U.S. v. Sawyer, 05-5002.

• Decision Date: 20 March 2006
• Docket Number: No. 05-5002.,05-5002.
• Citation: 441 F.3d 890
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Paul Michael SAWYER, also known as Motor Mike, also known as Mike Paul Sawyer, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

441 F.3d 890

UNITED STATES of America, Plaintiff-Appellant, v. Paul Michael SAWYER, also known as Motor Mike, also known as Mike Paul Sawyer, Defendant-Appellee.

No. 05-5002.

United States Court of Appeals, Tenth Circuit.

March 20, 2006.

Richard A. Friedman, Assistant United States Attorney, Washington, D.C. (David C. O'Meilia, United States Attorney, and Leena Alam, Assistant United States Attorney, with him on the briefs, Tulsa, Oklahoma) for Plaintiff-Appellant.

Stanley D. Monroe, Tulsa, OK, for Defendant-Appellee.

Before PORFILIO and EBEL, Circuit Judges, and HERRERA, District Judge.^*

HERRERA, District Judge.

The Government appeals the district court's order granting Defendant Paul Michael Sawyer's ("Defendant") motion to suppress evidence. We exercise jurisdiction under 18 U.S.C. Section 3731 and reverse.

I. Factual Background.

On August 17, 2000, Detectives Michael Todd Brown and Jack Cross of the Lawrence, Kansas Police Department (the "Kansas Officers") decided to pursue an investigation into a stolen motorcycle ring by traveling to Bartlesville, Oklahoma to interview Defendant Paul Michael Sawyer ("Defendant"). In preparation for their trip, the Kansas Officers attempted to telephone Sergeant Jay Hastings of the Bartlesville Police Department on August 17 and August 18, 2000. The Kansas Officers were unable to speak with Sergeant Hastings, but left a message for Hastings on August 18, 2000.

On August 18, 2000, the Kansas Officers departed for Bartlesville in attempt to locate and interview Defendant. Upon their arrival in Bartlesville, the Kansas Officers stopped first at the Bartlesville Police Department hoping to find a Bartlesville police officer to accompany them. No Bartlesville officers were available.

The Kansas Officers proceeded to Defendant's motorcycle shop, where Defendant conducted a business of motorcycle sales. When the officers knocked on the door of the business, no one answered. An individual at a nearby business informed the Kansas Officers that Defendant was employed by Reda Pump. The Kansas Officers proceeded to Reda Pump, where they informed the manager, or person in charge, that they needed to speak with Defendant. Detective Brown was wearing his badge, firearm, handcuffs, phone, and pager on his belt. Detective Cross was wearing similar equipment on his belt. The Kansas Officers either presented their badges to the manager or their badges were visible to the manager during the conversation. The manager directed the Kansas Officers to a large conference room located on the business's premises, where the officers waited for Defendant. Thereafter, the manager brought Defendant to the conference room and left.

Detective Brown informed Defendant that he and Detective Cross were police officers from Lawrence, Kansas investigating crimes that had occurred in their jurisdiction. Detective Brown further indicated that Defendant was not under arrest and that he and Detective Cross did not have authority to arrest Defendant. Detective Brown also advised Defendant of his Miranda rights, using a blue card that the local district attorney's office had issued to the Lawrence, Kansas Police Department. Thereafter, Detective Brown asked Defendant if he would speak with them, and Defendant responded in the affirmative. The Kansas Officers conversed with Defendant for approximately one hour.

During the interview, Detective Brown asked Defendant to prepare a written statement, and Defendant agreed. The Kansas Officers provided Defendant with a Lawrence, Kansas Police Department form on which to write a statement. After Defendant finished writing the statement, Detective Brown asked whether Defendant would take him and Detective Cross to Defendant's motorcycle shop, and Defendant agreed.

The Kansas Officers, driving their police vehicle, followed Defendant, who was driving his own vehicle, to the shop. Upon their arrival, Defendant unlocked the door and allowed the Kansas Officers to enter. Once inside, the Kansas Officers requested that Defendant consent to a search of the premises by completing and signing an official Lawrence, Kansas Police Department consent form. The Kansas Officers explained that they wanted to formalize Defendant's consent to search so that they could have it for their records. Defendant signed the form.

