station wagon. The officer asked for and received identification from the men. The officer discovered the warrants for Mr. Allen and arrested him. One warrant was for a violent crime and another was for a weapon's violation. The Tenth Circuit approved the investigative stop, because of the high crime area, the time of morning, the distance of the men's location from the truck, and the unusual nature of the activity.

The Tenth Circuit stretch comes in the search of the car. The district court approved the search based on a search incident to the arrest of Mr. Allen. The problem was that the government failed to show that Allen was still on the scene when police searched the truck. Thus, the Tenth Circuit said no valid search incident to an arrest.

A search incident to an arrest pre-supposes that the arrestee remains on the scene:

"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981) (emphasis added). This court has concluded, however, that "[a] warrantless search incident to arrest is not valid if it is 'remote in time or place from the arrest.'" United States v. Lugo, 978 F.2d 631, 634-35 (10th Cir. 1992) (quoting Chimel v. California, 395 U.S. 752, 764 (1969)). A search incident to arrest is unlawful when a suspect is arrested, removed from the scene, and en route to the police station when the search of the arrestee's passenger compartment begins. Id. at 635

So the Tenth Circuit went stretching for another basis for the search. The Tenth Circuit approved the search of Mr. Dennison's truck because his passenger, Mr. Allen, was a bad dude:

Like [United States v. Maddox, 388 F.3d 1356, 1359-60 (10th Cir. 2004)], officers here were assisting in the late-night arrest of a potentially dangerous suspect in a high-crime area. Though occupants in Mr. Dennison's truck did not outnumber officers, the scene remained dangerous; at 3:00 a.m., officers could not see inside Mr. Dennison's truck, and they knew that Mr. Allen had multiple arrest warrants. Because a Long investigation "at close range" requires an officer to make a "quick decision as to how to protect himself and others from possible danger," the Supreme Court does not require "that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 24, 28); see also Thornton v. United States, 124 S. Ct. 2127, 2137 (2004) (Scalia, J., concurring) ("When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment.").

The Court distinguished its holding from Ybarra v. Illinois, 444 U.S. 85, 91 (1979), where the Supreme Court warned that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to a probable cause to search that person." And analogized its holding to Maryland v. Pringle, 540 U.S. 366 (2003) which it contends "allows officers under certain circumstance to find probable cause of a joint illegal enterprise absent particularized suspicion".

The Court admits, however, that Machine Gun Dennison was a gentleman. The lesson may be that you can go to a bar and maintain your privacy (Ybarra), but if you're riding with a bad hombre, you've given up your Fourth Amendment rights.

Despite the Court's reliance on Whren, this case does not stand for the proposition that law enforcement may conduct a search in furtherance of a criminal investigation whenever a business is subject to administrative searches pursuant to state law.

The Tenth Circuit cited New York v. Burger, 482 U.S. 691, 707 (1987), for a three-part test in examining whether a warrantless inspection of a closely regulated industry violates the Fourth Amendment:

First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. . . . Finally, the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.

In a strange twist, the Tenth Circuit held that a search in furtherance of a criminal investigation is acceptable if the police possess merely a suspicion of criminal activity. The presence of probable cause to believe criminal activity would be found in the search violates the Fourth Amendment as law enforcement would be required to request a search warrant.

The most egregious aspect of this opinion, however, is the fiction that the search of the toolbox was reasonably related to an administrative search. The statute permitted "officers to examine "vehicles," vehicle "parts," and vehicle "parts . . . stored" at the salvage yard." The Tenth CIrcuit, then termed VIN plates as "parts". In searching the toolbox, law enforcement officers were looking for "parts" because they were looking for VIN plates.

When I go to my local NAPA store, I don't see VIN plates for sale. Mr. Johnson got a raw deal and our freedoms took a hit.

The Hutchison, Kansas Police Department received a "tip" that defendant was dealing drugs and that his supplier was in El Paso, Texas. The Hutchison Police confirmed that defendant traveled to Texas by following him as far south as Stratford, Texas. (Stratford looks to be just miles from the Oklahoma border and about one-third of the way to El Paso from Witchita.). The Tenth Circuit described the Hutchison Police observations preceding the defendant's detention and the application for the search warrant:

On April 14, 2003, Officer Jamie Ty Schoenhoff observed Mr. Cantu operating the same vehicle he had driven to Texas. Around 10:00 p.m., officers followed Mr. Cantu to a storage facility. Officer Schoenhoff testified at the suppression hearing that he did not see Mr. Cantu access a storage shed. Instead, Mr. Cantu exited the vehicle and disappeared into a line of evergreen trees or bushes. Mr. Cantu's wife, Melina Pina, formerly a passenger in the vehicle, then drove the vehicle away from the storage facility. After following the vehicle for a short distance, Officer Schoenhoff returned to the storage facility. There he began surveillance and was soon joined by Detective Howard Shipley. Shortly thereafter, Ms. Pina returned in the vehicle. Officer Schoenhoff next observed Mr. Cantu emerge from the line of evergreens dragging a large black duffel bag on the ground. While neither officer observed Mr. Cantu placing the bag in the vehicle's trunk, Detective Shipley observed the trunk opening and closing. Mr. Cantu then entered the driver's side of the car and proceeded to exit the storage facility.

