US v. Fox

• Decision Date: 22 March 2010
• Docket Number: No. 09-5131.,09-5131.
• Citation: 600 F.3d 1253
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lucas Gregory FOX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

600 F.3d 1253

UNITED STATES of America, Plaintiff-Appellee, v. Lucas Gregory FOX, Defendant-Appellant.

No. 09-5131.

United States Court of Appeals, Tenth Circuit.

March 22, 2010.

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Stephen J. Greubel, Assistant Federal Public Defender, Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant.

Janet S. Reincke, Assistant United States Attorney, (Thomas Scott Woodward, Acting United States Attorney, with her on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant-Appellant Lucas Gregory Fox entered a conditional guilty plea to one count of possession of an unregistered shotgun with a barrel less than 18 inches long, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Law enforcement officers found the firearm in Fox's home after his wife consented to the search. Fox appeals the denial of his motion to suppress evidence, arguing that his wife's consent to search the home was invalid. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand for further proceedings.

I

At approximately 9:45 p.m. on February 4, 2009, Officers Dupler, Jenkins, Lamb, and Osterdyk of the Tulsa Police Department were in plain clothes and unmarked cars, conducting surveillance on Fox's home in Tulsa, Oklahoma. Officer Dupler had received information from a confidential informant that Fox was driving a stolen silver Jeep Wrangler and that he might have drugs with him. Officer Dupler also learned that Fox was wanted on an outstanding arrest warrant. While the officers were observing Fox's house, they saw a black Ford Mustang park near the house and a woman (later identified as Shawna Chiles) get out of the Mustang and enter the house. Approximately thirty minutes later, Ms. Chiles left the house, got back in her car, and drove away. Two officers, Officers Lamb and Osterdyk, followed the black Mustang in their unmarked police car.

Shortly after Officers Lamb and Osterdyk drove away, the silver Jeep Wrangler pulled into Fox's driveway. Fox got out of the Jeep, and Officers Dupler and Jenkins arrested him. By this time, Officers Lamb and Osterdyk had lost the black Mustang and had returned to Fox's house. While Officers Lamb and Osterdyk were walking towards the house, Ms. Chiles returned in the black Mustang. Ms. Chiles stopped the car in the middle of the street and asked "what's going on?" ROA, Vol. II, at 34. Officer Osterdyk approached Ms. Chiles, identified himself as a Tulsa police officer, and showed her his badge. Officer Osterdyk then got in her car and directed her to pull into a nearby convenience store parking lot across the street,¹ which was where the officers had been conducting their surveillance.

Officer Osterdyk then had Ms. Chiles get out of the car, and he asked her if she had a driver's license or any other identification. She replied that she had not had a license for some time. After getting her name and information, Officer Osterdyk checked with the records division to see if she had a driver's license and any outstanding warrants. While he was waiting to receive that information, he asked Ms. Chiles if she had anything illegal in the car, and she said that she did not. He then asked her if "she minded if he looked real quick and she said, no, go ahead, there's nothing to hide." ROA, Vol. II, at 35. Officer Osterdyk looked around the front compartment of the car and found a bag that contained what appeared to be methamphetamine. Although the substance was not field tested, Ms. Chiles "acknowledged that it was an illegal substance." ROA, VOL. II at 54. Ms. Chiles was not arrested, but was told by Officer Osterdyk that the police were more interested in Fox.² She replied that Fox was her husband and that they lived together. Officer Osterdyk asked if she was on the lease for the house, and she said that she was. He also asked her if there was anything illegal in their house, and she said "nothing that she knew of." ROA, Vol. II, at 37. Officer Osterdyk then asked if the police could search the house, and she responded: "that would be fine. There's nothing to hide." ROA, Vol. II, at 38. Officers Osterdyk and Lamb then walked over to the house with Ms. Chiles, and she unlocked the door, letting the officers inside.

