PUBLISH
UNITED STATES COURT OF APPEALS
Filed 1/14/97
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 95-7131
v.
ALBERT FOSTER, JR.,
Defendant-Appellee.
ORDER
Before ANDERSON, McKAY, and MURPHY, Circuit Judges.
The United States has filed a petition for rehearing in this case, arguing
that the panel failed to “address controlling Supreme Court authority” in
affirming the district court’s order of blanket suppression. We deny the petition
for rehearing. In doing so, we make the following observations.
The United States argues that, properly interpreted, Waller v. Georgia, 467
U.S. 39 (1984), allows the remedy of blanket suppression only when the officers
conducting a search exceed the warrant with regard to the range of places to be
searched. The problem with this argument, however, is that this panel is not free
to adopt the United States’ interpretation of Waller.
In United States v. Medlin, 842 F.2d 1194, 1198-99 (1988), a panel of this
court cited Waller as one of several cases standing for the proposition “that even
evidence which is properly seized pursuant to a warrant must be suppressed if the
officers executing the warrant exhibit ‘flagrant disregard’ for its terms.” The
panel in Medlin went on to hold that “[w]hen law enforcement officers grossly
exceed the scope of a search warrant in seizing property, the particularity
requirement is undermined and a valid warrant is transformed into a general
warrant thereby requiring suppression of all evidence seized under that warrant.”
Id. at 1199 (emphasis added). Accordingly, a panel of this court has already
determined that Waller supports the remedy of blanket suppression in the context
of an overly broad seizure. As noted in the panel opinion in this case, a three-
judge panel cannot disregard or overrule circuit precedent. United States v.
Foster, 100 F.3d 846, 851 (10th Cir. 1996). Absent en banc reconsideration,
which the United States has not suggested, or a superseding contrary decision by
the Supreme Court, this panel is obligated to apply the interpretation of Waller set
out in Medlin. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993), cert. denied, 115
S. Ct. 53 (1994).
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Judge Anderson would also deny the petition for rehearing but does not
otherwise join this order.
The petition for rehearing is hereby DENIED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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