United States v. Jenkins

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-6014
(D.C. No. 5:18-CR-00065-SLP-1)
FREDERICK EUGENE JENKINS, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
Though “a ‘man’s house is his castle,’” Payton v. New York, 445 U.S. 573, 596
(1980), not all castles are impenetrable. Under the Fourth Amendment, officers do
not need a Trojan Horse or a trebuchet to breach a citizen’s home—all they need is a
warrant supported by probable cause. This case presents the question whether
officers had probable cause to search Frederick Jenkins’s home upon learning that the
State of Oklahoma was currently prosecuting him for serious drug crimes and upon
finding a small baggie with methamphetamine residue among the trash left for
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
disposal on the street outside his house. We hold that together these factors provided
the warrant-issuing judge with a substantial basis to conclude that the officers had
probable cause. Accordingly, because the search warrant was valid, and because
Jenkins has waived any appellate challenge to his detention and confession, we
affirm the district court’s denial of Jenkins’s motions to suppress.
BACKGROUND
I. Sergeant Harmon’s Investigation
In January 2018, a confidential source1 gave Oklahoma City police officers2 a
vague tip that Jenkins was involved in criminal activity3 and that he lived on Wilshire
Boulevard in Oklahoma City, Oklahoma.4 Those officers told Sergeant Harmon about
1
Though Sergeant Harmon’s affidavit does not use this term, at a suppression
hearing he described the tipster as a “confidential source” and testified that he
omitted further details “to protect that confidential source[.]” R. vol. 2 at 5. We
adhere to Sergeant Harmon’s description and call this person the “confidential
source.”
2
The government asserts that “Sgt. Aaron Harmon received” this tip.
Appellee’s Br. 2–3. But Sergeant Harmon testified that he “never spoke to [the
confidential source].” R. vol. 2 at 15. Thus, it appears that Sergeant Harmon did not
directly receive the tip; rather, he indirectly learned about the tip from other officers.
3
The confidential source told the officers that Jenkins had been involved with
a “firearms offense”—possibly a robbery or burglary at a Cabela’s store. R. vol. 2 at
16. But in his probable-cause affidavit, Sergeant Harmon did not include this fact,
mentioning instead that the confidential source had stated that Jenkins was “involved
in various illegal activities[.]” R. vol. 1 at 25.
4
The government contends that the “initial tip” was “that Mr. Jenkins was
involved in criminal activity at the Residence.” Appellee’s Br. 13. But Sergeant
Harmon stated in his probable-cause affidavit that the tip was this: “[A] subject
name[d] Frederick Eugene Jenkins D.O.B. /88 is involved in various illegal activities
and that he lives at . . . Wilshire Blvd.” R. vol. 1 at 25. That does not say that Jenkins
2
the tip, and Sergeant Harmon began investigating. After consulting Oklahoma City
Police Department records and Oklahoma County jail records, and after “learn[ing]
that Jenkins has a 2001 Hyundai sedan with Oklahoma tag 404KJX registered to him
at [the Wilshire address],” Sergeant Harmon confirmed that Jenkins resided there. R.
vol. 1 at 25–26; see also Appellant’s Principal Br. 12 (noting that “[s]urely other
records available to the affiant connected Mr. Jenkins to the address”).
Sergeant Harmon also searched the Oklahoma City Police Department records
to see whether Jenkins had any criminal history. He did: On June 18, 2017,
Oklahoma City police officers arrested Jenkins after finding him with 4.3 grams of
methamphetamine, 572 Alprazolam pills, 483 ecstasy pills, 0.6 grams of marijuana,
and a digital scale.5 Jenkins had also possessed a loaded .45 caliber Taurus handgun.
Sergeant Harmon further learned that “[d]uring the arrest a vehicle was also
impounded.”6 R. vol. 1 at 26.
was involved in criminal activity at the residence. And Sergeant Harmon later
testified that, in fact, the tip was about “a firearms offense” that may have occurred at
a Cabela’s store, not the residence. R. vol. 2 at 16.
5
Sergeant Harmon did not identify Jenkins’s charges. Even so, Sergeant
Harmon did provide a case number: “CF2017-4096.” R. vol. 1 at 26. Public records
show that Jenkins faced four state-law felony charges: (1) possessing ecstasy with
intent to distribute, (2) possessing alprazolam with intent to distribute, (3) possessing
methamphetamine and marijuana, and (4) unlawfully carrying a firearm. Okla. State
Courts Network, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=
oklahoma&number=CF-2017-4096 (last visited June 8, 2020). We take judicial
notice of these charges. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th
Cir. 2007).
