U.S. v. Price, 94-3266

• Decision Date: 02 February 1996
• Docket Number: No. 94-3266,94-3266
• Citation: 75 F.3d 1440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Leroy PRICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1440

75 F.3d 1440

UNITED STATES of America, Plaintiff-Appellee, v. Edward Leroy PRICE, Defendant-Appellant.

No. 94-3266.

United States Court of Appeals Tenth Circuit.

Feb. 2, 1996.

Appeal from the United States District Court for the District of Kansas (D.C. No. 93-40039-01-DES).

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant-Appellant.

James E. Flory (Randall K. Rathbun, United States Attorney, and Gregory G. Hough, Assistant United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before ANDERSON, BALDOCK, and LUCERO, Circuit Judges.

ANDERSON, Circuit Judge.

Edward Leroy Price was convicted in the district court of conspiracy to possess methamphetamine with intent to distribute and possession of marijuana with intent to distribute. He appeals, arguing the district court erred 1) in denying his motion to suppress evidence allegedly obtained by a Kansas law enforcement officer acting outside the officer's jurisdiction, 2) in denying his motion to discover the underlying bases for the laboratory conclusion that the substances seized were methamphetamine, and to discover the credentials of the chemist who performed the tests, and 3) in sentencing him to twenty years in prison for the marijuana conviction, thereby exceeding the maximum

                penalty established in 21 U.S.C. § 841(b)(1)(D).   We affirm the district court's pretrial rulings and remand for resentencing on the marijuana conviction
                

BACKGROUND

On August 23, 1993, law enforcement officers from the Shawnee County, Kansas, Sheriff's Department and the Kansas Bureau of Investigation ("KBI") commenced an undercover operation targeting Edward Leroy Price, a suspected methamphetamine dealer. The officers arranged for Mary Clayton, a dealer for Price who had previously been arrested, to participate in a controlled purchase from Price at her residence. KBI agents and Shawnee County officers maintained surveillance on Clayton's residence through the night of August 23, 1993. The next morning, August 24, they participated in a joint briefing regarding the surveillance and investigation. That same morning, Clayton telephoned Price and informed him, through code, that she wished to purchase some methamphetamine.

KBI agents and Shawnee County officers then set up surveillance on Price's residence. During the day, KBI agents followed Price from his home in rural Osage County, Kansas, trailing him by car and plane. Later that day, based on the information provided by Clayton, Shawnee County Sheriff's Detective Dan Jaramillo prepared an affidavit and sought a search warrant for Price's residence in Osage County. A state judge in Shawnee County issued the warrant.

On the evening of August 24, Price visited Clayton's residence and delivered methamphetamine and marijuana. KBI agents and Shawnee County officers maintained surveillance inside and outside Clayton's home and in the general vicinity. Immediately following the transaction, KBI agents arrested Price in the alley outside Clayton's home. KBI Special Agent Larry Dixon then informed the Osage County Sheriff that officers involved in the investigation would be executing a search warrant in Osage County.

At approximately 11 p.m. that evening, before officers had arrived at the Price residence with the search warrant, KBI agents and officers from Osage and Shawnee Counties observed Mrs. Price leaving her residence. Fearing the operation had been compromised, they stopped Mrs. Price, informed her other officers were en route with a search warrant, obtained her consent to enter the house, and then entered and secured the premises. Within ten minutes, Shawnee County officers, including Officer Jaramillo, arrived at Price's residence with the search warrant. KBI agents and Shawnee County officers then jointly executed the warrant, seizing numerous drug related items as well as quantities of substances which later tested positive for methamphetamine and marijuana.

Price moved to suppress the evidence, arguing in part that the search violated state law. He contended that Officer Jaramillo, a Shawnee County law enforcement officer, had exceeded his jurisdiction by executing the search warrant in Osage County. ¹ He filed numerous other motions as well, including a discovery motion seeking, among other things, information regarding the KBI laboratory's equipment and chemical testing procedures, and seeking witness information. The district court denied all motions on the merits. Price then waived jury trial and submitted to a bench trial on a stipulated record, reserving the right to appeal the outcome of his pretrial motions.

