United States v. Vogl

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 2 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 99-1583
(D. Colo.)
ROCKY VOGL; KAREN VOGL, (D.Ct. No. 98-CR-257)
Defendants-Appellees.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, PORFILIO, and BALDOCK, Circuit Judges.
The government appeals the district court’s grant of Karen Vogl’s motion
to suppress the padlock key removed from inside her purse. We have jurisdiction
pursuant to 18 U.S.C. § 3731. We affirm the district court’s decision, but for
reasons slightly different than those relied upon by the district court. See United
States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994).
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
On June 2, 1998, federal Drug Enforcement Agency agents and task force
officers (collectively “officers”) observed a man, later identified as Rocky Vogl,
carrying several unmarked boxes out of a hydroponics store in Boulder,
Colorado. 1
The officers ran Mr. Vogl’s license plate number through the
Department of Motor Vehicles records and followed him to his residence at 17945
Steeplechase Drive in Peyton, Colorado. At this time, the officers did not know
Karen Vogl existed, was married to Mr. Vogl, or lived at that residence.
Approximately one week later, the officers returned to the residence to
conduct visual surveillance and determine whether they could smell growing
marijuana plants. The officers smelled growing marijuana as they walked toward
the house. The agents did not observe Karen Vogl during their surveillance.
After the surveillance, the agents administratively subpoenaed the electrical
bills for the Steeplechase Drive residence in order to determine whether the
wattage levels for the house were unusually high, which is a fact consistent with
the indoor growth of marijuana plants. The electrical bills were in Mr. Vogl’s
1
Hydroponic equipment is used to grow plants, including marijuana plants,
indoors.
-2-
name exclusively.
On June 12, 1998, Officer Scott Schacht obtained a federal search warrant
for the residence described as 17945 Steeplechase Drive, Peyton, Colorado. The
search warrant authorized the officers to search for, among other things,
“[a]rtifacts of personal property tending to establish the identify [sic] of the
person or persons in control of premises where marijuana is under cultivation, ...
which include but not limited to: ...keys.” However, the warrant did not
authorize the officers to search persons found at the premises. The search warrant
and Officer Schacht’s seven-page affidavit supporting it do not mention Karen
Vogl.
On June 15, 1998, the officers executed the search warrant. When the
officers arrived at the residence, Karen Vogl and her children were standing in the
driveway near her car. She wore her purse and held bags of groceries in her
hands. An officer approached Karen Vogl, identified himself as an officer, and
informed her the officers intended to execute the search warrant at the residence.
There is no evidence suggesting the officers ascertained Karen Vogl’s identity or
relationship to the premises when they encountered her in the driveway.
-3-
Karen Vogl initially agreed to open the door of the residence for the
officers, but she requested time to read the search warrant before doing so.
Because the officers were concerned about securing the premises, an officer
forcibly moved her from the entrance in order to gain access to the residence.
Another officer grabbed her keys from her hand and unsuccessfully attempted to
find a key that would open the door. The officer returned the keys to Karen Vogl
once she indicated she would open the door for the officers. With the search
warrant and keys in her hand, she approached the door but did not open it.
Instead, she held the keys to her chest and stated she wanted to read the search
warrant first.
An officer moved Karen Vogl away from the door and placed her under
arrest for “obstructing, not letting [the officers] into the doorway, standing in the
doorway and clutching the keys and obstructing the agent.” During the arrest, the
officer handcuffed her, removed her purse from her person, and placed the purse
on the porch. She remained handcuffed for over an hour while the officers
searched the residence. There is no evidence in the record suggesting that during
her arrest or the subsequent search of the residence the officers determined her
relationship to the premises.
-4-
In order to effect entry into the home officers broke the back door lock.
