U.S. v. Sells

• Decision Date: 19 September 2006
• Docket Number: No. 04-5167.,04-5167.
• Citation: 463 F.3d 1148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Edwin SELLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

463 F.3d 1148

UNITED STATES of America, Plaintiff-Appellee, v. Mark Edwin SELLS, Defendant-Appellant.

No. 04-5167.

United States Court of Appeals, Tenth Circuit.

September 19, 2006.

COPYRIGHT MATERIAL OMITTED

Barry L. Derryberry, Research and Writing Specialist (Paul D. Brunton, Federal Public Defender, with him on the brief), Tulsa, OK, for Defendant-Appellant.

Timothy L. Faerber, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before KELLY, EBEL, and McWILLIAMS, Circuit Judges.

EBEL, Circuit Judge.

Under the severability doctrine, "[t]he infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant, but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized — on plain view grounds, for example — during . . . execution [of the valid portions])." United States v. Brown, 984 F.2d 1074, 1077 (10th Cir.1993) (quotations, alteration omitted). We adopted the doctrine in Brown, and more fully addressed it in United States v. Naugle, 997 F.2d 819, 822-23 (10th Cir. 1993); see also United States v. Soussi, 29 F.3d 565, 568 n. 3 (10th Cir.1994).¹ In Naugle, we limited the applicability of the doctrine by holding that it applies only if "the valid portions of the warrant [are] sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant." 997 F.2d at 822.

We apply a multiple-step analysis to determine whether severability is applicable: First, we divide the warrant in a commonsense, practical manner into individual clauses, portions, paragraphs, or categories. We then evaluate the constitutionality of each individual part to determine whether some portion of the warrant satisfies the probable cause and particularity requirements of the Fourth Amendment. If no part of the warrant particularly describes items to be seized for which there is probable cause, then severance does not apply, and all items seized by such a warrant should be suppressed. If, however, at least a part of the warrant is sufficiently particularized and supported by probable cause, then we proceed to determine whether the requirements set out in Naugle have been satisfied. In doing so, we first determine whether the valid portions are distinguishable from the invalid portions. If the parts may be meaningfully severed, then we next look to the warrant on its face to determine whether the valid portions make up "the greater part of the warrant," by examining both the quantitative and qualitative aspects of the valid portions relative to the invalid portion. This analysis ensures that severance does not render the Fourth Amendment's warrant requirement meaningless. If the valid portions make up "the greater part of the warrant," then we sever those portions, suppress the evidence seized pursuant to the portions that fail to meet the Fourth Amendment's warrant requirement, and admit all evidence seized pursuant to the valid portions or lawfully seized during execution of the valid portions.

Here, Defendant-Appellant Mark Sells was charged with possession of an unregistered destructive device after execution of a search warrant at his residence. He filed a motion to suppress all of the evidence seized from his residence, which the court orally denied in part. Sells then conditionally pleaded guilty, expressly reserving his right to appeal the district court's ruling on the suppression motion. Applying the analysis summarized above and described more fully below, we conclude that the district court correctly severed the valid portions of the warrant at issue in this case and ordered partial suppression, and we AFFIRM.

BACKGROUND

On March 11, 2004, officers responded to a call that shots were fired into the home of Orville and Nellie Sells. Upon arrival, deputies found two spent .223-caliber shell casings lying on top of the grass near the master bedroom window, observed two bullet holes in the master bedroom window, and discovered two bullet holes in the headboard of the bed in which Orville and Nellie Sells had been sleeping. Orville Sells reported that his son, Mark Sells, had threatened his life the previous day and he warned officers that his son had numerous firearms at his, Mark Sells's, residence.

Officers established surveillance at Mark Sells's residence that night. They saw Sells arrive, back his car to the garage door, open the garage, carry a sleeping child inside, return to the car, and remove a dark jacket and put it on. The officers continued to watch as Sells removed: two shovels, which he placed along the wall of the garage; a large bag, which he placed on the floor of the garage; and what appeared to be a deer rifle, which he carried into the house. The officers then saw Sells return to the vehicle and remove the following additional items from the trunk and bring them into the house: a large tactical-type bag, a flak jacket, and an AR-15 assault rifle with a scope.