The above described "surveillance" and a tip that the Tenth Circuit acknowledged as having negligible probative value was sufficient probable cause for a warrant when combined with one prior drug conviction and two prior arrests for drugs. The Tenth Circuit held that the contemporaneous observation of the suspicious activity "harkened back" to the defendant's previous arrests and refreshed what would otherwise appear to be stale information.

The Tenth Circuit also approved the defendant's two hour detention while Hutchison Police secured a search warrant citing Illinois v. McArthur, 531 U.S. 326 (2001)(holding as reasonable a detention outside of residence while police secure a search warrant).

The defendants, convicted of manufacturing methamphetamine, challenged a number of searches of their homes and the one vehicle search. The most significant legal precedent coming from the opinion appears to be its approval of the officer's sense of smell. The officer claimed to be "certified" by the DEA in the detection of the odor of methamphetamine manufacturing. The warrant was based solely upon his purported sniff. The Tenth Circuit held the sniff was sufficient:

Mook contends that this search was not supported by probable cause, because humans cannot reliably identify odors. But we have repeatedly held in vehicle-search cases that "[a]n officer's detection of the smell of drugs, such as methamphetamine . . . can be an independently sufficient basis for probable cause." United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000) (collecting cases). We see no reason to limit these cases to vehicle searches: the scent of methamphetamine, wherever detected, gives qualified officers probable cause to search for methamphetamine and evidence of methamphetamine manufacturing.

The Court also approved the search of a defendant's vehicle despite his four hour warrantless detention:

Windrix contends that his four-hour detention at police headquarters was unconstitutional and that the evidence discovered in the search of his car must therefore be suppressed. But we suppress evidence because of an unconstitutional arrest only when the evidence was discovered by exploitation of the arrest. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

Windrix rightly concedes that "the arresting officers had probable cause to search [his] vehicle right . . . after the dog alert." Windrix's Aplt. Br. at 19. It was the dog alert, not the arrest or anything Windrix said or did during the arrest, that justified the search. The evidence was not discovered by exploitation of the arrest. Consequently, it was proper not to suppress the evidence, regardless of the constitutionality of the arrest. See United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir. 1996) (seizure of vehicle was not fruit of unlawful detention of occupants); United States v. Eylicio-Montoya, 70 F.3d 1158, 1166-67 (10th Cir. 1995) (burlap bags containing marijuana would not have been any less visible had car's occupants not been unlawfully arrested).

The significant problem with allowing officers to obtain search warrants based on their sense of smell is the naturally subjective nature of the sense of smell and the probability of its manipulation. Since the manufacture of methamphetamine involves a number of chemicals, the sniff test subjects many people to searches when their use of the chemicals is innocent and consistent with the law.

Mr. Riccardi was convicted of possession of child pornography. One count involved images retrieved from his computer's hard drive. A warrant was executed at Mr. Riccardi's residence for information related to lurid phone calls he had made to teenage boys. While at his home, police located a computer. Based on other material found in the execution of the search warrant, the Tenth Circuit decided that there was sufficient evidence to obtain a warrant for the seizure of the computer.

The warrant authorized the seizure of the computer and the search of "all electronic and magnetic media stored within such devices". The warrant did not specify the items for which the officers were authorized to search. The Tenth Circuit cited United States v. Carey, 172 F.3d 1268, 1271 (10th Cir. 1999), in holding that the warrant lacked the Fourth Amendment's required particularity:

The underlying premise in Carey is that officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. Because computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the "intermingling" of documents and a consequent invasion of privacy when police execute a search for evidence on a computer. . . . Thus, when officers come across computer files intermingled with irrelevant computer files, they may seal or hold the computer pending approval by a magistrate of the conditions and limitations on a further search of the computer. . . . Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant.

However, "good faith" saved the day for law enforcement. The investigating agent opened the computer and found "thumbnail files of child pornography". The agent suspended the search and asked whether a more specific warrant would be required. A prosecuter told him no and the agent proceeded. The Court noted also that the affidavit for search warrant was specific, the search methodology limited the search to finding child pornography, and the agents seized only child pornography.

