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United States v. Shrum

United States Court of Appeals, Tenth Circuit

November 15, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WALT JASPER SAMUEL SHRUM, Defendant-Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS D.C. No. 6:15-CR-10032-JTM-1

          Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender and Timothy J. Henry, Assistant Federal Public Defender, with him on the briefs), Kansas City, Kansas, for Defendant-Appellant.

          Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

          Before MATHESON, BALDOCK, and EID, Circuit Judges.

          BALDOCK, CIRCUIT JUDGE.

         Following the unexpected death of Defendant Walt Shrum's common law wife at the couple's home around 5:30 a.m. on March 11, 2015, police officers in Kingman, Kansas "secured" the home, prohibiting Defendant access. Approximately three hours later and without access to his home, Defendant signed a consent to search form permitting an investigator from the Kingman County Sheriff's Office (KCSO) to enter his home for the express purpose of retrieving his deceased wife's medication in anticipation of an autopsy. While in the home, the investigator saw ammunition in plain view inside an open bedroom closet. After returning to headquarters, the investigator learned Defendant was a convicted felon and recalled seeing the ammunition in the closet. Several hours later, the investigator, based on what he had seen and learned, contacted a federal agent and asked him to obtain a search warrant for Defendant's home. A federal magistrate judge issued the warrant at 10:00 p.m. A late night search of the home, which local authorities still would not permit Defendant to access, uncovered not only the ammunition but also two loaded firearms and 4.4 grams of suspected methamphetamine.

         A grand jury subsequently charged Defendant with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), one count of being a felon in possession of ammunition, again in violation of § 922(g)(1), and one count of possessing methamphetamine in violation of 21 U.S.C. § 844(a). Following the district court's denial of his motion to suppress the incriminating evidence used to charge him, Defendant entered a conditional guilty plea to one count of being a felon in possession of a firearm. After receiving a sentence of time served, Defendant appealed the district court's denial of his motion to suppress. Our jurisdiction arises under 28 U.S.C. § 1291. This appeal presents us with two questions: Did the initial securing of Defendant's home constitute an unreasonable seizure in violation of the Fourth Amendment? And if so, did such seizure taint the incriminating evidence ultimately uncovered in the warrant search of his home? We answer both questions yes, and reverse.

         I.

         The historical facts are not in dispute. Defendant and his wife Candice Hill were at their home in the early morning hours of March 11, 2015. Candice, who had just showered, was not feeling well. Shortly after telling Defendant she was very hot, she experienced a seizure and lost consciousness. At 4:54 a.m., Defendant phoned 911 to report a medical emergency. Defendant informed the 911 operator that Candice was thirty years old, was not breathing, and may have overdosed on prescription medication. Within five minutes, Captain Paul Hinton of the Kingman Police Department (KPD) arrived on the scene. Defendant was performing CPR on Candice in the bedroom. Captain Hinton relieved Defendant until EMS arrived at 5:11 a.m. About twenty-five minutes later, the ambulance, accompanied by everyone at the scene including Defendant, departed for the hospital a short distance away. Medical authorities pronounced Candice dead at 5:45 a.m.

         According to a "Crime Scene Entry Log Sheet," KPD Sergeant Travis Sowers "secured" Defendant's home after arriving on the scene at 6:19 a.m. Sergeant Sowers next phoned Dustin Cooke, an investigator with the KCSO. A few minutes later, Investigator Cooke received a call from the KCSO assigning him the case. The police dispatch report indicates Investigator Cooke arrived at the hospital around 6:49 a.m. At the suppression hearing, Investigator Cooke testified as to the initial information he received on the incident: "I was told that they had a 30-year-old female that . . . it was initially a medical call, and that it needed to be investigated until otherwise; that it was not a suspicious death." (emphasis added).

         Investigator Cooke asked Defendant, who had not yet returned home but remained at the hospital with Candice's body, to accompany him to the Kingman County Law Enforcement Center to discuss the circumstances surrounding her death. Defendant agreed. When later questioned about any information he may have had at this point regarding the cause of Candice's death, Cooke responded, "I didn't have anything." Investigator Cooke escorted Defendant to a small interview room where he began questioning him shortly after 7:00 a.m. The audio tape recording of the interview reveals Defendant was coherent but frequently overwrought with emotion. Cooke permitted Defendant to make and receive phone calls during the interview. About thirteen minutes into the interview, Defendant phoned a female friend he identified as Teresa. When Teresa told Defendant that she "might be over sometime this morning," Defendant stated, "I ain't home yet because they ain't lettin' me go home yet. I'm up here at the Sheriff's Office." Defendant told Investigator Cooke that he wanted an autopsy performed to determine the cause of Candice's death.

         The interview lasted until around 9:20 a.m. with a thirty minute break beginning about 8:37 a.m. During the break, Investigator Cooke learned that the coroner had inquired about Candice's medication as well as other medication in the home. Shortly after the interview resumed around 9:05 a.m., Investigator Cooke told Defendant the autopsy was scheduled for 1:30 p.m. that day in nearby Wichita. Cooke stated he would need to retrieve Candice's medication to determine if she took too many pills before she seized. He also told Defendant he wanted to help Defendant get his dogs out of the home. Defendant said he would cooperate because he wanted to know why Candice died. He mentioned she may have overdosed on Adderall. Investigator Cooke told Defendant he was going "to ask for your consent to get her medication." Defendant responded with a question: "You gonna go with me?" Cooke answered, "Yeah, and we're gonna go here in just a second."

