United States v. Young , 263 F. App'x 710 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
February 5, 2008
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4060
AMBER TEMPEST YOUNG, (D.C. No. 2:06-CR-37-TC)
(D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
Defendant-Appellant Amber Young entered a conditional plea of guilty to one
count of possession of methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1). A law enforcement officer discovered the methamphetamine in
question on Young’s person while executing a search warrant. Young moved to suppress
this evidence, arguing that a search of her person was beyond the scope of the warrant.
The district court denied this motion. We exercise jurisdiction pursuant to 28 U.S.C. §
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1291, and reverse and remand.
I.
During an ongoing narcotics investigation, Officer Brett Miller of the Taylorsville,
Utah police department learned from a confidential informant (CI) that Young was
involved in methamphetamine distribution. The CI said that he had purchased
methamphetamine from Young at her apartment, and that he had also seen Young travel
to other locations to conduct narcotics transactions. The CI claimed that Young would
personally transport the narcotics to these locations, and that when doing so, Young
would conceal them on her person.
After receiving this information, Officer Miller arranged two controlled buys of
methamphetamine at Young’s apartment. During these controlled buys, Officer Miller
observed the CI enter Young’s apartment without drugs on his person and leave with bags
containing methamphetamine. The informant indicated that during these buys, he
observed larger quantities of methamphetamine in the apartment.
Officer Miller prepared an affidavit in support of a warrant application and applied
for a search warrant. His affidavit related the information he received from the CI
concerning prior drug transactions, as well as his own knowledge concerning the two
controlled buys. Based on this affidavit, a judge of the Utah state district court issued a
search warrant on October 31, 2005. In pertinent part, the warrant stated that there was
probable cause to believe that evidence of narcotics distribution would be found:
. . . (X) in the premises known as: 4696 S Sunstone Road apartment 199,
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which is further described as being located in a multi family apartment
building. The apartment is on the third floor and the door faces to the west,
the numbers 199 are visible above the door and the numbers 4696 are
displayed on the front of the building. To include all rooms, attics,
basements, and other parts therein, the surrounding grounds, any garages,
storage rooms, storage areas and trash containers of any kind located
thereon where articles of evidence may reasonably be concealed.
. . . on the persons known as: Amber Tempest Young, a Caucasian female,
approximately 5’10” and 189 pounds, with blonde/strawberry hair and blue
eyes, with a birth date of February 20th, 1981 . . . .
Search & Seizure Warrant, Aplt. Br., Appx. E, at 1. The command line of the warrant,
however, stated only that “YOU ARE THEREFORE COMMANDED . . . to make a
search of the above-named premises.” Id. at 2.1
The following day, Officer Miller executed the warrant by stopping Young while
she was driving on the freeway, several miles from the apartment described in the
warrant. Officer Miller proceeded to search Young, and discovered 30 grams of
methamphetamine.2
On February 1, 2006, a grand jury indicted Young for, among other things,
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §
841(a)(1). Young moved to suppress the drugs discovered during the search of her
person. In her motion, Young argued that the thrust of the warrant was to permit a search
1
The entire text of the warrant, along with its attachment, is attached to this Order
and Judgment as Appendix A.
2
While not apparent from the record, the parties stated upon questioning at oral
argument that Young’s apartment was never searched, and that the methamphetamine that
gave rise to the charges against Young was the methamphetamine found on Young’s
person as a result of the search challenged here.
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of her apartment, and that the warrant permitted law enforcement officers to search her
person only if she was at, or in close proximity to, her apartment. She specifically stated
that she was not challenging “the probable cause finding or the facial validity of the
warrant.” Memo. in Supp. of Mot. to Suppress, Vol. I, Doc. 35, at 4. As a result, Young
argued that the “good faith” exception to the exclusionary rule in United States v. Leon,
468 U.S. 897, 920 (1984), did not apply because she was challenging only Officer
Miller’s execution of the warrant as exceeding the scope of the warrant, and not the
warrant’s validity.
The district court denied Young’s motion. In so doing, the court found that the
language of the warrant authorized a search of Young away from her apartment. The
court further held that while the ambiguity of the warrant’s language “raise[d] questions
about the validity of the warrant,” Officer Miller executed the warrant in good faith,
making it unnecessary to suppress the methamphetamine seized. Order & Memo.
Decision, Aplt. Br., Appx. C, at 4-6.
Following the court’s ruling on her motion to suppress, Young pleaded guilty to
one count of possession of a controlled substance with intent to distribute. As a part of
the plea agreement, she reserved the right to appeal the denial of her motion to suppress.
II.