Once inside the residence, an officer found a hidden trapdoor secured by a locked
padlock. He cut the lock and discovered over 350 growing marijuana plants in an
underground room. After this discovery, an officer decided to search Karen
Vogl’s purse, which was still located on the porch where the arresting officer had
placed it. The officer removed a keychain with keys from her purse, and matched
a key from the keychain to the padlock that secured the underground marijuana
growing room. 2
The padlock key is at issue in this case. After the officers
conducted their search of the residence and Karen Vogl’s purse, they removed her
handcuffs and left her at the premises with the children, the groceries, and her
purse.
Karen Vogl filed a motion to suppress the padlock key found in her purse.
In response, the government advanced alternative theories why the key should not
be suppressed: (1) the officers legally detained Karen Vogl pursuant to Michigan
v. Summers , 452 U.S. 692 (1981), they arrested her after the search of the home
provided them probable cause, and they searched her purse pursuant to the search
We do not know whether the keys removed from her purse are the same keys
2
Karen Vogl clutched to her chest before the officers arrested her. However, it is clear the
keys were in her purse after she was arrested and prior to the officer’s search of the purse.
-5-
incident to arrest exception to the warrant requirement; and (2) the purse rested
within the curtilage of the house and fell within the scope of the premises search
warrant. After an evidentiary hearing, the district court granted Karen Vogl’s
motion to suppress the padlock key. The district court held: (1) Karen Vogl was
not permissibly detained, her arrest was illegal and not supported by probable
cause, and the officer’s search of her purse was not a valid search incident to
lawful arrest; and (2) the seizure and search of her purse was not authorized by
the premises search warrant. The court denied the government’s motion to
reconsider and affirmed its suppression order.
“In reviewing the district court's grant of a suppression motion, we accept
the district court's factual findings absent clear error and review de novo the
district court's determination of reasonableness under the Fourth Amendment to
suppress the ... evidence.” United States v. Olguin-Rivera , 168 F.3d 1203, 1204
(10th Cir. 1999). Because the government appeals an adverse ruling on a motion
to suppress, we construe the facts in the light most favorable to Karen Vogl.
United States v. Lin Lyn Trading, Ltd. , 149 F.3d 1112, 1113 n.1 (10th Cir. 1998).
DISCUSSION
The Fourth Amendment protects people from unreasonable searches and
-6-
seizures. 3
U.S. Const. amend. IV. Absent certain exceptions, “[t]he Fourth
Amendment normally requires that law enforcement officers obtain a warrant,
based on probable cause, before conducting a search.” United States v.
Anchondo , 156 F.3d 1043, 1045 (10th Cir. 1998). “This means that before an
officer may search one's premises or seize one's property he must have a search
and seizure warrant.” Pearson v. United States , 150 F.2d 219, 220 (10th Cir.
1945). However, the probable cause that supported the issuance of a premises
search warrant “does not, without more, support the search of [defendant’s
person].” United States v. Sporleder , 635 F.2d 809, 813 (10th Cir. 1980).
The government raises one issue in this appeal. 4
The government asserts
the officers legally searched Karen Vogl’s purse, pursuant to the premises search
warrant, because the purse was on the premises and could contain items listed in
3
Neither Karen Vogl nor the government raises the issue, but we will assume
without deciding Karen Vogl possesses a reasonable subjective and objective expectation
of privacy in the contents of her purse. United States v. Anderson, 154 F.3d 1225, 1229
(10th Cir. 1998), cert. denied, 526 U.S. 1159 (1999).
4
Karen Vogl focuses her response to the government’s appeal argument on the
fact the evidence seized from her purse “was the result of an illegal arrest not supported
by probable cause.” We note the district court held the officers improperly arrested Karen
Vogl, and the government does not appeal the issue, but we find it unnecessary to further
discuss appellee Vogl’s contentions because we affirm the district court’s decision on
other grounds. See Sandoval, 29 F.3d at 542 n.6.
