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United States v. Krueger

United States Court of Appeals, Tenth Circuit

November 10, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
ZACHARY KRUEGER, Defendant - Appellee

Appeal from the United States District Court for the District of Kansas. (D.C. No. 6:13-CR-10175-MLB-1).

Page 966

Richard A. Friedman, U.S. Department of Justice, Washington, D.C. (Barry R. Grissom, United States Attorney, James A. Brown and Jason W. Hart, Assistant U.S. Attorneys, Topeka, Kansas; and David A. O'Neil, Acting Assistant Attorney General, and David M. Bitkower, Deputy Assistant Attorney General, Washington, D.C., with him on the briefs), for Plaintiff-Appellant.

Joel Mandelman, Office of the Federal Public Defender, Wichita, Kansas, for Defendant-Appellee.

Before TYMKOVICH, Chief Judge, EBEL, and GORSUCH, Circuit Judges.

OPINION

Page 967

EBEL, Circuit Judge.

This appeal arises from the district court's order granting Defendant-Appellee Zachary Krueger's motion to suppress evidence seized in Oklahoma pursuant to a warrant that was issued by a United States magistrate judge in Kansas. In granting Krueger's motion, the district court concluded that suppression was necessary because (1) the warrant violated Fed. R. Crim. P. 41, which generally limits a federal magistrate judge's warrant-issuing authority to the district where he or she sits, and (2) Krueger established that he was prejudiced by the Rule 41 violation. On appeal, Plaintiff-Appellant the United States (" Government" ) argues that reversal is necessary because the district court applied the wrong legal standard in determining that Krueger established prejudice. Exercising our jurisdiction under 18 U.S.C. § 3731, we AFFIRM the district court's order granting Krueger's motion to suppress.

I. Facts

In June 2013, Homeland Security Investigations (" HSI" ) Agent Rick Moore learned that child pornography was being distributed over the internet from an IP address registered to Krueger, a Kansas resident. Agent Moore thereafter obtained a warrant from a United States magistrate judge in the District of Kansas (" Warrant 1" ) to search Krueger's Kansas residence for items such as computers and cell phones that may be used to depict child pornography visually. Upon executing Warrant 1 at 6:40 a.m. on June 13, however, Agent Moore discovered that Krueger was not home and that his computer and cell phone were not in the residence. Krueger's roommate, who was present when Agent Moore executed the warrant, indicated that Krueger was in Oklahoma City visiting a friend, Nate Benner, and that Krueger may have taken his computer and cell phone with him to Oklahoma.

Based on this information, Agent Moore asked Oklahoma-based HSI Agent Jeff Perkins to verify Krueger's whereabouts. That same day, June 13, Agent Perkins identified Krueger's automobile parked outside of Benner's Oklahoma residence. Agent Moore then sought and obtained a second warrant from a different United States magistrate judge in the District of Kansas (" Warrant 2" ). This warrant--which was issued just hours after Agent Moore had executed Warrant 1--authorized law enforcement to search both Benner's Oklahoma residence and Krueger's automobile parked outside of Benner's residence for electronic devices belonging to Krueger or in his possession.

Agent Moore transmitted Warrant 2 to Agent Perkins in Oklahoma immediately after it was issued by the United States magistrate judge in Kansas. Upon receiving Warrant 2, Agent Perkins and a team of other agents went to Benner's Oklahoma residence. Krueger was present when the agents executed Warrant 2 at 12:30 p.m. on June 13, seizing (among other things) Krueger's computer and external hard drive.

