United States v. Tylan Lucas

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 05-2165
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Nebraska.
Tylan Lucas, *
*
Appellant. *
___________

Submitted: January 9, 2007
Filed: August 23, 2007
___________

Before LOKEN, Chief Judge, WOLLMAN, BEAM, ARNOLD, MURPHY, BYE,
RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and
SHEPHERD, Circuit Judges.
___________

MURPHY, Circuit Judge, with whom LOKEN, Chief Judge, and MELLOY, SMITH,
and GRUENDER, Circuit Judges, join.

Tylan Lucas, an escapee from the Nebraska prison system returned to custody
pursuant to an administrative arrest warrant, was convicted of drug and firearm
offenses, attempted obstruction of justice, and one forfeiture count and was sentenced
to 25 years in prison. Lucas appeals, arguing that his motions to suppress evidence
should have been granted, that there was insufficient evidence to uphold his
convictions for conspiracy and attempted obstruction of justice, and that the district
court1 erred by not dismissing the case under the Speedy Trial Act and by several trial
rulings. A panel of this court reversed, holding that the district court should have
granted his motion to suppress the evidence found when the warrant was executed.
United States v. Lucas, 451 F.3d 492 (8th Cir. 2006). The government's petition for
rehearing en banc was granted and the panel opinion vacated. We now affirm.

I.

In October 2003 Lucas escaped from the custody of the Nebraska Department
of Correctional Services (Department) while serving a sentence for possession of a
controlled substance and for felonious assault with a firearm. He absconded after he
was placed on work release, and Harold Clarke, Director of the Department, issued
a "Warrant of Arrest (for Escaped Prisoner)" on October 22. Clarke had statutory
authority as director to issue warrants for the arrest of escapees from the Department's
custody, see Neb. Rev. Stat. § 83-173(11), and he stated in the warrant that he had
"reasonable cause to believe" that Lucas had escaped from custody.

On January 4, 2004, Timothy Carmody, a sergeant of the Omaha Police
Department and member of its fugitive task force, received a report from Crime
Stoppers that Tylan Lucas was staying at 2316 Ogden Street apartment 1 in North
Omaha. That address was for a unit on the first floor of a house converted into
apartments. Carmody referred the tip to Deputy Gerald Kellogg of the county sheriff's
department, and Kellogg met the tipster and they drove by the residence where Lucas
had been sighted. At the suppression hearing Kellogg testified that the tipster had
reported seeing Lucas at the residence in the preceding 48 hours.

1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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 Later that day officers from the fugitive task force went to the residence. They
had learned that the tenant in apartment 1 was Theresa Scaife, and on their arrival a
man and woman were heard speaking inside. The officers knocked on the front door,
and a woman's voice responded that she needed to get dressed. Scaife opened the
door a few minutes later, and the police asked whether Lucas was in the apartment.
She denied that he was. The officers told her they believed he was inside and wanted
to look for him. Scaife asked whether they had a search warrant. The officers said
they did not but that they did have an arrest warrant for Lucas and information that he
was living at that address. On that authority they intended to enter the premises and
search for him. Scaife then admitted that Lucas was in the apartment, and the officers
placed her in their squad car before looking for him.

The officers announced their presence and asked Lucas to come out of the
apartment. When he did not, they went inside and found him in the basement dressed
in boxer shorts. He was arrested and taken upstairs to the living room. Department
policy required that he be dressed because of the winter weather. Deputy Kellogg saw
a pair of men's warm up pants in the bedroom adjacent to the living room, picked them
up, and asked Lucas if they were his. Lucas replied that they were but he wanted to
wear a different pair. After picking up the pants, Kellogg discovered they contained
about $2,900 in cash, two bags of crack cocaine, and a bag of marijuana. The officers
finished dressing Lucas, and he was taken away for booking.

Scaife was then able to return to the apartment. Sergeant Carmody explained
that the officers suspected Lucas had a weapon and other contraband there and asked
for her permission to search. Scaife verbally consented to a search and also signed a
consent form. In the subsequent search of the apartment the officers found a stolen
Ruger revolver and a bag of marijuana.

Lucas was initially charged on January 23, 2004 with four counts – possession
with intent to distribute 5 or more grams of crack, possession of a Ruger revolver in

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furtherance of possessing with intent to distribute 5 or more grams of crack,
possession of a Ruger revolver after having been convicted of assault in the first
degree, and a forfeiture count. Lucas moved to suppress the evidence from the search,
on the ground that his Fourth Amendment rights had been violated by the officers'
illegal entry into Scaife's apartment. The magistrate judge2 issued a report
recommending the motion be denied on the basis that the officers had entered pursuant
to a valid arrest warrant and that Scaife had consented to their entry. The district court
did not adopt the finding that Scaife had consented to the initial entry, but it denied
the motion to suppress on the ground that the officers had authority to enter the
apartment since they had an arrest warrant issued by a neutral and detached
magistrate. Although Director Clarke was not a judicial officer, the court noted that
the warrant was authorized by a Nebraska statute, that Clarke was not directly
involved in "ferreting out crimes," and that he was well positioned to determine
probable cause for the arrest of an escaped prisoner.

During the pretrial period Lucas continued serving the remainder of his state
sentence at the Douglas County Corrections Center where his telephone calls were
recorded as part of routine policy. The Omaha police obtained a subpoena for copies
of the recordings of these calls, and Lucas moved to exclude evidence of the calls. At
a suppression hearing an officer who was familiar with Lucas testified that it was his
voice on the recordings. In the recorded conversations the speaker was heard asking
several different individuals to claim they owned the Ruger revolver found at Scaife's
apartment and offering to pay for their assistance. Lucas's motion to exclude this
evidence was denied.

Based on these recordings and letters written by Lucas, the government filed
a superseding indictment on March 17, 2004 which charged him with additional

2
The Honorable F.A. Gossett, United States Magistrate Judge for the District
of Nebraska.

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counts of attempted obstruction of justice and of conspiracy to distribute and possess
with intent to distribute 50 grams or more of crack. A second superceding indictment
on October 19, 2004 added two more firearm counts: possession of a semiautomatic
handgun3 in furtherance of the conspiracy to distribute 50 grams or more of crack and
possession of a semiautomatic handgun after having been convicted of assault in the
first degree.

Before trial Lucas filed several other motions. He moved to dismiss the counts
charging conspiracy and possession of a semiautomatic handgun. In addition he
moved in limine to exclude Fed. R. Evid. 404(b) evidence and moved pro se to
dismiss all charges for violation of the Speedy Trial Act. The motions were denied,
and the case proceeded to trial. At the close of the government's case and again at the
end of trial, Lucas moved to dismiss the charges for possessing a revolver in
furtherance of a drug crime and for possessing a semiautomatic handgun in
furtherance of the conspiracy to distribute crack. The motions were denied.

After a four day trial the jury found Lucas guilty of attempted obstruction of
justice, possession of at least 5 grams of crack with intent to distribute, conspiracy to
distribute between 50 and 150 grams of crack, possession of a Ruger revolver in
furtherance of the conspiracy, and being a felon in possession of a weapon. He was
found not guilty of possessing a semiautomatic handgun in furtherance of the
conspiracy and not guilty of being a felon in possession of a semiautomatic handgun.
Lucas appeals.

Lucas contends that the district court erred by denying his motion to suppress
evidence because the officers' entry into Scaife's apartment was illegal since the arrest
warrant had not been issued by a neutral and detached magistrate, but by an executive

3
This gun was not the revolver found in Scaife's apartment, but a different
weapon Lucas was charged with possessing in connection with the conspiracy.

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officer answering to the governor and without judicial authority, citing Payton v. New
York, 445 U.S. 573 (1980). He contends further that the good faith exception to the
exclusionary rule should not be extended to uphold the entry. See United States v.
Leon, 468 U.S. 897 (1984). The government responds that the requirement for a
neutral and detached magistrate has no application here because Clarke's statutorily
authorized arrest warrant permitted the police to enter Scaife's home in order to retake
Lucas and return him to custody. We review the district court's factual findings for
clear error and its legal determinations de novo. United States v. Kelly, 329 F.3d 624,
628 (8th Cir. 2003).

II.

Lucas contends that under the Fourth Amendment officers cannot enter "a
suspect's home in order to make a routine felony arrest" without a warrant or consent,
Payton, 445 U.S. at 576, and that the warrant must have been issued by a neutral and
detached magistrate who has found "probable cause" and "sufficient evidence . . . that
his arrest [was] justified." Id. at 602. The government responds that the Payton rule
applies only to routine felony arrests, not to the recapture of a person already
convicted of a crime and placed in state custody.

The Constitution generally requires that "someone independent of the police
and prosecution," Shadwick v. City of Tampa, 407 U.S. 345, 348 (1972), review a
warrant application to determine whether there is "probable cause to believe a citizen
guilty" of a crime and to issue an arrest warrant. Id. at 351; see also Coolidge v. New
Hampshire, 403 U.S. 443, 449-50 (1971) (similar requirement for search warrant).
As the Court has explained, "[t]he Fourth Amendment does not contemplate the
executive officers of the Government as neutral and disinterested magistrates. Their
duty and responsibility are to enforce the laws, to investigate, and to prosecute."
United States v. U.S. Dist. Court, 407 U.S. 297, 317 (1972).

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 The panel opinion concluded that Clarke as an executive officer was unable to
issue a valid warrant, just like the jailer in United States v. Parker, 373 F.3d 770 (6th
Cir. 2004). In Parker, the Sixth Circuit suppressed evidence seized pursuant to search
warrants issued by a deputy jailer in her alternate capacity as a county trial
commissioner. Since she had been appointed as jailer by an executive branch official,
she was employed in a law enforcement agency, and the jail had a financial interest
in the outcome of the warrant proceedings, she was not neutral and detached. Id. at
773.

Although Director Clarke's role in issuing the arrest warrant for Lucas was quite
different from the jailer's issuance of search warrants in Parker, Clarke was not a
neutral and detached magistrate in the sense of a judicial officer. He was appointed
by the governor, who set his salary and had power to remove him at will. Neb. Rev.
Stat. §§ 81-102, -103. Clarke headed a corrections agency, and his duties closely
involved him with prisons and prisoners. By law he was responsible "for the custody,
control, safety, correction, and rehabilitation of persons committed to the department."
Id. § 83-173(3).

The fact that Clarke was not a neutral judicial officer does not end the Fourth
Amendment inquiry, however. This case is quite different from the cases on which
Lucas relies in which a neutral magistrate was needed to determine probable cause.
Here the administrative official responsible for the custody of prisoners issued a
warrant to retake an inmate who had already been convicted of a crime beyond a
reasonable doubt and had fled from his lawful custody. The standard for issuance of
a valid administrative warrant under the Fourth Amendment is different from the

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probable cause showing necessary for a warrant to arrest someone suspected of a
crime.4

The Supreme Court has upheld administrative warrants and has never held that
administrative warrants must be issued by a neutral and detached magistrate in the
sense of Shadwick or Coolidge. An administrative arrest warrant issued by a district
director of the Immigration and Naturalization Service pursuant to a deportation
statute led to a valid arrest in Abel v. United States, 362 U.S. 217, 234 (1960). There,
the Court recognized the "long-sanctioned practice" and "overwhelming ... legislative
recognition" favoring "the propriety of administrative arrest" in such circumstances.
Id. at 230, 233. The Court has required that administrative warrants be obtained
before inspectors enforcing housing code compliance may lawfully enter and inspect
residential units. See Camara v. Mun. Court, 387 U.S. 523 (1967). And in the course
of striking down a federal statute as unconstitutional under the Fourth Amendment for
authorizing Occupational Health and Safety Administration agents to make
warrantless safety inspections, the Court indicated that the requirements for issuance
of an administrative warrant are not identical to those for judicial warrants. Marshall
v. Barlow's, Inc., 436 U.S. 307, 320 (1978).