-7-
the warrant. In other words, the government suggests the purse fell within the
scope of the premises search warrant. 5
1. Wyoming v. Houghton
The government claims Wyoming v. Houghton , a Supreme Court case
addressing a container search pursuant to the automobile exception to the warrant
requirement, controls the scope of a container search pursuant to a premises
search warrant. 526 U.S. 295 (1999). Specifically, the government cites footnote
one of the majority opinion for its proposition the scope of a warrantless
automobile search supported by probable cause is no broader or narrower than the
scope of a premises search supported by a search warrant. See id. at 303 n.1.
Thus, the government suggests the fact that Houghton involved a search of a
purse pursuant to the automobile exception is immaterial – so long as the officers
do not conduct a search of property contained in clothing worn by that person, the
context, or place, where the property is found no longer matters. In other words,
the government attempts to diminish the significance of context by arguing
Houghton controls our analysis.
5
For purposes of this appeal, we will assume without deciding the porch is within
the home’s curtilage, and is covered by the premises search warrant.
-8-
In Houghton , an officer conducted a routine traffic stop of an automobile,
and searched a passenger’s purse found, detached from her person, on the back
seat of the car. Id. at 298. The Supreme Court adopted a bright-line rule specific
to vehicle searches pursuant to the automobile exception to the warrant
requirement. 3 Wayne R. LaFave, Search and Seizure, § 7.2, at 67, 75 (3d ed.
Supp. 2001). The Court held that “police officers with probable cause to search a
car may inspect passengers’ belongings found in the car that are capable of
concealing the object of the search” without a warrant. Id. at 307.
In footnote one, the Houghton majority defends its distinction between the
search of a person and search of property, and asserts the distinction is rooted in
the Court’s precedent. Id. at 303 n.1. The majority inquires,
Does the dissent really believe that Justice Jackson [in United
States v. Di Re , 332 U.S. 581, 587 (1948)] was saying that a house-
search could not inspect property belonging to persons found in the
house – say a large standing safe or violin case belonging to the
owner’s visiting godfather? Of course that is not what Justice
Jackson meant at all. He was referring precisely to that “distinction
between property contained in clothing worn by a passenger and
property contained in a passenger’s briefcase or purse.”
Id. (quoting the dissent at 309-10.) We conclude this footnote in no way
undermines the underlying command of the Fourth Amendment that searches and
seizures be reasonable. “What is reasonable depends on the context within which
a search takes place.” New Jersey v. T.L.O. , 469 U.S. 325, 337 (1985) (quotation
-9-
marks and citation omitted).
Focusing as we must on context, we are unwilling to extend the Court’s
Houghton automobile search analysis to a premises search for three reasons.
First, the Court expressly limited its holding to “passengers’ belongings found in
the car that are capable of concealing the object of the search.” Houghton , 526
U.S. at 307. The holding makes no mention of belongings found attached to the
person, or property found on a premises. The Houghton holding is uniquely
“grounded on a balancing of interests including a passenger’s reduced expectation
of privacy in containers placed in vehicles which ‘trave[l] public thoroughfares.’”
LaFave, supra , § 7.2, at 75 (quoting Houghton , 526 U.S. at 303).
Second, the majority’s purpose in footnote one is to explain that its
distinction “between searches of the person and searches of property” is not
“‘newly minted.’” Id. at 303 n.1 (quoting the dissent at 310). This distinction,
rather than the Houghton dissent’s passenger versus driver differentiation, is
grounded in precedent and is the same one Justice Jackson relied on in United
States v. Di Re , 332 U.S. 581 (1948). 6
Houghton , 527 U.S. at 303 n.1). When
6
In Di Re, the Court explained it was “not convinced that a person, by mere
presence in a suspected car, loses immunities from search of his person to which he
would otherwise be entitled.” 332 U.S. at 587 (emphasis added).
-10-
reading the footnote in the context of the paragraph it supplements, the Court is
merely differentiating between a search of personal property found in a car and a
search of one’s person, which is afforded heightened protection. See id. at 303.
Therefore, we do not believe the Court is equating the scope of a container search
in a vehicle to the scope of a container search in a home, particularly when the
container is worn by an individual.