Once inside the house, the officers asked if she would sign a search waiver form, and she said that she would. Although the officers did not have a waiver form with them, they began to search the house. While searching Fox's bedroom, the officers discovered a sawed-off shotgun and ammunition. Following the search, the officers obtained a search waiver form, "read over it with Ms. Chiles, explained everything on it, and asked her if she understood." ROA, Vol. II, at 39. She then signed the form.

Throughout the encounter, the officers spoke in a calm, conversational tone with Ms. Chiles. They never displayed their weapons, nor did they make any explicit threats or promises.

As a result of the officers finding the shotgun and ammunition in his house, Fox was indicted on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and one count of possession of an unregistered shotgun with a barrel less than 18 inches long, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Fox filed a motion to suppress the evidence found in his home, arguing that Ms. Chiles's consent to search the home was not voluntary. The district court held an evidentiary hearing and denied Fox's motion to suppress, ruling that Ms. Chiles voluntarily consented to the search. Fox sought reconsideration of the district court's order, arguing that the testimony elicited at the evidentiary hearing indicated that Ms. Chiles was illegally seized, and thus, her subsequent consent was invalid under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The district court ruled that the encounter between Officer Osterdyk and Ms. Chiles was consensual and not a seizure, and even if she was illegally seized, application of the Brown factors indicated that her subsequent consent to search the home was not tainted by any illegality.

Fox entered a conditional guilty plea to count two of the indictment, knowing possession of an unregistered sawed-off shotgun, reserving the right to appeal the denial of his motion to suppress. The government dismissed count one of the indictment, being a felon in possession of a firearm and ammunition. The district court sentenced Fox to 48 months' imprisonment. Fox appeals the denial of his motion to suppress the evidence found in his home.

II

In reviewing the denial of a motion to suppress, we review the factual findings of the district court for clear error, viewing "the evidence in the light most favorable to the government." United States v. Chavez, 534 F.3d 1338, 1343 (10th Cir.2008) (quotation omitted). We "review de novo the reasonableness of the government's action under the Fourth Amendment." Id.

A warrantless search of an individual's home is "per se unreasonable under the Fourth Amendment unless the government can show that it falls within one of a carefully defined set of exceptions." United States v. Cos, 498 F.3d 1115, 1123 (10th Cir.2007) (quotation omitted). Here, the government relied on Ms. Chiles's consent to search the home as an exception to the general warrant requirement. Fox argues that Ms. Chiles's consent was invalid because it was tainted by a prior illegal seizure and, as a result, her consent was not voluntary.

When a consensual search follows a Fourth Amendment violation, the government must prove both (1) that the consent was voluntary under the totality of the circumstances, and (2) that there was "a break in the causal connection between the illegality and the evidence thereby obtained." United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.1994) (internal citations, quotation, and footnote omitted). "Although the two requirements will often overlap to a considerable degree, they address separate constitutional values and they are not always coterminous." Id. at 1054. "We require the government to demonstrate that any taint of an illegal search or seizure has been purged or attenuated not only because we are concerned that the illegal seizure may affect the voluntariness of the defendant's consent, but also to effectuate the purposes of the exclusionary rule." Id.

A

In order to determine whether Ms. Chiles's consent was tainted by an unlawful seizure, we must first determine whether Ms. Chiles was unlawfully seized. We review de novo the district court's determination that the encounter between Ms. Chiles and the police was consensual and not a seizure. See United States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir.2004).

We have identified three general categories of encounters between police and citizens:

(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.

United States v. Lopez, 443 F.3d 1280, 1283 (quoting United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir. 1998)). Fox argues that although the encounter was initially consensual when Ms. Chiles stopped her car and asked what was going on, it soon became a seizure. Specifically, he contends that when Officer Osterdyk entered Ms. Chiles's car and directed her to drive to a nearby parking lot, Ms. Chiles was seized under the Fourth Amendment. We agree.

"A person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that she was not free to...