U.S. v. Foster

Decision Date15 November 1996
Docket NumberNo. 95-7131,95-7131
PartiesUNITED STATES OF AMERICA, Plaintiff - Appellant, v. ALBERT FOSTER, JR., Defendant - Appellee
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Eastern District of Oklahoma, (D.C. NO. CR-95-5-S) Lisa Simotas, Department of Justice, Washington, DC (Paul G. Hess, Assistant United States Attorney, and John W. Raley, Jr., United States Attorney, Muskogee, Oklahoma, with her on the briefs), for PlaintiffAppellant United States of America.

Donn F. Bakers (Stephanie Dinsmore with him on the brief), Baker & Baker, Tahlequah, Oklahoma, for Defendant-Appellee.

Before ANDERSON, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Albert Foster, Jr., was charged in a twelve-count superseding indictment with various violations of Titles 18 and 21 of the United States Code. Each charge was based on evidence seized during a warrant-based search of Foster's home. In addition to seizing those limited items specifically listed in the search warrant, the officers seized a large number of unlisted items.

Foster brought a motion to suppress all property seized during the search, including the items listed in the warrant. Following a suppression hearing, the Honorable Frank H. Seay of the United States District Court for the Eastern District of Oklahoma found that the officers had exhibited flagrant disregard for the terms of the warrant by conducting a "wholesale seizure of Foster's property amounting to a fishing expedition for the discovery of incriminating evidence." Accordingly, pursuant to this court's decision in United States v. Medlin, 842 F.2d 1194 (10th Cir. 1988) ("Medlin II"), the district court ordered the blanket suppression of all evidence seized from Foster's residence, including those items specifically covered by the search warrant. The United States appeals the district court's order of blanket suppression. This court exercises jurisdiction pursuant to 28 U.S.C. Section(s) 1291 and affirms.

I. BACKGROUND

The facts, as found by the district court, are as follows. On December 16, 1994, Sequoyah County Deputy Sheriff Raymond Martin submitted an affidavit for a warrant to search Foster's residence. According to Martin, an arrestee informed him that Foster's residence was being used for a marijuana cultivation operation and to house illegal weapons. Based on the information contained in Martin's affidavit, a state judge issued a search warrant authorizing a search of Foster's home, automobiles, and any outbuildings located on Foster's property. The search warrant authorized a search of Foster's residence for the presence of marijuana and the following specific items:

Remington 12 Ga. shotgun serial #L072083, Taurus Model 85, 38 special Serial #NA44497, 22Ca. Ruger carbine #120-99025 and a 22 Caliber Ruger Carbine W/green folding stock #23820424.

On December 16, 1994, at approximately 3:25 p.m., Martin and seven other officers arrived at Foster's residence and began to execute the search warrant. The officers found marijuana in the bedroom of the residence and in a barn located directly behind the residence. The officers also found firearms, ammunition, and drug paraphernalia throughout the residence and the barn. During the first hour of the search, Foster arrived at the residence with a woman identified as his stepdaughter. Foster was immediately arrested on charges of cultivation of marijuana and transported to the county jail.

After Foster's arrest, state officers decided to contact the Drug Enforcement Agency ("DEA") for assistance. Although the DEA authorized a federal investigation and prosecution, DEA agents did not arrive at Foster's residence until approximately 5:45 p.m.

In the interim, the state officers continued to search Foster's residence. Sequoyah County Deputy Sheriff Ken Cowart found numerous videotapes in the living room of the residence. Cowart noticed the words "Coke" and "Tab" on several of the videotapes. Apparently believing that these terms might refer to illegal drugs, Cowart placed one of the tapes in Foster's VCR. Viewing the videotape, Cowart observed Foster and his stepdaughter lying on the couch in the living room of Foster's residence. Cowart and Greg Wilson, an investigator with the Sequoyah County District Attorney's Office, found and viewed approximately five other videotapes with either the word "Coke" or "Tab" on the labels. These videotapes contained footage of sexual acts involving Foster and his stepdaughter and footage of marijuana use, including one scene involving three or four young females smoking marijuana on the couch in Foster's living room.

At approximately 5:45 p.m., DEA agents Robert Shannon, Juan Beal, and Tim Jones arrived at Foster's residence. Shannon read the search warrant and Martin's supporting affidavit and then accompanied Wilson on a tour of the residence. The DEA agents viewed the evidence that the state officers had already discovered, watched a videotape of the crime scene made by Wilson, and conducted their own search of the premises. Without personally viewing any of the videotapes, Shannon seized all videotapes located in Foster's residence and took them to the DEA's office.