The requirements for valid administrative warrants were also examined in
Griffin v. Wisconsin, 483 U.S. 868 (1987), a case upholding a Wisconsin law
authorizing probation officers to make warrantless searches if there were reasonable
grounds to believe a probationer's home contained contraband. The dissent argued
that the Constitution required a warrant issued by a neutral member of the judiciary,
but the majority explained that administrative search warrants need not be issued by
judicial officers, in contrast to "constitutionally mandated judicial warrants." Id. at

4
The arrest warrant here was issued to retake Lucas into custody. It was issued
by his custodian rather than by a prosecuting authority, and our conclusion that
Lucas's arrest was lawful is independent of any "semantic legerdemain" put forward
by the dissent.

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877-78. The "neutral magistrate or neutral officer envisioned by our administrative
search cases is not necessarily the 'neutral judge' envisioned by the dissent." Id. at 877
n.5 (internal quotation marks and citations omitted). Like the probation officer in
Griffin, Director Clarke was "not an impartial magistrate, [but] neither [was] he the
police officer who normally conducts searches against the ordinary citizen," for he
was charged with retaking an escapee while protecting both "the public interest" and
"the welfare of the [escapee]." Id. at 876. Just as the Griffin probation officer had
specialized knowledge, Clarke was well positioned to know if a convicted inmate in
his custody had escaped. As Director of the Department of Correctional Services, he
had access to information about such an escapee and the statutory duty to issue a
warrant. See Neb. Rev. Stat. § 83-173 (director "shall" issue warrant for escapee).

Our conclusion that a warrant issued by a neutral and detached magistrate was
not required for a lawful entry into Scaife's apartment is consistent with decisions of
other circuit courts. A Maryland statute authorizing prison wardens to issue retake
warrants for parolees was found by the Fourth Circuit not to violate the Fourth
Amendment in Henderson v. Simms, 223 F.3d 267 (4th Cir. 2000). Like the retake
warrants in Henderson, Clarke's administrative arrest warrant for escapee Lucas was
authorized under a state statute. According to a ruling of the First Circuit, a parole
violation warrant issued by the New York parole board and supported by "reasonable
cause" permitted a valid arrest consistent with the Fourth Amendment. See United
States v. Cardona, 903 F.2d 60 (1st Cir. 1990). Like that parole violation warrant,
Clarke's arrest warrant for Lucas was issued by an executive official with legislative
authority for the subject matter and was supported by reasonable cause.

Probable cause "in the criminal law sense" is not required for issuance of an
administrative warrant, Marshall, 436 U.S. at 320, for in the administrative context
probable cause "refer[s] not to a quantum of evidence, but merely to a requirement of
reasonableness." Griffin, 483 U.S. at 877 n.4. The reasonableness of the officers'
entry into Scaife's apartment must be judged by balancing the government's "need to

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[arrest Lucas] against the invasion which the [arrest] entails." Camara, 387 U.S. at
537. Whatever expectation of privacy an escaped convict might have must be
weighed against the strong interest the government has in bringing him back into
custody.

Like the prison escapee in United States v. Roy, 734 F.2d 108, 112 n.5 (2d Cir.
1984), Lucas "lost his presumption of innocence when he was convicted and
incarcerated," and his escape could not expand the very restricted expectation of
privacy he had while in the custody of prison officials. Id. at 111-12. Since Roy's
presence outside of custody was wrongful, id. at 111, the Second Circuit found he
lacked "a legitimate expectation of privacy against the government's intrusion." Id.
at 110. Evidence seized without a warrant from his locked trunk was therefore
admissible. Id. at 112. Lucas similarly had no right to be in Scaife's apartment, and
Nebraska's interest in the present case was even stronger than the state's in Roy
because the officers here were acting pursuant to a valid administrative warrant.

As an escapee Lucas had only a minimal expectation of privacy in Scaife's
apartment. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). Prisoners like Lucas
who are on work release are subject to special restrictions just like probationers. Their
liberty is legitimately constrained because "[p]robation, like incarceration, is a form
of criminal sanction imposed by a court upon an offender after verdict, finding, or plea
of guilty." Griffin, 483 U.S. at 874 (internal quotation marks and citation omitted).
The state has a duty to protect the community from harm when a probationer or
escaped prisoner is "at large." Id. at 875. For these reasons a warrantless search of
a probationer's home without probable cause is permissible if it is based on the
reasonable suspicion of the probation officer. United States v. Knights, 534 U.S. 112,
121-22 (2001). The officers' entry into Scaife's apartment did not violate the Fourth
Amendment since Lucas was a convicted escapee whom they were seeking under the
authority of a valid administrative warrant issued by the responsible state official who
had reasonable cause to believe that Lucas had escaped.

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 Lucas as an escapee from lawful custody had an even more circumscribed
expectation of privacy than the probationer in Knights or the parolee in Samson v.
California, 126 S. Ct. 2193, 2200 (2006) (state's "overwhelming interest in supervising
parolees" justified a warrantless search). Lucas had to sign a personalized plan
agreeing to the terms of his work release program before he could participate in it, and
these terms required him to return to the community corrections center after work.
See Neb. Dep't of Correctional Servs. Reg. 201.06 & app., available at
http://www.corrections.state.ne.us/policies/files/201.06.pdf; see also Trial Tr. at 259
(stipulation that Lucas was obligated to return to Omaha Community Corrections
Center after work). That Lucas expected to be recaptured wherever discovered is
evidenced by his comment to the arresting officers, "Damn, I knew I was going to get
caught eventually."

Steagald v. United States, 451 U.S. 204 (1981), is also instructive. In that case
the police entered Steagald's home with an arrest warrant for Ricky Lyons, a fugitive
who was not present, but the officers discovered evidence incriminating Steagald.
The Supreme Court concluded that the search violated Steagald's personal Fourth
Amendment rights but that those of Lyons were not affected. Id. at 216. The
Supreme Court distinguished the rights of Steagald from those of Lyons, just as we
must analyze the respective rights in this case. The Court pointed out that "two
distinct interests were implicated by the search at issue here – Ricky Lyons' interest
in being free from an unreasonable seizure and petitioner's interest in being free from
an unreasonable search of his home." Id. While the arrest warrant would have
supported the search for and the seizure of Lyons if he had been there, it did not
justify the search that turned up evidence against Steagald. In our case it is Scaife
rather than Lucas who was in a position like Steagald's. Clarke's arrest warrant
authorized entry into Scaife's home for the purpose of arresting Lucas.

"Reasonableness" is the standard for issuance of an administrative arrest
warrant seeking to return a prison escapee to custody, see Camara, 387 U.S. at 539,

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rather than the probable cause requirement for a warrant to arrest a person suspected
of crime. Shadwick, 407 U.S. at 351. Clarke's administrative warrant met that
standard. We conclude that the entry into Scaife's apartment was reasonable because
the Omaha police were acting under the authority of a valid administrative warrant
and they had reason to believe Lucas was there. Cf. Payton, 445 U.S. at 602. They
had received and sufficiently corroborated a tip that Lucas would be found at Scaife's
apartment. Their source had reported seeing Lucas at Scaife's home within the prior
48 hours, and one of the officers had driven by the residence with the tipster to verify
as much of the information as possible. The balance of interests here tips in favor of
the state since Nebraska's interest in recapturing a convicted criminal who had
absconded from its custody is a strong one, and Lucas had no legitimate expectation
of privacy while hiding out in Scaife's residence.5

The dissent errs by overlooking Lucas's status as an escapee and focusing solely
on the fact that the officers entered a residence. Its statement that "expectation of
privacy tests . . . concern places rather than persons" is contrary to the teaching of the
Supreme Court, for "the Fourth Amendment protects people, not places." Katz v.
United States, 389 U.S. 347, 351 (1968). As the Fifth Circuit explained in United
States v. Taylor, 482 F.3d 315, 318-19 (5th Cir. 2007), another case involving a
warrantless search of a girlfriend's residence in which the defendant was hiding, the

5
Lucas and the dissent claim that the government waived its right to argue that
he lacked a reasonable expectation of privacy. The waiver doctrine is most
appropriately applied when the government has taken inconsistent positions during
the course of the litigation and such inconsistency has affected the factual record. See
United States v. Hansen, 652 F.2d 1374, 1381-83 (10th Cir. 1981); cf. Steagald, 451
U.S. at 210-11; United States v. Morales, 737 F.2d 761, 763 (8th Cir. 1984). In this
case the government has never claimed that Lucas had a reasonable expectation of
privacy in Scaife's apartment, and our conclusion that he lacked such an expectation
is based solely on facts which the parties do not dispute. We are merely applying the
"well-settled principle" that a district court may be affirmed on any ground supported
by the record. United States v. Pierson, 219 F.3d 803, 807 (8th Cir. 2000) (Beam, J.).

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defendant had no greater Fourth Amendment rights in her place than he would have
had in his own, citing Katz and Minnesota v. Olson, 495 U.S. 91 (1990). The Taylor
court applied the totality of circumstances approach taken in Knights to conclude that
the search had not violated the Fourth Amendment since Taylor had no special
protection in his girlfriend's residence, the officers had a misdemeanor arrest warrant
for him and reason to believe he was present in her residence, and Taylor's rights were
limited by his supervised release status.

Because Lucas's reasonable expectation of privacy was limited by his status as
an escapee and the officers possessed both a valid administrative warrant and
reasonable cause to believe Lucas was in Scaife's apartment, we conclude that his
Fourth Amendment rights were not violated by the entry of the officers into the
apartment and his subsequent arrest.6 Nor were they violated by the search incident
to his arrest and the subsequent search of Scaife's apartment with her consent. Since
Lucas does not have standing to assert Scaife's Fourth Amendment rights, any issue
of hers is not before us. See Pierson, 291 F.3d at 806 (Fourth Amendment rights are
personal and cannot be vicariously asserted); see also Rakas, 439 U.S. at 133-38;
Taylor, 482 F.3d at 319.

III.

Lucas also appeals several issues related to his trial. First, he argues that the
district court erred by not dismissing the conspiracy charge for lack of particularity.
He objects that the indictment only referred to coconspirators "known and unknown
to the grand jury." Lucas contends there can be no assurance that he was convicted
of the offense charged by the grand jury because the government introduced evidence
of several possible conspiracies. The government responds that it offered sufficient

6
In light of this conclusion we need not address the government's argument
based on United States v. Leon, 468 U.S. 897 (1984).

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evidence that Lucas, Nathaniel Grant, James Edwards, and others joined in a single
crack distribution conspiracy.