Finally, both the Houghton holding and footnote one do not address
whether a purse worn by an individual constitutes part of the “‘outer clothing,’”
and thus a search of the person. See id. at 308 (Breyer, J., concurring) (quoting
Terry v. Ohio , 392 U.S. 1, 24 (1968) (noting the facts indicated the woman’s
purse “was found at a considerable distance from its owner” and detached from
her person)).
Accordingly, we hold Houghton does not apply in this instance because its
holding, footnote one, and facts are rooted in and inseparable from the context of
the automobile exception, do not extend to a premises search, and are factually
distinguishable from this case.
-11-
2. Physical Possession and Relationship Analyses
Having decided Houghton is inapplicable to this appeal, we must now
analyze the particular context of the search at issue. The government suggests we
limit our analysis to the premises search warrant that authorized the officers to
search for keys, and the fact an officer could reasonably believe a purse could
contain keys. See United States v. Gray , 814 F.2d 49, 51 (1st Cir. 1987) (“[A]ny
container situated within residential premises which [is] the subject of a validly
issued warrant may be searched if it is reasonable to believe that the container
could conceal items of the kind portrayed in the warrant.”). The government cites
United States v. Gentry , 642 F.2d 385, 387 (10th Cir. 1981), as support for its
argument that a premises search warrant authorizes the opening of a container
found on the premises where it is reasonable to believe the container could hold
the object of the search.
In Gentry , we reasoned documentary evidence seized from an accomplice’s
briefcase was admissible because “[i]t is logical and reasonable that the drug, the
object of the search, could be concealed in the briefcase situated on the premises.
A search of the briefcase would normally be appropriate under the warrant’s
authority.” 642 F.2d at 387. However, the facts in Gentry do not suggest the
defendant, or even the accomplice, held the briefcase before, during, or after the
-12-
officers searched the premises. The briefcase was merely “situated on the
premises.” Id. Additionally, the officers in Gentry understood the accomplice’s
relationship to the defendant and knew that the accomplice who owned the
briefcase was more than a mere visitor to the methamphetamine laboratory
searched. Thus, the officer in Gentry did not improperly “assume[] that whatever
is found on the premises described in the warrant necessarily falls within the
proper scope of the search.” United States v. Micheli , 487 F.2d 429, 431 (1st Cir.
1973). In this case, the government erroneously asks us to ignore that: (1) Karen
Vogl was wearing her purse when the officers seized her and the purse; and (2)
the officers did not know her relationship to the premises.
An examination of how other circuits resolve whether the container at issue
is considered on the premises or an extension of a person reveals two different
approaches. The first approach is a “physical possession” analysis. Under this
inquiry, the reviewing court focuses on the physical location of the container and
whether the individual wore the container at the time it was searched in order to
determine whether the container was an extension of the person or part of the
premises. See United States v. Johnson , 475 F.2d 977, 979 (D.C. Cir. 1973). For
example, in United States v. Teller , the Seventh Circuit held the search of a purse
was within the scope of the premises search warrant where the woman had placed
-13-
her purse on a bed and left the room during the search. 397 F.2d 494, 497-98 (7th
Cir.), cert. denied , 393 U.S. 937 (1968). The court concluded a purse that is
temporarily put down cannot be considered an “extension of her person,” and its
search did not constitute a search of the person. Id. It logically follows that a
purse within the individual’s physical possession is considered an appendage of
the body and, therefore, a search of the person. See Johnson , 475 F.2d at 979(noting the purse was not worn by defendant “and thus did not constitute an
extension of her person so as to make the search one of her person”); but see
United States v. Branch , 545 F.2d 177, 182 (D.C. Cir. 1976) (ruling the search of
a bag worn by the defendant upon entering the premises was not permissible
where the owner was unknown to police, entered the premises during the course
of the premises search, and was not given an opportunity to leave).
