43 F.3d 531 (10th Cir. 1994), 93-4193, United States v. Bute

Docket Nº:93-4193, 93-4222.
Citation:43 F.3d 531
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph BUTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Beverly BUTE, a/k/a Beverly M. York, a/k/a Beverly M. Jensen, Defendant-Appellant.
Case Date:December 23, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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43 F.3d 531 (10th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Ronald Joseph BUTE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Beverly BUTE, a/k/a Beverly M. York, a/k/a Beverly M.

Jensen, Defendant-Appellant.

Nos. 93-4193, 93-4222.

United States Court of Appeals, Tenth Circuit

December 23, 1994

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David J. Schwendiman (Scott M. Matheson, Jr., U.S. Atty., with him on the brief), Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee.

Ronald J. Yengich of Yengich, Rich & Xaiz, Salt Lake City, UT, for defendant-appellant in No. 93-4222.

Loni F. DeLand of McRae & DeLand, Salt Lake City, UT, for defendant-appellant in No. 93-4193.

Before ANDERSON, MCKAY and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Defendants, Beverly and Ronald Joseph Bute ("the Butes"), bring this consolidated appeal challenging the district court's denial of their joint motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. We have jurisdiction under 28 U.S.C. Sec. 1291, and reverse.


At roughly 11:00 p.m., on March 20, 1992, Deputy Salt Lake County Sheriff Daniel McConkey began his shift by taking Deputy Cannon, the Deputy he was relieving, home. On the way, both officers noticed an open garage door at 13180 South 2700 West, Salt Lake County, Utah (the Bute building). Cannon identified the Bute building as an old honey manufacturing plant, though McConkey testified he was not aware of the building's present use. McConkey described it as a "[c]inder block building, [with] a small window, which would be on the front of the building, on the south side, and there's a walk door and there's a garage door next to that." The building was owned by Gene Fisher who had rented it to the Butes,

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though the officers were not aware of these facts.

The open garage door aroused some suspicion in McConkey because he had never seen anyone around the building before and never noticed the garage door was routinely left open. Nevertheless, McConkey did not stop but rather, continued to building. While in his vehicle, McConkey shined his bright lights and search light into the garage, illuminating it. He testified at the suppression hearing from that vantage point he could see the garage contained some shelves on one wall, a chair, and what he described as "normal garage type stuff, gas cans." There was no vehicle in the garage, no indication that anyone was in or around the Bute building, and no sign of forced entry.

Nevertheless, and without articulating any reason, he suspected the building might have been vandalized or burglarized earlier and decided to enter the building in order to search for any indication of burglary or vandalism. He radioed to dispatch informing them he had "an open door" and "would be out to check it." He did not, however, request a backup as is customary when an officer suspects a possible burglary or other threat to property in progress. 1

When McConkey entered the building through the garage door, he noticed what he described as a "very pungent" and unusual odor which he could not identify. Along a single wall in the garage were three doors, all of which were closed or only slightly ajar. He opened the first door, shined his flashlight inside, and saw it was a furnace room. He moved on to the second door, opened it, and saw a living-type area which contained a bed or sofa, chairs, a table with an ashtray, and a television. He called out to see if anyone was there but got no response. He then moved to the third door. He observed a room with some glass beakers and bottles, some of which had rubber tubing connected to them, and a television monitor on the floor. McConkey testified upon observing the contents behind door number three, he suspected he had found a "lab of some sort." However, he was unable to identify what sort of lab it was or connect the lab to any criminal activity.

Once outside, McConkey called for a backup officer. Sergeant Wood responded and McConkey informed him of what his search of the building had revealed. The two then reentered the building and went immediately to door number three. After observing the lab, the officers left. However, because the two were still apparently unaware of what it was they had found, they contacted metro narcotics as well as a hazardous materials team. The narcotics team arrived first, entered the building, and observed the lab. When the hazardous materials team arrived, they did the same. At no time did any of the officers attempt to locate or ascertain the owner or occupant of the building.

Eventually, a search warrant was obtained based on the information provided by McConkey, Sergeant Wood, and the metro narcotics officers. The search executed pursuant to that warrant revealed the lab was used for the manufacture of methamphetamines. Subsequently, additional search warrants were obtained and executed at various locations including the nearby residence of the Butes.

The Butes were charged, and later indicted, for possession of methamphetamine with intent to distribute and manufacturing methamphetamine, both in violation of 21 U.S.C. Sec. 841(a)(1). The Butes filed a joint motion to suppress the evidence seized from the Bute building and any fruits of that evidence claiming the initial search was illegal. A hearing was held before Magistrate Judge Ronald N. Boyce who issued a report and recommendation denying the Butes' motion. The Butes then filed objections to the report and recommendation with the district court. After argument, the court issued an order adopting the report and recommendation of the magistrate judge. 2

The Butes entered conditional pleas of guilty and now bring this appeal arguing the

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magistrate judge's report and recommendation adopted a novel Fourth Amendment analysis that cannot be squared with the precedent of the United States Supreme Court or the precedent of this court. Application of the appropriate legal standard, they argue, requires reversal.

When reviewing a district court's denial of a motion to suppress, the trial court's findings of fact are accepted unless clearly erroneous. United States v. Pena, 920 F.2d 1509, 1513 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). The ultimate question of whether a search is reasonable under the Fourth Amendment is a question of law which we review de novo. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989). "[W]hen the defendant challenges a warrantless search or seizure the government carries the burden of justifying the agents' actions." United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir.1993); see also Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970).


The magistrate judge concluded none of the recognized exceptions to the warrant requirement offered by the government applied under the facts of this case. Nevertheless, the magistrate judge went on to analyze the constitutionality of McConkey's search under a general "reasonableness" test, taking into account the totality of the circumstances. Under that standard, the magistrate judge concluded the search was reasonable, and therefore, constitutionally permissible. 3

Under the Fourth Amendment to the United States Constitution, " 'one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant.' " Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 1948, 56 L.Ed.2d 486 (1978) (emphasis added) (quoting Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1966)); see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (warrantless searches "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." (footnotes omitted)); United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir.1992). 4 Among those "well-delineated" exceptions to the warrant requirement are situations in which various forms of exigency exist, see California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (need to detain a fleeing vehicle); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (individual in need of emergency aid and assistance); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (need to prevent destruction of contraband). Also included are stop and frisk searches, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and searches pursuant to voluntary consent, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

While the magistrate judge was correct in observing that "reasonableness," as the text of the Fourth Amendment indicates, is the touchstone for determining the constitutionality of a search, see Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), the precedent of the Supreme Court and this circuit is quite clear that a warrantless search is reasonable only when it falls within one of the clearly defined exceptions to the warrant requirement. See Jimeno, 500 U.S. at 250-51, 111 S.Ct. at 1803. As such, precedent neither establishes nor condones application of an amorphous

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"reasonableness" test to determine the constitutionality of a warrantless search.

To the extent the magistrate judge's report can be read as an extension of Cady, we are of the opinion that the principle of Cady is inapplicable here. In Cady, the Supreme Court held that Wisconsin police officers who had arrested a Chicago police officer for drunk...

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