United States v. Cunningham

F I L E D
United States Court of Appeals
Tenth Circuit

July 1, 2005
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-3026

WILLIAM CUNNINGHAM,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 03-CR-20073-GTV)

Patrick J. Berrigan, of Watson & Dameron, LLP, Kansas City, Missouri,
appearing for the Defendant-Appellant.

Leon J. Patton, Assistant U.S. Attorney (Eric F. Melgren, United States Attorney,
with him on the briefs), Kansas City, Kansas, appearing for the Plaintiff-
Appellee.

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
KELLY, Circuit Judge.

SEYMOUR, Circuit Judge.
 Mr. William Cunningham conditionally pled guilty to one count of making,

possessing, and uttering counterfeit securities (checks), in violation of 18 U.S.C.

§§ 2 and 513(a). He appeals the denial of his motion to suppress, contending the

district court erred in finding that his consent to a search of his home by law

enforcement officers was voluntary. We affirm on the alternative basis of the

inevitable discovery doctrine.

I

From November 2002 through January 2003, law enforcement officers were

investigating a counterfeit check-writing ring in the Kansas City metropolitan

area. On January 28, 2003, four suspects in the ring were arrested as they tried to

pass counterfeit checks at banks in Overland Park, Kansas and Kansas City,

Missouri. Information obtained from these suspects led law enforcement to

believe they should focus their investigation on the 1100 block of East 76th

Terrace in Kansas City, Missouri. Specifically, one of the suspects identified the

residence at 1179 East 76th Terrace as the house from which their check

“supplier,” James Hughes, had gone to obtain the counterfeit checks. Another

suspect reported that Hughes had actually acquired the checks from the

neighboring house at 1175 East 76th Terrace. The two remaining suspects were

unsure whether Hughes had derived the checks from either address. Police noted

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that the homes share a common driveway.

Based on this information, Police Detective Kevin Duncan prepared an

affidavit for a search warrant for the residence located at 1175 East 76th Terrace

and presented it to the Assistant United States Attorney (AUSA). According to

Detective Duncan, during the meeting with the AUSA,

We came to the agreement that at this time it wouldn’t be best to proceed
with the search warrant based on the possibility that we would go into the
wrong address. Obviously, that was a concern to everyone, and we decided
to go ahead and continue surveillance and now concentrate on that area
including those two houses . . . .

Aplt. App. at 82-83. In other words, although probable cause existed to believe

that the supplier had obtained the checks from either 1175 or 1179 East 76th

Terrace, the police pursued a policy of additional surveillance in order to

specifically determine which of the two houses was the source of the criminal

activity. The officers set up surveillance of the residences on the evening of

January 29, 2003. That night they observed a red Chevrolet Lumina parked at

1179 East 76 Terrace. The vehicle matched the description of a car belonging to

Tikko Parish, an individual previously identified by other suspects as someone

who had frequently accompanied Hughes. As the car left the residence, officers

stopped it and discovered both Hughes and Parish inside.

Police also stopped a black pickup truck in the area, which was being

driven by Mr. Cunningham. He informed them he resided at 1179 East 76th

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Terrace. Mr. Cunningham was arrested on unrelated charges of driving with a

suspended driver’s license and transported to jail. Although Mr. Cunningham had

not been implicated in the check-writing ring, the black pickup truck he drove

matched the description of one identified earlier in the investigation.

Subsequent to the traffic stops, officers decided to knock at the door of

1175 East 76th Terrace. The residents, a family of three, permitted the officers to

enter and look around their home. They spoke freely with the police and pointed

out that the gray Blazer parked in the shared driveway – which matched the

description of a vehicle earlier identified with Hughes – belonged to 1179 East

76th Terrace. Once the officers were satisfied that Hughes had not obtained the

checks from 1175 East 76th Terrace, they decided to attempt to make contact with

someone at 1179 East 76th Terrace.

As police knocked at the door of 1179 East 76th Terrace, Detective Linny

Cunningham, a twenty-five year veteran of the Kansas City, Missouri, Police

Department, arrived on the scene. Mrs. Cunningham recognized one of the

officers present as Sergeant Roy Orth, a fellow member of her police department.

