United States v. Webster

809 F.3d 1158

UNITED STATES of America, Plaintiff–Appellant,

v.Ricky D. WEBSTER, Defendant–Appellee.

Nos. 15–3027

15–3028.

United States Court of Appeals, Tenth Circuit.

Jan. 5, 2016.

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC (Leslie R. Caldwell, Assistant Attorney General, and Sung–Hee Suh, Deputy Assistant Attorney General, United States Department of Justice, Washington, DC; and Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant United States Attorney, Office of the United States Attorney, District of Kansas, Kansas City, KS, with him on the briefs), for Plaintiff–Appellant.

Ryan C. Hudson (Jeffrey D. Morris, with him on the brief) of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, Kansas City, MO, for Defendant–Appellee.

Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.

SEYMOUR, Circuit Judge.

Ricky D. Webster pled guilty to conspiracy to manufacture and possess with intent to distribute 50 grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841, 846, and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). We denied his direct appeal as untimely. The district court subsequently granted Mr. Webster's 28 U.S.C. § 2255 petition after determining that his trial counsel was constitutionally ineffective for failing to file a motion to suppress evidence found during the search of Mr. Webster's residence. The basis of the motion to suppress was the misconduct of several officers from the Selective Crime Occurrence Reduction Enforcement (SCORE) unit, special officers used only to enter and secure the residence prior to its search by the narcotics officers who obtained the search warrant. Unbeknownst to the narcotics officers, the SCORE officers stole personal property from Mr. Webster's residence during their initial securing of the premises and its occupants. When the government subsequently revived the criminal case against Mr. Webster, he filed a motion to suppress all evidence seized at his residence, which the district court granted.

We consolidated the government appeals of the grant of § 2255 relief and the grant of the motion to suppress upon retrial. We now reverse, holding that because the search was not tainted by the SCORE officers' theft and the items they took were not used in evidence against Mr. Webster, the district court erred in granting the motion to suppress all of the evidence properly discovered during the search by the narcotics agents. Given our conclusion that the narcotics officers did not flagrantly disregard the warrant or violate Mr. Webster's Fourth Amendment rights, we do not need to address Mr. Webster's ineffective assistance of counsel argument because any motion to suppress would have failed.

IFacts and Procedural History

Kansas City, Kansas, police officers developed information through an informant that crack cocaine was being manufactured and distributed out of Mr. Webster's residence. Based on controlled buys made by an informant, as well as surveillance of Mr. Webster's residence, a narcotics officer in the Kansas City Police Department applied for and was granted a no-knock warrant to search Mr. Webster's residence at 2743 Haskell Avenue. The warrant specifically authorized a search for the following items: cocaine, drug paraphernalia, cash, and any records of narcotics transactions or documents which proved legal occupancy or control of the premises.

With a no-knock warrant approved, Kansas City Police narcotics officers executed the search warrant with assistance in advance from three SCORE officers. As was the custom of the police department, the SCORE officers were used to execute the entry and secure the residence for officer safety because the narcotics officers suspected firearms were present there. The SCORE officers entered and secured the entire house in about five minutes. They located Mr. Webster and his wife, Tawana Webster, at the residence, along with two other people.

Five minutes after entry by the SCORE officers, narcotics officers entered and took control of the scene. During their search of the residence, the narcotics officers discovered more than 100 grams of crack cocaine, drug paraphernalia, a small amount of marijuana, and numerous pills. They also found eighteen firearms, two of which were located in close proximity to drugs.

Mr. Webster was indicted on one count of conspiracy to manufacture crack cocaine in violation of 21 U.S.C. § 846(a), three counts of distributing and one count of possessing crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a), one count of possessing firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He pled guilty to the conspiracy count and to possession of a firearm in furtherance of a drug trafficking crime pursuant to a written plea agreement. The plea agreement contained a proposed sentence of 180 months, including 120 months for Count One and sixty months for Count Six, to run consecutively. In exchange for his guilty plea, the government agreed to forego filing a sentencing enhancement under 21 U.S.C. § 851 for Mr. Webster's prior felony drug conviction, which would have given Mr. Webster a mandatory minimum sentence of twenty years, to be followed by up to ten years of supervised release. The government also agreed not to file any additional charges against Mr. Webster.