6
In view of this ambiguous language—i.e., “a vehicle” was impounded—it is
unclear whether the vehicle was Jenkins’s sedan. That said, Sergeant Harmon did
3
In addition, Sergeant Harmon learned that “Oklahoma Department of
Corrections records show a [2005] case filed against Jenkins for Trafficking in Illegal
Drugs in Garfield County[.]” Id. Because Jenkins was then only seventeen years old,
Sergeant Harmon wondered whether Jenkins had successfully petitioned to have the
case expunged—records of the 2005 case appear in only the Oklahoma Department
of Corrections records, not the Oklahoma State Courts Network records. Sergeant
Harmon called the Oklahoma County district attorney, and one of those two men
learned from the Garfield County district attorney that after Jenkins served out his
sentence the 2005 conviction was later expunged.
Sergeant Harmon next planned and executed a “trash pull.” By checking
online, Sergeant Harmon learned that garbage-disposal workers would be picking up
trash from the Wilshire residence on February 27, 2018. So that day, Sergeant
Harmon and other officers went to the semi-rural residence, grabbed the two
trashcans from the street outside the house, and dumped their contents into the back
of his pickup truck.7 Later sorting through the trash elsewhere, they found (1) “[a]
small Ziploc bag with residue field testing positive for methamphetamine,” (2) “[a]
copy of an [Oklahoma City Police Department] vehicle impound sheet [the sheet
being from Jenkins’s arrest on 6/18/17]” and (3) “[a] Styrofoam tray from a box of
rifle ammunition.” Id.
note that whatever vehicle it was, the “OCPD vehicle impound sheet” was from
“Jenkins’ arrest on 6/18/17.” R. vol. 1 at 26.
7
A person has no reasonable expectation of privacy in discarded trash left on
the curb for garbage collection. California v. Greenwood, 486 U.S. 35, 40–41 (1988).
4
Having gathered this evidence, Sergeant Harmon drafted a probable-cause
affidavit and submitted it to an Oklahoma County District Court Special Judge,
requesting a search warrant for the Wilshire residence. As support for his opinion that
“there is probable cause to believe that Frederick Eugene Jenkins is involved in
illegal activities at this location,” id., Sergeant Harmon included most of the details
from his investigation, but he omitted two: (1) that the tip had referenced “a firearms
offense,” and (2) that Jenkins’s 2005 case had been expunged.
On February 28, 2018, the district court special judge approved a search
warrant for the Wilshire residence. The search warrant allowed officers to search for
“Methamphetamine, Drug Paraphernalia, Digital and Manual Scales, Drug
Proceeds . . . firearms, ledgers, and other types of documentation regarding the sale
of narcotics and tending to establish dominion and control over the location being
searched.” Id. at 23.
II. The Traffic Detention and Search Warrant
On March 7, 2018, nine Oklahoma City Police Department officers and one
agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, were assigned
to assist Sergeant Harmon with executing the search warrant. Sergeant Harmon
selected March 7 because he knew that Jenkins had a 10:00 a.m. court hearing that
day concerning his June 2017 arrest. Sergeant Harmon wanted Jenkins away from the
home while the officers executed the search warrant. He suspected that Jenkins had
been involved with “drive-by shootings” and that Jenkins might have “a rifle inside
the house,” thus making him dangerous. R. vol. 2 at 8–9.
5
Sergeant Harmon and another officer, Lieutenant Merits, began surveilling
Jenkins’s house at about 8:45 a.m. A few minutes later, they “saw a woman, later
determined to be Mr. Jenkins’ mother [Lucretia Viewins],” leave the residence and
put an object in the trunk of a black Chrysler 300. Id. at 9, 31. She went back inside
the residence for about twenty minutes, and then she returned and sat in the driver’s
seat. Soon after, “a male subject that appeared to be Mr. Jenkins” emerged and sat in
the passenger’s seat, and the two drove away. Id. at 9. As Ms. Viewins turned south,
Sergeant Harmon saw her fail to use her turn signal.
Sergeant Harmon advised Sergeant Rambo and Sergeant Fowler about the
traffic violation. Those sergeants were waiting for “the target” at a fire station along
Jenkins’s route to the courthouse. Id. at 30–31. After Sergeant Rambo learned about
Ms. Viewins’s traffic violation, he followed her car and saw the Chrysler “straddle
the lane lines twice.” Id. at 31
When Ms. Viewins and Jenkins were about a mile and a half from the
residence, Sergeant Rambo pulled over the Chrysler. Sergeant Rambo went to the
passenger’s side; Sergeant Fowler went to the driver’s side. Once he had identified
Jenkins, Sergeant Rambo asked him to step out of the car. Jenkins had one cell phone
in his lap and another either there or nearby, and Sergeant Rambo asked if he would
turn them over. Jenkins cooperated, turning over both his cell phones and stepping
out of the car. After obtaining Jenkins’s cell phones, Sergeant Rambo handcuffed
Jenkins’s hands behind his back, searched “his pockets for weapons,” and “secured
him in the back of [his patrol] car.” Id. at 32.