Although Sergeant Orth was superior in rank to Mrs. Cunningham, he had no

supervisory authority over her. Mrs. Cunningham identified herself as the owner

of the house and reported that although she did not live at the location, her

twenty-nine year old son, William Cunningham, had resided there for five years.

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Sergeant Orth indicated that the officers needed to get inside the house. He

declined Mrs. Cunningham’s offer to let them in, however, due to her inability to

legally consent to a search of the home.

In the meantime, police released Mr. Cunningham from jail on a bond and

transported him to 1179 East 76th Terrace for the purpose of obtaining his

consent to search the house. When Mr. Cunningham arrived, the officers

implored him to give consent to a search of his residence. They indicated that

they were conducting an ongoing investigation and would obtain a search warrant

should he refuse to provide consent. Nevertheless, Mr. Cunningham repeatedly

refused to give permission to search. Even after his mother spoke to him, he

continued to resist signing the consent form. Eventually, Mrs. Cunningham told

her son “I got the feeling that I was in trouble now with the PD because with Orth

there and he’s expecting me to get [the consent form] signed for him.” Id. at 192.

She also informed her son that should he decide not to sign the consent form, the

police were going to get a warrant and “they were going to go in there and they

are going to tear up your house. Hopefully they won’t do anything to the dogs

inside of the house.” Id. at 203. As Mrs. Cunningham spoke to her son, “he was

sad, and he started sobbing.” Id. at 192.

According to Mr. Cunningham’s testimony, his mother said:

[T]hey are going to get in your house; they are going to tear your doors
down. Your dogs are in there. You’ve got a pit bull, you know . . . . They

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 are going to destroy your house. They are going to tear your doors off the
hinges. Your dogs are going to get shot. Just let them in.

Id. at 217-18. Mr. Cunningham testified he was concerned that he had already

embarrassed his mother and did not wish to get her into trouble. He spoke with

her for five to ten minutes and “it was just upsetting.” Id. at 219. At the

conclusion of their conversation and approximately twenty minutes after his

arrival on the scene, Mr. Cunningham finally consented to the search of his home.

During the search, the police observed numerous items of evidentiary value

including check stock paper, a shredder, and a computer with latex gloves nearby.

The officers did not seize any evidence at the time. Instead, they secured the

premises and revised their prior affidavit for a search warrant to include the new

information that had focused them on 1179 East 76th Terrace, as well as the

evidence they had seen at Mr. Cunningham’s residence. A magistrate judge

signed a search warrant and the police then seized the incriminating items.

Mr. Cunningham filed a motion to suppress the evidence obtained from his

home, arguing that his mother had coerced his consent. The district court,

however, found that the consent was valid and voluntary, stating:

I find that this may have been a very awkward situation for Mrs.
Cunningham, the defendant’s mother, but I think whether she was a mother
or an officer or how she was acting is not really the point here because I
think the totality of the evidence – and even if the representations that she
made, if she made them to the defendant as a police officer, would still in
this court’s opinion fall short of coercion such as to render the consent
other than voluntary. That finding, of course, is tempered by the fact that

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 this was his mother telling him to sign this, and as I’ve said, even though it
is an awkward situation for her, I find nevertheless that her actions did not
rise to coercion.

Id. at 233. The court found that the officers had eliminated 1175 East 76th

Terrace as a possibility before they obtained the warrant for Mr. Cunningham’s

home and there was thus probable cause for the warrant. Consequently, the court

denied the motion to suppress.

II

On appeal, Mr. Cunningham contends the totality of the circumstances

amounted to duress and coercion that rendered his consent to search his home

involuntary. He points to the following facts to bolster this contention. He

initially and repeatedly refused to consent to the search while supervising officers

at the scene implored his mother, a police detective, to convince him to change

his mind. His dogs and personal property in the house were threatened with

destruction should he not cooperate. He also was convinced his mother’s

employment would be jeopardized if he refused to consent. We need not decide

whether Mr. Cunningham’s consent was voluntary, however, because we conclude

the inevitable discovery doctrine clearly applies here and supports the denial of

Mr. Cunningham’s motion to suppress.