Supported by an affidavit indicating the above facts, a search warrant for Sells's home was issued on March 12, 2004. The warrant described the items to be searched for and seized as follows:

[a]ny .223 caliber Firearm or rifle, .223 caliber ammunition, footwear, clothing, any other related fruits, instrumentalities and evidence of the crime.

The affidavit was neither incorporated into the warrant nor attached to it.

Five officers executed the search warrant at Sells's home, during which the officers found a loaded .223-caliber AR-15 rifle in the living room "right off the bat." As officers continued the search in the master bedroom, Sells arrived, and the search was temporarily stopped while Detective Rhymes served Sells with a protective order that had been issued on behalf of Orville and Nellie Sells in Washington County.

The inventory of the seized items reflects that the officers also seized a 9 mm machine pistol, a 410 shotgun, and three.22-caliber rifles; Detective Rhymes testified that these additional firearms were seized based on the illegality of possessing a firearm while being subject to a protective order. The officers also seized load-bearing suspenders, a pistol belt, a bayonet, a tactical bag, boots, three gun cases, a rucksack, a ballistic vest, and a knife.

During the search of the master bedroom, deputies discovered a hidden compartment within the closet. Within the hidden compartment, they found thousands of rounds of ammunition. Approximately seventy percent of the .223-caliber ammunition seized was from the hidden compartment. While searching in the hidden compartment, officers also spotted a pipe bomb. At that point, Detective Rhymes instructed the other officers to evacuate the residence and called the Tulsa Police Department Bomb Squad and the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") to neutralize the bomb. Special Agent Josh Petree of ATF determined that the device found in the hidden compartment was in fact a pipe bomb and disarmed it.

On a nearby shelf, Agent Petree saw two-sided Velcro tape, which appeared identical to the strip of tape attached to the pipe bomb, and numerous 12-gauge shotgun rounds with the ends clipped off and the powder removed, which Agent Petree believed could have been used inside the pipe bomb as an ignition source. The officers found a bag a few feet from the pipe bomb that contained a package labeled "Ten Pack of Squibs," which were identical in appearance to the squibs attached to the pipe bomb found in the hidden compartment. In the garage, Special Agent Petree saw a welding apparatus and a drill press, which he testified could have been used to make the pipe bomb. All of these items were seized.

On April 13, 2004, Sells was charged with possession of an unregistered destructive device (a pipe bomb) in violation of 26 U.S.C. §§ 5861(d) and 5871. Sells filed a motion to suppress all evidence seized during the execution of the search warrant at his residence on the grounds that the warrant failed particularly to describe the evidence to be seized, that probable cause was lacking to support seizure of the broad items listed in the warrant, and that the officers conducted a general search. The district court ruled that "[t]he warrant describe[d] certain items in broad or generic terms, which is not adequate under the circumstances and nature of the investigation here." The court ruled that severance was applicable in this case and ordered partial suppression, upholding the seizure of 1) the .223 rifle and.223 ammunition pursuant to the redacted warrant and 2) the shotgun shells, pipe bomb, Velcro, squibs, drill press, welding equipment, and flux pursuant to the plain view doctrine.

Sells conditionally pleaded guilty, waiving his right to trial but expressly reserving his right to appeal the district court's denial of his motion to suppress. The district court then sentenced Sells to thirty months' imprisonment, a $2,500 fine, three years' supervised release, and a special monetary assessment of $100. Sells now appeals the district court's suppression order.

DISCUSSION

As he did before the district court, Sells contends that several deficiencies in the warrant in this case rendered the search of his residence unconstitutional. Specifically, he contends that the information included in the affidavit in support of the search warrant failed to establish probable cause to support a search for footwear or clothing and that the overbreath of the search warrant rendered it a constitutionally impermissible general warrant. The United States argues that, despite any constitutional infirmities, the valid portions of the search warrant are severable from the invalid portions and that the warrantless items seized from Sells's residence are admissible under the plain view doctrine. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we...