Some Good Language on Searches Incident to Arrest and Parolee Searches, But Court Ultimately Finds Seizure and Search of Cell Phone OK
US v. Pacheco, 2018 WL 1178327 (10th Cir. March 7, 2018) (published): The Court affirms Mr. Pacheco's convictions and sentence for possession with intent to distribute methamphetamine, possession of a firearm in connection with a drug trafficking crime, and felon in possession of a firearm. Mr. Pacheco challenged the search of his cell phone, the denial of his request for a jury instruction on simple possession of the drugs, and the trial court's determination of the amount and type of drugs at sentencing.
The search issue: The day before Mr. Pacheco's arrest, a Kansas City, Kansas, police officer responded to a call regarding a disturbance between two vehicles. He chased one vehicle until it left the jurisdiction. The officer later determined that the car was registered to Mr. Pacheco and there was a warrant for him for a parole violation. The next day, officers went to the address on the car's registration. They ended up entering to look for Mr. Pacheco. In the process, they looked under and between the box springs and mattress of a bed, finding meth and guns. Mr. Pacheco was found hiding behind insulation in the attic. When the officers grabbed Mr. Pacheco, he dropped a cell phone. He was arrested and removed from the house. The officers then obtained a search warrant for the house, to look for meth, guns, paraphernalia, money, and records of narcotics transactions. Relying on this warrant, officers seized numerous items, including the cell phone. The meth found in the house was determined to be about 94% "pure." DNA from the guns was analyzed and it was determined that the other three men who were in the house could be excluded as sources but Pacheco was not excluded as a source.
The officers who found the cell phone sought a warrant to search its contents. The affidavit for the warrant said that the search would have be done by a qualified computer expert in a lab and one such lab was nearby, but in Missouri. The Kansas state judge issued the warrant. The phone contained photos of a book depicting a gun like the recovered from under the mattress and text messages that arguably tied Pacheco to drug trafficking.
Mr. Pacheco challenged the seizure and search of his cell phone. The Tenth Circuit apparently accepts that the warrant did not authorize seizure of the cell phone. It also agrees that the seizure and search cannot be justified as a search incident to arrest, because Mr. Pacheco had been arrested and removed from the premises. Thus, it was not contemporaneous with his arrest. The Court also found that the "special-needs exception" for searches of probationers and parolees was inapplicable. However, the "totality-of-the-circumstances exception" saves the day for the KCK cops. Under this exception, non-parole officers can search parolees' homes without probable cause or even reasonable suspicion when the totality of the circumstances renders the search reasonable. In this case, a Kansas law provides that parolees' persons, effects, vehicle, residence and property can be searched by any law enforcement officer based on reasonable suspicion that the person violated conditions of release or parole or reasonable suspicion of criminal activity. Mr. Pacheco had acknowledged applicability of this law. He'd been arrested for violating his parole, and a magistrate had found probable cause to believe the residence contained evidence of a crime. Additionally, the Court ultimately concludes that the good-faith exception applies to the search even though it took place in Missouri. The Court also notes that the search might be ok because of the aforementioned totality-of-the-circumstances exception or because the phone and Pacheco were both located in Kansas when the warrant was issued. Accordingly, the Court affirms denial of the motion of the suppress.
Other issues: The Court also concludes that the trial court correctly denied the jury instruction on simple possession. By itself, Mr. Pacheco's decision to deny knowledge of the meth found with the gun did not automatically preclude him from seeking the instruction, but it significantly tended to undermine any evidentiary support for the instruction. There was no evidence the meth was for personal use -- it was a large quantity divided into smaller baggies, no pipe or lighter was found nearby, and Pacheco testified that he never purchased a full ounce at a time and knew nothing about the drugs under the mattress.
