U.S. v. Larsen, 96-3284

• Decision Date: 21 October 1997
• Docket Number: No. 96-3284,96-3284
• Citation: 127 F.3d 984
• Parties: 97 CJ C.A.R. 2437 UNITED STATES of America, Plaintiff-Appellee, v. Lewis A. LARSEN, a/k/a Louis A. Larsen, a/k/a Jeffrey L. Larsen, a/k/a Jeff Larsen, a/k/a Leland L. Larsen, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 984

127 F.3d 984

97 CJ C.A.R. 2437

UNITED STATES of America, Plaintiff-Appellee, v. Lewis A. LARSEN, a/k/a Louis A. Larsen, a/k/a Jeffrey L.

Larsen, a/k/a Jeff Larsen, a/k/a Leland L. Larsen,

Defendant-Appellant.

No. 96-3284.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 1997.

Michael L. Harris, Assistant Federal Public Defender, Kansas City, KS, for Defendant-Appellant.

Kurt J. Shernuk, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff-Appellee.

Before BRORBY, BRISCOE and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Lewis Larsen appeals the denial of his motion to suppress evidence. In denying the motion, the district court concluded that although the evidence was found as a result of an illegal search, it inevitably would have been discovered in a separate investigation independent of the illegal search. Larsen's sole issue on appeal is whether the inevitable discovery rule requires proof of a separate investigation ongoing at the time of the constitutional violation. We conclude it does not and affirm.

I.

On August 4, 1994, local law enforcement officers recovered a stolen trailer from Larsen's property. One of the officers noticed a vehicle on the property with no vehicle identification number (VIN) plate and applied for a search warrant the next day, August 5. A warrant was issued authorizing a search for vehicles with identification numbers removed, identification number plates that had been removed from vehicles, and vehicle titles.

In executing the warrant on August 5, officers seized three vehicles within the scope of the warrant, but also seized numerous items outside the scope of the warrant, including tools, videocassette recorders, exercise equipment, lawn mowers, furniture, blankets, a microwave oven, bank records, and credit cards. The officers seized these items solely because they thought they might be stolen.

Mike Weigel, a state trooper, assisted with the search. Later that day, he went to the Saline Valley Bank in Lincoln on personal business and, while he was there, he mentioned to Glenn Stegman, the bank's vice president, that he had just recovered stolen vehicles from Larsen's property. Stegman became concerned because the bank had loaned money to Larsen for a vehicle. Stegman checked the bank's records to determine the status of Larsen's loans and, on August 24, he sent a Report of Apparent Crime to the FDIC.

Meanwhile, local officers contacted William Pettijohn, a KBI Agent. Pettijohn reviewed the seized bank records and, suspecting Larsen had obtained loans through fraud, he subpoenaed records from several banks on August 8, 1994. Based on information obtained in the August 5 search, local officers also obtained a second search warrant on August 9, authorizing a search of Larsen's property.

Pettijohn contacted Scott Crabtree, an FBI Agent, on August 9 and Crabtree reviewed the records produced by the banks. As the FDIC routinely forwards Reports of Apparent Crime to the FBI, Stegman's report was forwarded to Crabtee. Based on the bank records and Stegman's report, Crabtree issued subpoenas and, in accordance with standard FBI procedures, began tracing Larsen's banking activities. This led to issuance of subpoenas by a grand jury and discovery of the bank records on which Larsen's prosecution for federal bank fraud and money laundering was based.

Larsen moved to suppress all evidence seized in both searches and evidence discovered as a result of the searches, including the bank records subpoenaed by the grand jury. At the suppression hearing, Crabtree testified that Stegman's report would have been forwarded to him regardless of the other investigation and by itself would have caused him to undertake the same course of action to trace Larsen's funds. Applying United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988), the district court concluded the August 5 search so exceeded the scope of the warrant that all evidence seized, including the vehicles within the scope of the warrant, must be suppressed. Because the August 9 search was the result of the August 5 search, the court also suppressed all evidence seized on August 9.

However, the district court applied the inevitable discovery doctrine adopted by the Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), and by this court in United States v. Romero, 692 F.2d 699 (10th Cir.1982). The court ruled the bank records found through Crabtree's tracing of Larsen's funds inevitably would have been discovered in the absence of any illegality. The court concluded that, because Weigel's remarks that caused Stegman to check the bank's records and write the report were not intended to exploit the illegal search, the report was sufficiently attenuated from the illegal search and the taint of illegality was dissipated. The court also concluded that if the August 5 search had been limited to the scope of the warrant, the vehicles would have been lawfully seized, Weigel would have told Stegman of the seizure, Stegman would have written the report to the FDIC, and Crabtree would have traced Larsen's funds. Accordingly, the court denied suppression of the bank records discovered by Crabtree.

Larsen entered a conditional plea of guilty to one count of bank fraud, 18 U.S.C. § 1344, and one count of money laundering, 18 U.S.C. § 1957, and the remaining counts were dismissed.

II.

Larsen contends the inevitable discovery rule requires proof of a separate investigation ongoing at the time of the constitutional violation. He points out that the bank investigation that the district court found would have led to discovery of the evidence of fraud did not commence until after the illegal August 5 search....