Police got in wife’s car, directed her to nearby parking lot while husband was arrested at home.

Defendant-Appellant Lucas Gregory Fox entered a conditional guilty plea to one count of possession of an unregistered shotgun with a barrel less than 18 inches long, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Law enforcement officers found the firearm in Fox’s home after his wife consented to the search. Fox appeals the denial of his motion to suppress evidence, arguing that his wife’s consent to search the home was invalid. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand for further proceedings.

A warrantless search of an individual’s home is “per se unreasonable under the Fourth Amendment unless the government can show that it falls within one of a carefully defined set of exceptions.” United States v. Cos, 498 F.3d 1115, 1123 (10th Cir. 2007) (quotation omitted). Here, the government relied on Ms. Chiles’s consent to search the home as an exception to the general warrant requirement. Fox argues that Ms. Chiles’s consent was invalid because it was tainted by a prior illegal seizure and, as a result, her consent was not voluntary.

We have identified three general categories of encounters between police and citizens:

(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.

Although the government contends that Ms. Chiles could have told Officer Osterdyk to get out of her car, we do not think that under the circumstances a reasonable person would have felt free to do so. Accordingly, we conclude that Ms. Chiles was seized within the meaning of the Fourth Amendment.

Because the officers did not have reasonable suspicion to detain Ms. Chiles, the seizure was unlawful.

Read more here: U.S. v. Fox, 600 F.3d 1253, 1255 (10th Cir. 2010), https://casetext.com/case/us-v-fox-33/