6
Soon after Sergeant Rambo detained Jenkins in his patrol car, Sergeant
Harmon arrived8 and spoke with Ms. Viewins. Sergeant Harmon told her that he had
a search warrant for the house and asked for the key so that he would not “have to
break” the door in. Id. at 10. He also asked for her cell phone. Ms. Viewins gave
Sergeant Harmon the key to the house and her cell phone but requested to be present
while the officers executed the search warrant. When asked “whether or not there
were other people in the house,” Ms. Viewins told Sergeant Harmon that her sister
was sleeping at the house and that “there might be a gun in her son’s bedroom.”9 Id.
at 10–11.
After obtaining, Ms. Viewins’s statements, Sergeant Harmon met the other
officers—i.e., the “search team”—at the fire station, and they put on their “vests and
helmets” and made final preparations for executing the search warrant. Id. at 11.
Sergeant Harmon did this while Sergeant Rambo and Sergeant Fowler watched
Jenkins and Ms. Viewins, who both remained at the scene of the original stop. After
donning their protective vests and helmets, Sergeant Harmon and the search team
then drove back to the Wilshire residence. Sergeant Rambo transported Jenkins in his
patrol car back to the residence, and Ms. Viewins drove herself.
8
The district court found that Sergeant Harmon “arrived at about the time
Defendant exited his mother’s vehicle at Sergeant Rambo’s instruction.” R. vol. 1 at
102 n.3. But Sergeant Harmon testified that he “was close behind, but [he] wasn’t
right there when [Jenkins] was getting out of the vehicle[.]” R. vol. 2 at 22.
Moreover, Sergeant Harmon testified that Jenkins was already secured in the patrol
car by the time he arrived.
9
Ms. Viewins did not testify at the suppression hearing.
7
When Sergeant Harmon reached the residence, he repeatedly knocked on the
door while announcing that he had a search warrant. Though he heard Jenkins’s aunt
“say something,” she would not open the door. Id. So the search team entered the
residence using Ms. Viewins’s key. Once inside, Sergeant Harmon asked Jenkins’s
aunt to wait on the porch, and he and the rest of the team then swept the residence,
ensuring that no other people were inside the house. During the protective sweep, the
search team saw in plain sight a Maadi 7.62 x 39 rifle. Having cleared the residence,
Sergeant Harmon then went to a police van parked in the street outside, where
Sergeant Rambo had placed Jenkins.
Special Agent Chad Oubre (the agent from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives) entered the house after the search team’s initial sweep. On
reaching the front porch, he smelled a “very strong” marijuana odor, and the odor
grew stronger as he entered the house. Id. at 42. Special Agent Oubre walked through
the kitchen into a garage, where he saw the Maadi assault rifle and a marijuana blunt.
Like Sergeant Harmon, Special Agent Oubre then went to the van to interview
Jenkins. Sergeant Harmon and Special Agent Oubre gave Jenkins the Miranda
warning, both orally and in writing, and Jenkins signed a waiver form. During the
interview, Jenkins admitted that he had “purchased the [assault] rifle along with a .44
caliber revolver for $300 sometime in 2017” and had “smoked marijuana every day
since he was 11[.]”10 R. vol. 1 at 10; R. vol. 2 at 45. In addition, Jenkins “allowed
10
Technically, there were two interviews. Sergeant Harmon’s audio recorder
malfunctioned during the first interview, so he and Special Agent Oubre re-
8
officers to access his cellular phones, from which additional evidence was
obtained.”11 R. vol. 1 at 98.
In the meantime, the search team continued searching. It seized ten items of
evidence: (1) a “Taurus .44 magnum revolver,” (2) the “Maadi 7.62 x 39 rifle,” (3)
“Miscellaneous ammunition,” (4) “Miscellaneous shell casings,” (5) “Four items of
dominion and control-documents,” (6) “One rifle magazine and two handgun
magazines,” (7) a “Pill bottle,” (8) “Drug paraphernalia with residue,” (9) “0.6 grams
of powder field testing positive for both cocaine HCI and methamphetamine,” and
(10) a “Marijuana roach.” Id. at 24.
On March 20, 2018, a grand jury indicted Jenkins on one count: “being an
unlawful user of marijuana, methamphetamine, and cocaine” while knowingly
possessing the Maadi assault rifle and Taurus revolver, in violation of 18 U.S.C.
§ 922(g)(3). Id. at 13–14.
III. Procedural Background
Jenkins filed two motions to suppress. In the first, he asserted that, under
Bailey v. United States, 568 U.S. 186 (2013), his detention and resulting confession
were invalid because the police detained him away from the immediate vicinity of his
residence. In his second, he argued that “the Affidavit by Sgt. Harmon to obtain the
interviewed Jenkins. Neither Jenkins nor the government has included this second
recording in the record.