In reviewing the denial of a motion to suppress, we view the evidence in the light
most favorable to the government, and we accept the district court’s factual findings
unless they are clearly erroneous. United States v. McKerrell, 491 F.3d 1221, 1224-25
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(10th Cir. 2007). We review the ultimate determination of reasonableness under the
Fourth Amendment de novo. Id.On appeal, Young argues that the district court erred in denying her motion to
suppress for two reasons. First, she argues that the court erred in determining that the
warrant authorized a search of her person at a place other than the apartment named in the
warrant. Second, she argues that the court erred in holding that, even if the warrant was
invalid for some reason, the good faith exception to the exclusionary rule applied.
a. Scope of the Warrant
Search warrants must “particularly describ[e] the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. Young does not challenge the
validity of the warrant, or argue that it does not describe the places to be searched or
things to be seized with particularity. Instead, she contends that the search of her person
was beyond the scope of the warrant. Specifically, she claims that her person was not
“particularly described” in the warrant as one of the places to be searched, and that the
warrant only authorized a search of her person if she was at, or in close proximity to, the
apartment named in the warrant. The government disputes this interpretation of the
warrant and argues the district court’s more expansive view of the scope of the warrant is
the correct reading. The scope of a search warrant is a question of law that we review de
novo. United States v. Angelos, 433 F.3d 738, 745 (10th Cir. 2006). The scope of a
warrant is determined using “a standard of practical accuracy rather than technical
precision.” Id. (quoting United States v. Ortega-Jimenez, 232 F.3d 1325, 1328 (10th Cir.
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2000)). Such a “practical reading” of the warrant is permissible if a warrant’s terms are
disputed, as they are here. Id. at 746.
The district court concluded that the warrant “purported on its face to authorize a
search of Ms. Young separate and apart from her apartment.” Order & Memo. Decision,
Aplt. Br., Appx. C, at 6. In reaching this conclusion, the court relied on the two
paragraphs in the warrant stating that there was probable cause to search the apartment
and to search Young. Because no language in these paragraphs “expressly conditioned
the permission to search [Young] on [her] presence” at the apartment, the court concluded
that no such condition existed, thereby distinguishing the cases on which Young relied.
Id. at 4. Neither the parties nor the district court specifically addressed the command line
of the warrant.
On appeal, Young contends that “the warrant clearly only command[ed] a search
of Ms. Young’s residence.” Aplt. Br. at 14. She concedes that the warrant stated that
there was probable cause to believe that contraband or evidence of a crime would be
found on her person. However, she now points to the warrant’s command line, which
only authorized the searching officer “to make a search of the above-named premises.”
Search & Seizure Warrant, Aplt. Br., Appx. E, at 2 (emphasis added). According to
Young, because “[t]he plain meaning of premises does not include someone’s person,”
the warrant cannot reasonably be construed to permit a search of her person apart from
her residence. Aplt. Br. at 16.
When the warrant is read in its entirety, we agree that the search of Young’s
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person was beyond the scope of the warrant. In both popular and legal usage, the term
“premises” refers to real property, not persons. See Webster’s Third New Int’l Dictionary
1789 (1993) (definition of “premise”); Black’s Law Dictionary 1180-81 (6th ed. 1990)
(“The term [“premises”] as used in a search warrant includes land, buildings, and
appurtenances thereto.”). In addition, the warrant itself uses the term “premises” to refer
specifically to Young’s apartment; Young, by comparison, is referred to as a “person”
earlier in the warrant. See Search & Seizure Warrant, Aplt. Br., Appx. E, at 1.
Particularly when viewed in light of this cross-reference, we believe that the term
“premises” in the command line refers to Young’s apartment, and not to Young.
We acknowledge the possibility that the use of the term “premises” in the
command line was boilerplate, and that the omission of Young from the command line
was a mere oversight on the part of the Utah judge. We are hesitant to place too great an
emphasis on the command line of the warrant, standing alone, which threatens to value
technical precision over practical accuracy. Cf. Angelos, 433 F.3d at 745. We therefore
reaffirm that in reviewing a warrant, we should and do take into account all parts of the
warrant. United States v. Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995). Our reading of
the command line as permitting only a search of the apartment, however, is strengthened
by reference to the affidavit Officer Miller submitted to the magistrate judge. See United
States v. Ortega-Jiminez, 232 F.3d 1325, 1329 (10th Cir. 2000) (“[A]n affidavit . . . may
be used to clarify with ‘practical accuracy’ the meaning of a disputed term in a warrant
when the same person is both affiant and executing officer.”). As the district court
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recognized, “the facts submitted to the magistrate in support of Officer Miller’s request
for a warrant to search Ms. Young are sparse.” Order & Memo. Decision, Aplt. Br.,
Appx. C, at 5. While Officer Miller’s CI claimed that he had both purchased
methamphetamine from Young and observed Young travel to other locations to conduct
narcotics transactions, the only information that Officer Miller’s subsequent investigation
corroborated was that narcotics transactions took place at Young’s apartment. Based on
this fact, it is entirely plausible that the magistrate judge who issued the warrant did not
find probable cause to search Young apart from her apartment, and that the omission of
Young’s person from the command line was intentional.
