United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
April 6, 2017, federal law enforcement officials arrested
defendant Joshua Musgraves outside the Stormont Vail Hospital
in Topeka, Kansas on suspicion that he had committed several
robberies in the area. Just before he left the hospital and
was arrested, Mr. Musgraves gave his wireless phone to Pami
Hubbard's child so he could play with it. Ms. Hubbard and
Mr. Musgraves have a young daughter together, but she was not
the child allowed to play with Mr. Musgraves's phone.
After federal officials arrested Mr. Musgraves, someone
placed the phone inside a bag containing the belongings of
Mr. Musgraves and Ms. Hubbard's daughter and took the bag
to Carrie Holt's home. Ms. Holt is Mr. Musgraves's
current dispute arose when law enforcement officials removed
Mr. Musgraves's phone from the child's bag and
searched it. On October 23, 2017, Mr. Musgraves filed a
Motion to Supress any evidence found on his phone (Doc. 29).
Mr. Musgraves also filed a Motion to Sever Counts on October
24, 2017 (Doc. 30). The court held an evidentiary hearing on
November 17, 2017. The court has considered the parties'
briefs and evidence, and now is prepared to rule on both
April 6, 2017, federal law enforcement officials arrested Mr.
Musgraves on a series of robberies in Lawrence and Topeka,
Kansas. Just before they arrested him, Mr. Musgraves gave his
phone to Pami Hubbard's young son. At some point
after his arrest, an unidentified person placed the phone in
a pink bag and took the bag-with the phone still inside it-to
the home of Mr. Musgraves's grandmother, Carrie Holt. In
addition to the phone, this bag contained things used by Mr.
Musgraves and Ms. Hubbard's young daughter.
after Mr. Musgraves's arrest, FBI Task Force Officer
Patrick Salmon interviewed Ms. Hubbard. He asked her about
Mr. Musgraves's phone. She advised him that Mr.
Musgraves's phone was in their daughter's bag and the
bag was at his grandmother's house. When Officer Salmon
asked to search the bag for the phone, Ms. Hubbard did not
object. The officials then went to the house
occupied by the grandmother. Once they arrived there, law
enforcement explained why they were there and asked for her
consent to search the house for the bag. Ms. Holt signed a
form explicitly consenting to a search of her
house. Ex. 2.
Musgraves had lived at his grandmother's house until
three months before the search on April 6. And when the
search was conducted, Mr. Musgraves still visited and, on
occasion, slept in his grandmother's home. In fact,
during their search of the grandmother's home, law
enforcement officers found some of Mr. Musgraves's
clothes there. The officers also found the pink bag and
inside it, Mr. Musgraves's phone.
Topeka Police Department Detective Matt McClimans requested a
search warrant from Judge David B. Debenham of the District
Court of Shawnee County, Kansas. In his application for the
search warrant, Detective McClimans asserted that Mr.
Musgraves had committed several robberies in the area. And,
Detective McClimans opined:
Through my training and experience[, ] I know that
individuals commonly use their cellular telephones to
communicate with other individuals through various means to
include but not limited to voice calls, text messages, video
calls, video messages, emails, instant messages, picture
messages, and voice mails. I also know through my training
and experience that individuals engaged in criminal
activities will use cellular telephones and other mobile
devices to communicate with other individuals involved in
these illegal activities. These individuals will use cellular
telephones in both the planning and commission of their
various criminal activities. They will also use cellular
telephones to assist in the furtherance of their crimes after
the fact to include evading arrest and/or punishment for the
crimes they have committed. Often times individuals engaged
in illegal activities will use the many capabilities of their
cellular phones to document their crimes to include but not
limited to photographs and/or videos of themselves or others
committing said crimes.
Ex. 5 at 6. Judge Debenham granted the request and issued the
search warrant. His warrant authorized a search of Mr.
Musgraves's phone for:
Text messages, phone logs, picture[s], videos, audio files,
emails, instant messages, contact lists, any and all
documents that mention, refer to, depict, or in any manner
relate to any of the [robberies] or [Mr. Musgraves], any
other form of documentation or electronic data indicating the
owner and or controlling party of said property, any and all
other files and electronic data.
Ex. 6 at 2.
Topeka Police Department later searched the phone and
produced a forensic digital image. This image permitted
officers to prepare an extraction report, which the Topeka
officers shared with federal law enforcement officials. This
report contained, among other things, cell tower data, GPS
data, location data, search history, and internet browsing
history (collectively known as “location and web
3, 2017, the Grand Jury returned a superseding indictment,
charging Mr. Musgraves with 13 counts (Doc. 12). Counts 1 and
2 charge Mr. Musgraves with robbery of Plato's Closet on
January 6, 2017. Counts 3 and 4 charge him with robbing a KFC
on January 20, 2017. Counts 5 and 6 charge him with robbery
of a Burger King on March 23, 2017. Count 7 charges him with
robbing a McDonald's on March 30, 2017. Counts 8 and 9
charge him with robbery of a Subway on April 3, 2017. Counts
10 and 11 charge him with robbing a Wing Stop on April 4,
2017. And, Counts 12 and 13 accuse Mr. Musgraves of robbing
the Denison State Bank on December 10, 2016.