The search of Foster's residence lasted from 3:25 p.m. until approximately 11:00 p.m. Although the warrant specifically identified the items to be seized, four weapons and marijuana, when the DEA agents left the residence they took thirty-five items "including various firearms, ammunition, videotapes, marijuana, drug paraphernalia, and other miscellaneous items." Dist. Ct. Order at 4. For their part, the state officers seized anything of value in the house.1 See id. at 8-9.

Foster was charged in a twelve-count superseding indictment with various violations of the United States Code. Foster moved to suppress all property seized during the search because the search "substantially exceeded the scope of the warrant and there was flagrant disregard for the terms of the warrant as to the property to be seized." The district court agreed. Relying on this court's opinion in Medlin II, the district court determined that blanket suppression of all evidence seized was warranted because the state officers had exhibited flagrant disregard for the terms of the warrant by "conducting a wholesale seizure of Foster's property amounting to a fishing expedition for the discovery of incriminating evidence." The district court further found that the officers seized anything of value from Foster's home. The sole issue on appeal is whether the district court properly ordered the suppression of items specifically listed in the warrant based upon the officers' undisputed seizure of "anything of value" from Foster's residence.

II. ANALYSIS

When reviewing an order granting a motion to suppress, this court accepts the trial court's factual findings unless clearly erroneous, and views the evidence in the light most favorable to the district court's finding. United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc). Moreover, at a hearing on a motion to suppress, "the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876 (10th Cir. 1993). Nevertheless, we review de novo the ultimate determination of the reasonableness of a search under the Fourth Amendment. United States v. Callwood, 66 F.3d 1110, 1112 (10th Cir. 1995).

Under the law of this circuit, "even evidence which is properly seized pursuant to a warrant must be suppressed if the officers executing the warrant exhibit `flagrant disregard" for its terms." Medlin II, 842 F.2d at 1199 (emphasis added). The basis for blanket suppression when a search warrant is executed with flagrant disregard for its terms "is found in our traditional repugnance to `general searches' which were conducted in the colonies pursuant to writs of assistance." Id.2 To protect against invasive and arbitrary general searches, the Fourth Amendment mandates that search warrants "particularly describ[e] the place to be searched and the persons or things to be seized." U.S. Const. amend. IV. As the Supreme Court stated in Marron v. United States, 275 U.S. 192, 196 (1927),

[t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.3

Therefore, Medlin II establishes that "[w]hen law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant." 842 F.2d at 1199 (emphasis added).

With that background in mind, the district court made the following factual findings in determining that the officers acted in flagrant disregard for the terms of the warrant:

The specific terms of the warrant listed four firearms and marijuana as the items to be seized. It is undisputed that items were taken from Foster's residence which did not fall within the terms of the warrant. While it is true that a limited number of items listed in the sheriff's return can be classified as contraband or other incriminating evidence inadvertently found during the execution of the warrant, it is abundantly clear from the testimony of Martin, as well as the testimony of Wilson and Cowart, that there was a wholesale seizure of Foster's property amounting to a fishing expedition for the discovery of incriminating evidence. In fact, upon cross-examination by defense counsel, Martin admitted that the officers "took anything of value" and that this was standard procedure in the execution of a...

To continue reading

Request your trial
87 cases
  • United States v. Manafort
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 10, 2018
    ...suppression of the evidence recovered from the search of the residence is plainly not appropriate here. Compare United States v. Foster , 100 F.3d 846, 850 (10th Cir. 1996) (finding law enforcement officers flagrantly disregarded terms of warrant where the warrant listed four firearms and m......
  • Ortiz v. New Mexico
    • United States
    • U.S. District Court — District of New Mexico
    • July 22, 2021
    ...for evidence of crimes not specifically listed in the warrant," 567 F.3d at 643 (emphasis in original)(citing United States v. Foster, 100 F.3d 846, 851-52 (10th Cir. 1996) ; see United States v. Medlin, 842 F.2d 1194, 1199-1200 (10th Cir. 1988) ); given that line of cases, the Tenth Circui......
  • U.S. v. Le, 98-5088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 31, 1999
    ...search." Id. at 1196. We held that the officers, by seizing so many items not mentioned in the warrant, Similarly, in United States v. Foster, 100 F.3d 846 (10th Cir.1996), we held that blanket suppression was again the proper remedy, where state officers acting pursuant to an otherwise val......
  • U.S.A v. Dupree
    • United States
    • U.S. District Court — Eastern District of New York
    • March 18, 2011
    ...for the otherwise unlawful aspects of a search. See United States v. Hamie, 165 F.3d 80, 83-84 (1stCir. 1999); United States v. Foster, 100 F.3d 846, 851-52 (10th Cir. 1996) (finding flagrant disregard where officers disregarded the warrant and searched for "anything of value"); United Stat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT