W.D.Mo.: Parked RV hooked up to water and electricity with satellite dish on roof with grill and trashcan outside wasn’t subject to automobile exception
Defendant’s RV was being used as a residence when it was searched, and the automobile exception does not apply. Because it was a residence, the search warrant didn’t specify it within the residences to be searched in the search warrant, and its search was thus warrantless. United States v. Houck, 2017 U.S. Dist. LEXIS 130650 (W.D. Mo. June 16, 2017), adopted, 2017 U.S. Dist. LEXIS 129536 (W.D. Mo. Aug. 15, 2017):
However, Defendant’s RV was not objectively being used as transportation at the time of the search and therefore does not satisfy the second requirement of Carney. By the time Det. Kreider was performing his surveillance on the residence, the RV was already parked on private property. (Id.) It had been leveled, was fully extended to maximize the indoor living space, was hooked up to electricity and water, and had a satellite dish attached to the roof. (Doc. 31, Gov’t Ex. 3.) Furthermore, the door possessed a lock, the stairs were lowered, and a garbage can and grill were located outside the door. (Id.) When officers arrived at the residence, the air conditioning in the RV was running, and Defendant and Shelly were located in the RV by law enforcement. (Doc. 31.) Moreover, Det. Kreider testified that he believed Defendant was staying in the RV at the time he applied for the search warrant. (Id.) He further stated that upon entering the RV, it did appear that someone was living there. (Id.) Thus the evidence, when viewed by an objective observer, supports the finding that the RV was a residence and required a separate warrant. Briscoe, 2017 WL 1908594 at *6. Because the RV was a residence and not a vehicle, the automobile exception cannot apply.
Having determined the RV to be a residence, the Court must now determine whether the search of the RV violated Defendant’s Fourth Amendment rights. The Fourth Amendment protects individuals from unreasonable searches and seizures by government actors. U.S. Const. amend. IV; United States v. Va Lerie, 424 F.3d 694, 701 (8th Cir. 2005). A Fourth Amendment search occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). In general, a warrantless search of a home is presumptively unreasonable. Pile, 820 F.3d at 316. A valid warrant must “particularly [describe] the place to be searched and the persons or things to be seized.” United States v. Timley, 443 F.3d 615, 622 (8th Cir. 2006) (internal quotation and marks omitted). Such specificity is required in order to avoid any reasonable probability that another place might mistakenly be searched. United States v. Alberts, 721 F.2d 636, 639 (8th Cir. 1983). Any evidence obtained as a result of a search which exceeds the scope of the warrant is subject to the exclusionary rule. United States v. McManaman, 673 F.3d 841, 846 (8th Cir. 2012) (internal quotation and marks omitted). Moreover, “any evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree'” is also subject to exclusion. United States v. Segura, 468 U.S. 796, 804 (1984) (quotation omitted). Government actors executing a search warrant “must ensure that the search is conducted in such a way that minimizes unwarranted intrusions into an individual’s privacy.” United States v. Gregoire, 2009 WL 5216844, at *8 (D. Minn. Dec. 29, 2009), aff’d, 638 F.3d 962 (8th Cir. 2011) (quotation omitted). Therefore, searching anywhere, or anything, other than what is particularly described in the warrant exceeds the scope of the warrant. United States v. Pennington, 287 F.3d 739, 744 (8th Cir. 2002) (quotation omitted). Once a defendant alleges sufficient evidence for the court to grant a suppression hearing, it becomes the government’s burden to prove that a warrantless search is justified. United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir. 1998).
Society is prepared to recognize an expectation of privacy in a residence. Therefore, because Defendant’s RV was a residence and not a vehicle, any search of the RV or seizure of items within would require a search warrant. The warrant must be based on probable cause and particularly describe the RV as a place to be searched. Det. Kreider testified to his belief that there existed sufficient probable cause to obtain a search warrant based on statements Defendant made to law enforcement prior to leaving the property for the police station. (Doc. 31.) However, Det. Kreider did not seek a second search warrant at that time. Rather, officers proceeded to execute the warrant that did not describe Defendant’s RV as a place to be searched at all, let alone with any particularity. (Gov’t Ex. 1.) The only place to be searched described in the warrant executed on July 2, 2015 was the residence at 720 Holly Tree Road and vehicles on the property. (Id.) Because Defendant’s RV was a residence and was not described in the search warrant executed on July 2, 2015, the search of the RV exceeded the scope of the search warrant in violation of Defendant’s Fourth Amendment rights.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)