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United States v. Loewen

United States District Court, District of Kansas

March 6, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY L. LOEWEN, Defendant.

MEMORANDUM AND ORDER

Monti L. Belot, Judge.

Before the court are the following:

1. Defendant's motion to suppress (Doc. 81);

2. Government's response (Doc. 89);

3. Defendant's motion to dismiss (Doc. 83);

4. Defendant's supplement to motion to dismiss (Doc. 88);

5. Government's response to dockets 83 and 88 (Doc. 93);

6. Defendant's motion to dismiss counts 1 and 2 (Doc. 84); and 7. Government's response (Doc. 90).

The court compliments counsel on their well-written submissions.

The motions can be resolved without an evidentiary hearing.

Motion to Suppress (Docs. 81 and 89)

On December 12, 2013 at 10:10 p.m., U.S. Magistrate Judge Karen Humphreys authorized a search warrant for defendant's vehicle. The warrant stated, in pertinent part: "YOU ARE HEREBY COMMANDED to search on or before December 12th, 2013 the . . . property specified . . ." Apparently the search did not occur until December 13, 2013. (The parties have not included the return, so the exact time of the search is not known.)

Defendant contends that the officers acted in "flagrant disregard" for the terms of the warrant because the search occurred on December 13, 2013, rather than December 12, and therefore that the materials seized pursuant to the warrant should be suppressed. Defendant cites United States v. Foster, 100 F.3d 846 (10th Cir. 1996). The "flagrant disregard" in Foster did not involve the time the search was conducted. Rather, it involved "conducting a wholesale seizure of [defendant's] property amounting to a fishing expedition for the discovery of incriminating evidence." Id. at 849. Foster does not support defendant's position.

In its response, the government points out that the warrant was to be executed "on or before December 12, 2013 . . . in the daytime- 6:00 a.m. to 10:00 p.m." The warrant was signed at 10:10 p.m. on December 12, making compliance with the terms of the warrant literally impossible. The government submits, and common sense dictates, that the magistrate simply wrote the wrong date. She had been presented with five search warrant applications on the evening of December 12. It is quite reasonable that she inadvertently wrote December 12 instead of ...


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