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United States v. Bullcoming.

No. 20-6125.  W.D.Okla. Judge McHugh. Felony Murder—Fourth Amendment—Motion to Suppress—Probable Cause in Absence of Excised Information in Affidavit—Motion to Access—Sixth Amendment.

January 3, 2022


Defendant had an intermittent romantic relationship with the victim, Zotigh, who ultimately broke up with him. About a week later, Zotigh’s trailer was on fire. After firefighters extinguished the blaze, they entered the trailer and saw what appeared to be blood stains on the walls and subfloor of the hallway. The next day, Bureau of Indian Affairs (BIA) Special Agent Ware arrived at the trailer and conducted a brief search of the trailer to confirm that Zotigh was not inside. He took photographs and swabs of blood splatter in the kitchen area. Agent Ware also observed blood in Zotigh’s car and took swabs from the driver’s seat and middle portion of the car. He then released the trailer to Zotigh’s family. Later that day, Agent Ware discovered Zotigh’s body in a field located off a dirt road. She had close to 70 knife wounds, and one had severed her jugular vein. Defendant was arrested on a warrant for failure to appear in tribal court. At the time of the arrest, defendant had a duffel bag in his possession, and he asked law enforcement to bring the bag with them during his transport.

While in jail, defendant asked Agent Ware to retrieve his medication from the duffel bag. Agent Ware emptied the contents of the bag but was unable to find the medication. A few days later, he logged the bag into evidence, the bag was inventoried, and photographs were taken. A week later, an assistant US attorney indicated the prosecution would seek a search warrant for the bag, prompting Agent Ware to conduct a second and more thorough inventory search of the duffel bag and to create a list of the items inside. During this second search, Agent Ware observed what he thought was blood on a pair of sandals. A warrant was issued, and the government later determined the blood on the sandals was Zotigh’s.

A federal grand jury indicated defendant on charges of first-degree premeditated murder, first-degree felony murder, carjacking, kidnapping, and arson. Before trial, defendant filed a motion for an order permitting access to Zotigh’s trailer. The district court denied the motion on the basis that it lacked authority to order entry and inspection of property that was not within the government’s possession, custody, or control. Defendant also filed a motion to suppress the evidence from his duffel bag, which the court also denied. A jury ultimately convicted defendant of first-degree felony murder, carjacking, kidnapping, and arson.

On appeal, defendant argued that the district court intruded on his due process right to a fair trial and his attorneys’ ability to provide effective representation under the Sixth Amendment by denying him access to the trailer.  However, when the motion was filed, a third party possessed the trailer, and defendant did not identify any support for the proposition that a federal court has authority to order access to the property of a third party for purposes of discovery in a criminal case. Further, allowing the requested discovery would conflict with a panoply of federal constitutional rights held by the third-party property owner. Therefore, the denial of the motion to access was proper.

Defendant also argued that the district court should have suppressed the evidence collected from his duffel bag, specifically the forensic evidence from the sandals. However, even without the description of the bloody sandals, the affidavit contained enough evidence to support probable cause to search defendant’s bag and its contents by describing significant circumstantial information such as the parties’ fraught relationship and recent breakup, blood found in Zotigh’s car and trailer, cuts and scrapes on defendant’s body, and statements from witnesses regarding defendant’s whereabouts and actions on the night of the murder. It was therefore reasonable to assume that defendant’s clothes contained in the duffel bag may have provided DNA evidence of the crime. The district court did not err in denying the motion to suppress.

The denials of the motion to access and the motion to suppress were affirmed, and the convictions were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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