by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit held that the smuggling of persons across the U.S.-Mexico border alone did not justify the nonconsensual, warrantless search of the suspected smuggler’s home.

Police were called after witnessing a tractor-trailer disgorge 14 people behind an Albertsons supermarket in Albuquerque, New Mexico. Officers arrived to find a group of people who lacked identification and at least one who admitted the driver had smuggled them across the U.S.-Mexico border. None of the smuggled individuals stated that the driver, or anyone else, took any passengers to another location.

Officers tracked the trailer to a nearby Walmart parking lot, where they found the trailer empty. It was still attached to the truck, but officers did not search the cab. Assistance from Walmart security allowed officers to visually identify the driver, who shopped at the Walmart and then left with his wife in her car.

Officers traced the vehicle back to the suspect’s home and arrived there before the suspect and his wife. Officers detained both of them and secured their cellphones and keys. The wife told officers the only person in the home was their teenage son, who exited the home when officers opened the front door and told all occupants to come out. The wife and officers entered the foyer of the home—with clear views into the living room, kitchen, and a stairwell—but she refused to allow officers to search the home.

They did so anyway, on the suspicion that more smuggled individuals may be in the home. They didn’t find anyone but noticed a gun safe and ammo containers. They had identified the driver, Mathias Mora, as having a prior felony conviction. Officers then obtained a warrant to search the home and seize the evidence of gun possession by a convicted felon.

Mora was charged with alien smuggling and being a felon in possession of a firearm. He filed to suppress the firearms and ammo as the fruit of an unlawful search. The U.S. District Court for the District of New Mexico denied his motion “because the safety of potential aliens inside the home justified the search.” Mora then pleaded guilty to two counts of alien smuggling and one count of being a felon in possession of a firearm. He was sentenced to 16 months’ imprisonment for each of the smuggling counts and 48 months for the possession, all running concurrently. He then appealed the denial of his suppression motion to the Tenth Circuit.

The Court began its analysis by stating that the Fourth Amendment to the U.S. Constitution requires law enforcement to obtain a warrant to search a person’s home. Mincey v. Arizona, 437 U.S. 385 (1978). However, “the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person is in need of immediate aid.” Id. But this exception to the warrant requirement “cannot be used merely to make law enforcement more efficient, to safeguard evidence that could be protected in another manner, or simply because a serious crime has been committed.” United States v. Porter, 594 F.3d 1251 (10th Cir. 2010).

The Court stated that the officers had no objective reason to believe any smuggled individuals were in Mora’s home. The smuggled people denied that Mora left the supermarket parking lot with any additional individuals, and officers beat him home and thus had the opportunity to intercept any other people traveling with him. Mora’s wife and son both stated no one else was in the home. Officers could see into much of the house from the foyer and didn’t observe any evidence of anyone else.

Absent evidence that smuggled individuals were in Mora’s home, officers lacked exigent circumstances required to justify a warrantless entry into the home, the Court stated. Further, since the subsequent search warrant relied on officers seeing the gun safe and ammo during the initial warrantless entry, the second warrant was also partially invalid. “[I]f a search warrant contains information obtained through a prior, unlawful search, we must excise that information and consider the adequacy of the affidavit anew.” United States v. Snow, 919 F.2d 1458 (10th Cir. 1990).

Absent evidence of illegal gun possession, the Court then considered whether Mora’s connection to alien smuggling provided probable cause to support a search warrant for his home. If it did, then the evidence of gun possession would have been inevitably discovered and should not be suppressed.

To obtain a warrant, “ a nexus must exist between suspected criminal activity and the place to be searched.” United States v. Bigelow, 562 F.3d 1272 (10th Cir. 2009). To determine the existence of a nexus, courts may consider: “(1) the type of crime at issue, (2) the extent of a suspect’s opportunity for concealment, (3) the nature of the evidence sought, and (4) all reasonable inferences as to where a criminal would likely keep such evidence.” Id.

The Tenth Circuit has previously held it axiomatic that drug traffickers keep evidence of trafficking in their homes. United States v. Sanchez, 555 F.3d 910 (10th Cir. 2009). However, the Court has made no such categorical determination for alien smuggling.

When applying for the search warrant, the affiant officer stated that “alien smugglers often use electronic communications devices, GPS devices, and electronic banking systems to conduct operations and store records.” In Mora’s case, the Court determined that “the government’s bare speculation that Defendant may have kept a cell phone in his home, which he could have used in alien smuggling, does not justify the search of his home.”

The Court found that Mora was just as likely, if not more, to keep such things on his person (in the form of a cellphone) or in the cab of his truck (his mobile office). And as officers intercepted him before he entered his home, he had no opportunity to hide such evidence in his home. As such, the “affidavit provided no basis to either limit the possible sites or suggest that [the defendant’s] home was more likely than the otherwise endless possibilities.” Quoting from United States v. Rowland, 145 F.3d 1194 (10th Cir. 1998).

Thus, the Court ruled that officers lacked probable cause to search Mora’s home for evidence of alien smuggling and would not have discovered evidence of firearm possession without the earlier, unlawful entry. The Court explained that its prior holding in United States v. Cunningham, 413 F.3d 1199 (10th Cir. 2005), requires the Court to suppress all evidence of his firearm possession as the fruit of an unlawful search.

Accordingly, the Court reversed the lower court’s denial of Mora’s suppression motion and remanded the case for further proceedings consistent with this opinion. See: United States v. Mora, 989 F.3d 794 (10th Cir. 2021).

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