United States v. Bailey

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 24, 2024
• Docket: 23-5044
• Status: Unpublished

Opinion

Appellate Case: 23-5044 Document: 010111068815 Date Filed: 06/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5044 (D.C. No. 4:20-CR-00188-CVE-1) JAMES ROBERT BAILEY, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________

This appeal arises from the complications caused by the Supreme Court’s

recent decisions involving Indian Country reservation status in Oklahoma. McGirt v.

Oklahoma, 140 S. Ct. 2452 (2020). Our recent decision in United States v.

Pemberton, 94 F.4th 1130 (10th Cir. 2024), effectively resolves the question

presented here: whether the good-faith exception to the Fourth Amendment’s

exclusionary rule applies to searches conducted within Indian territory under

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-5044 Document: 010111068815 Date Filed: 06/24/2024 Page: 2

warrants issued by Oklahoma state court judges who mistakenly presumed that the

location of the search was within state jurisdiction. We therefore affirm.

I. Background

On May 13, 2020, the wife of James Bailey reported to Oklahoma state law

enforcement that she had discovered nude photographs of her daughter on Mr.

Bailey’s cell phone. Aple. Br. at 2 (citing R. Vol. I at 79). Two days later, a Tulsa

Police detective obtained a state warrant to seize Mr. Bailey’s phone. Id. The

detective executed the warrant on the same day and seized Mr. Bailey’s cell phone,

Aplt. Br. at 1 (citing R. Vol. I at 71), which contained at least nineteen sexually

explicit images depicting Mr. Bailey sexually abusing his 14-year-old stepdaughter.

R. Vol. 3 at 19; PSR at ¶ 6–7.

Subsequently, several months after McGirt, federal authorities indicted Mr.

Bailey on multiple child sex offenses, including sexual abuse of a minor in Indian

Country. Aple. Br. at 2-3 (citing R. Vol. I at 14, 65). Mr. Bailey moved to suppress

the evidence, arguing that the search warrant was “improper” because “the court

lacked subject matter jurisdiction” when it issued the warrant, and the detective was

aware of Mr. Bailey’s tribal affiliation before he obtained the warrant. Aple. Br. at 3

(citing Vol. 1 at 65). Although Mr. Bailey—an enrolled member of the Cherokee

Nation—is not a member of the Creek Nation1, the conduct for which Mr. Bailey was

charged occurred within the Creek Nation “portion of Tulsa County.” See Change of

1 See McGirt, 140 S. Ct. at 2479 (“Each tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.”). 2 Appellate Case: 23-5044 Document: 010111068815 Date Filed: 06/24/2024 Page: 3

Plea Hearing Transcript (DN 64) at 27:15–25 (confirming that the charged conduct

occurred within the Creek Nation portion of Tulsa County).2 As a result, the crime

fell under federal jurisdiction because it happened in Creek Nation territory,

regardless of Mr. Bailey’s specific tribal affiliation.

The government countered that the detective had relied in good faith on a

warrant issued by a neutral state magistrate judge. Aple. Br. at 3 (citing Vol. 1 at 74–

75); Aplt. Br. at 2-3 (citing United States v. Leon, 468 U.S. 897, 906 (1984)). The

district court agreed with the government, concluding that “the good-faith exception

applie[d] to state-issued search warrants issued and executed pre-McGirt within tribal

jurisdiction against property of Native Americans.” Aple. Br. at 3 (citing R. Vol. I at

84). Suppression, therefore, was not warranted. Aplt. Br. at 3 (citing R. Vol. I at

76).

Mr. Bailey pleaded guilty to Coercion and Enticement of a Minor but reserved

his right to appeal the denial of his motion to suppress. Aple. Br. at 3 (citing R. Vol.

I at 96). The district court sentenced Mr. Bailey to ten years of imprisonment and

imposed lifetime supervision with strict “Special Sex Offender Conditions.” Aple.

