U.S. v. Le, 98-5088

Decision Date31 March 1999
Docket NumberNo. 98-5088,98-5088
Citation173 F.3d 1258
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thao Dinh LE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Mark D. Lyons (Kevin Danielson with him on the briefs), Lyons & Clark, Tulsa, Oklahoma, for Appellant.

Neal B. Kirkpatrick, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Appellee.

Before ANDERSON, KELLY, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

On December 12, 1997, after the district court denied his motion to suppress evidence, Thao Dinh Le pled guilty to the following offenses: (1) possessing firearms while being a user of unlawful controlled substances, in violation of 18 U.S.C. § 922(g)(3); (2) possessing unregistered destructive devices, in violation of 26 U.S.C. § 5861(d); and (3) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Le now appeals from the district court's denial of his motion to suppress evidence. For the reasons discussed below, we affirm.

BACKGROUND

On July 2, 1997, pursuant to a state search warrant issued June 27, 1997 ("the state warrant"), which authorized a search of Le's residence for methamphetamine, officers of the Tulsa Police Department (TPD) entered Le's residence. Because the state law enforcement officers had some reason to believe that explosives and other weapons might be present at the residence, they had previously notified a TPD K-9 bomb-sniffing squad and agents from the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) that their services might be required at some point during the search. Upon entering the residence, officers discovered methamphetamine and other controlled substances, as well as a stockpile of explosives and other assorted military-style ordnance, including the following: four different varieties of rifle grenades; a Claymore mine; hand grenades; smoke grenades; five different types of machine guns; plastic explosives, TNT, and detonating cord; and a grenade launcher. Upon discovering the explosives, TPD officers called in the K-9 team and the ATF agents. TPD officers did not seize the explosives, but they did seize controlled substances, several firearms, and other assorted items.

Later that day, based on the explosives and weapons that they had seen while at At about the same time that the TPD officers were executing the state warrant, a combined force of TPD officers and ATF agents stopped Le as he was driving his truck through Tulsa. The purpose of this stop was to execute a search warrant, issued June 27, 1997, for samples of Le's blood and hair ("the blood and hair warrant"). This warrant contained an unusual provision which ordered Le, if he refused to provide the samples, to appear before the district court to show cause why he had not complied with the warrant. During this stop, Le was arrested and taken into custody, and the samples were taken.

Le's residence with the TPD officers, federal agents obtained a federal search warrant to again enter Le's residence, this time to search for and seize explosives ("the federal residence warrant"). This warrant was executed in the evening hours of July 2, and federal agents seized the explosives and heavy weapons discovered earlier in the day.

Also during the day on July 2, ATF agents executed another federal warrant, also issued June 27. This warrant ("the first federal business warrant") authorized agents to search Le's business, Cadre Supplies, Inc., for records and documents relating to firearms transactions. During the execution of this warrant, agents seized stacks of documents, including log books, phone message books, and other records. While on the business premises, agents discovered boxes of weapons and weapon parts, and they contacted an agent of the U.S. Department of Defense, who came to the business and examined the weaponry to determine if the items were stolen military equipment. The Defense agent determined that many of the weapons were indeed stolen. However, no weaponry was seized at the business on July 2.

On August 4, 1997, ATF agents executed yet another search warrant for Le's business ("the second federal business warrant"), this one issued on August 4 and authorizing a search for machine guns, silencers, grenade hulls, night vision equipment, and other assorted weaponry seen at the business by the agents who executed the July 2 search. While at the business on August 4, agents seized many such items.

Soon after the initial searches and seizures, a federal grand jury returned a nine-count indictment against Le, based upon the evidence gleaned from the various searches of Le's residence and business. Le was charged with the following offenses: (1) possession of a stolen firearm, in violation of 18 U.S.C. § 922(j); (2) unlawful possession of machine guns, in violation of 18 U.S.C. § 922(o); (3) possession of firearms while being a user of unlawful controlled substances, in violation of 18 U.S.C. § 922(g)(3); (4) possession of stolen explosives, in violation of 18 U.S.C. § 842(h); (5) possession of unregistered destructive devices, in violation of 26 U.S.C. § 5861(d); (6)-(8) three counts of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (9) possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d).

Le then filed a motion to suppress evidence and two supplemental motions to suppress evidence, challenging all five of the warrants issued in this case. Le challenged the state warrant on four grounds, claiming that (1) insufficient probable cause existed in the warrant's underlying affidavit; (2) under Oklahoma law, which he asserted controlled the question, the search was impermissible because the affidavit did not state the last time that contraband was observed at Le's residence; (3) the warrant itself was not sufficiently particular, because it made no mention of the explosives found in the house and seized; and (4) the officers exceeded the permissible scope of the warrant.

Le challenged the federal residence warrant on the ground that, because it made mention of only one type of explosive device, it was not particular enough, and on the ground that the officers exceeded the scope of the warrant. Le also challenged Finally, Le challenged the blood and hair warrant on the ground that the executing officers had neglected to inform him of the warrant's unusual provision allowing him an audience before the district court in the event he refused to comply with the warrant.

the first federal business warrant, arguing that the warrant's affidavit did not convey to the magistrate sufficient probable cause, that the warrant was not sufficiently particular, and that the officers executing the warrant exceeded the warrant's scope. In his motions to suppress, Le also challenged the second federal business warrant, but apparently abandoned this challenge by stipulation with the government. 1

On December 9, 1997, the district court issued an order disposing of Le's various objections to the search warrants. The district court granted Le's motion to suppress evidence gleaned from the execution of the blood and hair warrant, ruling that Le should have been apprised of his right to appear before the district court. However, the district court denied, either on the merits or as moot due to stipulation, Le's motion as to the other four warrants.

Following the district court's denial of his motions to suppress, Le entered into a plea bargain. The government agreed to dismiss six of the charges, and Le pled guilty to (1) possessing firearms while being a user of unlawful controlled substances, in violation of 18 U.S.C. § 922(g)(3); (2) possessing unregistered destructive devices, in violation of 26 U.S.C. § 5861(d); and (3) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). On the first two counts, Le was sentenced to terms of 70 months' imprisonment, with the terms to run concurrently. On the third count, Le was sentenced to a term of 60 months' imprisonment, with the term to run consecutively to the two concurrent 70-month sentences.

Under the terms of the plea agreement, Le also "agree[d] to forfeit and otherwise waive any ownership right he might possess in all items seized during the investigation of any of the acts alleged" in the indictment, "including acts to which the defendant is not pleading guilty." Appellant's App. at 112. Before sentencing, Le filed a motion requesting that the government return the property seized in the searches. The district court denied this motion by minute order on April 13, 1998.

Le now appeals from the decisions of the district court. First, advancing the same arguments that were denied by the district court, Le appeals from that portion of the district court's December 9, 1997, order which denied his motion to suppress. Le also appeals from the district court's April 13, 1998, minute order which denied his motion for return of seized property.

DISCUSSION
I. The Search Warrants

We first address Le's objections to the search warrants. "When reviewing a district court's denial of a motion to suppress, we accept its factual findings unless clearly erroneous and view the evidence in the light most favorable to the government." United States v. Hargus, 128 F.3d 1358, 1361 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998). It is the province of the trial court to assess the credibility of witnesses at the suppression hearing and to determine the weight to be given to the evidence presented, and we must give such determinations due deference. Id. However, "[t]he ultimate determination of reasonableness under the Fourth Amendment ... is a question of law which we review de novo, considering the totality of the circumstances." Id.

A...

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