11
The record does not show what evidence Sergeant Harmon and Special
Agent Oubre obtained from Jenkins’s cell phones. Without identifying the evidence,
Jenkins moved to suppress it in his first suppression motion.
9
Search Warrant was insufficient, on its face, to establish probable cause for the
issuance of a warrant.” R. vol. 1 at 32. In a single order, the district court denied both
motions.
Starting with Jenkins’s first motion, the court noted that, under Michigan v.
Summers, 452 U.S. 692, 705 (1981), officers may detain an occupant while executing
a search warrant, even without probable cause or reasonable suspicion. But the court
agreed with Jenkins that, under Bailey, 568 U.S. at 199, such categorical detentions
must occur within the “immediate vicinity of the premises to be searched.” R. vol. 1
at 99 (internal quotation marks omitted). The court found that Jenkins had not been
detained within the immediate vicinity of his residence—Sergeant Rambo seized him
“at least 1.5 miles away[.]” Id. at 100. As a result, the court ruled that the categorical-
detention rule was inapplicable.
But that did “not end the Court’s inquiry,” because it acknowledged that, even
if the categorical-detention rule did not justify Jenkins’s detention, ordinary Fourth
Amendment principles still might: a suspect can be detained on reasonable suspicion
or arrested on probable cause. Id. (citing Bailey, 568 U.S. at 202). Ultimately, the
court concluded that Jenkins’s stop was justified at its inception under Terry v. Ohio,
392 U.S. 1 (1968), and that the stop was lawfully extended. Id. at 101–03.
To explain, the court first reasoned that Ms. Viewins’s initial traffic stop was
supported by reasonable suspicion based on Sergeant Harmon’s and Sergeant
Rambo’s observing Ms. Viewins’s traffic violations. Next, the court concluded that,
in addition to Ms. Viewins’s stop, “[a] brief Terry-style stop of Defendant” was
10
reasonable based on two factors: “(i) Defendant’s previous arrest for possession of
drugs and associated paraphernalia and his possession of a handgun at the time and
(ii) the materials recovered from the trash pull, both indicating that Defendant might
be in possession of a firearm.” Id. at 101. That said, the court recognized that because
Jenkins was not temporarily detained, additional justification was needed to extend
the Terry stop.
Though Jenkins was committing no crime in the car and was not armed, the
court explained that “the Terry stop was reasonably extended based on ‘an
objectively reasonable and articulable suspicion that illegal activity has occurred or is
occurring.’” Id. at 102 (quoting United States v. Cervine, 347 F.3d 865, 871 (10th
Cir. 2003)). For support, the court cited the “pre-existing information available to
Sergeant Harmon, combined with Defendant’s mother’s statement regarding the
possible presence of a firearm at Defendant’s residence[.]” Id. Significantly, the
district court did not comment on a possible timing issue—Sergeant Rambo had
already handcuffed and detained Jenkins in his patrol car before his mother gave her
statement. Acknowledging that the issue presented a “close call,” the court ultimately
concluded that Jenkins’s Terry stop was lawfully extended “through the time it took
for officers to search his residence[.]” Id. at 102–03.
The court then addressed Jenkins’s second motion to suppress. First, it ruled
that, even if the tip were unreliable, “probable cause would likely still exist for
issuance of the warrant, albeit barely.” Id. at 105. As grounds, the court concluded
that Jenkins and his past criminal activity were tied to the residence on account of the
11
tip, the Oklahoma Police Department and Oklahoma County jail records, and the
vehicle-impound sheet. And the court ruled that evidence of what it considered
additional criminal activity—the Ziploc baggie with methamphetamine residue and
the Styrofoam tray with rifle ammunition—was linked to the residence in view of the
trash pull.
Finally, the court concluded that Sergeant Harmon’s omissions in the
probable-cause affidavit did not warrant a hearing under Franks v. Delaware, 438
U.S. 154 (1978). It ruled that Sergeant Harmon’s failure to note that records of
Jenkins’s 2005 arrest appeared in only one Oklahoma database rather than two “was,
at most, negligence on the part of Sergeant Harmon.” R. vol. 1 at 109 (citation
omitted). And it reasoned that Sergeant Harmon’s failure to note that the tip
concerned a “firearms offense” was irrelevant. Id. at 110 (“That suspicion existed in
the minds of officers as to other crimes, if true, does not affect this case . . . .”).
Accordingly, the court denied Jenkins’s motions to suppress. Afterward,
Jenkins signed a conditional plea agreement, reserving his right to appeal the district
court’s suppression order. On January 17, 2017, the court sentenced Jenkins to
twenty-four months’ imprisonment and three years’ supervised release.12 Jenkins now
12
The Bureau of Prisons released Jenkins on November 19, 2019. Nonetheless,
because a successful appeal may affect the length of his supervised release and
overturn his conviction, Jenkins’s appeal is not moot. See, e.g., United States v.