Br. at 3 (citing R. Vol. I at 128–32).3

2 This transcript was not included in the original record. We therefore sua sponte supplement the appellate record with the transcript of Mr. Bailey’s Change of Plea Hearing, which is in the district court record for Mr. Bailey’s case. United States v. James Robert Bailey, No. 4:20-cr-00188-CVE (N.D. Okla). 3 Mr. Bailey challenged these conditions, along with the denial of his motion to suppress, in his initial direct appeal. Aple. Br. at 3–4 (citing United States of America v. James Robert Bailey, No. 21-5085, (10th Cir. Aug. 2, 2022) 3 Appellate Case: 23-5044 Document: 010111068815 Date Filed: 06/24/2024 Page: 4

Following remand for resentencing, Mr. Bailey returns to this Court, seeking

reversal of the denial of his motion to suppress. He challenges the application of the

good-faith exception to the pre-McGirt search and seizure of his cell phone. Aple.

Br. at 3 (citing Vol. I at 198).

II. Discussion

A. Standard of Review

We review de novo the denial of a motion to suppress and the applicability of

the Leon good-faith exception. See, e.g., United States v. Pemberton, 94 F.4th 1130,

1136–40 (10th Cir. 2024).

B. Legal Framework—Good faith

We have concluded that courts should not exclude evidence as a remedy for a

Fourth Amendment violation when an officer conducting “objectively reasonable law

enforcement activity” relies in an “objectively reasonable manner” on others’

mistakes. See id. at 1137 (internal citations omitted). So when a warrant is later

found invalid because of a neutral magistrate judge’s legal error, we generally

presume that the executing officers acted in good faith reliance on the warrant’s legal

validity. See id. But this presumption fails when law enforcement officers’ reliance

on that search warrant is deemed “wholly unwarranted.” Id. at 1138 (quoting United

(unpublished)). Both parties agreed, however, that the Special Sex Offender Conditions implicated Mr. Bailey’s First Amendment rights and lacked necessary judicial determinations. So they jointly moved this Court to remand for resentencing. Aple. Br. at 4. This Court granted that motion and remanded the case for resentencing. Id.

4 Appellate Case: 23-5044 Document: 010111068815 Date Filed: 06/24/2024 Page: 5

States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985)). So evidence should be

suppressed “only if it can be said that the law enforcement officer had knowledge, or

may properly be charged with knowledge, that the search was unconstitutional under

the Fourth Amendment.” Illinois v. Krull, 480 U.S. 340, 348–49 (1987).

Therefore, the good-faith inquiry here is confined to the “objectively

ascertainable question” of whether a reasonably well-trained officer would have

known that the search was illegal despite the magistrate judge’s authorization. Leon,

468 U.S. at 923 n.23. The Supreme Court has already established that the

exclusionary rule should not be applied to deter “objectively reasonable law

enforcement activity.” id. at 919. Objectively reasonable law enforcement activity

encompasses situations “when an officer acting with objective good faith has

obtained a search warrant from a judge or magistrate[.]” Id. at 920. At the same

time, this principle encompasses “objectively reasonable reliance on a subsequently

invalidated search warrant.” Id. at 922. Thus, the sole question here is whether the

Tulsa County detective “acted with an objectively reasonable good-faith belief” that

obtaining a warrant from the state judge “was lawful.” Pemberton, 94 F.4th at 1138

(brackets omitted).

C. Application

Pemberton answers this question. In Pemberton, we detailed the objective

historical circumstances confronting law enforcement officers in McIntosh County,

Oklahoma, as described by both the majority in McGirt and Chief Justice Roberts in

dissent. 94 F.4th at 1135–38 (citing McGirt, 140 S. Ct. at 2464, 2496). Given that

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established legal landscape and those prevailing practices, we rejected the conclusion

that reasonably well-trained officers in McIntosh County, Oklahoma “could not have

harbored an objectively reasonable belief” in either their lawful ability to obtain a

warrant or the jurisdictional validity of the warrant. Id. at 1138 (citing Leon, 468

U.S. at 926).

We equally determined that the officers’ decision to obtain and execute a state

court warrant was an “objectively reasonable choice” given the “objective

circumstances” confronting them. Id. See also Leon, 468 U.S. at 919 (obtaining

search warrant from a neutral judge is an objectively reasonable law enforcement

activity). “Because officers acted with an ‘objectively reasonable good-faith belief’

in their ‘objectively reasonable law enforcement activity,’” they could “reasonably

rely on the judge’s authority to issue the warrant.” Id. (quoting Leon, 468 U.S. at

919). We therefore concluded that the McIntosh County officers “acted with an

objectively reasonable good-faith belief that their conduct was lawful.” Id. (quoting

United States v. Workman, 863 F.3d 1313, 1317 (10th Cir. 2017)). Since no other

evidence showed deliberate, reckless, or grossly negligent disregard for Fourth

Amendment rights, moreover, the deterrence rationale of the exclusionary rule did

not apply. Id. 1139. Thus, we attributed the extra-jurisdictional search “solely” to

the state court judge’s (pre-McGirt) “legal error.” Id. at 1137.