While we review the district court’s factual determinations for clear error,

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our review of an ultimate Fourth Amendment question is de novo. United States

v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000). When a search violates the

Fourth Amendment, the exclusionary rule normally dictates that evidence

obtained as a result of that search be suppressed. See Nix v. Williams, 467 U.S.

431, 442-43 (1984). The inevitable discovery doctrine provides an exception to

the exclusionary rule, see id. at 444, 448; United States v. Romero, 692 F.2d 699,

704 (10th Cir. 1982), and permits evidence to be admitted “if an independent,

lawful police investigation inevitably would have discovered it.” United States v.

Owens, 782 F.2d 146, 152 (10th Cir. 1986). The government possesses the

burden of proving by a preponderance of the evidence that the evidence at issue

would have been discovered without the Fourth Amendment violation. Souza,

223 F.3d at 1203 (citation omitted).

In Souza, we set forth the standard for considering whether the inevitable

discovery doctrine applies to a warrantless search. Id. at 1205. We addressed

whether evidence found from the warrantless search of a package in a United

Parcel Service (UPS) facility was admissible under the doctrine. See id. at 1199,

1201. Probable cause existed for the presence of narcotics in the package,

including a positive alert by a narcotics dog. Id. at 1200. After a law

enforcement officer had contacted his office and expressed his intent to procure a

search warrant for the package, but before the warrant was obtained, a UPS

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employee opened the package, assisted in part by an officer. Id. Reviewing

Tenth Circuit case law regarding inevitable discovery, we noted that our

precedents had involved application of the doctrine in conjunction with another

exception to the warrant requirement, such as an inventory search or a search

incident to arrest. Id. at 1203. The facts in Souza, however, did not fit within any

of the other warrant requirement exceptions. Id. Nonetheless, we held it

permissible for a court to apply the inevitable discovery doctrine

when it has a high level of confidence that the warrant in fact would
have been issued and that the specific evidence in question would
have been obtained by lawful means. Inevitable discovery analysis
thus requires the court to examine each of the contingencies involved
that would have had to have been resolved favorably to the
government in order for the evidence to have been discovered legally
and to assess the probability of the contingencies having occurred.

Id. at 1205. To assist this determination, we adopted the factors set forth by the

Second Circuit to assess warrantless search situations:

1) the extent to which the warrant process has been completed at the
time those seeking the warrant learn of the search; 2) the strength of
the showing of probable cause at the time the search occurred; 3)
whether a warrant ultimately was obtained, albeit after the illegal
entry; and 4) evidence that law enforcement agents “jumped the gun”
because they lacked confidence in their showing of probable cause
and wanted to force the issue by creating a fait accompli.

Id. at 1204 (citing United States v. Cabassa, 62 F.3d 470, 473-74 & n.2 (2d Cir.

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1995)) (internal quotations and citations omitted). 1

We concluded in Souza that the steps taken by law enforcement officers

satisfied the approach laid out in Cabassa. Id. at 1205. These included a law

enforcement officer alerting his office that he would be coming back to prepare a

warrant for the package, and ensuring an affidavit form would be ready when he

arrived back at the station. Moreover, the package was specifically placed apart

from others for the purpose of obtaining a warrant. Id. We also noted that

extremely strong probable cause existed to believe contraband was in the package

at the time of the illegal search, officers ultimately did obtain a search warrant,

and there were no doubts regarding whether the officers would actually obtain the

narcotics because the package had been secured by them. Id. at 1205-06. As a

result, we determined that “but for [the UPS employee] opening the package, [law

enforcement officers] would have obtained a warrant and the evidence would

1
The requirement set forth in United States v. Souza, 223 F.3d 1197, 1204-
05 (10th Cir. 2000), that the police have taken steps to obtain a warrant prior to
the illegal search may arguably be read to conflict with our earlier case, United
States v. Larsen, 127 F.3d 984 (10th Cir. 1997). In Larsen, we held that the
inevitable discovery doctrine does not require there to be a separate investigation
ongoing at the time of the constitutional violation. Id. at 986. We are not
persuaded there is an actual conflict, however. Larsen addressed a scenario
involving two unrelated and separate investigations. The circumstances in Souza
and the current case involve one line of investigation that would have led
inevitably to the obtaining of a search warrant by independent lawful means but
was halted prematurely by a search subsequently contended to be illegal.