The trial court did not abuse its discretion in determining the amount and type of drugs attributable to Mr. Pacheco. In addition to the 32.46 grams of "ice" found under the mattress, the court relied on the testimony of a drug dealer who said he sold drugs to Mr. Pacheco on multiple occasions. The trial court accepted the low end of the this testimony rejecting a higher amount the Probation Officer attributed based on an interview with this dealer. It was also ok to include user amounts sold to Pacheco by the dealer where the dealer testified this amount could be redistributed. This was sufficient support in the record.
The search issue: The day before Mr. Pacheco's arrest, a Kansas City, Kansas, police officer responded to a call regarding a disturbance between two vehicles. He chased one vehicle until it left the jurisdiction. The officer later determined that the car was registered to Mr. Pacheco and there was a warrant for him for a parole violation. The next day, officers went to the address on the car's registration. They ended up entering to look for Mr. Pacheco. In the process, they looked under and between the box springs and mattress of a bed, finding meth and guns. Mr. Pacheco was found hiding behind insulation in the attic. When the officers grabbed Mr. Pacheco, he dropped a cell phone. He was arrested and removed from the house. The officers then obtained a search warrant for the house, to look for meth, guns, paraphernalia, money, and records of narcotics transactions. Relying on this warrant, officers seized numerous items, including the cell phone. The meth found in the house was determined to be about 94% "pure." DNA from the guns was analyzed and it was determined that the other three men who were in the house could be excluded as sources but Pacheco was not excluded as a source.
The officers who found the cell phone sought a warrant to search its contents. The affidavit for the warrant said that the search would have be done by a qualified computer expert in a lab and one such lab was nearby, but in Missouri. The Kansas state judge issued the warrant. The phone contained photos of a book depicting a gun like the recovered from under the mattress and text messages that arguably tied Pacheco to drug trafficking.
Mr. Pacheco challenged the seizure and search of his cell phone. The Tenth Circuit apparently accepts that the warrant did not authorize seizure of the cell phone. It also agrees that the seizure and search cannot be justified as a search incident to arrest, because Mr. Pacheco had been arrested and removed from the premises. Thus, it was not contemporaneous with his arrest. The Court also found that the "special-needs exception" for searches of probationers and parolees was inapplicable. However, the "totality-of-the-circumstances exception" saves the day for the KCK cops. Under this exception, non-parole officers can search parolees' homes without probable cause or even reasonable suspicion when the totality of the circumstances renders the search reasonable. In this case, a Kansas law provides that parolees' persons, effects, vehicle, residence and property can be searched by any law enforcement officer based on reasonable suspicion that the person violated conditions of release or parole or reasonable suspicion of criminal activity. Mr. Pacheco had acknowledged applicability of this law. He'd been arrested for violating his parole, and a magistrate had found probable cause to believe the residence contained evidence of a crime. Additionally, the Court ultimately concludes that the good-faith exception applies to the search even though it took place in Missouri. The Court also notes that the search might be ok because of the aforementioned totality-of-the-circumstances exception or because the phone and Pacheco were both located in Kansas when the warrant was issued. Accordingly, the Court affirms denial of the motion of the suppress.
Other issues: The Court also concludes that the trial court correctly denied the jury instruction on simple possession. By itself, Mr. Pacheco's decision to deny knowledge of the meth found with the gun did not automatically preclude him from seeking the instruction, but it significantly tended to undermine any evidentiary support for the instruction. There was no evidence the meth was for personal use -- it was a large quantity divided into smaller baggies, no pipe or lighter was found nearby, and Pacheco testified that he never purchased a full ounce at a time and knew nothing about the drugs under the mattress.
The trial court did not abuse its discretion in determining the amount and type of drugs attributable to Mr. Pacheco. In addition to the 32.46 grams of "ice" found under the mattress, the court relied on the testimony of a drug dealer who said he sold drugs to Mr. Pacheco on multiple occasions. The trial court accepted the low end of the this testimony rejecting a higher amount the Probation Officer attributed based on an interview with this dealer. It was also ok to include user amounts sold to Pacheco by the dealer where the dealer testified this amount could be redistributed. This was sufficient support in the record.
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