CA10: 17 hour seizure of def’s home while investigating wife’s OD was unreasonable; consent was product of the illegal seizure; exclusion required

Defendant’s wife had a seizure and stopped breathing at 5 am. He called 911. The police secured the home and denied him access. They obtained alleged consent after a few hours. They didn’t get a search warrant until 10 pm and didn’t execute it until 11:28 pm. In the interim, a bullet was seen in the house and defendant was a felon. The search warrant yielded more, a gun, and some meth. The house was unreasonably seized for the duration. The consent didn’t break the causal chain because it was a product of the seizure. Any reasonably well-trained officer would know this seizure violated the Fourth Amendment, and the exclusionary rule is applied. United States v. Shrum, 2018 U.S. App. LEXIS 32343 (10th Cir. Nov. 15, 2018):

The Government says the police “understandably” secured Defendant’s home from the outside. The police never entered the interior of Defendant’s home, let alone searched it, prior to Defendant’s subsequent consent to search. But how these observations bear on the question of whether a Fourth Amendment seizure—defined as a meaningful interference with an individual’s possessory interests in property—occurred when police secured Defendant’s home immediately following Candice’s death escapes us. We see little difference between a perimeter stakeout and internal securing of a home from the standpoint of a Fourth Amendment seizure. Both interfere to the same extent with the possessory interests of those entitled to occupy the dwelling. See Segura, 468 U.S. at 811 (plurality). The Government cannot reasonably dispute that the “securing” of Defendant’s home during the early morning hours of March 11, 2015 infringed not only on his possessory interest in the home but also on his liberty interest in free movement. See United States v. Place, 462 U.S. 696, 708, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). The police deprived Defendant of his ability to access his home for his own purposes, in his own way, on his own time, and at a location where concerned friends and well-wishers would surely come calling. Cf. California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (“From the time of the founding to the present, the word ‘seizure’ has meant a “taking possession[.]”).

The Supreme Court reminded us just this past term that “when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Collins v. Virginia, 138 S. Ct. 1663, 1670, 201 L. Ed. 2d 9 (2018) (citations and quotation marks omitted); see also Wong Sun, 371 U.S. at 484 (recognizing the “fundamental constitutional guarantee[] of sanctity of the home”). The right to retreat into one’s abode following the unexpected death of a loved one would ring hollow if law enforcement could simply “secure” the home under the auspices of a “criminal” investigation and exclude one therefrom without constitutional implication upon the, in the words of Investigator Cooke, “not normal” death of a household member. “‘[A] man’s house is his castle,’ whether it is under siege by police officers prying into his possessions stored within or whether they exclude him from its sanctuary.” United States v. Song Ja Cha, 597 F.3d 995, 1002 (9th Cir. 2010) (citation omitted) (quoting Payton v. New York, 445 U.S. 573, 598, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)).

. . .

Nor did the police in this case, again unlike in McArthur, make any effort to reconcile their law enforcement needs with Defendant’s Fourth Amendment interests in his home as a place of refuge, privacy, and comfort. See Place, 462 U.S. at 703. This seizure was not minimally intrusive; rather it was the commencement of a fishing expedition to see what sort and how big of fish the police might catch. The police completely disregarded Defendant’s constitutional rights and seized his home so they could find out, again in the words of Investigator Cooke, “what’s going on.” Inexplicably, Cooke would not even allow Defendant supervised entry into his own home to urinate. For reasons unclear to us apart from Investigator Cooke’s preference and convenience, the seizure extended over a period of eighteen hours even though probable cause arose sometime around 11:00 a.m. or about four hours into the investigation. By then, Cooke had seen the ammunition inside the bedroom closet and learned of Defendant’s felony status and had all the probable cause he needed to procure a search warrant. ATF agents at the behest of Cooke, however, did not procure a warrant until eleven hours later or 10:00 p.m.

In addition to Candice’s unexplained death, which in itself was no basis for seizing Defendant’s home, the district court provided two ex post facto rationales to justify the initial seizure. …

. . .

To recap: Law enforcement unreasonably seized Defendant’s home in violation of the Fourth Amendment. Immediately thereafter, Investigator Cooke interviewed Defendant for over two hours at the police station. Defendant subsequently signed a consent to search form permitting Cooke to search his home. But given the undisputed record facts, Defendant’s consent was not an act of free will sufficient to purge the primary taint of the illegal seizure. Rather, his consent was “come at by exploitation” of such seizure. Wong Sun, 371 U.S. at 488. Consequently, Cooke unlawfully searched Defendant’s home and witnessed ammunition in the home’s bedroom closet. Probable cause, tainted from the unlawful search, arose when Cooke connected Defendant’s status as a convicted felon with the ammunition. Cooke requested federal agents to procure a search warrant and a neutral magistrate judge unknowingly issued a tainted warrant. Law enforcement executed the tainted warrant and discovered the incriminating evidence Defendant now seeks to suppress. Necessarily, this evidence too was tainted. While the causal chain is relatively long, nowhere along the links of the chain were the “fruits” of the unlawful seizure of Defendant’s home purged of their primary taint. Accordingly, the district court’s denial of Defendant’s motion to suppress is REVERSED. This cause is REMANDED for further proceedings consistent with this opinion.

See techdirt: Court To Law Enforcement: You Can’t Seize A House For 15 Hours Before Obtaining A Warrant by Tim Cushing