United States v. Turley

830 F. Supp. 547, 1993 U.S. Dist. LEXIS 12178, 1993 WL 337557
CourtDistrict Court, D. Kansas
DecidedAugust 12, 1993
DocketCiv. A. No. 93-20051-01
StatusPublished
Cited by1 cases

This text of 830 F. Supp. 547 (United States v. Turley) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Turley, 830 F. Supp. 547, 1993 U.S. Dist. LEXIS 12178, 1993 WL 337557 (D. Kan. 1993).

Opinion

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case is before the court on two motions to suppress evidence (Docs. 120 and 121) filed by Defendant George Turley. Defendant moves the court to suppress all items seized from his home during a search conducted pursuant to a search warrant on October 16, 1991, and all fruits of the search. Defendant also moves the court to suppress evidence of statements made by defendant during plea negotiations which occurred December 29, 30, and 31, 1991. The court held an evidentiary hearing on the motions on July 26, 1993. Having considered the evidence adduced at the hearing, the parties’ legal memoranda, and the arguments of counsel, the court is prepared to rule. For the reasons stated more fully below, defendant’s motions to suppress are denied.

TO SUPPRESS EVIDENCE FROM OCTOBER 16, 1991 SEARCH

A. Background

During the hearing on this motion, the court heard testimony from Special Agent Mark Reed of the Internal Revenue Service. Reed served as a team leader during the execution of the search warrant. Reed’s testimony was the only evidence presented during the hearing. The court therefore finds the version of events presented by Reed to be generally credible. Based upon the credible evidence adduced at the hearing, and as required by Fed.R.Crim.P. 12(e), the court makes the following findings of fact:

1. At approximately 6:10 a.m. on October 16, 1991, a search of defendant Turley’s residence at 1616 Lakestone Drive was commenced. Between five and seven agents were involved in the search. Defendant Turley was arrested pursuant to an arrest warrant. The residence was secured and a videotape of the residence before the search was made. The situation was explained to defendant Turley’s wife and she was given a copy of the search warrant.

2. Rooms within the large residence were labeled with numbers and agents were assigned certain rooms. Reed testified that he had held a briefing the night before the search took place and referred to the search warrant numerous times during the search of the residence. Reed made the decision whether or not to seize an item. Some items, including photographs, were rejected for seizure. Valuable items expressly listed in the warrant were seized. Other items not listed in the warrant, including several television sets, were not seized. Receipts were also seized as being within the scope of the warrant.

3. Reed testified that a silver place setting located in the kitchen was seized because it seemed related to jewelry and therefore within the scope of the warrant. Some ceiling fans and doorknobs located in a storage room were seized because the items had been reported as stolen. As the search proceeded, a computer inventory was generated. The list was reviewed to make sure the seizures made were within the scope of the warrant. A copy of the list was given to Special Agent David Christmore to give to Mrs. Turley. Some items taken from Mrs. Turley’s purse were returned to her after the search.

B. Discussion

Defendant contends that all items seized from his residence diming the October 16, 1991, search conducted by agents of the IRS should be suppressed because (1) the search constituted an exploratory general search, and (2) there was not probable cause to support the search warrant.

[549]*549The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated____” One of the.principal evils against which the Fourth Amendment is directed is the government’s physical entry of one’s home. See United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). It cannot be disputed that a person is entitled to privacy in his or her home. Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38 (1981). Consequently, the court concludes that , defendant clearly had a legitimate expectation of privacy in his home entitling them to protection of the Fourth Amendment.

Having determined that defendant possessed a legitimate expectation of privacy in his home, the court must determine whether or not the search and seizure involved in this case was reasonable. The Fourth Amendment does not protect against all searches and seizures, but only against unreasonable searches and seizures. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). In the present case, the search at issue was conducted pursuant to a search warrant. The issue, therefore, is whether any or all of the items seized during the October 16, 1991, search must be suppressed based upon the agents’ execution of the warrant.

As a general rule, in searches made pursuant to warrants only the specifically enumerated items may be seized. United States v. Tamura, 694 F.2d 591, 595 (9th Cir.1982) (citing United States v. Honore, 450 F.2d 31, 33 (9th Cir.1971)). An exception to this rule exists which permits the seizure of contraband or other incriminating evidence found inadvertently during the execution of a warrant. Id. at n. 1. Unlawful seizure of items outside the scope of a warrant does not necessarily render the entire search invalid and require the suppression and return of all items seized. Marvin v. United States, 732 F.2d 669 (8th Cir.1984) (citations omitted). When items beyond the scope of the search warrant are seized, the usual remedy is to suppress only those specific items which were outside the scope of the warrant. United States v. Medlin, 798 F.2d 407, 411 (10th Cir.1986), app. after remand, 842 F.2d 1194 (1988). However, “ ‘flagrant disregard for the limitations of a search warrant might make an otherwise valid search an impermissible general search and thus require suppression or return of all evidence seized during the search.’ ” (citing Marvin, 732 F.2d at 674-75).

It is the duty of the district court to determine, based upon the evidentiary hearing, whether property was seized illegally, and, if so, whether the improper conduct was so flagrant that exclusion of all the seized evidence is warranted. Id. In the present case, the only evidence adduced at the evidentiary hearing on this motion from which the court could conclude that anything outside the scope of the search warrant was seized was the seizure of (1) a silver place setting, and (2) ceiling fans and door knobs.

The court concludes that the seizure of the silver set was arguably within the scope of the search warrant.

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Bluebook (online)
830 F. Supp. 547, 1993 U.S. Dist. LEXIS 12178, 1993 WL 337557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-turley-ksd-1993.