The Court distinguished its holding from United States v. Leary, 846 F.2d 592 (10th CIr. 1988), in which a broader search was conducted. The determining fact in Riccardi appears to be the labeling of the files in the computer. If the agents had conducted a search for child pornography through the complete hard drive the Leary would likely dictate the suppression of the evidence. As it was, the files were marked and the agents merely extracted the marked files. Ironically, it was the marking of the files that prompted the agent to ask for advice.

In a very short, published opinion the Court ran through the analytical standards and summed up its holding:

The district court relied on the following factual findings to support its conclusion that the detention was justified by reasonable suspicion. Mr. Williams was extremely nervous during his encounter with Trooper Hyde; his hands were shaking, his voice was cracking, he could not sit still, and his heart was beating so fast that Trooper Hyde was able to see his chest jerk. Mr. Williams admitted that he exited the interstate to avoid the traffic stop. Mr. Williams and his passengers gave inconsistent stories when asked where they were coming from and how long they had been together. When Mr. Williams exited the patrol car, Mr. Williams appeared as if he were about to run. Considered in the light most favorable to the district court's ruling, these findings of fact are not clearly erroneous.

There appears to be little remarkable about the Williams decision. One has to wonder why the Court chose to publish the opinion - unless the judges just wanted to pound into our heads that reasonable suspicion is a low standard for a prolonged detention on the highways of America.

In Trujillo, the parolee had signed a parole agreement, which authorized the search of his home upon reasonable suspicion. The Tenth Circuit cited Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987), for the proposition that warrantless searches of probationers' homes when conducted pursuant to reasonable regulations are reasonable. United States v. Knights, 534 U.S. 112 (2001), made clear that a probation order allowing warrantless searches by probation officers and law enforcement officers extended to investigative searches as well as probationary searches.

The Trujillo Court found that the arrest of Trujillo, pursuant to a valid arrest warrant for parole violations, outside his residence did not vitiate the parole agreement he had signed. In joining the Seventh Circuit and the Third Circuit, the Tenth Circuit found that the officers were merely fulfilling the purpose of the parole agreement when they searched Trujillo's house.

Practitioner's Note:

If representing a probationer with a potential suppresion issue, always ask for Department of Corrections regulations on probation/parole searches. Most warrantless searches require reasonable suspicion.

The initial detention was for speeding. Thus, the initial detention was reasonable. The defendant did not challenge the government's assertion that the continued questioning of defendant, after the purpose of the initial stop was completed, was consenual. The question then presented was whether the detention of defendant was reasonable after he consented to a search of his car trunk, but refused to consent to a search of his locked suitcase. The Tenth Circuit (McConnell, J.) said yes.

Judge McConnell did take issue with some of the oral statments of the District Court and with a number of the District Court's findings related to reasonable suspicion. Criminal defense paractitioners will take solace in some of Judge McConnell's pithy remarks:

1) Refusal to consent to a search does not support reasonable suspicion, even when the refusal to consent is selective.

The defendant had consented to a search of his trunk but denied consent to a search of his locked suitcase. Judge McConnell rejected any inference that such a refusal would provide reasonable suspicion - "If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections."

2) Nervousness of a motorist is not probative unless "unusually severe or persistent".

However, the Court of Appeals will accept the District Court's finding of the nature of the nervousness even when a videotape appears to contradict the officer's testimony.

3) The length of the rental car agreement is not very probative unless evidence is introduced that the motorist was unable to extend the contract without penalty.

The Court distinguished Santos from United States v. McRae, 81 F.3d 1528 (10th Cir. 1996), because of the lack of any evidence of a penalty to Santos for exceeding the rental agreement period.

4) Vague and evasive answers to questions are not given "much independent weight".

As Judge McConnell stated, "Vague answers may sometimes be a polite way to sidestep impertinent questions."

5) Travel between "drug source cities" and "drug destination cities" is a "weak" factor.

The defendant was travelling from San Francisco to New York. You can almost read the laughter from the pages of the opinion.

6) A locked suitcase "adds nothing to the calculus" of reasonable suspicion.

Judge McConnell rejects the "experience" of law enforcement officers on the meaning of a locked suitcase, "Deference to law enforcement officers becomes inappropriate . . . when an officer relies on a circumstance incorrigibly free of associations with criminal activity.

New Mexico's own, Judge Hartz, wrote a one sentence concurring opinion letting us know that he would give more weight to the rental car agreement and the vague answers to travel plans, but that he believes Judge McConnell did a fine job.