Those objective circumstances operate identically in Tulsa County, Oklahoma.

Given the objective historical circumstances, legal landscape, and prevailing

practices, we cannot conclude that the record establishes that a well-trained officer in

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Tulsa County “‘could not have harbored an objectively reasonable belief in [their]

ability to seek a warrant, or “could not have harbored an objectively reasonable

belief” in the warrant’s jurisdictional validity.’” Id. at 1138 (quoting Leon, 468 U.S.

at 926). Indeed, the Tulsa County detective’s “choice to apply for a warrant issued

by a state court judge”—which was grounded in the prevailing legal landscape and

consistent with a state’s traditional exercise of jurisdictional authority—was

“objectively reasonable.” Id. at 1138 (citation omitted). Therefore, the Tulsa County

detective could “reasonably rely on the judge’s authority to issue the warrant.” Id. at

1138. Thus, we conclude that Tulsa County detective “acted with an objectively

reasonable good-faith belief that [his] conduct was lawful,” id. (citation omitted),

justifying the application of the good-faith exception.

Resisting this conclusion, Mr. Bailey contends that the Tenth Circuit’s

decision in Murphy v. Royal should have clearly informed state law enforcement

officers that Oklahoma lacked jurisdiction.4 To be sure, the Tulsa County detective

investigating Mr. Bailey obtained and executed a warrant to search Mr. Bailey’s

phone after this Court in Murphy announced its conclusion on the disestablishment

question. But at the time the state court judge issued the warrant, the Supreme Court

4 Aplt. Br. at 14 (citing Murphy v. Royal, 866 F.3d 1164, 1172 (10th Cir. 2017) (concluding that Congress had not disestablished the Muscogee (Creek) Nation’s Reservation), opinion amended and superseded on denial of rehearing en banc, 875. F.3d 896 (Nov. 9, 2017).

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had not yet issued its decision in McGirt—settling the legal uncertainty5 over Indian

country in the Creek Nation portion of Tulsa County.6 Prior to the Supreme Court’s

definitive decision in McGirt, therefore, we cannot conclude from the fact of Murphy

alone that a reasonably well-trained law enforcement officer “would have known,”

Leon, 468 U.S. at 923 n.23, or “may properly be charged with knowledge,” Krull,

480 U.S. at 348–49, that the warrant would be jurisdictionally invalid. See United

States v. Herrera, 444 F.3d 1238, 1253 n.16 (10th Cir. 2006) (noting that a

reasonably well-trained officer is not required to “resolve unsettled law” or

“anticipate future legal rulings.”).7 Thus—following Pemberton—we attribute the

search solely to the state court judge’s (pre-McGirt) legal error and not to the Tulsa

County detective’s lack of good faith.

5 See Ben Gibson, Lessons from McGirt v. Oklahoma’s Habeas Aftermath, 99 DENV. L. REV. 253 (2022) (documenting the surge in state and federal habeas petitions in Oklahoma following Murphy, but before McGirt, and discussing the legal ambiguity and procedural challenges faced, with records showing dismissals for various procedural reasons). 6 In May 2018, the Supreme Court granted certiorari in Murphy. 584 U.S. 992 (2018). In July 2020, on the day the Court decided McGirt, it affirmed Murphy. Sharp v. Murphy, 140 S. Ct. 2412 (2020). 7 The Supreme Court ultimately concluded that Congress had not disestablished the Creek Nation Reservation and affirmed that the reservation’s historical boundaries in eastern Oklahoma still constituted “Indian country,” as defined under 18 U.S.C. § 1151(a). McGirt, 140 S. Ct. 2452.

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III. Conclusion

In sum, the district court properly applied the good-faith exception to the

evidence obtained in Mr. Bailey’s case and did not err in denying Mr. Bailey’s

motion to suppress the evidence.

Entered for the Court

Timothy M. Tymkovich Circuit Judge