Hasan, 686 F.3d 1159, 1162 n.1 (10th Cir. 2012) (concluding that an appeal was not
moot even though the appellant had “finished serving his sentence—including a
period of supervised release”); Prost v. Anderson, 636 F.3d 578, 582 n.3 (10th Cir.
2011) (noting that past convictions can result in sentencing enhancements for future
convictions).
12
appeals the district court’s order, and we exercise appellate jurisdiction under 28
U.S.C. § 1291.
DISCUSSION
I. Standard of Review
When a defendant appeals the “denial of a motion to suppress, ‘we review the
district court’s factual findings for clear error and consider the evidence in the light
most favorable to the Government.’” United States v. Edwards, 813 F.3d 953, 959
(10th Cir. 2015) (quoting United States v. Haymond, 672 F.3d 948, 958 (10th Cir.
2012)). We “accord ‘great deference’ to the probable-cause assessment of the state
court judge who issued the warrant.” United States v. Pulliam, 748 F.3d 967, 971
(10th Cir. 2014) (quoting United States v. Biglow, 562 F.3d 1272, 1280–81 (10th Cir.
2009)). “‘[A]fter-the-fact, de novo scrutiny’ of a magistrate’s probable-cause
determination is forbidden.” Biglow, 562 F.3d at 1281 (alteration in original)
(quoting Massachusetts v. Upton, 466 U.S. 727, 733 (1984) (per curiam)); see also
Pulliam, 748 F.3d at 971 (explaining that we defer to the warrant-issuing judge’s
conclusion that probable cause backed the warrant even if probable cause was
borderline). Rather, we “review ‘merely to ensure the Government’s affidavit
provided a “substantial basis” for reaching that conclusion.’” United States v.
Sadlowski, 948 F.3d 1200, 1203 (10th Cir. 2020) (quoting Biglow, 562 F.3d at 1280).
II. The Search Warrant
A. Probable Cause
13
The Fourth Amendment requires that search warrants be founded on probable
cause: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause . . . .”13 U.S. Const. amend. IV. To
satisfy the probable-cause standard, police officers must demonstrate that “there is a
fair probability that contraband or evidence of a crime will be found in a particular
place.” United States v. Grubbs, 547 U.S. 90, 95 (2006) (internal quotation marks and
citation omitted). A “fair probability” is not an airtight guarantee; nor is it “proof that
something is more likely true than false.” United States v. Denson, 775 F.3d 1214,
1217 (10th Cir. 2014). Rather, a “fair probability,” if placed on a hierarchy, ranks
somewhere between a naked suspicion and a preponderance of the evidence. Id.
(explaining that probable cause is “more than a ‘bare suspicion’ but less than a
preponderance of the evidence” (quoting United States v. Ludwig, 641 F.3d 1243,
1252 & n.5 (10th Cir. 2011))). This standard is a low bar. Kaley v. United States, 571
U.S. 320, 338 (2014).
B. The Search Warrant Was Supported by Probable Cause.
As discussed, Sergeant Harmon’s affidavit relied on the following evidence:
(1) the confidential informant’s tip, (2) Oklahoma City Police Department and
Oklahoma County jail records that both provided Jenkins’s address, (3) Jenkins’s
vehicle-registration information, (4) Jenkins’s 2005 drug-trafficking case and his
13
The Fourth Amendment applies to the States through the Fourteenth
Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
14
ongoing drug-related prosecution, and (5) the trash-pull evidence, including the
methamphetamine residue, the rifle ammunition, and vehicle-impound sheet. On
appeal, Jenkins asserts that (i) the tip was unreliable and irrelevant, (ii) Sergeant
Harmon’s failure to mention that the 2005 case had been expunged was an intentional
omission, and (iii) the rifle ammunition cannot contribute to probable cause, because
Jenkins was not yet a convicted felon.
For the sake of argument, we will assume that the tip, Jenkins’s 2005 case, and
the rifle ammunition cannot or do not assist in establishing probable cause. But
because, even without this evidence, the affidavit still provided a “fair probability
that contraband or evidence of a crime [would] be found in [the Wilshire residence],”
Grubbs, 547 U.S. at 95 (internal quotation marks and citation omitted), we agree with
the district court that the warrant was valid, see United States v. Cusumano, 83 F.3d
1247, 1250 (10th Cir. 1996) (en banc) (“In our review, we may disregard allegedly
tainted material in the affidavit and ask whether sufficient facts remain to establish
probable cause.” (citations omitted)).
To start, Sergeant Harmon confirmed that Jenkins lived at the Wilshire
residence by checking Oklahoma City Police Department, Oklahoma County jail
records, and Jenkins’s vehicle-registration information. In addition, Sergeant Harmon
found a vehicle-impound sheet from Jenkins’s June 2017 arrest in the trash outside of
the residence. And Jenkins himself claims that “[s]urely other records available to the
affiant connected Mr. Jenkins to the address.” Appellant’s Principal Br. 12.