We therefore conclude that the warrant permitted no more than a search of the
apartment, and that the search of Young several miles away from her apartment exceeded
the scope of the warrant. For purposes of this appeal, we need not address the
hypothetical question of whether Young could have been searched at her apartment, had
her apartment been searched pursuant to the warrant.
The government argues that we should not address Young’s command-line
argument (that the search of Young’s person exceeded the scope of the command line)
because Young did not specifically raise this argument before the district court. Young
admittedly focused her argument before the district court on the more ambiguous part of
the warrant, the section describing where evidence was likely to be found. That Young
did not focus more attention on the command line does give us some pause. However,
the ultimate issue before the district court was the same issue now presented on appeal:
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whether the search of Young’s person exceeded the scope of the authority given by the
warrant.
Before the district court, Young clearly articulated the basis of her objection to the
search, which was that the warrant only authorized a search of her apartment and not her
person. She argued that if the warrant authorized a search of her person, it only did so if
she was at or close to her apartment. The warrant in this case is not particularly complex
or confusing. It consists of only two pages and a one-page addendum. We see no way to
construe the warrant without considering the command line.3 It would require a
hypertechnical reading of Young’s arguments before the district court to conclude that
Young has waived any argument based on the command line. The question presented to
the district court was whether the search of Young’s person exceeded the scope of the
warrant—and the proper construction of the command line, as a part of the warrant, was
properly presented to the district court.
b. Good Faith Exception
The district court, having found that the search warrant permitted a search of
3
For this reason, the primary case cited by the government, United States v.
Mitchell, 783 F.2d 971 (10th Cir. 1986), is inapposite. In Mitchell, the defendant argued
before the trial court that evidence should be suppressed because the officers who
executed the warrant did not give adequate warning before breaking and entering the
premises. Id. at 973. On appeal, the defendant renewed that argument, and also made the
entirely new argument that the search exceeded the scope of the warrant. Id. Young, by
contrast, has made essentially the same argument. She is not proceeding on a new theory,
but has chosen to refocus on a different part of the warrant because the district court
apparently overlooked it.
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Young apart from her apartment, harbored doubts about the warrant’s validity.4 The court
thus proceeded to consider whether the good faith exception to the exclusionary rule
applied. Under this exception, exclusion of evidence is not an appropriate remedy “where
an officer acting with objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope, even though the search warrant was later deemed to
be invalid.” United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir. 2006) (quoting
Leon, 468 U.S. at 920). However, if a warrant has been improperly executed, the good
faith exception will not save the ensuing search. Id.; see also United States v. Medlin,
798 F.2d 407, 410 (10th Cir. 1986) (explaining that the rationale for the exclusionary rule
is deterrence of police misconduct, and that “[u]nlike cases in which the police properly
execute an invalid warrant that they reasonably thought was valid, in cases of improper
execution there is police conduct that must be deterred.”). Because the validity of the
warrant is not challenged in this case, and because we have concluded that the warrant did
not authorize the search of Young’s person, we also conclude that Leon’s good faith
exception does not apply.
III.
The government contends that we should remand to the district court for further
factfinding “on the alternative grounds for affirmance that could be raised by the United
4
Young herself did not argue that the warrant was invalid if it authorized a search
of her person; the district court addressed this issue sua sponte. Its doubts apparently
stemmed from the belief that a warrant issued solely for the search of a person was
constitutionally suspect. See Tr. of Mot. Hr’g, Vol. III, Doc. 61, at 2 (“[I] can’t find
anything that allows separate search warrants of people.”).
10
States.” Gov’t Br. at 7. The government argues that on remand, the district court could
determine (1) whether the warrant incorporated the warrant affidavit; and (2) whether the
search was justifiable as either a search incident to arrest, or as a Terry stop and frisk.
The government relies on cases providing that “[w]hen the record from the district court
is inadequate, leaving the court of appeals unable to resolve an issue, remand is an
appropriate alternative remedy.” Id. at 7-8 (citing United States v. Olivares-Rangel, 458
F.3d 1104, 1113 (10th Cir. 2006); United States v. Ramstad, 219 F.3d 1263, 1265 (10th
Cir. 2000)). However, a closer examination of those cases reveals that in both, the issue
for which there was an insufficient record was actually raised in the original proceeding.
This authority does not support the proposition that we may remand in order to permit the
government to make entirely new arguments in support of the district court’s ruling. We
therefore respectfully decline the government’s invitation to remand this case to the
district court for further factfinding.
IV.
We REVERSE the district court’s denial of Young’s motion to suppress and
REMAND for further proceedings.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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APPENDIX A
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