Can I Get a Whoo Hoo for Two Search-&-Seizure Wins

A very helpful AFPD in our office offers you:

Today, boys and girls, not one but TWO, count ’em, TWO, Motions to Suppress won by defendants and upheld on appeal. . . .

THOMAS W. WILLIAMS

Government Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0234p-06.pdf

On October 12, 2004, police pulled up in a police cruiser to a group of people standing outside an affordable-housing complex. They exited the vehicle and moved toward the group. An officer recognized one of the ppl in the group, the defendant, who was standing on the sidewalk and leaning against a car. The officer immediately told the defendant that the latter was "again trespassing" on the property. In the ensuing interaction, the defendant acknowledged in response to questions that there might be a warrant out for his arrest and that he had a gun. The officers arrested him; he was later charged with being a felon in possession of a firearm and ammunition.

On the defendant's motion, the district court ruled that the defendant had been seized illegally, and the court suppressed the physical evidence and the defendant's statements. The government appealed, making three arguments: 1) the defendant was not seized within the meaning of the Fourth Amendment when the officer first spoke to him; 2) if he was seized, the officer had reasonable suspicion to detain him; and 3) even if the officer lacked reasonable suspicion to detain him, the emergence of information that the defendant was wanted on an arrest warrant constituted an intervening circumstance that attenuated the taint of the unlawful seizure.

The court of appeals affirmed. The defendant was seized: a reasonable person would not have felt free to leave upon being approached by two uniformed officers in a marked car, singled out of a group, and immediately accused of a crime. The seizure was unlawful: the defendant was not trespassing or committing any other offense when the officers approached, and the fact that others in his group were drinking publicly and might have been trespassing did not constitute reasonable suspicion that the defendant had recently committed an offense or was about to do so. There was no attenuation: the defendant's statement about the outstanding warrant, made in response to a question posed by the officer at the outset of the seizure, was not a product of free will.

The incriminating evidence was obtained by exploitation of the illegality of the seizure---not by means sufficiently distinguishable to be purged of the primary taint.

The defendant was seized at the first contact with the police when they accused him of a crime (trespassing). A reasonable person would not have felt free to leave.

The police had no reasonable suspicion to believe that the defendant was violating the law or was about to violate the law when he was simply standing on a public sidewalk. The circuit court found that the proffered reasons by the government did not rise to the level of reasonable suspicion.

The statements by the defendant after his unlawful seizure and detention were not free of the taint of either when he made them. They were the fruit of those illegalities.

The totality of the circumstances, analyzed through the Brown factors, show that there was no attenuation of the connection between the officer’s unconstitutional seizure of the defendant and the incriminating evidence---the case called for a straightforward application of the exclusionary rule and the fruit-of-the-poisonous-tree doctrine. The incriminating evidence was obtained by exploitation of the illegality of the seizure and not through means sufficiently distinguishable to be purged of the primary taint. The district court correctly suppressed the evidence.

The district court correctly determined that the officers seized the defendant without reasonable suspicion of criminal activity. Neither the officer's hunch that the defendant might have had an outstanding warrant nor the defendant’s statement ("I think I got one") purged the incriminating evidence of the taint of the illegal seizure.

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GARY MOORE

Government Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0474n-06.pdf

The government appealed the district court’s grant of the defendant's motion to suppress crack-cocaine authorities found following a traffic stop. Defendant was charged with four drug-related charges, including conspiracy to distribute cocaine base and cocaine and two counts of distributing cocaine base. The district court granted the defendant's motion to suppress because the officers at the scene had no reasonable fear for their safety and did not have probable cause to effectuate a search incident to arrest. Appellate court affirmed.

The district court had rejected the officer’s claim that he was searching for weapons because the officer’s testimony that he suspected that the defendant was armed and dangerous was inconsistent with the facts. The district court correctly found that whatever reasonable concern for his safety the officer could articulate at the start of the stop dissipated during the nearly forty-three minutes he allowed the defendant to sit in the vehicle and stand along the roadside during the search.

The government did not contest this finding on appeal. And it was uncontested that there was no search or pat-down of the defendant during the forty-three minute interval the officers questioned the defendant and searched the vehicle.

As there was no Terry-stop search, the search was valid only if the officer had probable cause to believe the defendant had drugs at the time of the search. And there was no probable cause to search the defendant after a forty-minute traffic stop and vehicle search turned up nothing. Nothing the defendant did, before the attempt to search him a second time, gave rise to any probable cause. Even though, when the officers attempted the second search, the defendant tried to leave the area, this attempt to leave did not give the officers cause to search the defendant since the defendant’s actions were in direct response to the officers’ illegal second attempt to search.

The holding is two-fold. 1) The officer did not have probable cause to search the defendant’s person based on the tip that a similarly described vehicle might be transporting drugs and based on the defendant’s behavior before and during the search of the car. 2) The search of the defendant began in the absence of probable cause before he tried to flee. So, the officer did not have probable cause to search the defendant at the time the actual search began.

There was a dissent filed to this opinion. From the tone of the majority opinion and the tone of the dissent, one would surmise that this case provoked a ‘spirited’ discussion among the three judges.

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