Tenth rejects challenges to search warrant, admission of evidence in sex trafficking case

United States v. Palms, 21 F.4th 689 (10th Cir. 2021): A jury convicted Palms of sex trafficking by force and coercion, attempted obstruction of sex trafficking enforcement and transporting an individual for prostitution. On appeal, he made two arguments. First, he said the district court should have suppressed the evidence obtained from his cell phone because the warrant for the phone was insufficiently detailed and the search was not restricted enough. Second, he argued the district court violated his Fifth and Sixth Amendment rights to due process, a fair trial, compulsory process and to present a defense and abused its discretion when it excluded sexual behavior evidence under Federal Rule of Evidence 412. The panel sided with the district court. It held the warrant to search his phone was sufficiently particular and the search was reasonable. It also held the district court did not abuse its discretion in excluding prior ‘sexual behavior’ evidence under Rule 412. Regarding the warrant, Palms said, although it was limited to evidence of human trafficking, it still did not describe the items to be seized with particularity. The panel’s analysis began by looking at whether the offense of ‘human trafficking’ was defined narrowly enough so that nothing was left to the officer’s discretion. Although search warrants do not have to identify specific statutes for the crimes to which they are limited, here, Oklahoma law explicitly prohibits human trafficking. Its definition includes both sex and labor trafficking. Given this statutory definition of ‘human trafficking,’ the officers executing the warrant would have understood what evidence the warrant allowed them to seize. Thus, the panel concluded, the warrant sufficiently limited what the officers could search and seize. Palms also contended that the evidence the officers took from his cell phone “was too broad.” To address this issue, the panel “focused on how the computer search was conducted rather than what was searched.” Since the officer testified he could not search the cell phone within narrower parameters, he “extracted a byte-for-byte copy” by which he “captured a vast amount of information, including personal information unrelated to the suspected crime.” The panel was fine with this method. First, evidence of the crime could be found anywhere on the phone and the officers wouldn’t know in which files to look until they actually reviewed each file. Second, “if the file did not contain relevant evidence, the officers moved on immediately.” At trial, Palms wanted to present evidence that M.W. understood and participated in commercial sex work before she met him. The district court wouldn’t allow it. On appeal, he said that decision violated his constitutional rights to a fair trial, to confront witnesses against him and to present a full defense. The panel disagreed. Even if the evidence is relevant, it must be probative of a central issue to be required by the Constitution. M.W.’s sexual behavior was not probative of a central issue. Evidence that she was a prostitute and solicited customers online before she met Palms was “irrelevant to whether [she] was forced or coerced into working as a prostitute at a later date.” Nor could this evidence be used to impeach her comment that she would not choose prostitution on her own. The panel reasoned her prior acts did not tend to prove that Palms did not force her to engage in prostitution. Thus, it was not evidence that was required by the Constitution. NOTE: Palms also argued that M.W.’s posting of online ads for commercial sex before he met her was not sexual behavior. Therefore, Rule 412 did not apply to bar this evidence. Since he did not make this argument in the district court and did not argue plain error on appeal, the panel held that he waived this issue.

One published decision, one unpublished decision United States v. Kendall, 2021 WL 4434206 (10th Cir. September 28, 2021) (CO): The panel holds it was reasonable for the officers to impound the car Kendall was driving and to conduct an inventory search before the car was taken by the towing company. The drugs and gun the officers found during the search therefore were admissible against Kendall at trial. An officer attempted to stop Kendall because the Honda he was driving had only one working taillight. Rather than stop once the officer turned on his emergency lights, Kendall drove another 8 blocks at 10 mph. The officer said he saw Kendall moving around a lot inside the car in a “very erratic and concerning way.” When Kendall stopped the officer knew that the plates on the Honda were registered to a different car. They then discovered the car was not stolen but it was registered to someone other than Kendall; Kendall did not have a valid driver’s license; Kendall was buying the car from the registered owner; and he did not have proof of insurance with him, but said his wife had it. The officers called the registered owner and Kendall’s wife, but neither answered. They then decided to give Kendall a “non-custodial summons” and tow the car because Kendall could not drive it and they couldn’t reach the registered owner. During the search, one officer opened the center console and took out several items. As he did, he noticed that the bottom of the console was “ajar” and “not flush.” He saw a “small plastic bag sticking out from beneath the panel” at the console’s bottom. With “no force at all” he lifted up the bottom panel and found an additional compartment which held a plastic bag of methamphetamine and two bags of heroin. The officer also found an empty handgun holster on the seat and figured a gun was hidden somewhere in the car. A panel below the glove box which was not flush caught his eye. He “lightly tugged” on the “loose panel” and saw the butt of a handgun which he pulled out. He then called the towing company to pick up the car. While the car was being loaded onto the tow truck, the