To prove a single conspiracy the government relied in part on the testimony of
Grant and Edwards, two gang members who had previously pled to narcotics offenses.
Grant testified that he sold crack to Lucas on numerous occasions during October
2003 and saw him carrying a semiautomatic handgun during these dealings. Edwards
testified that between December 2003 and early January 2004 Lucas sold him crack
and that Lucas owned a semiautomatic handgun. The possibility that there were other
unknown individuals involved in the drug dealing does not mean there was more than
one conspiracy. The law recognizes that "[a] single conspiracy may exist even if the
participants and their activities change over time, and even if many participants are
unaware of, and uninvolved in, some of the transactions." United States v. Benford,
360 F.3d 913, 914 (8th Cir. 2004) (citation and internal quotation marks omitted). We
conclude that the indictment was constitutionally sufficient, that the district court did
not clearly err in concluding there was sufficient evidence of one conspiracy, and that
it did not abuse its discretion in refusing to give a multiple conspiracy instruction.

Lucas makes two objections relating to his conviction for attempted obstruction
of justice. He argues first that the phone recordings on which the charge was based
should have been excluded from evidence. Telephone calls may be intercepted
without a warrant if one of the parties to the call gives "prior consent." 18 U.S.C. §
2511(2)(c). There was uncontradicted evidence at the suppression hearing that the
Douglas County Corrections Center gave each inmate a handbook stating that all
outgoing telephone calls were monitored except those to attorneys. The Center
affixed placards to the inmate telephones warning that the calls were recorded, and an
audio message repeated the warning before each call. In a similar situation in United
States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992), we concluded that medical center
inmates had impliedly consented to the recording of their phone calls. The district
court was entitled to find from the notice given to inmates that any reasonable person

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in Lucas's position should have known of the policy. We conclude that the district
court did not abuse its discretion in admitting the recordings into evidence.

Lucas next contends that there was insufficient evidence to convict him of
attempted obstruction of justice. He argues that the statute under which he was
convicted, 18 U.S.C. § 1512(c)(2),7 applies only to direct conduct obstructing an
official proceeding, not to an attempt to influence others to obstruct. Because Lucas
failed to make this argument below, we review for plain error and find none. The only
appellate decision we have found construing this statute, United States v. Reich, 479
F.3d 179, 185 (2d Cir. 2007), does not support his argument. See Johnson v. United
States, 520 U.S. 461, 468 (1997) (plain error is one "clearly contrary" to established
law at time of appeal). After viewing the evidence in the light most favorable to the
government and giving it the benefit of every reasonable inference, we can only
reverse if no reasonable jury could have found Lucas guilty beyond a reasonable
doubt. United States v. Carlisle, 118 F.3d 1271, 1273 (8th Cir. 1997). An attempt
requires "(1) an intent to engage in criminal conduct, and (2) conduct constituting a
'substantial step' toward the commission of the substantive offense which strongly
corroborates the actor's criminal intent." United States v. Joyce, 693 F.2d 838, 841
(8th Cir. 1982). There was sufficient evidence for a reasonable jury to find that Lucas
asked both Shawnna Hilmer and Jaime Bonnett to claim ownership of the firearm
found in Scaife's apartment and that each understood his request to be in earnest. This
was enough to prove that Lucas took a "substantial step" toward obstruction of justice.
See United States v. Mims, 812 F.2d 1068, 1077-78 (8th Cir. 1987).

Lucas also objects to the admission of evidence of his past drug dealing and gun
possession under Fed. R. Evid. 404(b). The government filed a pretrial notice of
intent to introduce such evidence in order to establish motive, intent, plan and design

7
18 U.S.C. § 1512(c)(2) provides: "Whoever corruptly . . . obstructs, influences,
or impedes any official proceeding, or attempts to do so, shall be fined under this title
or imprisoned not more than 20 years, or both."

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in relation to the drug and firearm charges. Police reports of Lucas's prior arrests were
introduced and there was testimony by people who dealt drugs with him before he was
incarcerated in November 2000. Lucas contends that the evidence was not similar in
kind or close in time to the charged offenses and that any probative value of the
evidence was outweighed by its prejudicial effect.

We review the admission of Rule 404(b) evidence for abuse of discretion and
will "reverse only when such evidence clearly had no bearing on the case and was
introduced solely to prove the defendant's propensity to commit criminal acts."
United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005), quoting United States
v. Howard, 235 F.3d 366, 372 (8th Cir. 2000). When a defendant has denied
ownership of seized drugs or the intent to distribute them, evidence of past drug
related activity is admissible to prove both knowledge and intent. United States v.
Love, 419 F.3d 825, 828 (8th Cir. 2005). Since Lucas put his knowledge and intent
at issue, and the government had the burden of proof on these elements, admission of
the 404(b) evidence was proper. See United States v. Foster, 344 F.3d 799, 801 (8th
Cir. 2003). Furthermore, his drug related activities were not so remote in time to be
irrelevant. See Love, 419 F.3d at 828; Thomas, 398 F.3d at 1063; Foster, 344 F.3d
at 802.

Lucas asserts that his Sixth Amendment right to compulsory process was
violated when the district court did not allow all of the testimony he wanted to present
about John Ezell. Ezell had been living with Theresa Scaife before Christmas 2003.
One theory of Lucas's defense was that it was Ezell who had left the Ruger revolver
and crack in Scaife's apartment either accidentally, or purposely because he was angry
that Lucas was staying there and wanted to incriminate him. Lucas hoped to introduce
evidence that Ezell had four arrests related to crack and handguns, but the government
contended that the evidence was inadmissible. A criminal defendant's right to
compulsory process is violated if relevant evidence is excluded without sufficient
justification. United States v. Bernhardt, 642 F.2d 251, 253 (8th Cir. 1981); see also

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Taylor v. Illinois, 484 U.S. 400, 410 (1988). We review the court's evidentiary
decision for abuse of discretion. United States v. LeGrand, 468 F.3d 1077, 1080 (8th
Cir. 2006).

The district court allowed evidence to support Lucas's theory of defense. He
was permitted to question Scaife about her relationship with Ezell and about whether
the revolver and drugs belonged to him. See United States v. Becht, 267 F.3d 767,
773 n.7 (8th Cir. 2001), quoting Old Chief v. United States, 519 U.S. 172, 182-83
(1997). Evidence that is cumulative or "remote and speculative" may be excluded
under Fed. R. Evid. 403 to avoid confusing or misleading the jury, see United States
v. DeNoyer, 811 F.2d 436, 440 (8th Cir. 1987), and we conclude that the district court
did not abuse its discretion by not permitting Lucas to solicit all the evidence he
wished to present. See United States v. Yarns, 811 F.2d 454, 456 (8th Cir. 1987).

Finally, Lucas argues that the district court violated the Speedy Trial Act, 18
U.S.C. §§ 3161-3174. The Act requires that trial begin within 70 days after a
defendant is charged or makes an initial appearance unless the running of the time is
stopped for reasons set out in the statute. One authorized period of delay is triggered
if a district court expressly finds that the ends of justice served by granting a
continuance outweigh the interests of the public and the defendant in a speedy trial.
See id. § 3161(h)(8). Shortly before Lucas's trial was scheduled to begin, the
government moved for a continuance because the prosecutor was scheduled to start
a different trial the day before the Lucas case. The magistrate judge denied the motion
on the grounds that it was untimely and did not comply with the local rules. The
government appealed to the district court, explaining that the other trial involved
numerous witnesses from outside the district and one from another country.

The district court issued an order on September 27, continuing the trial date
from September 28 to November 9, 2004 for the following reasons:

-17-
 [C]onsidering all of the relevant circumstances, the Court concludes that
the motion should be granted in the interest of justice. The Court finds
that, under the circumstances presented, the ends of justice outweigh the
interest of the public and of the Defendant in a speedy trial and failing
to grant a continuance would result in a miscarriage of justice. 18 U.S.C.
§§ 3161(h)(8)(A) & (h)(8)(B).

A superseding indictment with additional charges was later filed, and on October 25
another order was entered continuing Lucas's trial to January 4, 2005 on the ground
that a "failure to grant additional time might result in a miscarriage of justice." On
December 17 Lucas filed a pro se motion to dismiss all the charges under the Speedy
Trial Act. The motion was denied on December 20, and trial began as planned on
January 4.

Lucas argues that Zedner v. United States, 126 S. Ct. 1976 (2006), requires a
district court to detail its reasons for granting an ends of justice continuance, that the
court failed to do so in its September continuance order, and that that violation is not
susceptible to harmless error analysis. In the context of Speedy Trial Act rulings, we
review a district court's legal conclusions de novo, its factual findings for clear error,
and its ultimate determination for an abuse of discretion. See United States v.
Duranseau, 26 F.3d 804, 808 (8th Cir. 1994).

The district court made explicit findings to support its ends of justice
continuance on September 27, finding that "failure to grant [a continuance would]
result in a miscarriage of justice." That factor is one of the permissible reasons for a
continuance, 18 U.S.C. § 3161(h)(8)(B)(i), and the court also balanced the ends of
justice and the interests of the parties and public. While there could have been more
detailed findings, its order was sufficient to show compliance with the Act,
particularly in the context of the government's stated reasons for requesting the
continuance. This record is unlike the situation in Zedner where the district court
"made no mention of the Act and did not make any findings to support exclusion."

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126 S. Ct. at 1982. We conclude that Lucas has not shown that the district court
abused its discretion in granting the September 27 continuance or that the district
court erred by not dismissing the case for violating the Speedy Trial Act.

IV.

In sum, we conclude that the Speedy Trial Act was not violated, that the district
court did not err by denying Lucas's suppression motions or his motions to dismiss the
conspiracy and obstruction of justice charges for insufficient evidence, and that the
district court did not abuse its discretion in other trial rulings or in its jury instructions.
For these reasons we affirm the judgment of the district court.

SHEPHERD, Circuit Judge, with whom COLLOTON and BENTON, Circuit Judges,
join, concurring in part and concurring in the judgment.

I concur in Parts I and III of the Court’s opinion and that portion of Part II that
holds that, as an escapee, “Lucas had no legitimate expectation of privacy while
hiding out in Scaife’s residence,” ante at 12. Therefore there can be no Fourth
Amendment violation in this case. See Smith v. Maryland, 442 U.S. 735, 740 (1979)
(“[T]his Court uniformly has held that the application of the Fourth Amendment
depends on whether the person invoking its protection can claim a ‘justifiable,’ a
‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by
government action.”); United States v. Bach, 310 F.3d 1063, 1066 (8th Cir. 2002)
(“[I]n order to find a violation of the Fourth Amendment, there must be a legitimate
expectation of privacy in the area searched and the items seized. If there is no
legitimate expectation of privacy, then there can be no Fourth Amendment violation.”)
(citing Smith, 442 U.S. at 740); see also Minnesota v. Olson, 495 U.S. 91, 97 n.5
(1990) (“‘[T]he Fourth Amendment protects people, not places,’ and provides
sanctuary for citizens wherever they have a legitimate expectation of privacy.”)
(quoting Katz v. United States, 389 U.S. 347, 351 (1967)); United States v. Kuenstler,
325 F.3d 1015, 1020 (8th Cir. 2003) (“The Fourth Amendment protects ‘against

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unreasonable searches and seizures,’ but its protections are personal and cannot be
asserted by persons lacking a ‘legitimate expectation of privacy’ in the place
searched.”) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). I find unnecessary
the plurality’s analysis with regard to the validity of the administrative arrest warrant
and the reasonableness of law enforcement’s belief that Lucas was present in the
apartment prior to entry and therefore decline to join it.

BYE, Circuit Judge, concurring in part, dissenting in part, and concurring in the
judgment.