Shortly after entering Benner's residence, however, one of the agents noticed that Warrant 2 had been issued by a federal

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magistrate judge in the District of Kansas--rather than a federal magistrate judge in the Western District of Oklahoma, the district within which Benner's residence is located--and asked Agent Perkins if that was acceptable. Agent Perkins promptly called Agent Moore in Kansas, who was then advised by the Assistant United States Attorney handling the case to refrain from searching the computer and hard drive until consent or an additional warrant could be obtained. Around the time that Agent Perkins was on the phone, an agent who was not aware of the potential defect in Warrant 2 was interviewing Krueger. During this interview, Krueger waived his Miranda rights, admitted to viewing child pornography and trading it with others over the internet, and authorized HSI agents to assume his online presence with respect to his peer-to-peer networking account for investigative purposes.

Consistent with the Assistant United States Attorney's advice, the agents who seized Krueger's computer and hard drive in Oklahoma waited to search the devices until a Kansas Police Department officer visited Krueger's residence a few weeks later and obtained Krueger's written consent. A subsequent search of Krueger's computer and hard drive revealed evidence that Krueger had downloaded and traded child pornography using his peer-to-peer networking account. As a result, Krueger was charged with distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2).

II. Procedure

Krueger thereafter filed a pretrial motion to suppress the evidence seized in Oklahoma as well as the statements he made to law enforcement. See Fed. R. Crim. P. 12(b)(3), 41(h). Most relevant on appeal, Krueger asserted that suppression was necessary because Warrant 2 violated Fed. R. Crim. P. 41, the general provision governing all searches and seizures that are " federal in character." See United States v. Pennington, 635 F.2d 1387, 1389 (10th Cir. 1980). Specifically, Krueger argued that Warrant 2--which was issued by a federal magistrate judge in the District of Kansas for property already located in Oklahoma --violated Rule 41(b)(1), which provides that " a magistrate judge with authority in the district -- or if none is reasonably available, a judge of a state court of record in the district -- has authority to issue a warrant to search for and seize a person or property located within the district." [1] (Emphasis added.)

According to Krueger, this Rule 41 violation required suppression because Warrant 2, having been issued by a federal magistrate judge without authority to do so, was void from the outset, thereby rendering the Oklahoma search warrantless and unconstitutional.[2] Even if Warrant 2 was not void from the outset, Krueger argued that suppression was nonetheless necessary because he was prejudiced by the Rule 41 violation in the sense that he would not have cooperated with law enforcement had he known that Warrant 2

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was issued by a federal magistrate judge who lacked warrant-issuing authority under the Rule.

After a suppression hearing, the district court granted Krueger's motion. In so doing, the district court concluded that Warrant 2 violated Rule 41(b)(1).[3] Although the district court noted that not all Rule 41 violations require suppression, the court determined that suppression was necessary here because Krueger demonstrated prejudice in the sense that the Kansas magistrate judge would not have issued Warrant 2 had Rule 41 " been followed to the letter." Applt. App. at 168 (Order Granting Mot. to Suppress at 7) (internal quotation marks omitted).

The district court thereafter set the matter for trial. Shortly before trial commenced, the Government filed a timely notice of appeal.

III. Analysis

On appeal, the Government concedes for the first time that Warrant 2 violated Rule 41(b)(1) because the United States magistrate judge in the District of Kansas did not have authority to issue a warrant for property already located in Oklahoma. Given the obviousness of this Rule 41 defect on the record before us, the Government's belated concession is a prudent one.[4] See Government Br. at 21 n.4 (explaining that the district court found Warrant 2 " was so facially deficient that the good-faith exception should not apply" and expressly not appealing that ruling). Notwithstanding Warrant 2's Rule 41 defect, the Government urges us to reverse the district court's order granting Krueger's motion to suppress, because, according to the Government, the district court applied the wrong legal standard in determining that Krueger demonstrated prejudice as a result of the Rule violation.[5] For the reasons outlined below, we disagree.

A. Standard of review

A defendant who moves to suppress evidence obtained through a search with a warrant bears the initial burden of establishing that the search was illegal. See 3A Fed. Prac. & Proc. Crim. § 689 (4th ed.) (online database updated April 2015).

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We review a district court's legal rulings on such a motion de novo. United States v. McDowell,713 F.3d ...


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