Following trial, the district court found Price guilty on one count of conspiracy to possess methamphetamine with intent to distribute and one count of possession of marijuana with intent to distribute. The court sentenced Price to concurrent sentences of life imprisonment for the conspiracy conviction and twenty years' imprisonment for the marijuana conviction.

DISCUSSION

1. Motion to Suppress Evidence

Price first contends that evidence seized during the search of his home in Osage The record in this case overwhelmingly establishes the active participation of KBI officers in the execution of the search warrant on Price's residence. At the suppression hearing, Officer Jaramillo testified that when he sought the search warrant for Price's residence he was working in conjunction with the KBI. R.Vol. I, Tab 61, at 4-5. He also testified that the investigation of Price started out as a joint operation between the Shawnee County Sheriff's Department and the KBI. Id. at 6.

                County, Kansas, should have been suppressed by the district court because the warrant authorizing the search was executed by officers from Shawnee County, in violation of Kan.Stat.Ann. § 22-2401a(1).   See State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983).   Despite Price's attempts to distinguish the case, our decision in United States v. Occhipinti, 998 F.2d 791 (10th Cir.1993), resolves this issue in favor of the district court's denial of the motion to suppress.   In Occhipinti we held that a search in which KBI officers actively participated along with an undersheriff acting outside the county of his jurisdiction did not violate Kansas law, id. at 798-99, because KBI agents have statewide jurisdiction in Kansas.   Kan.Stat.Ann. § 75-712
                

Evidence introduced by stipulation for trial to the bench supports Officer Jaramillo's testimony. See United States v. Corral, 970 F.2d 719, 723 (10th Cir.1992) ("In evaluating the correctness of the district court's rulings, the appellate court may consider the entire record developed from the trial even though such evidence may not have been presented during the suppression hearing."). ² The KBI had a plane in the air and officers and vehicles on the ground following Price and keeping his residence under surveillance on the day of and in connection with his arrest and the related search of his person, vehicle, and residence. KBI agents arrested Price. And, pursuant to consent by Mrs. Price, KBI agents entered and secured Price's residence prior to the arrival of Officer Jaramillo with the search warrant. They then actively participated in the search.

It is undisputed that Shawnee County officers also played an active role in the execution of the warrant. Nevertheless, Kansas law does not subdivide the authority of active participants executing a warrant. Where KBI agents conducted the search pursuant to statutory authority and a valid warrant, ³ we will not parse the jurisdiction of the various officers involved nor base the suppression of evidence on any such analysis. See Occhipinti, 998 F.2d at 799. Joint law enforcement agency operations are common, if not the rule, in this mobile and diffuse area of criminal conduct. We conclude, therefore, as we did in Occhipinti, that the search warrant in question was executed by law enforcement agents properly working in the county where the search took place.

This is the short answer to Price's suppression arguments, which are based solely on state law. But we do not mean to imply that it is the only answer or only analysis available. Nor do we agree with Price's proposition that if the government responds to a suppression motion based on state law by arguing only the state law issue, then state suppression law, rather than the Fourth Amendment, controls. The authority in a federal case for suppressing evidence due to an unlawful search is the Fourth Amendment to the Federal Constitution. United States v. Mitchell, 783 F.2d 971, 973, 974 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986); see 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 112-13 & nn. 77-79 (2d ed. 1987 & Supp.1995) (collecting cases). ⁴ A violation of state law may or may not form the basis for suppression on Furthermore, this court may uphold the denial of a motion to suppress on any ground supported by the record. United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994). Our power of review of a district court's order is not defined by the arguments made or omitted by the government with respect to evidence admitted in the district court.

                Fourth Amendment grounds.   None of our cases stand for a contrary proposition, nor could they.   Nor could the government, by its argument, require a federal court to ignore the Fourth Amendment.   See United States Nat'l Bank v. Independent Ins. Agents of America, Inc., 508 U.S. 439, ----, 113 S.Ct. 2173, 2178, 124 L.Ed.2d 402 (1993) (court retains independent power to identify and apply proper construction of governing law).   The rule is implicit in those cases cited by Price in which we proceeded directly to an analysis of the defendant's claim that a search or seizure violated state law.  Occhipinti, 998 F.2d at 798-99;

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