I join in the dissents of Judge Beam and Judge Riley to the extent they conclude
part II of the Court's analysis is flawed. But I concur in the Court's judgment
affirming the district court's denial of Lucas's motion to suppress the evidence found
at Lucas's primary residence because, in my judgment, while the administrative
warrant was invalid, the Leon8 good-faith exception to the exclusionary rule saves the
evidence. Finally, I concur in part III of the Court's opinion, which addresses the
remainder of the issues raised in this appeal.

I

The majority contends "the [G]overnment has never claimed that Lucas had a
reasonable expectation of privacy in Scaife's apartment" and therefore did not waive
"its right to argue that he lacked a reasonable expectation of privacy." Ante at 12 n.5.
Why would the government ever argue a defendant had a reasonable expectation of
privacy? Such an argument would be raised by a defendant challenging a warrantless
search, not by the government where the government claims the search was executed
pursuant to a valid warrant.

8
United States v. Leon, 468 U.S. 897, 913 (1984).

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 In fact, Lucas argued, in his pre-trial briefing prior to the suppression hearing,
that he had "standing to challenge the officers' warrantless entry of the residence to
effect his arrest" based on his status as an overnight guest at his girlfriend's house.
Def.'s Br. Support Mot. Suppress at 2. Did the Government challenge this claim of
standing? No. Instead, the Government responded: "A valid arrest warrant 'carries
with it the authority to enter the residence of the person named in the warrant in order
to execute the warrant so long as the police have a reasonable belief that the suspect
resides at the place to be entered and that he is currently present in the dwelling.'"
Gov't Br. Opposition Mot. Suppress at 5 (quoting United States v. Clayton, 210 F.3d
841, 843 (8th Cir. 2000)). The Government also argued in the alternative that Lucas's
girlfriend had given consent to search the premises, quoting United States v. Matlock,
415 U.S. 164, 170 (1974): "[T]he consent of one who possesses common authority
over premises or effects is valid as against the absent, nonconsenting person with
whom that authority is shared." Far from leaving open the door that Lucas lacked a
reasonable expectation of privacy at the residence, the focus of the testimony elicited
by the Government at the suppression hearing went to show law enforcement officers
arrested Lucas at his primary residence—proof that supported the Government's
position the law enforcement officers had a reasonable belief Lucas resided there,
which, coupled with a valid arrest warrant, would make the search of the premises
valid. In other words, all along, the premise underpinning the Government's defense
of the search was that Lucas's standing to challenge a warrantless search (which was
accepted by the Government) was irrelevant because officers possessed a valid arrest
warrant and possessed a reasonable belief he was at the premises searched.

At oral argument before the panel in this case, the Government conceded it had
never before argued Lucas lacked a reasonable expectation of privacy due to his
escapee status:

Judge Beam: As an escapee from custody, was a warrant
necessary?

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 Government: Well, your honor, at this point in time that is,
that's an issue and—

Judge Beam: It, well, it wasn't an issue that you raised, was it?

Government: No. It wasn't.

The Government further volunteered at oral argument before the panel that the only
issues raised concerning the suppression issue were (1) whether the arrest warrant was
valid, and (2) if not valid, whether the officers relied on the warrant in good faith. The
record demonstrates the Government presented its Johnny-come-lately theory—in
essence, that the Director of Correctional Services is detached and neutral enough for
the purposes of issuing an arrest warrant because an escapee lacks a reasonable
expectancy of privacy anywhere—for the first time in its petition for rehearing en
banc.

Generally, both the government and defendants are barred from raising Fourth
Amendment arguments for the first time on appeal. See, e.g., United States v.
Alvarez-Sanchez, 511 U.S. 350, 360 n.5 (1994) ("Finding no exceptional
circumstances that would warrant reviewing a claim that was waived below, we
adhere to our general practice and decline to address respondent's Fourth Amendment
argument."); Giordenello v. United States, 357 U.S. 480, 487 (1958) (finding, where
the government defended the legality of the petitioner's arrest "by relying entirely on
the validity of the warrant," to allow the government to argue for the first time before
the Supreme Court that even a warrantless arrest would have been valid "would
unfairly deprive petitioner of an adequate opportunity to respond"); United States v.
Nee, 261 F.3d 79, 86 (1st Cir. 2001) (holding, by failing to raise it to the district court,
the government waived its argument the subjective intent of the officers was irrelevant
for establishing probable cause); United States v. 22249 Dolorosa St., 167 F.3d 509,
512 (9th Cir. 1999) (holding the government waived its argument on appeal that the
defendant did not have standing to challenge a search when it failed to raise the

-22-
argument to the district court); United States v. Gonzales, 79 F.3d 413, 419 (5th Cir.
1996) (per curiam) (holding the government waived its standing argument when it was
put on notice the defendant would claim a privacy interest).

As Judge Beam explains in his dissent, in United States v. Steagald, the
Supreme Court determined that the government had waived its right to raise a standing
issue in circumstances similar to those presented here. 451 U.S. 204, 208-11 (1981).
In reaching its conclusion, the Steagald Court stated:

the Government was initially entitled to defend against petitioner's
charge of an unlawful search by asserting that petitioner lacked a
reasonable expectation of privacy in the searched home . . . . The
Government, however, may lose its right to raise factual issues of this
sort before this Court when it has made contrary assertions in the courts
below, when it has acquiesced in contrary findings by those courts, or
when it has failed to raise such questions in a timely fashion during the
litigation.

Id. at 209-10, quoted with approval and applied in United States v. Morales, 737 F.2d
761, 764 (8th Cir. 1984). Here, the Government referenced case law and facts at the
suppression hearing and in defense of the magistrate's report and recommendation that
show its theory of the case was Lucas lived at the house entered and it was his
"primary residence." The Government arguably benefitted from similar testimony at
trial in linking Lucas to the drugs and firearm found at the residence (as opposed to
Lucas's theory that someone else had placed the firearm in the residence). The
Government also made no objection to the district court's finding Lucas was a co-
occupant of the residence. Moreover, the Government acquiesced in the magistrate
and district court's winnowing of the issues to two: (1) the validity of the warrant; and
(2) in the absence of a valid warrant, the applicability of the Leon good-faith
exception. Finally, as noted above, the Government expressly conceded at oral
argument before the panel it never argued below, as it now does, that Lucas's escapee
status justified a warrantless (or warrant-light) search of the premises. In light of the

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above, and in the absence of exceptional circumstances, it is my view the Government
waived the right to challenge Lucas's standing to challenge the validity of the search.9
Thus, I respectfully dissent from part II of the Court's opinion for the reasons
articulated in Judge Beam's dissent.

II

The now-vacated panel decision in this case noted the Leon good-faith
exception exists because the exclusionary rule is not meant to deter magistrate judge
errors—it is meant to curb overzealous law enforcement officials. I agree. Because
the panel found the Nebraska Director of Correctional Services was too intertwined
with Nebraska law enforcement officials and the state executive branch to be
"detached and neutral," the panel concluded the Leon good-faith exception did not
apply. Similarly, in his dissent, Judge Beam contends the Leon good-faith exception
is "inapplicable" because the warrant was not issued by a neutral magistrate. This
conclusion is at odds with the Supreme Court's interpretation of Leon in Krull v.
Illinois, 480 U.S. 340 (1987).

Less than three years after deciding Leon, the Supreme Court handed down
Krull. The Krull Court described the question in the case as "whether a good-faith
exception to the Fourth Amendment exclusionary rule applies when an officer's
reliance on the constitutionality of a statute is objectively reasonable, but the statute
is subsequently declared unconstitutional." 480 U.S. at 342. The Illinois statute in

9
Our case law suggests plain error review is inapplicable under these
circumstances. See United States v. Harrison, 393 F.3d 805, 806 (8th Cir. 2005)
("Waiver extinguishes a potential "error" under [Federal Rule of Criminal Procedure]
52(b)."). In any case, I would decline such review because any failure to consider the
Government's belated argument does not "seriously affect[] the fairness, integrity, and
public reputation of judicial proceedings." United States v. Montanye, 996 F.2d 190,
193 (8th Cir. 1993) (en banc).

-24-
question required licensed automobile dealers to permit state officials to inspect
vehicle records "at any reasonable time during the night or day" and to allow
"examination of the premises of the licensee's established place of business for the
purpose of determining the accuracy of required records." Id. at 343. Pursuant to the
statute, a Chicago police officer entered a licensee's property and asked to see certain
records. The officer then requested and received permission to search cars on the
property.10 The officer determined some of the cars had been reported stolen, seized
the cars, and placed an employee of the licensee under arrest. The holder of the
license was later arrested and charged with criminal violations of Illinois motor
vehicle statutes.

The state trial court found the warrantless administrative search of licensees
unconstitutional and suppressed the evidence seized. The Appellate Court of Illinois
held the officer's good-faith reliance on the statute might be relevant and remanded
the matter to the trial court. On remand, the state trial court adhered to its original
decision and found the good faith of an officer is relevant only when he acts pursuant
to a warrant. The government appealed the trial court's decision directly to the
Supreme Court of Illinois which affirmed. The Supreme Court of Illinois held the
statute unconstitutional because it vested too much discretion in state officials to
decide who, when, and how long to search. The court also held the good-faith
exception did not apply to a procedural statute directly authorizing warrantless
searches.

The United States Supreme Court reversed the Supreme Court of Illinois
decision. The Krull Court stated the Leon exception applies where an officer's
reliance on a judge-issued warrant is objectively reasonable, even though the warrant
is ultimately found to be defective. The Krull Court noted Leon created the exception

10
Consent was an issue early on in the case but was not an issue before the
Supreme Court.

-25-
because (1) the exclusionary rule was historically designed to deter police misconduct
rather than punish the errors of judges, (2) there was no evidence judges were inclined
to subvert or ignore the Fourth Amendment, and (3) "of greatest importance to the
Court, there was no basis 'for believing that exclusion of evidence seized pursuant to
a warrant [would] have a significant deterrent effect on the issuing judge or
magistrate.'" Krull, 480 U.S. at 348. In considering these factors, the Krull Court first
concluded suppressing evidence obtained pursuant to an invalid statute "would have
as little deterrent effect on the officer's actions as would the exclusion of evidence
when an officer acts on a warrant." Id. at 349. Second, the Krull Court also declared:
"although [judges and legislators] clearly serve different functions in the criminal
justice system . . . . legislators, like judicial officers, are not the focus of the rule." Id.
at 350. The Krull Court found no evidence the legislators in question were inclined
to subvert the Fourth Amendment and stated: "Although legislators are not 'neutral
judicial officers,' as are judges and magistrates, neither are they 'adjuncts to the law
enforcement team.'" Id. at 35-51. Third, the Krull Court found the greatest deterrent
to the enactment of such legislation was not to exclude evidence in a particular case
but to invalidate the statute itself. The Krull Court stated: "[T]o the extent that
application of the exclusionary rule could provide some incremental deterrent, that
possible benefit must be weighed against the 'substantial social costs exacted by the
exclusionary rule.'" Id. at 352-53 (citing Leon, 468 U.S. at 907).