registered owner called. She said the car was not stolen and Kendall was in the process of buying it from her. An officer told her the car was being towed. She “did not attempt to stop the towing or offer to come to the scene to retrieve” the car. On appeal, Kendall argued it was unreasonable for the officers to impound the car and that the scope of their inventory search also was unreasonable. The panel disagreed. In United States v. Sanders, 796, F.3d 1241 (10th Cir. 2015), the court said a two part inquiry is used for assessing the reasonableness of a “police-ordered impoundment.” The panel said the first part, whether the impoundment is “guided by standardized criteria,” applies only to impoundments when the car is stopped on private property. Here the car was on a public highway, so whether the impoundment satisfied standardized criteria was irrelevant. The second part, whether it was justified by a reasonable non-pretextual community-caretaking rationale, required the panel to weigh five non-inclusive factors de novo. The panel concluded those factors demonstrated the impoundment was reasonable mostly because there were no viable alternatives to towing the car: Kendall did not have driver’s license and so could not drive the car; the officers initially could not reach the registered owner; a taillight was out; and Kendall could not prove the car was insured. Additionally, when the registered owner called she did not object to the impoundment. Regarding the scope of the inventory search, the panel had no problem with the officers lifting the bottom of the console out of which peaked a small plastic bag. According to the panel it was “obvious that the area was being used as a storage compartment.” The municipality’s impoundment ordinance required officers to remove for safekeeping, “money, valuables, and expensive jewelry.” This requirement is intended to protect police from claims that property inside the car was lost or stolen during the impoundment. It was reasonable for the officer to look inside the console where items are commonly stored and once he saw the loose panel at the bottom where others items were being stored it was reasonable for him to also “inventory what was stored there.” However, the panel found that the officer’s search of the interior panel beneath the glove box was not justified as an inventory search. That area is not an area where people commonly store their items. The panel said “removing interior panels of the car simply because something might be hidden within smacks of a police search for contraband rather than an administrative search for the purpose of protecting the car and its contents.” If a person chose to hide their valuables inside the car’s interior panels, he “could hardly fault the police for not finding and securing those items during an inventory search.” Still, the search was justified as part of the officer’s community caretaking function. The officer's "belief” a gun was somewhere in the car was "objectively reasonable" because of two factors. First, he had seen Kendall moving around “erratically” and “frantically” before he stopped the car. Second, he found an empty holster on the seat after he had ordered Kendall out of the car. Besides, if the officer had not looked for the gun, the “general public” might be “endangered if an intruder removed” the gun which was “located in a part of the vehicle vulnerable to vandals.” The court noted that there was no information in the record regarding the security of the private lot to which the vehicle was being towed. Perhaps evidence that it was secure would have “alleviated any fear of an unauthorized intrusion” into the car. In other words, for our purposes, there is a presumption the car would be “vulnerable to intrusion by vandals” and only by presenting evidence that it would not be is this presumption rebutted. Such a showing would in turn support an argument that the search was for investigatory, rather than administrative purposes. See United States v. Edwards, 632 F.3d 633, 644 (10th Cir. 2001); United States v. Lugo, 978 F.2d 631, 635-37 (10th Cir. 1992). United States v. Chavez, 2021 WL 4438742 (10th Cir. September 28, 2021) (CO) (unpub.): The panel majority holds that a state trooper did not unreasonably extend the traffic stop while waiting for a background check, criminal history report and a drug dog’s arrival. Getting this background information was necessary for the trooper “to better understand whether [Chavez] might engage in violent activity during the stop.” (A new excuse for extending a roadside detention?) The Fourth Amendment does not require the trooper to request this information before he wrote the citation. For the panel, it was good enough that the citation writing and information/dog request “occurred simultaneously or within minutes of each other.” Judge Lucero dissented. He said the delay in the “process of procurement and arrival of the canine unit was impermissible as a matter of fact under the standards articulated in Rodriguez v. United States, 575 U.S. 348 (2015).” The trooper was completing the citation when he asked dispatch if any drug dogs were available - none were. He then asked for a background check, including a criminal history report. Chavez’s behavior made the trooper suspect he was transporting drugs, so he called again for a drug dog. The purpose of the stop, citing Chavez for “failing to signal for a full two seconds as Utah law requires,” was completed within 8 minutes of the stop. It was only after he completed the citation that the officer requested background information and a drug dog from dispatch. To Judge Lucero, it was unreasonable for the trooper to continue to detain Chavez while he waited for this information and the dog. Side note: After the dog alerted Chavez took off. When the troopers stopped him (60 miles later) and opened the trunk they saw a safe inside. Chavez, who was in cuffs in the back of a patrol car, gave them the combination only after they let him give his passenger a smooch.