Critics suggest this approach is both too broad and too narrow. The rule
provides blanket protection to those seeking to hide incriminating evidence
because those individuals could avoid detection from lawful searches “through the
simple act of stuffing it in one’s purse or pockets.” See United States v. Young ,
909 F.2d 442, 445 (11th Cir. 1990), cert. denied , 502 U.S. 825 (1991). Similarly,
the approach is too constrictive because “it would leave vulnerable many personal
effects, such as wallets, purses, cases, or overcoats, which are often set down
-14-
upon chairs or counters, hung on racks, or checked for convenient storage.”
Micheli, 487 F.2d at 431.
The second approach to determine whether the individual’s container may
be searched pursuant to a premises search warrant focuses on the officers’
knowledge or understanding of the person’s “relationship” to the premises
searched at the time the officers executed the search warrant. See United States v.
Giwa , 831 F.2d 538, 544 (5th Cir. 1987). In United States v. Micheli , the First
Circuit rejected the “physical possession” test in favor of examining the
relationship between the person and the place being searched. Id. at 431-32.
Using this principle, the court concluded the usual occupant or owner of a
premises being searched loses her privacy interest in the belongings located there;
however, a “mere visitor” retains her legitimate expectation of privacy regardless
of whether the visitor is currently holding or has temporarily put down her
belongings. Id. at 432. Thus, the court upheld the search of the defendant’s
briefcase found under a desk because, as the co-owner of the business premises
subject to the search warrant, he was not a mere visitor. Id. As a co-owner the
defendant bore
a special relation to the place, which meant that it could reasonably
be expected that some of his personal belongings would be there.
Thus, the showing of probable cause and necessity which was
required prior to the initial intrusion into his office reasonably
-15-
comprehended within its scope those personal articles, such as his
briefcase, which might be lying about the office. The search of the
briefcase, under these circumstances, was properly carried out within
the scope of the warrant.
Id.
In United States v. Giwa , the Fifth Circuit focused its inquiry on the
officers’ perception of the defendant’s relationship to the place being searched. 7
831 F.2d at 544-45. Under this analysis the officers’ search of the flight bag was
upheld because the defendant was an overnight visitor, he answered the door clad
only in pants and a bathrobe, and was alone in the residence. Id. at 545.
According to the court, these facts suggested defendant had “more than just a
temporary presence in the apartment,” and “the agents could reasonably believe
his flight bag contained evidence” of the kind portrayed in the warrant. Id. at
544-45.
Critics suggest the “relationship” inquiry promotes inefficiency and
uncertainty because it requires law enforcement officers to know the status of the
7
The Giwa court suggested physical possession should not be the “sole criterion”
in determining whether a personal item may be searched pursuant to a premises search
warrant. 831 F.2d at 544. However, the court did not discuss how actual possession of
the container factors into their analysis because the flight bag in question was located
away from the defendant in a closet. Id. at 539-40, 545.
-16-
individual and who owns the container. See Micheli , 487 F.2d at 434 (Campbell,
J., concurring). Such an approach obligates a court to inquire into the officer’s
subjective knowledge at the time of the search. See id . Additionally, because
“the nature and quantum of ‘relationship’ cannot readily be defined, officers and
courts may be bedeviled with uncertainty in a field where certainty is especially
desirable.” Id.In this case, we find it unnecessary to decide which approach to adopt in
order to resolve the issue on appeal because our conclusion is the same under
either the “physical possession” or “relationship” inquiry. We begin with the
physical possession analysis. The government disingenuously argues in its brief
that Karen Vogl was not wearing or even holding her purse at the time the
officers searched it. The government suggests the facts in this case are
comparable to other “physical possession” cases that upheld searches when the
purse was not worn by the defendant, because Karen Vogl’s purse was situated on
the porch floor rather than her shoulder. See, e.g., Teller , 397 F.2d at 497.