In addition, the Krull Court noted Leon had set forth two situations in which the
good faith exception would not apply: where the issuing magistrate wholly abandoned
his judicial role or where the warrant was so facially deficient the executing officers
could not have reasonably presumed it to be valid. Similarly, the Krull Court found
evidence seized pursuant to a statute later invalidated would not qualify for the good-
faith exception if the legislature (1) "wholly abandoned its responsibility to enact
constitutional laws," or (2) if the statute's "provisions are such that a reasonable officer
should have known that the statute was unconstitutional." Id. at 355. The Krull Court
found neither of these factors present in its review of the Illinois statute. To the extent

-26-
the statute vested too much discretion in state officials to decide who, when, and how
long to search, the Krull Court found "the additional restrictions on discretion that
might have been necessary are not so obvious that an objectively reasonable police
officer would have realized the statute was unconstitutional without them." Id. at 359-
60. Therefore, the Krull Court concluded that the officer had "relied, in objective
good faith, on a statute that appeared legitimately to allow a warrantless administrative
search of [the licensee's] business."11 Id. at 359.

Given the broad language used in Krull, even though, in my judgment, the
Nebraska statute at issue here, Neb. Rev. Stat. § 83-173, is unconstitutional (at least
as applied in this case to search the house of the escapee named in the arrest warrant
where the Government does not contest the escapee's standing to challenge a
warrantless search), the seizure of evidence incident to Lucas's arrest—based on an
arrest warrant issued pursuant to the invalid statute—resulted from the officers'
objectively reasonable reliance on the statute which required the issuance of the
warrant. The administrative warrant in question specifically references § 83-173 for
its authority. In § 83-173(11), the Nebraska legislature has mandated: "The Director
of Correctional Services shall . . . [i]ssue or authorize the issuance of a warrant for the
arrest of any person committed to the department who has escaped from the custody

11
The Krull Court noted in a footnote: "The answer to this question might well
be different when police officers act outside of the scope of the statute, albeit in good
faith." Krull, 480 U.S. at 360. It is arguable the officers here acted outside the scope
of Lucas's arrest warrant by using the warrant to enter a private residence. If they
acted outside the scope, the Krull holding might not apply to their conduct, even if
they acted in good faith. Id. But the Supreme Court has held, at least where a
judicially issued arrest warrant is involved, an arrest warrant can be used to enter a
private home where the officer holding the warrant has reasonable suspicion the
person named in the arrest warrant is in the home. Payton, 445 U.S. at 576. Here, the
officers executing the arrest warrant did have a reasonable suspicion Lucas was in the
house, so it appears they were acting within the scope of the arrest warrant when they
entered the house and seized Lucas.

-27-
of the department." No deterrent effect would result from suppressing the evidence
discovered as a result of the execution of the administrative arrest warrant at issue,
which affords no discretion to the Director of Correctional Services (which is another
reason why he is not neutral or detached as set forth in Shadwick v. City of Tampa,
407 U.S. 345 (1972)). If this court invalidated the warrant, Nebraska law enforcement
officers would continue to rely on other warrants authorized by other statutes. Krull,
480 U.S. at 349 ("Penalizing the officer for the [legislature's] error, rather than his
own, cannot logically contribute to the deterrence of Fourth Amendment violations."
(alteration in original) (paraphrasing Leon, 468 U.S. at 921)). And there is no
evidence here the Nebraska legislature was trying to subvert the Fourth Amendment
in authorizing the administrative arrest warrant for escapees. Further, if the statute or
warrant were ruled invalid, the Nebraska Legislature would be sent a strong message
to more carefully craft legislation in the future.

Finally, I submit it is not apparent from the face of the statute the administrative
warrant is invalid. The Supreme Court has held warrantless arrests of escapees are
valid if the arrest is made in public. United States v. Watson, 423 U.S. 411, 423-24
(1976). Thus, had the statute authorized the warrantless arrest of an escapee in a
public space, it would have been valid (albeit unnecessary). It is unreasonable to
expect an officer to know, because the statute instead added the additional step of
having an executive branch officer issue the arrest warrant, the warrant would be
invalid where used to enter a private residence. Further, there are a host of "re-take"
state statutes and at least one federal statute authorizing the Attorney General to issue
arrest warrants (arrest warrants for aliens pending deportation under 8 U.S.C. §
1226(a)) that authorize non-judicial arrest warrants. Thus, despite my position the
search of Lucas's primary residence was conducted pursuant to an invalid
administrative warrant, I conclude it was objectively reasonable for officers, in
arresting Lucas in his primary residence, to rely on the statute that authorized the
issuance of the arrest warrant. As a result, I disagree with Judge Beam's view that the
good-faith exception was inapplicable in this case. See, e.g., United States v. Hunt,

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893 F.2d 1028, 1031-32 (9th Cir. 1990) (holding the Leon good-faith exception
applied to save evidence seized as part of the execution of an arrest warrant issued by
the Oregon Department of Corrections pursuant to its authority under an Oregon
statute and citing the Krull decision in support), opinion withdrawn in part on other
grounds, 925 F.2d 1181 (9th Cir. 1991). I would apply the exception to save the
evidence seized from Lucas's residence. Thus, like the majority, I would affirm the
district court but for the very different reasons articulated in this concurrence.

RILEY, Circuit Judge, concurring in part, dissenting in part, and concurring in the
judgment.

Judge Beam, Judge Murphy, and Judge Bye have prepared thorough and
persuasive opinions. As a member of the original three-judge panel, I agree with
Judge Beam that the government has mended its hold by raising new arguments in its
petition for rehearing en banc. See Steagald v. United States, 451 U.S. 204, 208
(1981); In re Hen House Interstate, Inc., 177 F.3d 719, 724 (8th Cir. 1999) (en banc)
(rejecting a newly raised argument made for the first time in a petition for rehearing
en banc). The majority recognizes the panel was correct in its ruling on the issue
actually presented to the panel on appeal–the warrant was not issued by a neutral and
detached magistrate. Therefore, I join the conclusions of Judge Beam’s dissent,
except for the conclusion regarding United States v. Leon, 468 U.S. 897 (1984). I am
persuaded by Judge Bye’s concurrence and his conclusion Leon and Krull v. Illinois,
480 U.S. 340 (1987), save the day for the government’s evidence seized from Lucas’s
residence. Thus, I join Judge Bye’s concurrence affirming the district court’s denial
of Lucas’s motion to suppress. I also concur in part III of the majority opinion.

BEAM, Circuit Judge, with whom WOLLMAN and ARNOLD, Circuit Judges, join,
dissenting, and with whom BYE and RILEY, Circuit Judges, join in part.

This is a garden variety separation of constitutional powers case gone awry. A
majority of the judges in regular active service in this circuit employed late blooming,

-29-
previously unannounced legal concepts, advanced by the government for the first time
in its petition for rehearing en banc to vacate the unanimous opinion of the three-judge
panel and to create an en banc court. The en banc panel, contrary to existing Supreme
Court and circuit precedent, now accepts these new government theories to administer
to Tylan Lucas what the court apparently believes are his just desserts for being a bad
person and an escaped felon. To reach this result, the court performs a Texas
"Sidestep"12 around clearly established and plainly articulated Fourth Amendment
jurisprudence as established in Payton v. New York, 445 U.S. 573 (1980) and
Shadwick v. City of Tampa, 407 U.S. 345 (1972). From this unjust result, I
respectfully dissent.

BACKGROUND

Tylan Lucas was convicted of two felonies by the State of Nebraska in 2000.
He was sentenced to prison for each crime. In 2003, in anticipation of his release
from incarceration, he was assigned a job in the Nebraska Department of Correctional
Services' work-release program. In October of 2003, Lucas walked away from his
work-release assignment and an administrative warrant was almost immediately
issued for his arrest. Thereafter, Lucas began to reside with Theresa Scaife at her
apartment in Omaha.

12
This is the dance routine dramatizing the Texas Governor's reluctance to
follow existing law as made famous in the 1978 Broadway play The Best Little
Whorehouse in Texas. Scott Cain, Cincinnati: The Best Little Whorehouse in Texas,
http://www.talkinbroadway.com/regional/cincy/cincy19.html.

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 He was taken into custody within his home13 at 2316 Ogden Street by the
Omaha Police Department's Metro Fugitive Task Force14 on January 4, 2004. He was
returned to state control and housed at the Douglas County, (Nebraska) Correctional
Center. Evidence gathered at the time of the arrest was later used by the United States
to prosecute Lucas for the offenses at issue in this case. This evidence is the subject
of the motion to suppress under consideration in this appeal.

The officers used a warrant issued by Harold Clarke, the Director of
Correctional Services, an executive officer of the State of Nebraska, to force entry into
Lucas's home without consent. Clarke was statutorily authorized to and did issue the
warrant authorizing and directing Lucas's seizure and return to state custody. Neb.
Rev. Stat. § 83-173(11). Accordingly, any commissioned police officer "authorized
by law to make arrest[s]" in Nebraska having knowledge of the walk away or being
apprised of the contents of Clarke's warrant, with or without actual use of the
administratively issued document, was authorized to arrest Lucas if found on the street
or in any other place not affording him a protectable expectation of privacy as defined
by the Constitution. But, neither Nebraska statutes and regulations nor Clarke's
administrative arrest warrant purport to authorize or could authorize a nonconsensual
entry into Lucas's home to arrest him for a felony or to search for evidence of new
federal drug crimes, especially federal crimes for which neither reasonable suspicion
nor probable cause existed at the time of entry. Whether or not the warrant authorized

13
The evidence indicates that Lucas lived at this address with Scaife and the
Omaha Police considered it his "primary residence." Officer Carmody, an Omaha
Police Sergeant, testified that the Omaha Police consider a place where a person is
believed to be residing a primary residence. The government has not disputed that this
Ogden Street primary residence was Lucas's home at all times relevant to this
litigation.
14
The Task Force is a multi-agency task force encompassing the United States
Marshals Service, the Douglas County Sheriff's Office, the Omaha Police Department,
the Nebraska State Patrol and the Council Bluffs Police Department.

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Lucas's return to Nebraska's custody to serve the remainder of his previously imposed
felony sentences or to stand trial for his 2003 felony escape is not at issue here. The
plurality opinion authored by Judge Murphy contends that Lucas had signed a
"personalized plan" that required him to return to the Omaha Community Corrections
Center after work. I find nothing in the record that supports the existence of such an
agreement signed by Lucas. But, I find this irrelevant. At all times relevant here,
Lucas was chargeable with a Class III felony for the crime of escape when he walked
away from work release, with or without an agreement to return. Neb. Rev. Stat. § 28-
912(5).

DISCUSSION

I. Waiver

The government argued in the district court that Director Clarke was the
"neutral and detached magistrate" required by Payton or, if not, that the police entered
Scaife and Lucas's home by consent. The district court rejected the government's
"consent" argument, which ruling was not appealed, but accepted the government's
neutral and detached magistrate contention. On appeal to the three-judge panel, the
government renewed its argument that Clarke was the neutral and detached magistrate
required by Supreme Court precedent and, if not, that a "good faith" exception
applied. The neutral magistrate contention was rejected by the panel, a rejection now
conceded by the en banc court to have been correct. This made the good faith issue
inapplicable. United States v. Leon, 468 U.S. 897, 914 (1984).15

15
Judge Bye in his dissent and concurrence takes exception to my contention
that a good faith exception under Leon is inapplicable in this case. He cites Illinois
v. Krull, 480 U.S. 340 (1987), in support of his contrary view. I agree with almost
every part of Judge Bye's discussion of Krull. I disagree only with his conclusion that
Krull somehow opens the door to a determination that the evidence at issue in this
case is admissible under the teachings of Leon. As Judge Bye appears to concede in

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 Because it obviously believed that a Payton warrant was necessary to validate
Lucas's arrest and search, the government reasserted its neutral and detached
magistrate argument (or an argument that the warrant was close enough to the real
thing to do the job) in its en banc papers. Undeterred in its quest to prosecute Lucas
for federal drug crimes, the government in its petition for rehearing en banc also raised
for the first time two new and different legal theories. First, the government asserted
that as an at-large felon, Lucas had a diminished expectation of privacy that permitted
the arrest, the residential search and the property seizure notwithstanding the strictures
of Payton and Shadwick. The government's second new theory asserted that the
warrant was a valid administrative warrant that obviated the requirements of Payton
and Shadwick altogether.

