U.S. v. Medlin

• Decision Date: 24 March 1988
• Docket Number: No. 87-2041,87-2041
• Citation: 842 F.2d 1194
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Arvle Edgar MEDLIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1194

842 F.2d 1194

56 USLW 2562

UNITED STATES of America, Plaintiff-Appellant, v. Arvle Edgar MEDLIN, Defendant-Appellee.

No. 87-2041.

United States Court of Appeals Tenth Circuit.

March 24, 1988.

Kenneth P. Snoke, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellant.

Don E. Gasaway of Gasaway & Levinson, P.A., Tulsa, Okl., for defendant-appellee.

Before LOGAN, SETH and BARRETT, Circuit Judges.

SETH, Circuit Judge.

The United States takes this appeal from the trial court's order suppressing all evidence seized in a search of Arvle Edgar Medlin's residence including that evidence which was particularly described in the search warrant. The trial court suppressed the evidence after an evidentiary hearing ordered by our decision in United States v. Medlin, 798 F.2d 407 (10th Cir.) (Medlin I ).

The search, by federal and local officers, which led to the seizure of the subject evidence was made pursuant to a warrant issued to the federal officers. It authorized the search for and seizure of "firearms--illegally possessed by Arvle Edgar Medlin, and/or stolen firearms, records of the purchase or sale of such firearms by Medlin, which are fruits, evidence and instrumentalities of violation of Title 18, United States Code, Sections 922(h)(1); 922(a)(1); 922(j) and 924(a)." The search warrant issued by a United States magistrate to agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) was supported by an affidavit of ATF Agent Samuel N. Evans.

At the evidentiary hearing on remand, the testimony was that the information which led to the issuance of the federal search warrant was provided by a confidential informant to Tulsa County Deputy Sheriff Don Carter. The informant had on a previous occasion told Carter that stolen property other than firearms might be found at Medlin's residence in Skiatook. Apparently, Carter was interested in pursuing the "tip" provided by the informant but did not seek a search warrant based upon the "tip" because of his poor working relationship with officials of neighboring Osage County where Medlin's residence was located. Because Medlin's possession of stolen firearms would be evidence of a federal crime, Carter passed along the informant's information to ATF agents.

The search warrant was executed by three ATF agents who were accompanied by one or two officers of the town police department and Deputy Sheriff Carter. Upon entering the Medlin residence the ATF agents identified themselves to Medlin, his wife and son and told them that they had a federal warrant authorizing the seizure of firearms. Thereafter, the ATF agents searched the Medlin residence and seized approximately 130 firearms. While the ATF agents searched for evidence of federal firearms offenses, Deputy Carter combed Medlin's residence for suspected stolen property which he believed to be evidence of state offenses. By the time the search was concluded Deputy Carter had seized some 667 items of property none of which were identified in the warrant authorizing the search. The ATF agents loaded the seized firearms into a horse trailer that had been provided by the Tulsa County Sheriff's Department at Carter's behest. When the ATF agents had completed their search they assisted Carter, the town police officers, and another Tulsa County officer who arrived during the execution of the search at Carter's invitation in loading the additional 667 seized items into the same horse trailer.

Before trial on the federal firearms offenses, Medlin moved to suppress the seized firearms on the basis that the warrant authorizing the search of his residence was invalid. The trial court denied the motion to suppress and we affirmed that decision in Medlin I, holding that the officer's reliance upon the search warrant was objectively reasonable. However, we there noted that the execution of the warrant, as opposed to the warrant itself, may have been constitutionally defective. We wrote: "Because of the large number of seized items not listed in the warrant, it is possible the police used this warrant as a pretext for a general search, which would taint the whole search." 798 F.2d at 411. Accordingly, we remanded the case to the district court for an evidentiary hearing in which the trial judge was to determine whether any illegality attended the search and if so, "whether the improper conduct was so flagrant that exclusion of all the seized evidence is warranted." 798 F.2d at 411 (emphasis in original). The trial court did in fact suppress all the evidence seized in the search and this appeal ensued.