However, the facts of this case are distinguishable from those cases because
Karen Vogl did not voluntarily remove the purse from her person or abandon her
interest in the purse by walking away from it. Cf. Teller , 397 F.2d at 497
(reasoning the purse is not an extension of the person when the individual, who is
-17-
not under arrest, puts the purse down and voluntarily walks away from it). Karen
Vogl was wearing the purse when the officers seized it from her. We agree with
the government’s later contention in oral argument that the officer’s action in
dispossessing Karen Vogl of her purse is the “functional equivalent” of the purse
being in her physical possession at the time of the search. Therefore, applying the
“physical possession” test, we hold the officer’s search of the purse in her
physical possession was an unreasonable search in violation of the Fourth
Amendment.
We turn our attention to the “relationship” inquiry to examine whether the
officers knew, or inferred, Karen Vogl’s relationship to the premises when they
executed the search warrant. See Giwa , 831 F.2d at 544-45. The government
recommends this court apply a “relationship” analysis, claiming “the agents
executing the warrant knew that Karen Vogl was the wife of the principal target
and that she lived in the house to be searched.” Notably, however, the
government offers nothing more than this conclusory statement to support its
position. Absent a citation to record evidence in suppport of its claim, the
government’s bald assertion is factually insufficient in light of Agent Schacht’s
admission the officers did not know Karen Vogl existed on the date the search
warrant was executed. In fact, she was not listed on the search warrant affidavit
-18-
or the subpoenaed electrical bills, the officers never observed her during their
surveillance of the residence, and the officers’ collective information referred
only to Mr. Vogl. Moreover, Karen Vogl was not located within the residence at
the time the officers encountered her; instead, she arrived immediately before or
at the same time the officers arrived at the house, and was standing outside the
premises in the driveway. Cf. Giwa , 831 F.2d at 545 (holding the defendant was
more than a “casual visitor” because the officers found him inside the apartment
alone and wearing only a bathrobe and pants).
The government also offers no evidence suggesting the officers inferred she
occupied the premises. After reviewing the entire record, we believe the only
evidence that could intimate the officers understood Karen Vogl’s relationship to
the premises is: (1) the officers’ “contact[]” with her in the driveway as she stood
holding the bags of groceries; (2) her possession of a large ring of keys which
allegedly contained a key to open the door of the residence; and (3) her statement
she wanted to read the search warrant before the officers entered.
First, the officers’ “contact” with Karen Vogl consisted of approaching her,
identifying themselves as officers, and explaining they possessed a federal search
warrant for the premises. This one-sided communication does not establish the
-19-
officers inferred her relationship to the premises. DEA Special Agent Daniel
Reuter suggested the officers “later identified” the woman in the driveway as Mrs.
Vogl, but the government does not argue, and we find no mention in the record,
that this identification occurred before or during the execution of the search
warrant. Second, her possession of a reputed house key and agreement to open
the door do not confirm the officers inferred she occupied the residence. The
officer who took the keys from her could not find a key to open the door, she
never opened the door, and the officers gained entry only by breaking the lock on
the back door. Finally, her desire to read the search warrant and her possession of
groceries fail to create an inference she lived at the residence, and we are
unwilling to assume the officers perceived her as an occupant based on these
actions. Her conduct would be typical for a casual visitor, including a neighbor,
babysitter, or housekeeper. For the reasons stated, we hold the officers did not
know, or infer, Karen Vogl’s relationship to the premises when executing the
premises search warrant, and we will avoid any attempt at judicial clairvoyance.
See Branch , 545 F.2d at 182 (“[Defendant] was apparently a mere visitor; his
relationship to the premises was not known, but was at best the subject of
speculation.”). Thus, the officer’s search of Karen Vogl’s purse was not
authorized by the premises search warrant, and is therefore in violation of the
Fourth Amendment.
-20-
We hold the officer’s search of Karen Vogl’s purse, when viewed under
either the “physical possession” or the “relationship” analysis, violated the Fourth
Amendment. We AFFIRM the district court’s grant of Karen Vogl’s motion to
suppress the key.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-21-