         Investigator Cooke also informed Defendant, "I'm gonna go ahead and hold onto your house as a scene, okay, until I get done with the autopsy." Defendant responded, "That's fine, cause I told the landlord . . . and he said any way he could help me, he said don't worry about nothin'." At the suppression hearing, Investigator Cooke described the discussion:

Q. And at some point did you advise Mr. Shrum that you needed to hold onto the house, at least for that day?
A. Yes.
Q. Why did you say that?
A. Just because there was a 36-year-old female that just goes into a code is not a common-it's not a normal death. It does happen, but we have to investigate as to why that happened, so securing anything that may have given us information into that was the reason for the scene being held.
Q. All right. And did you tell Mr. Shrum that you were going to need to hold onto the house for a little while?
A. Yes I did.
Q. And what was his response to that?
A. Anything that I can do to help. . . .

         Investigator Cooke told Defendant he was "going to do what's called a consent to search and I'm just going in to retrieve the medication." Defendant quickly responded, "I can't do it unless I have an attorney go over it." Defendant then began to sob, "I wanna know what happened to her. I ain't got nothin' to hide from you people. She's my baby, she's my everything. I know you have to."[1] For the next few minutes, Investigator Cooke and Defendant discussed Candice's ex-husband and family before Cooke returned to the topic of Defendant's home: "Let's run over to the house. Let's get your dogs. Let's get the medication." Defendant suggested he feed his dogs and leave them in the house but Cooke told him the dogs could not stay there: "I don't want to leave them in the house not being taken care of." Cooke explained to Defendant, "Well, I'm hoping that this is a temporary thing maybe not but through the end of this afternoon, um, to know what's going on."

         Defendant sobbed some more while he reminisced about Candice and how much he missed her. Investigator Cooke again returned the conversation to Defendant's home: "Let's go get your dogs. Let's get this medication. And that way I can start moving forward with today and getting to the autopsy and getting the meds to the doctor and stuff like that . . . ." Defendant again expressed concern that Candice may have taken too many pills and told Cooke one of her medicine bottles was empty. Investigator Cooke asked if the empty bottle was in the house and Defendant said he believed so. Cooke inquired as to the location of the bottle, reminding Defendant, "I can't let you go in the house. I'll just tell you I can't let you go in the house, but if you'll tell me where that stuff is." Defendant responded that his medication was on the kitchen counter and Cooke stated he wanted to retrieve Defendant's medication as well. The two men then discussed the location of Candice's medication. Defendant thought it might be on the bedside table in the master bedroom. Investigator Cooke stated: "I'll look when we get over there but I want you to go with me. I'll have you sign this consent so I can get your medication, her medication, . . . ."

         The KPD Crime Scene Entry Log shows Investigator Cooke, Defendant, and Defendant's friend, Denise Niederman, arrived at Defendant's home at 9:30 a.m. Investigator Cooke placed the consent to search form on the hood of his squad car. Cooke wrote "Retrieve Medication" on the form. He read and explained the form to Defendant. Defendant indicated he understood, signed the form, and provided Cooke a key for entry. At some point, Defendant asked Investigator Cooke if he could go inside his home to urinate. Cooke said no and later acknowledged he forced Defendant to "relieve himself outside the house where there were other people standing around." Once inside the home, Investigator Cooke let the dogs out and retrieved Defendant's walking stick. Consistent with the information he obtained from Defendant during the interview, Cooke found prescription medication in the kitchen and in the master bedroom. Cooke gave Defendant his medication and kept Candice's medication for the coroner.

         Investigator Cooke was inside Defendant's home between ten and fifteen minutes. The entry log shows Cooke departed the scene at 10:05 a.m. while Defendant and Niederman departed at 10:07 a.m. The log indicates Cooke entered the home to "retrieve medications / dogs." Neither Defendant nor Niederman were permitted to enter the home. While in the home, Cooke took fifty-six photographs of the kitchen and bedroom from various angles.[2] One of the photographs depicted ammunition in plain view in the bedroom closet. Cooke testified the closet door was open when he entered the bedroom. Back at headquarters prior to the scheduled autopsy, another officer reminded Cooke that Defendant was a convicted felon:

Q. At some later point did you realize that Mr. Shrum was a convicted felon?
A. I did, and there was two things that kind of sparked that: One, you heard in the interview where it come to my recollection and he even said it was almost six years ago that he and I had talked; and then the other officer that actually was assigned to that case made a comment, he says, you know, I think he was a felon and then it dons [sic] on me, wait a second, I saw ammo in the house. So I go back to my pictures and I'm like, there's the ammunition, and that's what led into this investigation.[3]

         Investigator Cooke attended Candice's autopsy in Wichita that afternoon at 1:30 p.m.[4] The autopsy lasted approximately two hours. That evening, Cooke contacted Agent Neil Tierney from the Wichita branch of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Cooke asked Tierney to obtain a search warrant for Defendant's home based on the ammunition in Defendant's closet and his status as a convicted felon. A federal magistrate judge issued the warrant at 10:00 p.m. The Crime Scene Entry Log indicates three ATF agents, including Agent Tierney, accompanied by Investigator Cooke and Sergeant Sowers, executed the warrant beginning at 11:18 p.m. The search concluded at 1:20 a.m. on March 12, 2015. According to the Justice Department's "Report of Investigation," law enforcement seized the following items from Defendant's home: (1) a loaded ...


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