15
In connection with his criminal history, Jenkins’s residing at the residence is a
relevant factor in our probable-cause calculus. Though “[c]riminal history alone is
not enough to support a finding even of reasonable suspicion, much less probable
cause,” it “can support a finding of reasonable suspicion or probable cause” when
“combined with other factors[.]” United States v. Artez, 389 F.3d 1106, 1114–15
(10th Cir. 2004) (citations omitted). Other circuit courts are in step with Artez,
treating a suspect’s criminal history—particularly past convictions or arrests
analogous to the criminal activity under investigation—as probative to the probable-
cause analysis. E.g., United States v. Green, 897 F.3d 173, 187 (3d Cir. 2018);
United States v. Perkins, 850 F.3d 1109, 1120 (9th Cir. 2017); United States v. Dyer,
580 F.3d 386, 392 (6th Cir. 2009); see also 2 Wayne R. LaFave, Search and Seizure
§ 3.2(d) (5th ed., Oct. 2019 update). In Artez, in concluding that a search warrant for
a residence was based on probable cause, we relied (in part) on evidence that four of
the inhabitants “had prior convictions for narcotics-related offenses” and “one of the
residents had an active arrest warrant for possession of drug paraphernalia.”14 389
F.3d at 1115.
Here, Sergeant Harmon noted that the State of Oklahoma was currently
prosecuting him on charges from his earlier “possession of 4.3 grams of a substance
filed [sic] testing positive for methamphetamine, 572 pills identified as Alprazolam,
14
In addition to challenging his 2005 conviction, Jenkins argues that his 2017
arrest and ongoing prosecution were stale as evidence of his ongoing drug activity
because he was arrested “8 months earlier.” Appellant’s Principal Br. 12. We fail to
see how the pending 2017 case is stale. If courts can rely on past convictions without
deeming them stale, surely the same holds true for ongoing prosecutions.
16
483 pills identified as ecstasy, 0.6 grams of marijuana, and various drug
paraphernalia including a digital scale.” R. vol. 1 at 26. This June 2017 drug-related
conduct was not remote from the February 28, 2018 search warrant. Though this
previous arrest—for which Jenkins was currently being prosecuted—was not enough
by itself to establish probable cause that he had drugs in his home, it certainly
increased the likelihood that drugs would be found there during a search. Compare
United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009) (“[W]e think it merely
common sense that a drug supplier will keep evidence of his crimes at his home.”),
with Artez, 389 F.3d at 1114–15 (noting that criminal history cannot by itself
establish probable cause but reasoning that the residents’ drug-related criminal
history increased the possibility “that drugs or related contraband was likely to be
found at that location”).
But what made such an outcome even more likely was that Sergeant Harmon
found a small baggie containing methamphetamine residue in the trash outside of the
Wilshire residence. In United States v. Colonna, 360 F.3d 1169, 1173, 1175 (10th
Cir. 2004), overruled on other grounds by United States v. Little, 829 F.3d 1177
(10th Cir. 2016), the defendant argued that evidence a deputy found during a single
trash pull—“two burnt roach ends of suspected marijuana cigarettes, a ‘twist’ torn
from the corner of a plastic baggie, a plastic baggie with a corner torn from it, and an
empty container of Zig Zag cigarette papers”—showed “only personal use of
marijuana by someone in the residence[.]” He asserted “that personal use alone does
not justify the search of a home.” Id. at 1175. Rejecting that argument, we concluded
17
that the evidence showed that someone in the residence was using drugs, an act that
in turn supported “a ‘fair probability that contraband or evidence of a crime will be
found in a particular place.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)); see also id. at 1174 (noting that probable cause existed without other
statements in the deputy’s affidavit because “the assertions concerning the evidence
obtained from the trash [pull] support[ed] probable cause”). If an amount of
marijuana consistent with “only personal use” was sufficient for a search warrant in
Colonna, the methamphetamine residue in this case, along with Jenkins’s ongoing
prosecution for drug crimes, was more than enough.
Out-of-circuit authority also supports this conclusion. In United States v.
Briscoe, 317 F.3d 906, 907–08 (8th Cir. 2003), the Eighth Circuit addressed whether,
standing alone, “forty marijuana seeds and twenty-five marijuana stems” that officers
found during a single trash pull supported probable cause for a search warrant. The
Eight Circuit held that “the marijuana seeds and stems in Briscoe’s garbage were
sufficient stand-alone evidence to establish probable cause,” reasoning that “the
presence of discarded marijuana stems and seeds reasonably suggest that ongoing
marijuana consumption or trafficking is occurring within the premises[.]” Id. at 908.
Likewise, in this case the presence of methamphetamine residue in the trash reflected
ongoing methamphetamine use by someone in the Wilshire residence.
