FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 6:14-CR-10018-EFM-1)
T. Hansmeier, Assistant Federal Public Defender (with Melody
Brannon, Federal Public Defender, on the briefs), Office the
Kansas Federal Public Defender, Topeka, Kansas, for
S. Maag, Assistant United States Attorney (with Thomas E.
Beall, Acting United States Attorney, and Alan G. Metzger,
Assistant United States Attorney, on the brief), Wichita,
Kansas, for Appellee.
TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.
TYMKOVICH, Chief Judge.
Russian was charged with four drug- and gun-related offenses.
Before trial, Russian filed a motion to suppress evidence
obtained from the search of two cell phones seized at the
time of his arrest, arguing the search warrant was invalid
for lack of particularity. The district court denied the
motion, concluding even if the warrant was invalid, the good
faith exception to the exclusionary rule applied.
trial, text messages and photographs from the phones were
introduced against Russian. After the jury convicted Russian
on all counts, the court imposed a total sentence of 137
months' imprisonment. Russian challenges the admission of
the evidence obtained from the cell phone searches, as well
as the sentences imposed on several of the counts.
affirm Russian's convictions. The officers conducting the
search acted in objectively reasonable reliance on the
warrant, and even if that were not the case, any Fourth
Amendment error was harmless beyond a reasonable doubt. As
for Russian's sentences, we remand for resentencing. The
government does not dispute the district court erred in
relying on an improperly calculated guidelines range for the
sentences on the contested counts.
law enforcement responded to a 911 call reporting that two
women were being threatened by a man with a machete and a
handgun. The man was identified as James Russian. When
officers arrived at the scene, a high-speed car chase ensued,
which crossed state lines and ended in Kansas when Russian
lost control of his vehicle and spun to a stop. Russian
exited his vehicle, jumped a fence, and fled into the woods,
with law enforcement officers in pursuit. A short time later,
Russian was found hiding under some brush and was taken into
custody. One of the officers, Deputy Chris Wilson, searched
Russian and found a red and black Samsung cell phone in one
of his pockets, which Deputy Wilson then seized. After
Russian was arrested, Deputy Wilson also searched his
abandoned vehicle and found, among other things, a black
Samsung cell phone.
Wilson applied for a search warrant with the state district
court. The search warrant application identified three places
to be searched: (1) a red and black Samsung cell phone found
in Russian's possession at the time of his arrest, (2) a
black Samsung cell phone taken from Russian's car at the
time of his arrest, and (3) Russian's residence. The
application also requested permission to seize "[t]ext
messages, phone numbers, phone calls sent and received, any
data contained within the phone or on any removable media
device within the phone and Images contributing to the
possession or sale of any illegal drug and drug
paraphernalia." R. Supp. Vol. II. at 1.
state district court issued a search warrant that referenced
Deputy Wilson's affidavit and warrant application and
identified the crimes being investigated and items to be
seized, including "cell phones that could be used to
facilitate the commission of the crimes." Id.
at 4-5. The warrant also described the location to be
searched (Russian's apartment), but it failed to
authorize the search of cell phones already in law
enforcement custody or the seizure of any cell phone data.
After obtaining the warrant, Deputy Wilson searched
Russian's Samsung cell phones seized at the time of the
arrest and recovered text messages, phone numbers, a phone
log of calls sent and received, and photographs.
was charged with four drug- and gun-related offenses. Count 1
charged possession of a Ruger 9 mm firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1). Count 2 was the same
statutory violation, but predicated on possession of
ammunition. Count 3 charged possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Count 4 alleged possession of marijuana
with intent to distribute, in violation of 21 U.S.C. §
841(a). Before trial, Russian moved to suppress the evidence
obtained from Deputy Wilson's search of the cell phones,
arguing, among other things, that the warrant lacked
district court denied the motion. Although the court found
the particularity question was a close call, it upheld the
search under the good faith exception to the exclusionary
rule. Deputy Wilson had testified he believed he was
authorized to search the phones, because the warrant
mentioned cell phones in general, and because the application
for the warrant requested authority to search both of the
phones and provided a list of data to be seized. There was no
evidence law enforcement had acted in bad faith, and the
warrant was supported by probable cause. Thus, the court
reasoned, suppressing the evidence would not serve the
purposes of the exclusionary rule.
trial, in addition to evidence obtained from the search of
Russian's home and automobile, the government introduced
text messages and photographs obtained from the cell phones
seized at the time of Russian's arrest. The text messages
established Russian knew one of the women who had called 911
when Russian threatened her; owned a gun; and was dealing in
methamphetamine. The photographs, which were taken at
Russian's home, depicted a green leafy substance
resembling marijuana. The jury ultimately convicted Russian
on all four counts as charged.
sentencing, the Presentence Report (PSR) calculated
Russian's guidelines sentencing range. The PSR took into
account a fifteen-year-old conviction for conspiracy to
commit aggravated battery and arrived at a guidelines range
of 46 to 57 months' imprisonment. The district court
varied upward from that range and imposed a total sentence of
137 months' imprisonment: 76 months on Counts 1, 2, and
4, concurrent with each other and consecutive to a 60-month
sentence on Count 3.
makes three arguments on appeal. He contends the district
court erred (1) in denying his motion to suppress evidence
seized from a search of the cell phones; (2) in relying on an
erroneously calculated guidelines range to impose 76-month
sentences on Counts 1, 2, and 4; and (3) in imposing ...