Motion to Suppress
Mr. Musgraves's Standing
preliminary matter, the government argues that Mr. Musgraves
has no standing to challenge the search of the bag or his
grandmother's home. “[A] defendant raising a Fourth
Amendment challenge must first demonstrate that he has
standing to object to the search.” United States v.
Poe, 556 F.3d 1113, 1121 (10th Cir. 2009) (citing
United States v. Rubio-Rivera, 917 F.2d 1271, 1274
(10th Cir. 1990)). To have standing to challenge a search, a
defendant must demonstrate that he has a subjectively and
objectively reasonable expectation of privacy. Id.
(quoting United States v. Rhiger, 315 F.3d 1283,
1285 (10th Cir. 2003)).
Musgraves argues that he has standing to challenge law
enforcement's search of his grandmother's home
because he had lived at his grandmother's home until a
few months before the search. The government responds that
Mr. Musgraves does not have standing to contest the search of
this home because he did not maintain a stable residence
there. “An individual does not have to be
‘settled' at a location to have a reasonable
expectation of privacy; a simple overnight guest has Fourth
Amendment standing.” Id. at 1122. In addition,
social guests have an objectively reasonable expectation of
privacy in the home of another. Rhiger, 315 F.3d at
1287 (holding that defendant had standing to challenge the
search of his friend's home when he slept in the home a
few times a week, he left receipts there, he regularly stayed
in the home during the day, and he felt comfortable entering
the home unannounced to take naps there); see also
Poe, 556 F.3d at 1122 (holding that defendant had
standing to challenge the search of another's home when
he previously had lived in the home, had a key to it, and was
allowed to stay there when the owner was not present).
Musgraves's situation is similar. While he no longer
stayed at his grandmother's home when the search was
conducted, he still visited there occasionally and he kept
clothes there. And Ms. Hubbard took his belongings to the
grandmother's home after federal officials arrested him.
While his grandmother's home was not Mr. Musgraves's
permanent residence, that is not a prerequisite to standing.
See, e.g., Poe, 556 F.3d at 1122.
Musgraves likewise has standing to contest the search of his
daughter's bag. Ms. Hubbard described the bag as a place
where Mr. Musgraves kept his daughter's belongings and
needs for the day. It is reasonable for a person to believe
that others will not search his infant daughter's bag.
See United States v. Montano, No. B-11-482, 2011 WL
13157358, at *2 (S.D. Tex. Sept. 14, 2011) (allowing
defendant to challenge a government search of his child's
diaper bag because defendant packed the bag and also placed a
few of his belongings in the bag). Mr. Musgraves thus has
standing to challenge both the search of his
grandmother's home and the bag used for his
Consent to Search
Musgraves argues that law enforcement officers illegally
searched his child's bag. The government argues that Mr.
Musgraves's grandmother and Ms. Hubbard had authority to
consent to search the bag. “A search does not require a
warrant or probable cause if it is conducted pursuant to
consent.” Patel v. Hall, 849 F.3d 970, 980
(10th Cir. 2017) (first citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); then citing
United States v. Romero, 749 F.3d 900, 905 (10th
Cir. 2014)). “The government has the burden of proving
the effectiveness of a third party's consent.”
United States v. Salinas-Cano, 959 F.2d 861, 863
(10th Cir. 1992). Mr. Musgraves solely argues that neither
Ms. Hubbard nor his grandmother had the authority to consent
to a search of the bag. Mr. Musgraves does not challenge
whether Ms. Hubbard or his grandmother actually consented to
search the bag.
officer executing a search can rely on a third party's
consent if that party has actual or apparent authority”
to consent to a search of the property. United States v.
Romero, 749 F.3d 900, 905 (10th Cir. 2014). A third
party has actual authority when she mutually uses the
property by virtue of joint access to or control of the
property. Id. A third party has apparent authority
when a reasonable officer would believe the third party had
actual authority to consent. Id. Here, the
government argues, Mr. Musgraves's grandmother had actual
authority to consent to a search of her house and the bag,
and Ms. Hubbard had authority to consent to a search of the
bag. Mr. Musgraves argues that he alone owned the bag and
thus neither Ms. Hubbard nor his grandmother possessed
authority to confer consent to a search the bag.
court first addresses whether Ms. Hubbard could consent to
the bag's search. When the owner of property permits
another person to use the property, the owner assumes the
risk that the non-owner might give law enforcement consent to
search the property. United States v. Bass, 661 F.3d
1299, 1305 (10th Cir. 2011) (quoting United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974)); see also
United States v. Lee, 972 F.Supp. 1330, 1352 (D. Kan.
1997) (“It ...