U.S. v. Baker
Decision Date | 16 January 1990 |
Docket Number | No. 89-1006,89-1006 |
Citation | 894 F.2d 1144 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. David James BAKER, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
James R. Allison, Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.
Mark D. Eibert, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colo., for defendant-appellant.
Before LOGAN, SETH, and MOORE, Circuit Judges.
Defendant appeals from his conviction on one count of manufacturing methamphetamine and one count of possession of the precursor P2P with intent to manufacture methamphetamine, both in violation of 21 U.S.C. Sec. 841(a)(1), and also seeks review of the sentences subsequently imposed by the district court thereon. The primary issue presented on this appeal concerns the denial of defendant's motion to suppress evidence obtained through a search within Indian country authorized and conducted solely by state authorities. Because we decide that the motion should have been granted, and the district court's failure to so rule cannot, on the record before us, be characterized as harmless, we reverse defendant's conviction without reaching the additional, analytically independent issues raised herein.
On September 13, 1989, deputy sheriff James Ezzell, an investigator with the La Plata County Sheriff's Department, applied for and obtained a warrant from the District Court of La Plata County, Colorado, to search the residence and outbuildings of a parcel of property recently rented by defendant. At no point during the pertinent events, from application for the warrant through its execution, were federal officers in any way involved in the proceedings. Ultimately, however, evidence of illegal activity recovered during the search was made available to federal authorities, who utilized the evidence, over objection, in obtaining defendant's conviction below.
Defendant contends that the search warrant was void as beyond the issuing state court's jurisdiction pursuant to 18 U.S.C. Secs. 1151-1153, because it purports to authorize a search for evidence of criminal activity on property rented by an enrolled member of the Southern Ute Tribe and located within the exterior boundaries of Southern Ute tribal lands. Since it is undisputed that defendant's property was located within Indian country and Colorado has never obtained an extension of its jurisdiction to include such lands, we must agree with defendant that the La Plata County District Court acted beyond its authority in issuing the search warrant for evidence of suspected criminal activity on defendant's property. See United States v. Burnett, 777 F.2d 593, 596 (10th Cir.1985) (, )cert. denied, 476 U.S. 1106, 106 S.Ct. 1952, 90 L.Ed.2d 361 (1986); Langley v. Ryder, 778 F.2d 1092, 1095-96 (5th Cir.1985) ( ); see, e.g., Bartlett v. Solem, 691 F.2d 420, 421 (8th Cir.1982) (en banc) (, )aff'd, 465 U.S. 463, 467 n. 8, 104 S.Ct. 1161, 1164 n. 8, 79 L.Ed.2d 443 (1984) ( ); see also Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665, 668 (10th Cir.1980) ().
The government argues against application of the general exclusion of state jurisdiction over Indian country on two grounds. First, the government maintains that this case falls within the exception to exclusive federal and tribal jurisdiction established in United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881). Subsequent case law, however, has for some time quite clearly limited the McBratney exception to crimes committed by non-Indians against non-Indians, see, e.g., United States v. Antelope, 430 U.S. 641, 643 n. 2, 648 n. 9, 97 S.Ct. 1395, 1397 n. 2, 1399-1400 n. 9, 51 L.Ed.2d 701 (1977); Williams v. United States, 327 U.S. 711, 714-15 n. 10, 66 S.Ct. 778, 780 n. 10, 90 L.Ed. 962 (1946); Donnelly v. United States, 228 U.S. 243, 271-72, 33 S.Ct. 449, 458-59, 57 L.Ed. 820 (1913), and the government failed to establish either of these conjunctive factual predicates below. 1 Second, the government invokes Fed.R.Crim.P. 41, which provides for state court issuance of a federal search warrant "upon request of a federal law enforcement officer or an attorney for the government." Because the quoted condition in Rule 41 was not satisfied and the search was not otherwise "federal in character," see generally United States v. Bookout, 810 F.2d 965, 967 (10th Cir.1987); United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir.1979), the rule cannot serve to transform the illegal state search warrant into a legal federal one.
Accordingly, we hold that the search of defendant's property was not authorized by a valid warrant. Since the government does not argue that the constitutionality of the search may be upheld on some alternative basis, the evidence obtained through the search was not admissible in defendant's federal prosecution, absent the availability of an exception to the exclusionary rule. See United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) ( ).
The government contends that the exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), permitting admission of evidence obtained pursuant to a defective search warrant so long as the officer(s) who obtained and executed the warrant acted in objective good faith, is applicable here and justifies admission of the evidence seized on defendant's premises. Defendant presents a two-level argument in response. First, defendant argues, Leon and Sheppard are not pertinent where, as here, the constitutional infirmity does not arise from either a defect in the warrant or the lack of probable cause, but rather from the issuing court's lack of jurisdiction to authorize the search in the first instance.
Although it is true, as defendant emphasizes, that Leon and Sheppard have been held inapplicable to most warrantless searches, see, e.g., United States v. Curzi, 867 F.2d 36, 44-45 (1st Cir.1989) and authorities cited therein, the case at bar, involving a warrant but one that was essentially void ab initio, appears to fall somewhere between the two poles occupied by the defective-warrant and absent-warrant cases. Neither party has cited any authority on point either for or against application of Leon and Sheppard to this situation, 2 and we have found little. See Commonwealth v. Shelton, 766 S.W.2d 628, 629-30 (Ky.1989) ( ); id. at 630-31 (Gant, J., dissenting) ( ); State v. Brady, 130 Wis.2d 443, 388 N.W.2d 151, 156-57 (1986) (Abrahamson, J., concurring) ( ). While we acknowledge this issue that the parties have engaged, we do not purport to resolve it, as it is unnecessary to our disposition of this appeal. For even assuming the pertinence of Leon and Sheppard here, we agree with defendant's second line of argument that the government has not, in any event, satisfied the standard these cases impose. See generally, e.g., Brady, 130 Wis.2d 443, 388 N.W.2d 151, 156 ( ).
Entitlement to the exception established in Leon and Sheppard depends on the objective good faith of the officer(s) applying for and executing the warrant. Thus, evidence obtained through an improper search will be excluded only if, under the objective circumstances presented to the officer(s) in question, "a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986), quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23; see also Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987) ( ). Here, the affidavit submitted by...
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