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United States v. Russian

United States Court of Appeals, Tenth Circuit

February 21, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMES D. RUSSIAN, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 6:14-CR-10018-EFM-1)

          Daniel T. Hansmeier, Assistant Federal Public Defender (with Melody Brannon, Federal Public Defender, on the briefs), Office the Kansas Federal Public Defender, Topeka, Kansas, for Appellant.

          Jared 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.

          Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.

          TYMKOVICH, Chief Judge.

         James 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.

         At 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.

         We 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.

         I. Background

         Missouri 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.

         Deputy 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.

         The 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.

         Russian 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 particularity.

         The 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.

         At 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.

         Before 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.

         II. Analysis

         Russian 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 ...


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