As noted, the en banc court correctly rejects the neutral and detached magistrate
argument. Further, the en banc court accepts and adopts the government's new legal
theories over Lucas's well-articulated objections that the government waived these
arguments by failing to raise them in the first instance. Neither of these government
suppositions were presented to nor argued before the three-judge panel.

footnote 11 of his dissent and concurrence, the Supreme Court requires that when the
police enter a private residence, a Leon-qualifying warrant must be issued by a
"neutral magistrate" to "provide[] the detached scrutiny" necessary to accord "a more
reliable safeguard against improper searches than the hurried judgment of a law
enforcement officer engaged in the often competitive enterprise of ferreting out
crime." Leon, 468 U.S. at 913-14 (quotation omitted). There was no such warrant
here. Third, as also seemingly conceded by Judge Bye, Nebraska Revised Statute §
83-173 as applied in this case is unconstitutional. And, as Krull suggests, the proper
deterrent in such a situation is for the court to invalidate the statute–the greatest
deterrent to enactment of an unconstitutional statute is the power of the court to
invalidate because invalidation informs the legislature of its constitutional error and
affects admissibility of subsequently obtained evidence. Krull, 480 U.S. at 352-53.
Thus, at the bottom line, Krull is clearly not the pathway to a Leon good faith
exception in this case.

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 In Steagald v. United States, 451 U.S. 204, 208 (1981), the government was not
permitted to assert an "expectation of privacy" argument not raised in a timely fashion.
While there are instances in which this circuit has considered issues raised for the first
time on appeal, such situations have involved purely legal arguments requiring no
additional factual development or requiring an affirmative showing of manifest
injustice. Orion Fin. Corp. v. Am. Foods Group, Inc., 281 F.3d 733, 740 (8th Cir.
2002). Of course, factual considerations are required to evaluate both of these newly
minted legal theories and the issue of manifest injustice, if any, runs toward Lucas and
away from the government.

"Arguments and issues raised for the first time on appeal are generally not
considered," especially when "no good reason has been advanced to depart from that
rule." Aaron v. Target Corp., 357 F.3d 768, 779 (8th Cir. 2004). The reason
advanced by government counsel at oral argument was as follows:

Frankly, I don't think we anticipated the nature and the
scope of the [three-judge] court's ruling in this matter. And
again, I stand by the works of my colleagues and the
position of my office, but had I been writing the brief [on
appeal], I would have taken a different tack . . . and
different argument.

This essentially amounts to a confession by the government that they thought they
would win with the arguments advanced but when they did not, they needed to assert
a new theory in their petition for rehearing en banc.

Likewise, matters raised for the first time in a reply brief on appeal have been
routinely and peremptorily rejected by this court. Bearden v. Lemon, 475 F.3d 926,
930 (8th Cir. 2007). And, prior to the unusual procedure followed by the en banc
court in this case, the precedent of this circuit has been clear. Then Chief Judge
Bowman, writing in In re Hen House Interstate, Inc., 177 F.3d 719 (8th Cir. 1999),

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rejected a new assertion made in a petition for rehearing en banc and noted that a
"party [first] raising [an] argument on en banc rehearing would 'be allowed to deprive
the panel of the ability to address the issue first.'" Id. at 724 (quoting Stupak-Thrall
v. United States, 89 F.3d 1269, 1275 n.4 (6th Cir. 1996)). Adapting Justice
O'Connor's statement in Coleman v. Thompson, 501 U.S. 722, 747 (1991), to this
situation, it may correctly be said that consideration of these new issues for the first
time by the en banc court will have the effect of making the district court trial and the
three-judge panel's consideration of the issues asserted in the first appeal merely a
"tryout on the road," leaving open the option of presenting a newly created script
when the en banc court becomes the intended audience. Indeed, after intensive
computerized research of existing databases, I have been unable to find a single
instance in this circuit when an en banc panel has allowed new issues it believed to be
controlling to be raised for the first time by the losing party in a petition for rehearing
en banc, except, of course, matters of subject matter jurisdiction or Article III
standing. Considerable circuit precedent is being extinguished today by this en banc
opinion.

II. Arrest

The "physical entry of [Lucas's] home is the chief evil against which the
wording of the Fourth Amendment is directed." United States v. United States Dist.
Ct., 407 U.S. 297, 313 (1972). While "[t]he Fourth Amendment protects the
individual's privacy in a variety of settings[,] [i]n none is the zone of privacy more
clearly defined than when bounded by the unambiguous physical dimensions of an
individual's home–a zone that finds its roots in clear and specific constitutional terms:
'The right of the people to be secure in their . . . houses . . . shall not be violated.'"
Payton, 445 U.S. at 589 (omissions in original). It is this constitutional language that
"unequivocally establishes the proposition that '[a]t the very core [of the Fourth
Amendment] stands the right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion.'" Id. at 589-90 (quoting Silverman v.

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United States, 365 U.S. 505, 511 (1961)) (alterations in original). In Payton, the
Supreme Court determined that the Fourth Amendment, applied to the states through
the Fourteenth Amendment, "prohibits the police from making a warrantless and
nonconsensual entry into a suspect's home in order to make a routine felony arrest."
Id. at 576. And, a warrant for such purpose or for the purpose of a search for and
seizure of property within the home may be issued only by an official who is "neutral
and detached" and "capable of determining whether probable cause exists for the
requested arrest or search." Shadwick, 407 U.S. at 350.

The right of officers to thrust themselves into a home is . . . a grave
concern, not only to the individual but [also] to a society which chooses
to dwell in reasonable security and freedom from surveillance. When the
right of privacy must reasonably yield to the right of search is, as a rule,
to be decided by a judicial officer, not by a policeman or government
enforcement agent.

Johnson v. United States, 333 U.S. 10, 14 (1948) (emphasis added). But, an escaped
felon who has been arrested with a defective warrant does not get a free pass; he may
be returned to jail and he must still stand trial. Payton, 445 U.S. at 592, n.34.
However, evidence found and seized during such arrest and entry is subject to an
exclusionary rule analysis and may be inadmissible at trial. Id. at 591-92.

Even though an administrative warrant based specifically upon Lucas's escape
from work release was used to force entry into his home, the government contends
in its petition for rehearing en banc that "[t]he [Clarke] warrant was not based on a
new criminal charge." The court en banc appears to join this contention when it says
in support of the newly created administrative warrant theory, which theory I will
discuss in more detail shortly, "[t]he standard for issuance of a valid administrative
warrant under the Fourth Amendment is different from the probable cause showing
necessary for a warrant to arrest someone suspected of a crime." Ante at 7 (emphasis
added).

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 It is more than obvious that the Fourth Amendment prohibited police entry into
Lucas's home if he was not suspected of a crime. It is equally obvious that breaching
the privacy of his home to arrest him for a suspected felony required compliance with
Payton and Shadwick. However, adherence to these cases did not occur.

The en banc court concedes that the three-judge panel was correct in finding
that Clarke's warrant did not pass muster under Payton. It says

Although Director Clarke's role in issuing the arrest warrant for Lucas
was quite different from the jailer's issuance of search warrants in
[United States v.] Parker, [373 F.3d 770 (6th Cir. 2004)], Clarke was not
a neutral and detached magistrate in the sense of a judicial officer. He
was appointed by the governor, who sat his salary and had power to
remove him at will. Neb. Rev. Stat. §§ 81-102, -103.

Ante at 7. To extract themselves from this constitutional dilemma, the government
and the court en banc advance this "no new crime" argument, a clearly spurious
contention under the facts of this dispute. But, even if correct, it leads them nowhere.

The government and the court do not tightly reason the details of their position.
Presumably the contention relies upon a diminished or nonexistent expectation of
privacy approach which in some way relates to Lucas's year 2000 convictions and
sentences. In other words, they seem to say that a mantle of criminality carrying with
it the evaporation of constitutional protections hovered over Lucas, even in his work-
release assignment, until his year 2000 sentences had expired. Accordingly, then, they
say, it was this continuing vestment of illegality, not his more recent escape felony,
that permitted Lucas's in-home arrest. Of course, neither fact nor precedent support
this theory. Indeed, case-based reasoning counsels to the contrary. See Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987) ("A probationer's home, like anyone else's, is
protected by the Fourth Amendment's requirement that searches be 'reasonable.'");
Hudson v. Palmer, 468 U.S. 517, 524 (1984) (noting that while imprisonment carries

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with it the circumscription of some rights "persons imprisoned for crime enjoy many
protections of the Constitution").

First the facts. The "warrant of arrest," issued by Director Clarke was "for
[2003] escaped prisoner" Tylan Lucas. It referred to his underlying convictions and
sentences of January and June 2000 and noted that Lucas had been "delivered to the
Nebraska Department of Correctional Services on March 1, 2000, [and] has [now]
escaped from the custody of the Department." It further "authorized and directed
[the] arrest of said escapee." (Emphasis added). The escape set forth in the warrant
resulted when Lucas failed to return from this work-release assignment to community
corrections following temporary leave granted for work release for a limited period.
See Neb. Rev. Stat. § 28-912(1). It was this warrant that was used to force a
nonconsensual entry into the residence of Theresa Scaife and Lucas at 2316 Ogden
Street, Omaha, Nebraska. At that time, Lucas was arrested by Omaha Police
Department Task Force officers, as permitted and required by Nebraska law, for
escape, a Class III felony and not for unstated continuing obligations arising from his
year 2000 sentences or for violation of any work release administrative rules
established by Nebraska statutes or duly promulgated agency regulations.16

16
In footnote 4, ante at 7, the plurality opinion concedes, at least by implication,
that its several conclusions are erroneous if Tylan Lucas was arrested for a felony at
2316 Ogden Street in Omaha. Although it makes no real difference as I point out
below, to dispel the erroneous contention that the administrative warrant was issued
only to "retake" Lucas, I attach a copy of the document to this dissent as Appendix A.
To buttress its arrest arguments, the plurality appears to contend that the words
"arrest" and "retake" have different meanings in this dispute. At best, this finding is
an act of semantic legerdemain, that is, it advances a difference without a distinction
to reach a predetermined result while steadfastly resisting the application of clearly
established Fourth Amendment law. And, unfortunately, Judge Shepherd's
concurrence seems also to incorporate elements of this same fiction. United States v.
Sager, 881 F.2d 364 (7th Cir. 1989), addresses this point. Sager, a parolee, contended
that as such he could not be subject to an "arrest warrant." Id. at 366. Although the
parole statute, 18 U.S.C. §§ 4201 et seq., referred to by the Sager court has been

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repealed effective November 2005, as a result of the Sentencing Reform Act of 1984,
the Seventh Circuit correctly analyzes the issue for our purposes:

In support of his position, Mr. Sager invites our attention to the
statutory language. The statute dealing with parole violations, 18 U.S.C.
§ 4213, empowers the Parole Commission to "issue a warrant and retake
the parolee." 18 U.S.C. § 4213(a)(2) (emphasis added). By contrast,
Rule 4, dealing with the apprehension of a person wanted to answer a
criminal charge, employs the word "arrest." Fed. R. Crim. P. 4.
Similarly, 18 U.S.C. § 3606, dealing with the apprehension of probation
violators and those on supervised release, speaks in terms of "arrest."
Therefore, Mr. Sager argues, section 1071 is not applicable because there
was no outstanding arrest warrant for Carlos Aubrey at the time Mr.
Sager allegedly concealed him.