On the other hand, some recent cases have reasoned that more than a single
trash pull is needed to support probable cause, particularly when the trash pull
18
uncovers a small quantity of drugs.15 For instance, in United States v. Abernathy, 843
F.3d 243, 248 (6th Cir. 2016), the probable-cause affidavit omitted the defendant’s
criminal history, even though the “Defendant had a lengthy history of drug and
weapons charges[.]” Unable to rely on this “critical missing ingredient,” the court
ruled that, standing alone, a single trash pull that uncovered evidence of marijuana
use was insufficient to support probable cause for a search warrant. Id. at 255–57
(emphasis added) (citation omitted).
But Abernathy’s critical ingredient is present and potent here: Sergeant
Harmon’s affidavit underscored that the State of Oklahoma was currently prosecuting
Jenkins for serious drug-related crimes. Mixed together, Jenkins’s ongoing drug
prosecution augmented the probable-cause value of the methamphetamine residue.16
Remaining mindful that we must defer to the issuing-judge’s probable-cause
conclusion “even in a ‘doubtful or marginal case,’” Pulliam, 748 F.3d at 971 (citation
15
See, e.g., United States v. Lyles, 910 F.3d 787, 791–92, 793–94 (4th Cir.
2018); United States v. Leonard, 884 F.3d 730, 734–35 (7th Cir. 2018); United States
v. Abernathy, 843 F.3d 243, 255–57 (6th Cir. 2016).
16
Jenkins also argues that, “[a]ssuming weekly garbage collection,” the trash-
pull evidence was stale because it may have been sitting outside the residence for as
long as seven days before the February 27 trash pull. See Appellant’s Principal Br.
11. But whenever the methamphetamine residue was placed in the trash, the fact
remains that Sergeant Harmon found it outside of the residence on February 27. See
United States v. Le, 173 F.3d 1258, 1261, 1266–67 (10th Cir. 1999) (judging whether
methamphetamine found during a trash pull was stale based on when officers found
it, not based on some hypothetical date when it might have been placed in the trash).
When he applied for and received a search warrant the next day, the February 27
evidence was far from stale. See United States v. Thurmond, 782 F.3d 1042, 1046
(8th Cir. 2015) (“Seeking the warrant [two days after] the initial trash pull did
nothing to lessen the probable cause determination.” (citation omitted)).
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omitted), we hold that Jenkins’s ongoing drug-related prosecution and the trash-pull
evidence, when combined together, supplied probable cause to believe that evidence
of drug use or drug possession would be found at the Wilshire residence.
III. Jenkins’s Traffic Detention and Confession
Next, we address Jenkins’s argument that Sergeant Rambo unlawfully detained
him by handcuffing him and transporting him back to the Wilshire residence after the
roadside stop. We have serious concerns about the district court’s ruling on this
issue—Jenkins’s pat down had showed that he was unarmed, Ms. Viewins did not tell
Sergeant Harmon about the firearm in Jenkins’s room until after Sergeant Rambo had
handcuffed and detained Jenkins, and by handcuffing Jenkins and transporting him to
the residence for interrogation, Sergeant Rambo arguably exceeded the scope of a
permissible Terry stop. See Dunaway v. New York, 442 U.S. 200, 212, 216 (1979)
(concluding that the defendant’s detention was an arrest, not a Terry stop, when “he
was taken from a neighbor’s home to a police car, transported to a police station, and
placed in an interrogation room”).
But Jenkins briefs none of these issues. Instead, he quotes Summers for three
points. See 452 U.S. at 702–03. First, he states that “minimizing the risk of harm to
the officers” while they executed the search warrant was not at issue, because Jenkins
had left the Wilshire residence and the officers knew where he was going.
Appellant’s Principal Br. 15 (internal quotation marks omitted). Second, he asserts
that “the efficiency of the search being ‘facilitated if the occupants of the premises
are present,’ was not a factor,” because Ms. Viewins had given Sergeant Harmon the
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key to the residence and Jenkins had already been detained. Id. at 15–16. Third, he
claims that “‘the legitimate law enforcement interest in preventing flight in the event
that incriminating evidence is found[]’ was non-existent,” because Jenkins and Ms.
Viewins would have been unaware of the search warrant had Sergeant Rambo not
stopped them. Id. at 16.
The Court in Summers relied on these three concerns to justify the categorical-
detention rule. See Bailey, 568 U.S. at 194 (“In Summers, the Court recognized three
important law enforcement interests that, taken together, justify the detention of an
occupant who is on the premises during the execution of a search warrant: officer
safety, facilitating the completion of the search, and preventing flight.” (citation
omitted)). So Jenkins has confined his argument on appeal to explaining why a
Summers categorical detention was unjustified.