The Kansas Officers began to search the motorcycle shop, and when they were concluding their search, the officers contacted the Bartlesville Police Department to request that a Bartlesville officer bring a camera to the shop. Three Bartlesville officers arrived on the scene, took photographs, and at the request of the Kansas Officers, seized six engines. The Kansas Officers took Defendant's records from his office and subsequently proceeded to Defendant's residence where they obtained additional records from Defendant's wife. Thereafter, the Kansas Officers further interviewed Defendant at the Bartlesville Police Department.

At some point between August 19, 2000, and August 23, 2000, the Kansas Officers notified the Bartlesville police officers of the results of their examination of the serial numbers on the engines that they had seized from Defendant's shop. The following day, the Bartlesville officers obtained a search warrant from an Oklahoma state court judge authorizing a second search of Defendant's shop, using the information obtained by the Kansas Officers from the first search as the basis for their warrant application. The warrant resulted in the seizure of seventeen additional motorcycle engines.

The Kansas Officers at all times were acting in furtherance of an investigation on behalf of the Lawrence, Kansas Police Department. The Kansas Officers did not at any time act, or purport to act, as private citizens or volunteers. Rather, at all times, the Kansas Officers represented themselves as acting on official business.

II. Procedural Background.

On October 10, 2003, the Government indicted Defendant in the Northern District of Oklahoma, charging him with conspiracy to possess stolen property, which had traveled in interstate commerce, in violation of 18 U.S.C. Section 371, and possession of motorcycle engines with altered or obliterated vehicle identification numbers, with the intent to sell such engines, in violation of 18 U.S.C. Section 2321. On November 14, 2003, Defendant filed a motion to suppress, arguing that the district court should suppress all evidence obtained from both searches of his motorcycle shop on the ground that the Kansas Officers lacked authority to conduct an investigation in Oklahoma and that his consent to search therefore was invalid.

After conducting evidentiary hearings on December 1, 2003, and December 4, 2003, the district court certified the following question to the Oklahoma Court of Criminal Appeals:

Whether police officers from Lawrence, Kansas, who identified themselves as police officers to the owner of a building located in Bartlesville, Oklahoma, but informed the owner prior to requesting consent to search that they were from Kansas and without authority to arrest him, could legally conduct such a search in Oklahoma, and whether the fruits of the subsequent search are admissible in evidence, considering that both Oklahoma and Kansas have statutory prohibitions against police officers acting in their official capacities outside their respective jurisdictions?

On June 8, 2004, in a three-two decision, the Oklahoma Court of Criminal Appeals ruled that the Kansas Officers lacked authority to request consent to search Defendant's business. United States v. Sawyer, 92 P.3d 707, 709-10 (Ok.Ct.Crim.App. 2004), App. 181-82. The Oklahoma court ruled that the detectives lawfully could be present and conduct an investigation in Oklahoma, but lawfully could not conduct a search or seizure. Id. at 710 n. 3, App. 182. Because the Kansas Officers obtained Defendant's consent to search while representing themselves as officers on official business, the Oklahoma court held that Defendant's consent to search was invalid under state law. Id. at 710 & n. 3, App. 182. The Oklahoma court stated that the fruits of that search should be suppressed under the Fourth Amendment. Id. at 710-11, App. 182-83.

After receiving the Oklahoma court's response to the certified question and conducting a further hearing for argument by counsel on August 13, 2004, the district court granted Defendant's motion to suppress. Although the court concluded during the hearings that Defendant's consent to search voluntarily was given, see 12/4/03 Tr. at 77-78, App. 139-40; see also id. at 65, 72, 79, App. 127, 134, 141; 2/4/04 Tr. at 13, App. 160; 8/13/04 Tr. at 28, App. 215, the district court nonetheless held that, "because the Kansas officers could not lawfully request consent[,] . . . the search in this case is constitutionally infirm" and "the fruits of that illegal search cannot be used as evidence in this case," Sawyer, No. 03-CR-145-H, slip. op. at 14, App. 236.

III. Discussion.

"It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject to only a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (citations and internal quotation marks omitted). "It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Id. (citations omitted). Federal law governs the question whether consent is valid, even though the police actions are those of state police officers. See United States v. Miller, 452 F.2d 731, 733 (10th Cir.1971) (citations omitted). Under federal law, consent is valid if it is "`freely and voluntarily given.'" Schneckloth, 412 U.S. at 222, 93 S.Ct. 2041 (quoting Bumper v. North Carolina, 391 U.S. 543, 548, ...