In his plea agreement, Mr. Webster waived his right to withdraw his guilty plea and his "right to appeal ... [or] collaterally attack any matter in connection with this prosecution, conviction, and sentence." Aplt.App., vol. I at 64. The plea agreement specifically noted, however, that "[n]otwithstanding the foregoing waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel." Id. at 65.

When Mr. Webster appeared at his initial sentencing hearing, he addressed the court and stated he had recently became aware that the Kansas City Police Department's Internal Affairs unit had started investigating thefts by SCORE unit officers. Notably, his wife had filed a complaint with the Kansas City police claiming that during the search of their house, officers stole an iPhone, a PlayStation gaming system, 100 dollars in cash, and a Flip Camcorder. Mr. Webster asked for a continuance so he could discuss the theft issues with his attorney and consider whether or not to withdraw his guilty plea.¹ Mr. Webster's trial counsel told the court that he did not believe it was in Mr. Webster's interest to withdraw his plea, particularly because he was concerned the government would then file a § 851 enhancement for the prior felony drug conviction. The court nevertheless continued the sentencing hearing pending Mr. Webster's motion to withdraw his plea, which his attorney filed the next day.

At Mr. Webster's second sentencing hearing, the district court denied his motion to withdraw the plea. The court sentenced Mr. Webster to 180 months, pursuant to his plea agreement, to be followed by five years of supervised release. Mr. Webster filed a pro se notice of appeal, which we denied as untimely.

The day after Mr. Webster filed his pro se notice of appeal, the Kansas City Police Department, in conjunction with the FBI, conducted a sting operation that caught several members from the SCORE unit stealing personal property during a search conducted pursuant to a warrant. Mr. Webster's PlayStation gaming system and the camcorder were subsequently recovered from the possession of two of the SCORE officers who had participated in the initial execution of the search warrant at Mr. Webster's residence. As a result of this investigation, the SCORE officers involved in the search of Mr. Webster's residence, Jeffrey M. Bell, Darryl M. Forrest, and Dustin Sillings, were indicted and charged with conspiring to deprive Tawana Webster and others of their civil rights by stealing property during warrant searches, in violation of 18 U.S.C. § 241, among other charges. All of the officers pled guilty to the conspiracy charge pursuant to plea agreements.

Due to the indictment of the SCORE officers, Mr. Webster filed a pro se motion § 2255 petition to vacate his convictions. He argued that his trial attorney was constitutionally ineffective for failing to file a motion to suppress all evidence recovered from the search of his house because of the thefts by the officers. The district court determined that his claim for ineffective assistance of counsel was not barred by his plea agreement and appointed counsel for Mr. Webster. The court ordered the parties to file briefs on whether the misconduct of the SCORE officers during the search amounted to flagrant disregard of the warrant, requiring suppression of all evidence seized pursuant to our precedent. See United States v. Medlin, 798 F.2d 407 (10th Cir.1986) (Medlin I ), and United States v. Medlin, 842 F.2d 1194 (10th Cir.1988) (Medlin II ).

During Mr. Webster's second § 2255 hearing, the district court found the following concerning the misconduct of the SCORE officers:

Here, we have a situation that the court believes and sincerely hopes is unique. The SCORE Unit members who took the items were acting alone, without the knowledge or help of the agents executing the search warrant. They also took the items for personal reasons unrelated at all to law enforcement or the case against [the] defendant. They stole the items. They did not list the items on the warrant return or intend to use them as evidence against defendant. It is true, the officers only took a few electronic items, but it is also reasonable to infer that this choice was deliberate, given the surreptitious nature of their actions. The officers have since been prosecuted, convicted, and

...