658 F.Supp.3d 1000
D. Kan.2023Background
- April 8, 2021: WPD monitored Tommy Anderson at a Millwood residence (including a pole cam). Anderson fled from officers in a silver Cadillac DeVille after officers activated lights; the Cadillac was later found parked and empty nearby.
- Officers summoned K9 Bane; Bane circled and indicated at the rear driver-side door, briefly touched the vehicle with his paws, then alerted at the center console; officers opened the car (triggering the alarm) and found marijuana and paraphernalia.
- April 15, 2021: Officer Gray obtained a warrant to search the Millwood residence for specific clothing items, keys to the Cadillac, "photographs and measurements," and "indicia of occupancy/ownership." Execution revealed marijuana and indicia leading officers to suspend and obtain an amended warrant authorizing a broader drug/firearm search.
- July–August 2021: Warrant issued for 2442 S. Holyoke. On Aug. 3 officers observed Anderson leave in Mary Dean’s Chrysler, arrested him at a repair shop, and had K9 Nash conduct a free-air sniff; Nash alerted under the vehicle at a magnetic box, which contained suspected drugs.
- Feb. 2022: ATF obtained and executed a warrant for 2438 S. Holyoke, seizing drugs, firearms, and indicia. Anderson moved to suppress evidence from all challenged searches as unlawful or tainted by prior illegality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of April 8 warrantless Cadillac search / K9 sniff | Dog sniff of the vehicle exterior produced probable cause; any incidental dog paw contact did not produce information | Officers trespassed (touched/opened doors) before K9 arrival and dog sniff intruded into vehicle (sniffed inside window) | No prior unlawful search established; dog’s paw touch was incidental and not a Jones trespass-based search; dog alert provided probable cause so vehicle search was reasonable |
| Particularity of April 15 Millwood warrant ("photographs and measurements" and "indicia") | Warrant sufficiently particular when read practically and tied to listed items; officers could reasonably ascertain authorized items | Warrant fatally overbroad/vague (no crime specified, broad authorization), not severable; Leon good-faith inapplicable | Warrant met particularity standards in context; photographic/measurement and indicia language sufficiently limited; even if minor defects, officers acted in objective good faith under Leon |
| Use of items found in first Millwood search to obtain amended warrant | Subsequent warrant lawfully based on items lawfully discovered in plain view during valid initial search | Amended warrant was tainted as fruit of an unlawful initial search | Initial search lawful; items found in plain view justified supplemental warrant; no taint |
| Lawfulness of Chrysler sniff and removal of magnetic box | Free-air sniff not a Fourth Amendment search; Nash’s alert provided probable cause to recover hidden contraband (including box removal) | Officers committed trespass-based searches (dog touched exterior/underside; officers opened door/glovebox) rendering subsequent recovery unlawful | Dog’s incidental touches not a Jones trespass-based search; Nash’s clear alert to underside provided independent probable cause; removal/opening after alert lawful |
| Whether Holyoke warrants (2442, 2438) were tainted by prior searches | Warrants were supported by lawfully obtained evidence and are not tainted | Warrants relied on unlawfully obtained evidence from earlier searches | Earlier challenged searches were lawful; therefore Holyoke warrants are not tainted |
Key Cases Cited
- Wyoming v. Houghton, 526 U.S. 295 (1999) (automobile exception permits search of passenger belongings when probable cause to search vehicle exists)
- United States v. Jacobsen, 466 U.S. 109 (1984) (search occurs when a reasonable expectation of privacy is infringed; context for what may be implicitly authorized during searches)
- Illinois v. Caballes, 543 U.S. 405 (2005) (well-trained narcotics dog sniff of a vehicle exterior during a lawful stop generally not a Fourth Amendment search)
- United States v. Jones, 565 U.S. 404 (2012) (trespassory physical intrusion on an "effect" to obtain information can be a search under the Fourth Amendment)
- Florida v. Jardines, 569 U.S. 1 (2013) (use of a drug-sniffing dog on the curtilage of a home was a Fourth Amendment search because it was an unlicensed physical intrusion)
- United States v. Leary, 846 F.2d 592 (10th Cir. 1988) (affidavit may cure warrant particularity if physically connected and expressly incorporated)
- Horton v. California, 496 U.S. 128 (1990) (plain-view seizures during a lawful search need not be inadvertent; officer’s interest in an item does not invalidate seizure if search confined by a warrant)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule where officers reasonably rely on a magistrate-issued warrant)
- Florida v. Harris, 568 U.S. 237 (2013) (reliability of a trained narcotics-detection dog can establish probable cause)
- United States v. Potts, 586 F.3d 823 (10th Cir. 2009) (good-faith reliance may be reasonable where warrant language can be plausibly limited by other warrant parts)