989 F.3d 794
10th Cir.2021Background
- 911 reported dozens exiting a tractor trailer behind a supermarket; officers later found 14 undocumented passengers and an empty tractor trailer in a Walmart parking lot.
- Video showed Mathias Mora driving the trailer directly between the supermarket and Walmart, parking at Walmart, entering Walmart, and leaving in another car; the trailer cab remained locked.
- Trailer registration traced to Mora’s home; officers went to the home, arrested Mora and his wife outside, and seized keys and cell phones from both.
- Mrs. Mora said only her son was inside; he exited on command and officers saw no signs of other people, but she denied consent to search beyond the foyer.
- Officers conducted a warrantless protective sweep (after consulting the U.S. Attorney’s Office), observed what they believed were a gun safe and ammunition, later obtained a warrant, and seized firearms; Mora was charged with alien smuggling and being a felon in possession.
- On appeal the Tenth Circuit held the protective sweep was unlawful, excised the fruits of that sweep from the warrant affidavit, found the remaining affidavit lacked probable cause to search the home for alien-smuggling evidence, and ordered suppression of the firearm evidence.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Mora) | Held |
|---|---|---|---|
| 1. Whether officers’ warrantless protective sweep was justified by exigent circumstances (need to render aid to possible aliens) | Safety of potential undocumented immigrants and officers justified a protective sweep without a warrant. | No evidence anyone else was in the home or in need of aid; officers had visual access and heard nothing. | Sweep was not justified; no exigent circumstances. |
| 2. Whether information obtained during an unlawful sweep must be excised from the warrant affidavit | The affidavit (with or without sweep-derived info) supported probable cause. | All information from the unlawful sweep must be excised; it was critical to probable cause. | Information from the unlawful sweep must be excised. |
| 3. Whether the excised affidavit established probable cause to search the home for evidence of alien smuggling | Probable cause that Mora committed alien smuggling supported searching his residence for records/electronic devices. | Probable cause of a crime alone does not establish a nexus to the home; boilerplate assertions about smugglers’ tools are insufficient. | Excised affidavit lacked a sufficient nexus; no probable cause to search for smuggling evidence at the home. |
| 4. Whether the firearm evidence seized must be suppressed (exclusionary rule / inevitable discovery) | Even without sweep-derived information, the affidavit supported the warrant or the evidence would have been inevitably discovered. | Firearm evidence was discovered only because of the unlawful sweep and must be suppressed. | Firearms/ammunition must be suppressed as fruits of the unlawful search; remand to suppress. |
Key Cases Cited
- Mincey v. Arizona, 437 U.S. 385 (warrantless entries allowed only when officers reasonably believe person needs immediate aid)
- United States v. Biglow, 562 F.3d 1272 (10th Cir.) (nexus requirement between suspected criminal activity and place to be searched)
- United States v. Rowland, 145 F.3d 1194 (10th Cir.) (probable cause a person committed a crime does not alone justify searching residence)
- United States v. Basham, 268 F.3d 1199 (10th Cir.) (probable cause defined as fair probability that evidence will be found at particular place)
- United States v. Snow, 919 F.2d 1458 (10th Cir.) (affidavit must be reexamined after excising information obtained through prior unlawful search)
- Riley v. California, 573 U.S. 373 (cell phones implicate heightened privacy concerns; cannot assume phone will be searched without particularized warrant justification)
- Segura v. United States, 468 U.S. 796 (exclusionary rule prohibits admission of evidence obtained as direct result of unconstitutional search)