918 F.3d 1117
10th Cir.2019Background
- On Aug. 28, 2015 police responded to a domestic disturbance at Dalton’s residence (Kenlea house); neighbor reported hearing threats and possible gunshots and a two‑year‑old was present. After a standoff Dalton exited and police obtained a warrant; the first search uncovered three firearms, ammunition, and items tying Dalton to the house. Dalton was charged under 18 U.S.C. § 922(g)(1).
- Months later ATF interviewed Dalton’s girlfriend Nevarez; she told the agent (unsworn) that the guns belonged to a friend and that Dalton did not know about them. Nevarez later invoked the Fifth at trial and did not testify.
- On May 1, 2016 police discovered an AK‑47 in Dalton’s car after a traffic stop/flight; Officer Craine obtained a warrant to search the Kenlea house for firearms based on the gun in the car, Dalton’s felon status, and training-based inference that guns in cars often mean guns in homes.
- Before or as the warrant was executed officers found Farrell Wheeler hiding in the backyard and concluded Wheeler—not Dalton—had been driving the car with the AK‑47. They nonetheless executed the warrant and recovered 13 .22 caliber bullets (the second search evidence).
- At trial the government introduced the ammunition recovered in May (Rule 404(b) evidence), body‑worn camera footage, and expert testimony; Dalton objected to introducing the May 1 evidence as the fruit of an unlawful search and raised other evidentiary claims. Jury convicted Dalton; Tenth Circuit reviews on appeal.
Issues
| Issue | Dalton's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of May 1 search warrant / probable cause at execution | Warrant lost probable cause once officers learned Wheeler, not Dalton, drove the car; second search was unlawful and evidence should be excluded | Warrant was supported by the AK‑47 in the car, Dalton’s felon status, and officer training; no omission in affidavit; evidence admissible under 404(b) | Probable cause dissipated once officers concluded Wheeler—not Dalton—had been driving; second search unlawful, so May 1 ammunition should have been excluded, but error was harmless beyond a reasonable doubt |
| Alleged Franks omission in warrant affidavit | Officer Craine recklessly/knowingly omitted material fact (that police were pursuing Wheeler) from affidavit | Craine lacked knowledge of Wheeler when he prepared the affidavit; no intentional or reckless omission | Franks claim rejected because information about Wheeler did not exist at time of affidavit preparation |
| Nevarez’s invocation of Fifth and refusal to grant immunity | Government coerced or deliberately refused immunity to prevent testimony; court should have scrutinized or compelled testimony | Nevarez invoked Fifth after consulting independent counsel; prosecutor did not coerce; immunity decision rests with prosecutor and no evidence of bad faith | No coercion; court properly accepted invocation; prosecution not required to grant immunity absent evidence of deliberate distortion of factfinding |
| Admission of body‑worn video and expert testimony | Video and multiple experts unduly prejudicial/cumulative | Video and experts were probative (res gestae, context, explanation for lack of physical linking evidence); court curtailed length/redacted; experts explained absence and functionality | Admission of 20 minutes of video and experts was not an abuse of discretion; probative value outweighed prejudice |
Key Cases Cited
- United States v. Grubbs, 547 U.S. 90 (probable cause exists when there is a fair probability that evidence will be found)
- United States v. Ventresca, 380 U.S. 102 (warrant required to be supported by probable cause)
- United States v. Hill, 60 F.3d 672 (10th Cir.) (framework for Rule 404(b) and exclusionary‑rule analysis)
- United States v. Garcia, 707 F.3d 1190 (10th Cir.) (probable cause must persist from issuance to execution)
- United States v. Bowling, 900 F.2d 926 (6th Cir.) (new information obtained after warrant can dissipate prior probable cause)
- United States v. Ortiz‑Hernandez, 427 F.3d 567 (9th Cir.) (post‑issuance developments can dissipate probable cause)
- Bigford v. Taylor, 834 F.2d 1213 (5th Cir.) (probable cause may dissipate when new facts undermine initial basis)
- Sgro v. United States, 287 U.S. 206 (staleness can defeat probable cause after delay)
- United States v. LaHue, 261 F.3d 993 (10th Cir.) (court can force immunity only in extreme cases where denial distorts factfinding)
- United States v. Serrano, 406 F.3d 1208 (10th Cir.) (government coercion standard re: witness invocation of Fifth)
- United States v. Armstrong, 517 U.S. 456 (presumption of prosecutorial regularity)
- United States v. Tome, 61 F.3d 1446 (10th Cir.) (res gestae, hearsay residual exception standards)
- United States v. Tavares, 843 F.3d 1 (1st Cir.) (absence‑of‑evidence expert testimony can be relevant)
- United States v. Mitchell, 502 F.3d 931 (9th Cir.) (same)