304 F.3d 1013 (10th Cir. 2002), 01-1503, U.S. v. Patane

Docket Nº:01-1503.
Citation:304 F.3d 1013
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Samuel Francis PATANE, Defendant-Appellee.
Case Date:September 17, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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304 F.3d 1013 (10th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellant,


Samuel Francis PATANE, Defendant-Appellee.

No. 01-1503.

United States Court of Appeals, Tenth Circuit

September 17, 2002

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Joseph C. Wyderko, Attorney, Criminal Division, U.S. Department of Justice, Washington, D.C. (John W. Suthers, United States Attorney; Suneeta Hazra and Sean Connelly, Assistant United States Attorneys, Denver, CO, with him on the briefs), for Plaintiff-Appellant.

Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for Defendant Appellee.

Before EBEL, ANDERSON, and HENRY, Circuit Judges.

EBEL, Circuit Judge.

The Government appeals from the district court's order suppressing the physical evidence against Samuel Francis Patane on charges of gun possession by a felon. The district court based its suppression order on its conclusion that the evidence was insufficient to establish probable cause to arrest Patane. We conclude, contrary to the district court, that probable cause existed to arrest Patane. However, we affirm the district court's order on the alternative ground that the evidence must be suppressed as the physical fruit of a Miranda violation.


Patane was indicted for possession of a firearm by a convicted felon in violation of 18 U.S.C § 922(g)(1). The district court held a suppression hearing at which the police investigation leading to discovery of the gun was detailed. Ruling from the bench a week later, the court granted defendant's motion to suppress. Patane's arrest resulted from the intersection of two essentially independent investigations— one by Colorado Springs Detective Josh Benner regarding Patane's gun possession, and another by Colorado Springs Officer Tracy Fox regarding Patane's violation of a domestic violence restraining order.

The story begins when Patane was arrested for harassing and menacing his ex-girlfriend, Linda O'Donnell. He was released on bond from the El Paso, Colorado county jail on June 3, 2001, subject to a temporary restraining order. The restraining order is not in the record, but uncontroverted testimony indicates that it

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forbade Patane to contact O'Donnell, in person or by phone, directly or indirectly, in the 72 hours after his release on bond.

On June 6, an agent with the federal Bureau of Alcohol, Tobacco, and Firearms telephoned Detective Benner, a member of a local police drug interdiction unit that worked closely with the ATF. The agent said that a county probation officer had told him that Patane was a convicted felon who also had been convicted on a domestic violence charge, and that Patane possessed a Glock .40 caliber pistol. The record does not reveal how the probation officer knew that Patane had the gun. Detective Benner called O'Donnell to inquire about the gun, and she told him that Patane had the pistol with him at all times.

Seemingly by coincidence, at the moment Benner called O'Donnell to ask about the gun, Officer Fox had arrived at O'Donnell's residence, responding to a call from O'Donnell about an alleged violation of the restraining order. O'Donnell told Officer Fox that two days earlier, O'Donnell received a hang-up call. Using the *69 feature on her telephone, O'Donnell learned that the call originated from a number that O'Donnell recognized as Patane's home telephone. This call violated Patane's restraining order, O'Donnell stated, and she showed Officer Fox a copy of the order. O'Donnell said that she was afraid for her safety, that she knew Patane regularly had a gun, and that Patane kept a list of people he wanted to kill. Officer Fox confirmed by computer that a restraining order had been issued.

Officer Fox did not confirm O'Donnell's use of the call tracing, although she had done so in a prior, unrelated case and thus was aware it was possible. Neither Officer Fox nor Detective Benner ran a criminal background check on O'Donnell prior to Patane's arrest, which Patane asserts would have revealed that O'Donnell was herself out on bond for carrying a concealed weapon, criminal trespass, theft, and criminal damage.

