United States v. Denson

• Decision Date: 30 December 2014
• Docket Number: No. 13–3329.,13–3329.
• Citation: 775 F.3d 1214
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Steven J. DENSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

775 F.3d 1214

UNITED STATES of America, Plaintiff–Appellee,

v.Steven J. DENSON, Defendant–Appellant.

No. 13–3329.

United States Court of Appeals, Tenth Circuit.

Dec. 30, 2014.

Timothy J. Henry, Assistant Federal Public Defender, Wichita, KS, for Defendant–Appellant.

Matthew T. Treaster, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff–Appellee.

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Steven Denson was on the lam. After his conviction for armed robbery and a spell in prison he quit reporting to his probation officer as his sentence required. For a time, Mr. Denson appeared gone for good. But authorities weren't quick to give up their search and eventually they found his name on a residential Wichita utility account. With an arrest warrant in hand they showed up at the listed address. When a handheld Doppler radar device and other evidence suggested Mr. Denson might be present inside the house, the officers entered. Quickly they found Mr. Denson along with a stash of guns, guns he lacked the right to possess by virtue of his felony conviction.

This led Mr. Denson to plead guilty to a federal firearm charge under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At the same time, he preserved the right to appeal the district court's denial of his Fourth Amendment motion to suppress. Exercising that right now, he seeks reversal on three grounds. First, he contends the officers entered his home without reason to believe he was there at the time. Second, he argues that the officers lacked a lawful basis to search his home after they arrested him. Third, he submits that the officers had no right to seize his guns even after they came upon them. In the first two of these questions we confront—even if we do not have to resolve fully—how the Fourth Amendment interacts with the government's use of radar technology to peer inside a suspect's home.

The Supreme Court has held that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). But how much proof must the government amass to establish “reason to believe” a suspect may be found “within” a house at the time of its search? Is that formula meant to parallel the familiar probable cause standard generally applicable to arrests? Or does Payton mean to invoke something closer to the more forgiving reasonable suspicion standard we use for investigatory detentions?

The circuits disagree. Some, this one included, have read Payton to require something less than probable cause. See Valdez v. McPheters, 172 F.3d 1220, 1227 n. 5 (10th Cir.1999); United States v. Thomas, 429 F.3d 282, 286 (D.C.Cir.2005), modified on other grounds,179 Fed.Appx. 60 (D.C.Cir.2006) (per curiam); United States v. Lauter, 57 F.3d 212, 215 (2d Cir.1995). The logic behind these decisions is simple enough: “the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’ ” Thomas, 429 F.3d at 286. Meanwhile, other circuits have held that Payton 's “reason to believe” standard “embodies the same standard of reasonableness inherent in probable cause.” United States v. Gorman, 314 F.3d 1105, 1112 & n. 6 (9th Cir.2002); see also United States v. Hardin, 539 F.3d 404, 416 n. 6 (6th Cir.2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir.2006); United States v. Magluta, 44 F.3d 1530, 1534–35 (11th Cir.1995). Indeed, the Supreme Court itself has sometimes seemed to employ the term “reasonable ground for belief” as part of the very definition of “probable cause.” See, e.g., Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (discussing Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); see also United States v. Jackson, 576 F.3d 465, 469 (7th Cir.2009).

In this light, one might wonder if reason exists to reconsider Valdez. But in our case we don't need to pursue the question because nothing turns on its answer. Even if the officers needed probable cause to think Mr. Denson was inside the home at the time of their entry, they had it. Probable cause doesn't require proof that something is more likely true than false. It requires only a “fair probability,” a standard understood to mean something more than a “bare suspicion” but less than a preponderance of the evidence at hand. See United States v. Ludwig, 641 F.3d 1243, 1252 & n. 5 (10th Cir.2011) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). When assessing whether the government meets the probable cause standard we look to the “totality of the circumstances.” See Ludwig, 641 F.3d at 1248. And the combination of facts known to the officers in this case gave them reason enough to suppose that Mr. Denson could be found inside his home at the time they entered.

First, Mr. Denson had recently opened a utility account for the Wichita home, he was the primary account holder, and, as far as the officers knew, he didn't have another residence. True, none of this guarantees his presence in the house at any particular time. But the fact that Mr. Denson held a utility account at the house and officers hadn't turned up any other address for him goes at least some way to suggesting he might be there rather than someplace else.

Second, the police knew that Mr. Denson hadn't reported any recent earnings. This suggested, even if it didn't show, he was out of work at the time of the search—all the more reason why he might be at home when they visited, around 8:30 a.m. on a weekday. After all, it isn't unnatural to think someone might be “at his place of abode ... at 8:30 in the morning” when he's not working. United States v. Woods, 560 F.2d 660, 665 (5th Cir.1977); see also Valdez, 172 F.3d at 1226 (discussing circumstances of employment as relevant to the inquiry).

Third, Mr. Denson had absconded and was hiding from law enforcement. That too made it incrementally more likely that he would be holed up at home rather than out and about. See Valdez, 172 F.3d at 1226 (“[O]fficers may take into account the fact that a person involved in criminal activity may be attempting to conceal his whereabouts.”).

Fourth, the electric meter was whirring away. No one would expect a home's meter to remain inert on a wintry Wichita morning. But an officer at the scene said the “meter was going faster than normal” for the circumstances; another said it was “going crazy.” These assessments are undisputed. Of course, an electric meter might be so busy only because the home uses electric heat rather than, say, gas or oil. But we have no facts hinting at such a possibility in this record. Neither does anyone dispute the common sense suggestion that, all things equal, electric meters tend to spin faster when people are present in a home using electrical devices. See id. (“A suspect's presence may be suggested by ... observing the operation of lights or other electrical devices.”).

We're the first to admit that in isolation none of these facts may mean much. Even together they hardly prove a suspect is at home. But in combination we believe they are enough to establish probable cause (a fair probability) for such a conclusion. Neither does the non-precedential case Mr. Denson cites, United States v. Chavez, 561 Fed.Appx. 730 (10th Cir.2014), suggest otherwise. The only fact the officers could cite in that case for their belief that the defendant was inside the home at the time of the search was the time of the day. Id. at 733. That this fact in isolation is insufficient to give rise to probable cause in no way precludes our conclusion that probable cause is met in light of the confluence of facts present here.

While we lean on a certain combination of facts to supply the key to our decision, we pause to note a couple other facts on which we do not rely. The parties argue over whether the government can use fresh footprints officers saw in the snow around the home as further reason to think Mr. Denson could be found inside. In Mr. Denson's view, the government cannot rely on this evidence because the officers saw the footprints only after entering his home's backyard in violation of the Fourth Amendment. See generally Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). The government disagrees. But it isn't necessary to pursue the point because even without the footprints the probable cause standard is met; neither does Mr. Denson argue that any of the facts we have relied on above involved an unlawful entry on his curtilage.

Separately and as we alluded to earlier, the government brought with it a Doppler radar device capable of detecting from outside the home the presence of “human breathing and movement within.” All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.” The government admits that it used the radar before entering—and that the device registered someone's presence inside. It's obvious to us and everyone else in this case that the government's warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33–35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings. We have little doubt that the radar device deployed here will soon generate many questions for ...