Id. at 365 (footnote omitted).

The Seventh Circuit then said:

While it is true that a parolee is "in custody," it is also true that he
retains a legally cognizable liberty interest that is significantly
greater than that enjoyed by one who is incarcerated. See
Morrissey v. Brewer, 408 U.S. 471, 482 (1972). To deprive him
of that liberty interest and place him in a custodial status is indeed
to arrest him, as that term is usually understood. We must assume
that Congress intended the term to be given such a common-sense
meaning. Certainly, this conclusion is not undercut simply
because Congress did not use the term "arrest" in section 4213
when it was dealing exclusively with the process of parole
revocation. There, without unnecessarily limiting the ambit of the
section, Congress was able to employ the more descriptive phrase
"retake." However, even in that section, Congress manifested, in
the later subsections of section 4213, its understanding that the
execution of a "warrant to retake" effectuates an "arrest." The
physical deprivation of liberty described in subsection (d)
certainly constitutes a sufficient deprivation of liberty to constitute

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 In State v. Coffman, 330 N.W.2d 727 (Neb. 1983), the defendant walked away
from work release and was arrested and charged under Nebraska statute section 28-
912(1). The defendant contended, "cunning[ly]" the court noted, that "work release
[was] a form of parole" and that, accordingly, there was insufficient evidence to
convict him of the crime of "escape." Id. at 728-29. The Nebraska Supreme Court,
again citing the precise "temporary leave" language set forth above, rejected
Coffman's argument that work release is parole (calling it variously absurd, farcical
and frivolous) and said "for the purposes of determining whether one has escaped it
is but 'temporary leave,'" id. at 729, as defined in the statute and "when [Coffman] did
not return . . . he had obviously escaped." Id. He was properly arrested and charged
according to the Nebraska court. Thus, the Nebraska Supreme Court has made clear
that Lucas, like Coffman, committed a new felony and was arrested in his home for
the offense–with a defective warrant.

Now the precedent. Ignoring that the warrant clearly targeted the commission
of the new crime of escape, the government contends, and the en banc court seemingly
agrees, that, with or without a warrant, Lucas's home, because he was a prison
escapee, afforded him only a diminished (or non-existent in the view of some)

an "arrest." Indeed, the Parole Board and other courts of appeals
have characterized this event as an arrest.

Id. at 366-37 (footnotes omitted).

Tylan Lucas, as a work-release assignee, even in escapee status, had a "legally
cognizable liberty interest that is significantly greater than that enjoyed by one who
is [confined within a prison] incarcerated." Id. at 366. This is especially true because
he is now being confined, at least in large part, for prosecution for a new federal drug
crime on the basis of the unconstitutionally gathered evidence, not for his year 2000
offenses or for the crime of escape.

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measure of constitutionally protected privacy.17 Lucas, says the government, is a
prison escapee from whom the public must be protected.18 Indeed, it says, the
government had a duty to apprehend this at-large felon. Both the duty to apprehend
and diminished privacy theories have to rely on Lucas being regarded, even in his
home, as the "trespasser on society" referred to in dicta in United States v. Roy, 734
F.2d 108, 111 (2d Cir. 1984). Roy's facts reject this long discredited rationale.

Roy involved the search of the passenger compartment and trunk of an
automobile, not a home. Id. at 108. Thus, the automobile exception recognized in
California v. Carney, 471 U.S. 386 (1985), was clearly in play.

"[T]he guaranty of freedom from unreasonable searches and seizures by
the Fourth Amendment has been construed, practically since the
beginning of Government, as recognizing a necessary difference between
a search of a store, dwelling house or other structure in respect of which
a proper official warrant readily may be obtained, and a search of a ship,
motor boat, wagon or automobile, for contraband goods, where it is not
practicable to secure a warrant because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant must be sought."

Id. at 390 (quoting Carroll v. United States, 267 U.S. 132, 153 (1925)) (alteration in
original). "The capacity to be 'quickly moved' was clearly the basis of the holding in

17
The plurality opinion says "[a]s an escapee Lucas had only a minimal
expectation of privacy in Scaife's apartment." Ante at 10. See also Judge Shepherd's
concurrence.
18
In footnote 5, ante at 12, the plurality opinion and Judge Shepherd, in apparent
agreement, contend that the "government has never claimed that Lucas had a
reasonable expectation of privacy in Scaife's apartment." As carefully and correctly
noted by Judge Bye in his dissent and concurrence, the record clearly demonstrates
the inaccuracy of this statement.

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Carroll, and our cases have consistently recognized ready mobility as one of the
principal bases of the automobile exception." Id.

Further, Judge Friendly, concurring in Roy, said

I am not at all convinced that Roy's Fourth Amendment claims should be
dismissed on the ground that, because he had escaped from prison, he
had no expectation of privacy "that society is prepared to recognize as
'reasonable'." Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,
J., concurring). When Justice Harlan's much-quoted observation is read
in context, it becomes apparent that he was speaking of the places where
society would be prepared to recognize an individual's reasonable
expectation of privacy, not adumbrating a doctrine whereby certain
classes of persons could be denied Fourth Amendment protections that
would otherwise extend to them.

Roy, 734 F.2d at 112 (footnote omitted). Hudson, 468 U.S. 517, enlightens this same
issue. The Supreme Court noted that "while persons imprisoned for crime enjoy many
protections of the Constitution, it is also clear that imprisonment carries with it the
circumscription or loss of many significant rights." Id. at 524 (emphasis added). The
Supreme Court further said:

We have not before been called upon to decide the specific question
whether the Fourth Amendment applies within a prison cell, but the
nature of our inquiry is well defined. We must determine here, as in
other Fourth Amendment contexts, if a "justifiable" expectation of
privacy is at stake. Katz v. United States, 389 U.S. 347 (1967). The
applicability of the Fourth Amendment turns on whether "the person
invoking its protection can claim a 'justifiable,' a 'reasonable,' or a
'legitimate expectation of privacy' that has been invaded by government
action." Smith v. Maryland, 442 U.S. 735, 740 (1979), and cases cited.
We must decide, in Justice Harlan's words, whether a prisoner's
expectation of privacy in his prison cell is the kind of expectation that
"society is prepared to recognize as 'reasonable.'" Katz, supra, at 360,
361 (concurring opinion).

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Id. at 524-25 (footnotes omitted).19 Thus, while Fourth Amendment rights are
personal, United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000), it is abundantly
clear that the expectation of privacy tests applied by the court in the implementation
of the Fourth Amendment concern places rather than persons.20 Certainly, Lucas had
a constitutionally supported expectation of privacy in his home that he may not have
had in his prison cell or in his automobile or while using a telephone booth or a
telephone wired to a pen register. Accordingly, Roy is inapposite to the government's
and the en banc court's expectation of privacy contentions and the court supplies
absolutely no precedent to the contrary.

19
While the Supreme Court in Hudson found no expectation of privacy inside
the prison cell, the Court has not addressed the Fourth Amendment rights of prisoners
outside the cell, even while in an incarcerated status. See Thompson v. Souza, 111
F.3d 694, 699 (9th Cir. 1997) ("The Supreme Court has not decided whether prison
inmates retain rights cognizable under the Fourth Amendment."). The Ninth Circuit
has determined that incarcerated prisoners do have some Fourth Amendment
protections, dependent upon the prison context. Michenfelder v. Sumner, 860 F.2d
328 (9th Cir. 1988) (examining reasonableness of strip search under Fourth
Amendment). Likewise, other circuits have made similar holdings. See Peckham v.
Wisconsin Dep't of Corr, 141 F.3d 694, 697 (7th Cir. 1998) (incarcerated prisoners do
enjoy some Fourth Amendment protections against strip searches); Franklin v.
Lockhart, 883 F.2d 654, 655-56 (8th Cir. 1989) (same). The considerations of the
Supreme Court in Hudson involved the confinement of individuals guilty of antisocial
criminal and violent conduct, the prevention of the introduction of drugs into the
premises, the ability of inmates to conceal contraband in their cells, and the need to
maintain a sanitary environment. However, none of these concerns apply to
individuals who are free to come and go on work release assignments. Indeed, none
apply outside the prison yard.
20
For example, see California v. Carney, 471 U.S. 386 (1985) (automobile);
Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell); Payton v. New York, 445 U.S.
573 (1980) (home); Smith v. Maryland, 442 U.S. 735 (1979) (pen register); Katz v.
United States, 389 U.S. 347 (1967) (telephone booth).

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III. Administrative Warrant

With regard to the government and the plurality opinion's administrative
warrant emanations, the court advances ten cases in support of its analysis. With one
exception, none involve a home search by a police agency. The one exception is
directly contrary to controlling Supreme Court precedent. I will briefly discuss each
case.

Abel v. United States, 362 U.S. 217 (1960), a case that actually supports Lucas,
arose out of a non-criminal custodial detention using an administrative warrant issued
by the Director of the Immigration and Naturalization Service (INS) as a preliminary
to Abel's deportation as an illegal alien. Id. at 218. Evidentiary "seizures did not
occur in connection with the exertion of the criminal process against [Abel]." Id.
Abel's immigration restraint occurred in a New York hotel room by action of INS
operatives. Prior to this, the Federal Bureau of Investigation (FBI), the only police
agency involved, was informed that Abel was suspected of espionage. The FBI asked
permission to interview Abel before any immigration detention. This venture proved
unfruitful and the FBI then deferred to INS agents who seized him. After Abel had
"agreed to check out of the hotel," the FBI asked hotel management for permission to
search the room, which permission was granted, and a search for evidence to make a
criminal case of espionage was undertaken. Id. at 224-25. The Supreme Court
emphasized that any administrative search by INS agents was to look for
"documentary evidence of alienage." Id. at 226-28. Of perhaps even more
importance, the Fourth Amendment validity of the administrative warrant was not
considered by the Court because Abel failed to raise the issue in the lower courts. Id.
at 230. In sum, Abel provides little support for any of the en banc court's rulings.

Camara v. Municipal Court, 387 U.S. 523 (1967), also substantively supports
Lucas. The case involved an alleged violation of section 503 of the San Francisco
(California) Building Code, a "part of a regulatory scheme which [was] essentially

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civil rather than criminal in nature" according to the California District Court of
Appeal. Id. at 528 (quotation omitted). And, a violation of any part of the Code was
but a "misdemeanor." Id. at 527 n.2. But even in these circumstances the Supreme
Court required the use of a warrant reviewed and issued by a neutral magistrate, id.
at 532, stating:

"The right of officers to thrust themselves into a home is also a grave
concern, not only to the individual but to a society which chooses to
dwell in reasonable security and freedom from surveillance. When the
right of privacy must reasonably yield to the right of search is, as a rule,
to be decided by a judicial officer, not by a policeman or government
enforcement agent."