But the district court agreed with him on that point, ruling that a Summers-type
detention was inappropriate because Jenkins had been detained far away from his
home. R. vol. 1 at 100 (“Here, the Court agrees with Defendant that, per Bailey, a
Summers-allowed detention made incident to the search of his residence does not
authorize Defendant’s seizure at least 1.5 miles away—a distance farther than that
disallowed in Bailey.” (citation omitted)). Even so, the court concluded that the stop
and continued detention were reasonable under Terry principles. Jenkins’s briefing
provides only one sentence in response to that key ruling: “Mr. Jenkins respectfully
disagrees.” Appellant’s Principal Br. 15. Yet his briefing casts no light on why he
disagrees. Indeed, in the Summary of the Argument section of his brief, Jenkins
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frames his appellate challenge this way: “Mr. Jenkins’ detention away from his
residence and returning him to the residence violated Bailey.” Id. at 8. But that
establishes nothing—the district court said as much by ruling that Bailey
“disallowed” a categorical detention because he had been detained “at least 1.5 miles
away” from his home. With everyone in agreement on that point, the issue on appeal
is whether Jenkins’s extended detention violated Terry, a topic Jenkins never tackles.
In view of this briefing problem, the government argues that Jenkins has
waived his appellate challenge on this issue. See, e.g., Burke v. Regalado, 935 F.3d
960, 1014 (10th Cir. 2019) (“‘Cursory statements, without supporting analysis and
case law’ are inadequate to preserve an issue.” (citation omitted)); United States v.
Walker, 918 F.3d 1134, 1152 (10th Cir. 2019) (deeming the government-appellant’s
argument waived when its “briefing demonstrate[d] a lack of meaningful interaction
with the district court’s . . . analysis”); Adler v. Wal–Mart Stores, Inc., 144 F.3d 664,
679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived . . . .” (citations omitted)). We agree. Even liberally construed, Jenkins’s
entire appellate argument focuses solely on why the district court correctly ruled that
a Summers detention was inappropriate, not why the district court incorrectly ruled
that Jenkins’s extended detention was valid under Terry.17 At this point, the only way
17
That Jenkins’s arguments relate to only Summers and not Terry is clear by
how he sums up his brief: ‘“The Summers exception is appropriately predicated only
on law enforcement’s interest in carrying out the search unimpeded by violence or
other disruptions.’ (Summers, Scalia, J., concurring)).” Appellant’s Principal Br. 16.
But, as discussed, whether a Summers categorical detention was justified is not at
issue—the district court did not apply the Summers exception. We also note that
22
we could consider a challenge to the district court’s Terry analysis would be by
divining our own challenge. But “[i]t is not our role to sift through the record to find
evidence not cited by the parties to support arguments they have not made.” Cordova
v. Aragon, 569 F.3d 1183, 1191 (10th Cir. 2009) (citation omitted).
Moreover, we have explained that “[w]hen an appellee advances an alternative
ground” to affirm, and the appellant fails to reply to the appellee’s argument, the
appellant “waives, as a practical matter anyway, any objections not obvious to the
court to specific points urged by the appellee.” Hasan v. AIG Prop. Cas. Co., 935
F.3d 1092, 1099 (10th Cir. 2019) (internal quotation marks and citations omitted);
see also Eaton v. Pacheco, 931 F.3d 1009, 1031 (10th Cir. 2019) (“Notably, Eaton
doesn’t respond to the state’s mootness argument in his reply brief. Accordingly, we
treat any non-obvious responses he could have made as waived and assume the
state’s mootness analysis is correct.” (citing Hardy v. City Optical Inc., 39 F.3d 765,
771 (7th Cir. 1994))), cert. denied, No. 19-7810, 2020 WL 2515699 (U.S. May 18,
2020). Here, on top of its waiver argument—which is itself an alternative ground for
a non-merits affirmance—the government provides a thorough analysis about how,
“even if this Court were to find that Mr. Jenkins was illegally detained,” we should
affirm on an alternative ground: the attenuation doctrine. Appellee’s Br. 32–37; see
also Brown v. Illinois, 422 U.S. 590, 603–04 (1975).
Justice Scalia authored this concurrence in the Bailey decision, not Summers. See
Bailey, 568 U.S. at 203–06 (Scalia, J., concurring).
23
In his briefing, Jenkins’s sole discussion about the attenuation doctrine is to
acknowledge that the district court did not reach the attenuation issue. He provides no
argument against its application—indeed, he does not even cite Brown. And, as
mentioned, Jenkins chose not to file a reply brief. Thus, Jenkins has waived any non-
obvious responses to the government’s attenuation analysis, and we see no obvious
flaws in the government’s reasoning. Likewise, we see no obvious rejoinders to or
errors in the government’s waiver analysis. Hence Jenkins’s waiver is twofold—his
brief does not challenge the district court’s Terry ruling, and he did not reply to the
government’s alternative grounds for upholding the district court’s ruling.
CONCLUSION
We affirm the district court’s dismissal of Jenkins’s motions to suppress.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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