Detective Benner and Officer Fox then spoke by phone. Officer Fox said she planned to arrest Patane for violating the restraining order by calling O'Donnell, and the two arranged to go to Patane's house. Officer Fox knocked on the door while Detective Benner went out back in case Patane attempted to flee. The woman who answered the door summoned Patane. Officer Fox asked Patane to step outside, which he did. She asked him about the hang-up call, and Patane denied having made the call or having contacted O'Donnell in any way. Officer Fox told Patane that he was under arrest and handcuffed him shortly afterward.

With Patane arrested and handcuffed, Detective Benner emerged from the back of the house and approached Patane. Detective Benner began advising Patane of his Miranda rights, but only got as far as the right to silence when Patane said that he knew his rights. No further Miranda warnings were given, a fact which the Government concedes on appeal resulted in a Miranda violation. Detective Benner told Patane he was interested in what guns Patane owned. Patane replied, "That .357 is already in police custody." Detective Benner said, "I am more interested in the Glock." Patane said he was not sure he should tell Detective Benner about the Glock pistol because he did not want it taken away. Detective Benner said he needed to know about it, and Patane said, "The Glock is in my bedroom on a shelf, on the wooden shelf." Detective Benner asked for permission to get the gun, which Patane granted, and Detective Benner went inside, found the gun where Patane described, and seized it. Detective Benner then told Patane, as the detective later testified, that "I wasn't going to arrest him

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for the gun at this time because I wanted to do some more investigations ." Officer Fox took Patane to the police station and booked him for violating the restraining order.

The next day, Detective Benner met with Patane's probation officer and verified that Patane had a prior felony conviction for drug possession as well as a misdemeanor third degree assault conviction.


On appeal, the Government argues that the district court erred in concluding that the police lacked probable cause to arrest Patane for violating the domestic violence restraining order. We agree with the Government.

In reviewing the district court's probable cause determination, "we consider the evidence in a light most favorable to the district court's legal determinations, and review the court's findings of historical fact for clear error. Absent any finding of fact, we will uphold the court's legal determination if any reasonable view of the evidence supports it. We review the ultimate determinations of reasonable suspicion to stop and probable cause to arrest de novo." United States v. Treto-Haro, 287 F.3d 1000, 1002 (10th Cir. 2002) (citations omitted). We have articulated the substantive probable cause standard as follows:

An officer has probable cause to arrest if, under the totality of the circumstances, he learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested. Probable cause does not require facts sufficient for a finding of guilt; however, it does require more than mere suspicion.

United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001) (internal quotation marks and citations omitted).

The district court's ruling that no probable cause existed to arrest Patane for violating the domestic violence restraining order was based on its view that domestic disputes often involve "claims and counterclaims . . . thrown between people who have separated some sort of an intimate relationship," and therefore that uncorroborated allegations arising from such disputes are "just inadequate" to establish probable cause. Unexplored avenues of corroboration noted by the court were: the failure to check telephone records to confirm O'Donnell's allegation that a call had been placed from Patane's residence to hers during the time frame covered by the restraining order, "verification which presumably could have been done rather easily," the failure to investigate O'Donnell's credibility prior to the arrest, the failure to corroborate O'Donnell's accusations apart from Detective Benner's confirmation that Patane indeed possessed a gun, which "has nothing to do with the crime for which he was arrested," and the failure to determine whether persons other than Patane had access to Patane's telephone. The court also noted that "[i]t's just one contact which . . . could, in my life experience, have been an innocent mistake" because "people do make calls to numbers with which they are familiar, not intending to make the call," that Patane denied having contacted O'Donnell, and that O'Donnell delayed two days in reporting the call to the police.

We reject any suggestion that victims of domestic violence are unreliable witnesses whose testimony cannot establish probable cause absent independent corroboration. We have stated, "when examining informant evidence used to support a claim of probable cause for a . . . warrantless arrest,

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the skepticism and careful scrutiny usually found in cases involving informants, sometimes anonymous, from the criminal milieu, is appropriately relaxed if the informant is an identified victim or ordinary citizen witness." Eastern v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985); see also Guzell v. Hitter, 223 F.3d 518, 519-20 (7th Cir. 2000) ("Police are...

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