United States v. Suggs, 19-1487

998 F.3d 1125

UNITED STATES of America, Plaintiff - Appellee,

v.Perry Wayne SUGGS, Jr., Defendant - Appellant.

No. 19-1487

United States Court of Appeals, Tenth Circuit.

FILED June 2, 2021

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, with him on the briefs), Kansas City, Kansas, for Defendant–Appellant.

Karl L. Shock, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff–Appellee.

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.

BALDOCK, Circuit Judge.

This appeal stems from an incident at the corner of a crosswalk in Colorado Springs. It is an unusual product of a familiar conflict: the pedestrian and the right-hand turn. A pedestrian wanted to cross the street. At the same time, the driver of a vehicle wanted to turn right. Words were exchanged. Then the driver pulled out a gun and took a shot at the pedestrian. Fortunately the bullet didn't strike anyone. The vehicle sped off, and the pedestrian called 911. Law enforcement focused their investigation on Defendant Perry Suggs. Warrants were issued, Defendant's home was searched, and incriminating evidence was discovered.

A federal grand jury charged Defendant with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Before trial, Defendant moved to suppress the evidence found during sequential searches of his home and an SUV parked under his carport. He argued that the warrant to search his home violated the Fourth Amendment's particularity requirement and that officers would not have found the evidence used against him but for the invalid warrant. The district court disagreed and denied the motion. Defendant now appeals that decision.

We have jurisdiction under 28 U.S.C. § 1291 to consider whether the district court erred when it denied Defendant's motion to suppress. We hold that it did. Because the residential search warrant failed to meet the Fourth Amendment's particularity requirement and cannot be saved by the severability doctrine, we vacate the order denying Defendant's suppression motion. Yet the question remains whether the good-faith exception to the exclusionary rule saves the incriminating evidence from suppression. We remand for the district court to resolve underlying factual disputes and consider the remedial question in light of this opinion.

I.

What started out as a verbal altercation at the corner of a crosswalk in Colorado Springs quickly escalated when the driver of a vehicle pulled out a gun and fired a shot at a pedestrian's feet. Officer Adam Menter responded to the incident. He interviewed witnesses and identified Defendant as the driver and owner of the vehicle involved in the shooting.

After concluding his initial investigation, Officer Menter got an arrest warrant for Defendant. He also applied for a search warrant with the state district court. As part of the application, Officer Menter submitted an affidavit (labeled as Attachment A) that detailed the circumstances of the vehicle shooting and the fruits of his investigation. In addition, the affidavit noted that Defendant was a confirmed gang member, suspected to be involved in several other crimes, and had prior felony convictions for menacing and possession of a weapon by a previous offender. The warrant application requested authority to search Defendant's home for the items listed in "Attachment B," which described the targeted property as follows:

The following person(s), property or thing(s) will be searched for and if found seized:

GENERAL INFO

• General photographs of the scene

• indicia of residency

• Identification which would identify any occupants of the residence

GUNS INVOLVED

• Any and all firearms; specify if known

• Any and all ammo; specify if known

• Any documentation showing the ownership of a firearm

• Any and all sales records showing the purchase of a firearm

• Any projectiles

• Any and all spent shell casings

• Any item commonly used to carry and transport a firearm (i.e. holster & gun carrying case, magazines, cleaning kits)

VEHICLE

• Indicia of ownership of vehicle

• Vehicle registration

MISCELLANEOUS

• Any item identified as being involved in crime

Suppl. ROA, Vol. I at 52.

The state district court issued a warrant that identified the place to be searched as Defendant's home. As for the items to be searched for and seized, the warrant incorporated by reference the same Attachment B that had accompanied the warrant application. Officer Menter's affidavit (Attachment A), on the other hand, was not expressly incorporated into the warrant.

While conducting surveillance in anticipation of the search, officers observed Defendant drive away in the vehicle involved in the shooting. After Defendant parked the vehicle at a nearby gas station, members of the SWAT team arrested him. Officers then went to Defendant's home to execute the search warrant.