The nature of the cooperation between federal and local law enforcement officials in the execution of a federal search warrant is the basic issue in this appeal. The Supreme Court has held that "it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant...." Dalia v. United States, 441 U.S. 238, 257, 99 S.Ct. 1682, 1693, 60 L.Ed.2d 177. The Fifth, Eighth, and Ninth Circuits have held that cooperation between federal and state law enforcement agencies in the execution of a search is not impermissible per se. United States v. Wright, 667 F.2d 793, 797 (9th Cir.); United States v. Evans, 572 F.2d 455, 487 (5th Cir.); United States v. Cox, 462 F.2d 1293, 1306 (8th Cir.). These decisions comport with 18 U.S.C. Sec. 3105, which provides in part that

"[a] search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution."

At the hearing on remand, the testimony established that ATF agents routinely take along local police officers when executing search warrants. Since the local officers are acting "in aid of" the ATF agents in executing the search, such a practice is within the prerogative of ATF agents, has been condoned by the courts, and is permitted by statute. At the hearing, ATF Agent Evans testified as follows:

"Q: And when you are in charge of executing a search warrant and you have deputies from other law enforcement agencies, are they subservient, subject to your orders?

"A: Yes, sir."

This testimony establishes that the local police officers were acting under federal authority and were subject to federal control when they were present at the search pursuant to the warrant issued to the ATF agents.

18 U.S.C. Sec. 3105 does not require that a person assisting an officer in the execution of a warrant be an officer acting within his or her jurisdiction. Consequently, we find that there was nothing impermissible in Deputy Carter's presence at the Medlin search. We remain mindful, however, that Deputy Carter was on the Medlin premises merely to assist the ATF agents in the execution of their warrant and that his authority to search was derived from, and was no greater than, the authority extended to the ATF agents.

Notwithstanding the fact that Deputy Carter was technically assisting the ATF agents in the execution of the federal search warrant, the Government argues that two independent searches were conducted at the same time of the Medlin residence--one by the ATF agents for their purposes and one by Deputy Carter for his own purposes. While we certainly agree that two very diverse investigations were pursued at the Medlin residence on that day we cannot conclude that there was more than one search. The ATF agents, Deputy Carter and the others gained entry into the Medlin residence under the search warrant authorizing the seizure of the stolen firearms. There is no evidence in the record which indicates that Deputy Carter would have been allowed into the Medlin home if he had not been accompanying ATF agents armed with the warrant or that Medlin had a belief that he could have excluded Deputy Carter from his home if he so chose. Indeed, Medlin could not have denied entry to Deputy Carter since he was aiding in the execution of a search authorized by a federal magistrate. The fact that the ATF agents set to their task of looking for firearms while Deputy Carter undertook a wholly distinct task does not convert a single entry and search into multiple searches.

Moreover, we cannot help but note that the record contains suggestions that the ATF agents participated in Deputy Carter's activities at the Medlin residence. The ATF agents knew that Carter's informant had told him that there were firearms and stolen property on the premises. The facts that the transportation of all the seized items was prearranged by Deputy Carter, apparently upon agreement with the ATF agents, and that the ATF agents assisted Deputy Carter in loading the 667 unauthorized items into the horse trailer are troubling in that they show that the ATF agents were, at the very least, passive participants in an unauthorized activity which Deputy Carter had planned when he accompanied the ATF agents on their authorized search for firearms. This record shows that the ATF agents and Deputy Carter were aiding each other in their investigations in the guise of a search authorized by a federal warrant.

Deputy Carter was lawfully on the premises of the Medlin residence when he seized the 667 items of suspected stolen property. What is in issue is the lawfulness of Deputy Carter's seizure of those items. "A well-settled tenet of Fourth Amendment jurisprudence is that searches conducted without a warrant and probable cause are per se unreasonable, subject only to a few exceptions." United States v. Gay, 774 F.2d 368, 376 (10th Cir.). Since the 667 items were not seized pursuant to a warrant, they could only have been permissibly seized under one of the narrow exceptions to the Fourth Amendment's warrant requirement.

The Government contends that the 667 items were seized by Deputy Carter with...