FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS D.C. No. 6:15-CR-10032-JTM-1
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
S. Maag, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the brief), Topeka,
Kansas, for Plaintiff-Appellee.
MATHESON, BALDOCK, and EID, Circuit Judges.
BALDOCK, CIRCUIT JUDGE.
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
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.
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.
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).
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.
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."
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?
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
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. . . .
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." 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
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, . . . ."
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.
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. 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
Q. At some later point did you realize that Mr. Shrum was a
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.
Cooke attended Candice's autopsy in Wichita that
afternoon at 1:30 p.m. 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