Led by Officer Teresa Tomczyk, the SWAT team conducted a protective sweep of Defendant's home and then cleared the outside surrounding area of any threats. During this process, Officer Tomczyk shined her flashlight through the window of an SUV (not the vehicle involved in the shooting) parked under the carport, looking for persons who might be hiding. She did not see any people. What she saw instead were two guns, a magazine, and two handgun cases.

With the premises secure, officers conducted the search of Defendant's home. One officer found and seized a box of ammunition that matched the ammunition used in the vehicle shooting. Officer Menter discovered a bank statement linking Defendant to the residence. He also found and seized a retail sale contract for the vehicle involved in the shooting.

At some point, Officer Tomczyk told Officer Menter about the guns she saw in the SUV parked under the carport. After taking a look for himself, Officer Menter returned to the police station and used this information to obtain a warrant to search the SUV. This warrant was almost identical to the residential search warrant. Officer Menter then returned to Defendant's home and executed the vehicle warrant. During the search of the SUV, Officer Menter found and seized a handgun, a rifle, ammunition, gun carrying cases, and the vehicle's registration document.

A grand jury indicted Defendant on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Defendant filed a motion to suppress the evidence found in his home and in the SUV. He argued that the residential search warrant was invalid because it violated the Fourth Amendment's particularity requirement and that the evidence found in the SUV should be suppressed as fruit of the initial, unconstitutional search. The district court denied Defendant's motion.

After trial, the jury convicted Defendant. The district court sentenced him to 90 months’ imprisonment, to be followed by a 3-year term of supervised release. Defendant now appeals the denial of his suppression motion.

II.

We accept the district court's factual findings unless they are clearly erroneous, but we review de novo the district court's ultimate determination of reasonableness under the Fourth Amendment. United States v. Burgess , 576 F.3d 1078, 1087 (10th Cir. 2009).

III.

As he did before the district court, Defendant contends that the residential search warrant lacked particularity, rendering the search of his home unconstitutional and requiring suppression of the evidence discovered as a result of the initial illegality. Meanwhile, the Government argues that the residential search warrant was valid and that, even if it wasn't, both the severability doctrine and the good-faith exception to the exclusionary rule save the evidence from suppression.

We begin our analysis by considering the validity of the residential search warrant and determine that it violated the Fourth Amendment's particularity requirement. We next consider whether the severability doctrine applies and conclude that the warrant is not a good candidate for this remedy. Finally, rather than decide whether officers relied on the invalid warrant in good faith, we remand for the district court to resolve underlying factual disputes and fully address the issue in the first instance.

A.

Defendant first argues that the search warrant for his home was invalid because it failed to describe with particularity the things to be searched for and seized. We agree.

1.

Our analysis begins, as it must, with the Fourth Amendment's text. The Fourth Amendment provides that "no Warrants shall issue" without "particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. This particularity requirement, as it has come to be known, was most immediately the product of contemporary revulsion against a regime of general warrants that gave British officials carte blanche to search and seize property of American colonists. Stanford v. Texas , 379 U.S. 476, 481–82, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). The Framers constitutionalized the requirement to ensure that a "search will be carefully tailored to its justifications" and "will not take on the character of the wide-ranging exploratory searches" English kings once favored. Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). To this end, a search warrant must "describe the items to be seized with as much specificity as the government's knowledge and circumstances allow." United States v. Leary , 846 F.2d 592, 600 (10th Cir. 1988).

The warrant here targeted some particular items but also included a catch-all phrase authorizing the search and seizure of "[a]ny item identified as being involved in crime." Wisely, the Government does not contest that this language, on its face, would be anything but a license for the sort of general rummaging outlawed by the Fourth Amendment. The Government's claim, instead, is that under a natural reading of the warrant, "[a]ny item identified as...