United States v. Mora, 2021 WL 710904 (10th Cir. 2021)
Officers responded to a 911 call reporting that dozens of people exited the back of a tractor-trailer behind a supermarket. When officers arrived, the tractor-trailer was already gone. Officers found 14 people lacking identification nearby, some of whom admitted a driver had smuggled them across the border in the back of the tractor-trailer. No one suggested the human trafficker took anyone to another location.
Officers found a tractor-trailer matching the reported description at a nearby Wal-Mart. When they opened the trailer’s rear doors, they found only a bottle of urine and noted the trailer smelled of body odor. Officers did not open the locked cab door.
Surveillance video showed the semi-truck driving from the supermarket directly to the Wal-Mart. The driver got out, entered and exited the Wal-Mart, and was picked up by a woman in a car. Officers drove to the home of the registered owner of the tractor-trailer, Mathias Mora. Mora and his wife drove up just after the officers’ arrival. An officer recognized Mora from the Wal-Mart surveillance video.
The officers arrested Mora and his wife. Mora acknowledged the truck was his and said he parked it at the Wal-Mart because he did not have a place at his home. Mrs. Mora denied consent to search the residence. After consulting with federal prosecutors, the officers entered to conduct a protective sweep. They saw a gun safe but found nothing else of interest.
Protective sweeps are often associated with search warrants and arrests inside a residence. Officers executing a warrant may conduct a limited protective sweep of the premises to discover persons who might present a danger to the officers if there is a reasonable belief that the premises conceal such a person (Maryland v. Buie, 494 U.S. 325 (1990)). There is no general right to conduct a protective sweep; there must be specific, articulable facts that there may be persons hiding who present a danger to officers. The issue is virtually always whether there is a reasonable belief that persons who could harm officers are concealed on the premises. Courts have allowed protective sweeps in a few other circumstances, including:
- A protective sweep may also be conducted for the protection of potential injured victims (United States v. Tisdale, 248 F.3d 964 (10th Cir. 2001), cert. denied, 534 U.S. 1153 (2002)). This aligns with the officers’ protective sweep at the Mora residence.
- Officers may conduct a protective sweep when searching an area for fleeing suspects (United States v. Arcobasso, 882 F.2d 1304 (8th Cir. 1989)). This is, essentially, an exigent circumstances search.
The officers subsequently learned Mora was a convicted felon. They obtained a search warrant for the house, seizing guns and ammunition. Mora was charged with being a felon in possession of guns and ammunition. The trial court denied his motion to suppress the evidence found in the search, ruling the protective sweep was justified by safety concerns for potential victims of human trafficking inside the residence.
The issue is virtually always whether there is a reasonable belief that persons who could harm officers are concealed on the premises.
The court of appeals held there was no basis for the protective sweep. The officers arrived at the residence before Mora and his wife, so there was no chance Mora had brought human trafficking victims there prior to the officers’ arrival. Mrs. Mora told the officers the only person in the home was their son, and he came out on his own. No one else responded to the officer’s callouts into the home and the officers could see no signs that anyone else was inside. Thus, the evidence of the gun safe seen during the protective sweep should have been excluded.
The affidavit also listed reasons officers had probable cause to believe that there would be evidence of human trafficking in the residence: “The affiant stated, based on his training and experience, that alien smugglers often use electronic communication devices, GPS devices, and electronic banking systems to conduct operations and store records. None of those boilerplate statements, however, are specific to [Mora’s] crime or circumstances.” Thus, the warrant failed, and the appellate court directed all the evidence to be suppressed.
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