Id. at 529 (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). The Court
further said, "[i]t is surely anomalous to say that the individual and his private
property are fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior," id. at 530 (footnote omitted), and that even the most
law-abiding citizen has an interest in preventing entry into his home without a
warrant, even for civil purposes. Id. at 530-31.

The en banc court substantively ignores the principal thrust of Henderson v.
Simms, 223 F.3d 267 (4th Cir. 2000), a "qualified immunity" case that presents none
of the issues at large in this case. Henderson is a 42 U.S.C. § 1983 case in which three
validly released inmates who were subject to "'mandatory supervision,' a release status
similar to parole," id. at 269, were mistakenly reincarcerated for a number of days
through use of administrative retake warrants authorized by Maryland law. The
inmates sued individual state officers alleging violation of the Fourth and Fourteenth
Amendments. While the Fourth Circuit stated that a few days of "reincarceration"
using a retake warrant based upon findings specifically delineated by Maryland statute
did not violate the Fourth Amendment, the court also opined at length that if it did, the
court was "convinced that [the Fourth Amendment] rights were not clearly established

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at the time of the seizures." Id. at 273. This case offers exceedingly thin gruel as
nourishment for the en banc court's Fourth Amendment emanations.

In United States v. Cardona, 903 F.2d 60 (1st Cir. 1990), which the two-judge
majority characterized as "Griffin Redux," the First Circuit validated a police search
of Cardona's Rhode Island residence through the use of a parole violation warrant
issued by the New York parole board. But, as noted by the Cardona dissent, "the
majority distorts both the substance and method of [F]ourth [A]mendment
jurisprudence." Id. at 69 (Bownes, J., dissenting). This, according to the dissent, is
because the Cardona court strains to extend Griffin's "'special needs' exception from
searches by parole administrators to seizures by police officers, a situation clearly not
covered, and arguably forbidden, by the language of Griffin." Id. The dissent is
clearly correct that Griffin is restricted to administrator's arrests and searches based
upon detailed and pervasive regulations put in place by state statute and court order.
Thus, Cardona is irrelevant to Lucas's situation.

The warrentless search in United States v. Knights, 534 U.S. 112 (2001), was
specifically consented to through a signed agreement arising from a court order
granting probation, id. at 114, and in Samson v. California, 126 S. Ct. 2193 (2006),
the parolee was searched and seized while walking on the street, not in his home. And
while the en banc court cites these two cases for the proposition that "an escapee from
lawful custody [has] an even more circumscribed expectation of privacy than
[probationers] and [parolees]," such words or inferences appear in neither of the
opinions and as applied to this case are palpably incorrect. Likewise, the court's
statement that Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978), stands for "a minimal
expectation of privacy" for Lucas at his home is not supported by the cited footnote.
Indeed, a full examination of the note establishes a contrary proposition.

Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), an Occupational Safety and
Health Act (OSHA) regulation case cited by the court, notes that a lower standard for

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the issuance of an administrative warrant stems from "relatively unique
circumstances" involving certain industries with "such a history of government
oversight that no reasonable expectation of privacy could exist" for the owner of the
business. Id. at 313 (citation omitted). But, the Supreme Court has specifically noted
that the Camara-Marshall definition of administrative probable cause is not
"[p]robable cause in the criminal law sense." Id. at 320. Indeed, when "seeking
evidence to be used in a criminal prosecution, the usual standard [of probable cause]
will apply." Michigan v. Tyler, 436 U.S. 499, 508 (1978) (alteration in original)
(quotation omitted).

Griffin v. Wisconsin, 483 U.S. 868 (1987), comes closest to supporting the en
banc court's administrative warrant position. But, in the final analysis, it is
inapplicable to Lucas's situation.

Joseph Griffin, a probationer, had his home searched without a warrant. The
supervisor of Griffin's probation officer received a tip that Griffin's apartment might
contain contraband. Based upon this information, he authorized Griffin's probation
officer to conduct a search of Griffin's home, in which the supervisor participated.

Wisconsin law puts probationers in the legal custody of the State
Department of Health and Social Services and renders them 'subject
. . . to . . . conditions set by the court and rules and regulations
established by the department.' Wis. Stat. § 973.10(1) (1985-1986). One
of the Department's regulations permits any probation officer to search
a probationer's home without a warrant as long as his supervisor
approves and as long as there are 'reasonable grounds' to believe the
presence of contraband.

Id. at 870-71 (omission in original). To protect the probationer's Fourth Amendment
rights, "[t]he rule provides that an officer should consider a variety of factors in
determining whether 'reasonable [constitutional] grounds exist" to search. Id. at 871.

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 Justice Scalia writing for a five-member Court in Griffin, noted that a state's
operation of a probation system or other possible plans, including, specifically, a
work-release program, present "'special needs' beyond normal law enforcement"
activities, id. at 873-74, because they are "a form of criminal sanction imposed by a
court upon an offender after verdict, finding, or plea of guilty." Id. at 874 (quotation
omitted). However, "[a] probationer's [and a work release walk away's] home, like
anyone else's, is protected by the Fourth Amendment's requirement that searches be
'reasonable.'" Id. at 873. It is important to note that in Griffin, the Wisconsin
Supreme Court allowed a search of the probationer's home "because [Griffin's]
probation diminishes [his] reasonable expectation of privacy." Id. at 872. Upon
review by the United States Supreme Court, this "new principle of law" adopted by
the Wisconsin court was pointedly not "embrace[d]." Id. Accordingly, these "special
needs" beyond the normal need for law enforcement are employable only when "the
[usual] warrant and probable-cause requirement[s] [are] impracticable." Id. at 873
(quotation omitted). Additionally, it seems certain that there must be in place, as in
Wisconsin, a state-enacted regulatory scheme that satisfies the Fourth Amendment's
reasonableness requirements and the entry, detention and search must be carried out
entirely by administrative officers under the authority of the state's regulations. See
id. at 873-75.

While the direct facts of Griffin encompass a probationer (as opposed to a work
release walk away) and a residential search for contraband (as opposed to a residential
arrest and search incident thereto), there is little doubt, even giving the government
and the court en banc the case's best gloss, that Griffin establishes legal principles
fully applicable to Lucas. Thus, the following analysis controls the outcome of this
case. The usual warrant and probable cause requirements were fully practical. There
was nothing that prohibited the securing of the Ogden Street residence while a judicial
officer was consulted. The probation supervisor's approval of the probation officer's
search can probably be considered a reasonable substitute for Director Clarke's
administrative warrant. The supervisor's approval was directed to an agency

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employee (the searching probation officer) but Director Clarke's directions were
addressed only to police personnel authorized by law to make arrests. The
supervisor's approval was based upon a finding of reasonable grounds to believe that
there was contraband in Griffin's home but Clarke's warrant was based upon a finding
that Lucas "had escaped from . . . custody," not that he could or would be found at his
home. However, I concede that the Omaha police officers developed reasonable
suspicion that he was at his home on Ogden Street. The Griffin supervisor's actions
were based upon Wisconsin's comprehensive administrative rules regime. But, there
is no showing in the record that Nebraska has any administrative agency procedures
that are at all comparable to the Wisconsin scheme. Indeed, a search of the record and
research beyond the record reveals a contrary environment.21 The Wisconsin approval

21
Griffin stresses the completeness of Wisconsin's probation scheme as
promulgated by statute and regulation. The statutory and regulatory scheme under-
pinning Nebraska's work-release program is not comparable. Nebraska Revised
Statute § 83-183(1) provides that individuals in custody of the Department of
Correctional Services should be put into the work force to aid their rehabilitation. The
same statute requires that the Director of the Department of Correctional Services
"shall make rules and regulations governing the hours, conditions of labor, and the
rates of compensation of persons committed to the department." Neb. Rev. Stat. § 83-
183(2). Generally, "[i]t is the Department's policy to provide . . . employment
programs to those inmates who are in need of such . . . programs." 68 Neb. Admin.
Code Ch. 7, § 002 (2007). Other than this general statement, the Nebraska
Administrative Code's chapter for the Department of Correctional Services is silent
on the administration of work release. However, more detailed regulations may be
found at http://www.corrections.state.ne.us/policies/index.html. These administrative
regulations, promulgated by the Director of the Department of Correctional Services,
contain various provisions regarding the criteria and approval process for participation
in work-release programs, universal job requirements, worker job descriptions, pay
scales, performance evaluation, job termination, overtime, and even excused and non-
excused absences. See Nebraska Department of Correctional Services Administrative
Regulations 109.01, 113.18, 201.07, and 209.02. However, as far as I have found,
these regulations contain nothing similar to those of Wisconsin regarding authority to
"arrest," "retake" or search within the home of a prisoner who walks away from his
work-release job.

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and search was undertaken and completed by state probation officers but Lucas was
arrested in his home by agents of an Omaha Police Department task force, not
Department of Corrections employees, and through use of a warrant defective under
Payton.

Finally, and most importantly, the Nebraska legislature has affirmatively
deemed escape a Class III felony rather than an administrative rules violation, and,
as interpreted by State v. Coffman, has made Lucas's arrest an apprehension for a
"routine felony" requiring a warrant that passes constitutional muster under Payton.
Accordingly, the evidence seized in Lucas's home must be suppressed.

IV. Theresa Scaife

The court's rhetoric that Lucas has no standing "to assert Scaife's Fourth
Amendment" rights is beside the point. The record establishes that the intruding
police officers were ultimately concerned with Scaife's connection with drugs found
in her coat in the residence and with a weapon found under the mattress of the only
bed in the premises. Except for the limited "non-prosecution" agreement she has with
the United States, Appendix at 21, she, too, is at risk of prosecution for state and
federal drug crimes, especially, for instance, for possession or conspiracy to possess
illegal drugs for her own use, if not for distribution.

At the time Scaife refused to give the police permission to enter, she was not
suspected of committing a crime nor was she on parole, probation or in an escape
status. Nonetheless, if the fruits of this search are declared valid, Scaife and many
other similarly situated individuals in this circuit who share an abode with an alien,
OSHA or housing code violator, parolee, probationer or escapee, will have little if any
basis to exclude evidence in a criminal prosecution. See Georgia v. Randolph, 547
U.S. 103 (2006) (physically present co-occupant's refusal to permit entry makes search
unreasonable as to him); United States v. Davis, 932 F.2d 752 (9th Cir. 1991) (non-

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probationer co-occupant cannot suppress evidence found in jointly used portions of
residence, with or without inquiry as to ownership by police).

CONCLUSION

The police arrived at the home of Theresa Scaife and Tylan Lucas and used an
administrative arrest warrant that concededly did not pass Payton v. New York
constitutional muster to enter, arrest and search Lucas. The court, acting upon new
theories advanced in the petition for rehearing en banc, finds these acts to be
constitutional.

In doing so, the court offers a series of inapposite and distinguishable cases
supposedly authorizing this entry because the administrative warrant was
constitutionally sufficient or because Lucas had a limited expectation of privacy in his
home as a result of his escape status. This is error.

Lucas is not a model citizen. And it is almost certain that a valid warrant would
have been issued by a neutral and detached magistrate, if requested, making the
requirement seem but a technicality. Nonetheless, even escapees have the right to
expect the benefits of the rule of law. These benefits were denied him by the Omaha
Police Department and are being denied him by the court en banc today. The evidence
at issue should be suppressed.

I dissent.

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