by David M. Reutter

The U.S. Court of Appeals for the Eight Circuit affirmed the suppression of evidence found to be the fruit of an illegal search that resulted after officers responded to a wellness check call.

The Court’s opinion was filed in an appeal brought by the federal Government. The case involved charges of (1) healthcare fraud, (2) acquiring controlled substances by fraud, and (3) possession of controlled substances filed against Dane Arredondo. The charges were based on small glass medicine vials found by South Dakota’s Pennington County deputies during a search of Arredondo’s home.
Deputy Eric Fenton arrived at Arredondo’s residence after a neighbor called police to report a disturbance. The neighbor reported hearing doors slamming doors as well as screaming and crying from a woman inside the residence. No gunshots were heard. When Fenton arrived, the residence was silent.

Dane’s brother, David Arredondo, opened the door wide enough to peek out. He told Fenton that an argument had occurred but had been resolved, and the woman was fine. David resisted Fenton’s request to enter the residence. Fenton said he was there to check on the woman’s welfare and instructed David to accompany him downstairs to the basement.

David’s girlfriend was lying on the floor and said she was fine. Fenton checked to ensure she had no injuries, and he deduced she was drunk. Other officers arrived, and Dane, who was a paramedic, was upstairs with them and Fenton to verify his identity. While that was occurring, Fenton saw some clear medicine bottles. He picked them up and examined them. One of them was Ketamine. Another officer found a vial of Fentanyl in the basement.

Dane moved to suppress the vials after he was criminally charged, arguing they were the fruit of an illegal search. The district court granted the motion.

On appeal, the Government did not challenge suppression of the Fentanyl, but it argued the Ketamine was admissible because “exigent circumstances and the community caretaker function justified the officers’ presence and a warrantless seizure of the vials was permissible under the plain view exception” to the warrant requirement. The Court explained that it is unnecessary to address the Government’s exigent circumstances and community caretaker arguments because the plain view doctrine is determinative in this case, and it doesn’t apply.

That doctrine authorizes seizure of “an object without a warrant if (1) the officer lawfully arrived at the location from which he or she views the object, (2) the object’s ‘incriminating character’ is ‘immediately apparent,’ and (3) ‘the officer has a lawful right of access to the object itself.’” United States v. Lewis, 864 F.3d 937 (8th Cir. 2017).

Assuming for the sake of argument that the first and third prongs were satisfied, the Court found the second prong was not because it was not “immediately apparent” that the vials were of an “incriminating character” as required for the exception to apply. “For an item’s ‘incriminating character’ to be ‘immediately apparent,’ the officer must have probable cause to associate it with criminal activity,” the Court wrote. “Deputy Fenton possessed no such probable cause,” according to the Court.

The Court noted that the vials “looked similar to containers that hold common household items…. Whether the vials contained contraband was even less immediately apparent here, as they were observed on a dark couch in a poorly lit room in a residence … where one of the occupants was a paramedic.” Thus, the Court concluded that there was no basis to immediately suspect that the vials contained contraband.

While Fenton believed the items lying on the couch were a little odd, that is nothing more than a hunch that does not establish probable cause, the Court said. United States v. Hogan, 25 F.3d 690 (8th Cir. 1994). The Court explained: “When Deputy Fenton picked up the vials, held them to get a better view, and turned them to read the labels, he had no idea of the contents. At that moment, the vials had been searched and seized, before Deputy Fenton had probable cause to believe they were an illegally possessed controlled substance.” See Arizona v. Hicks, 480 U.S. 321 (1987) (moving components of stereos in order to read their serial numbers was a search and plain view of stereos without serial numbers didn’t provide probable cause to believe they were contraband). Therefore, the Court ruled that Fenton “had nothing more than a hunch that the vials could be incriminating, which is not enough for the plain view exception to apply.”

Accordingly, the Court affirmed the district court’s order suppressing the evidence. See: United States v. Arredondo, 996 F.3d 903 (8th Cir. 2021) 

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