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have been discovered.” Id. We observed that “exclusion of the evidence ‘would

put the police in a worse position than they would have been in absent any error

or violation.’” Id. (quoting Nix, 467 U.S. at 443).

The present case squares with Souza. Here, the officers took substantial

steps to obtain a warrant before the contested search occurred. The record

demonstrates that they had focused their investigation on 1175 and 1179 East 76th

Terrace, and had drafted an affidavit to support a search warrant for one of these

homes. As a result of their conversation with the AUSA, the officers decided that

further surveillance on the two homes was necessary before they specifically

selected one to search, and they proceeded to conduct that surveillance

immediately. The officers’ actions clearly indicate they took steps to obtain a

search warrant and that they intended to obtain the warrant for either 1175 or

1179 East 76th Terrace as soon as possible.

The officers also possessed strong probable cause for their search of 1179

East 76th Terrace by the time Mr. Cunningham arrived at the home. Prior to that

time, they had acquired background information about the alleged check-writing

ring, narrowed their investigation to one residential block, and focused on the two

homes sharing a common driveway. The officers’ surveillance had uncovered the

following additional information: a red car containing two individuals identified

earlier in the investigation arrived, parked briefly, and then pulled out from

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behind 1179 East 76th Terrace; a black pickup truck previously observed in the

investigation was stopped containing Mr. Cunningham, who said that he lived at

1179 East 76th Terrace; the residents of 1175 East 76th Terrace told officers that

the home next door had been receiving all of the traffic that evening, and the

officers ruled out 1175 East 76th Terrace as the location visited by the alleged

check supplier; and a gray Blazer previously observed in the investigation was

seen parked by 1179 East 76th Terrace. The government thus had sufficient

probable cause for a search of 1179 East 76th Terrace at the time of Mr.

Cunningham’s disputed consent to search his home.

Moreover, the officers ultimately did obtain a warrant, albeit based in part

on information retrieved from inside Mr. Cunningham’s home. There is also no

evidence the officers “jumped the gun” due to a lack of confidence about

probable cause and out of a desire to force the issue. Id. at 1204. Instead, the

record indicates that the search occurred at the time it did because of the

coincidental arrival of Mrs. Cunningham. Her presence on the scene led to a

series of events that culminated in her son’s release from jail, his return home,

and his consent to search. As a result, we are satisfied the government has

demonstrated that, as in Souza, but for Mrs. Cunningham’s arrival at 1179 East

76th Terrace on the evening of the search, the officers would have obtained a

search warrant and the evidence in question would have been found. Id. at 1205.

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 Our case is unlike the scenario in Owens, 782 F.2d at 151-53, where we

declined to apply the inevitable discovery doctrine to the search of a motel room.

In that case, police arrested the room’s occupant, entered the room, and then

opened and searched a drawer as well as a closed bag inside that drawer,

ultimately discovering illegal drugs. Id. at 148-49. Although marijuana, white

powder, and drug paraphernalia were also in plain view and the police had full

control over the room, they made no attempt to seek a warrant. Id. at 149.

Declining to apply the inevitable discovery doctrine, we concluded that the illegal

searches of the drawer and bag tainted the only police investigation that was

ongoing. Thus, there did not exist any prior and independent investigation that

would have inevitably led to discovery of the concealed illegal drugs. Id. at 152.

We also disagreed with the government that the motel’s routine cleaning service

would have inevitably revealed the concealed drugs. Id. at 152-53. We observed

that the police’s complete failure to comply with the warrant requirement

although they had repeated opportunities to do so, “exemplif[ied] the very type of

official conduct the exclusionary rule is intended to deter.” Id. at 152. As

discussed above, the officers’ actions in the present controversy do not create the

same problem.

We conclude by repeating our observation in Souza that “[i]n most cases,

the failure of the police to secure a warrant will probably be fatal.” 223 F.3d at

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1206. We apply the inevitable discovery doctrine in this case only because we are

convinced that without Mr. Cunningham’s disputed consent, the warrant to search

his house would have been issued and the incriminating evidence would have

been discovered.

III

For the foregoing reasons, we AFFIRM the decision of the district court

denying Mr. Cunningham’s motion to suppress.

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