THE STATE v. CHULPAYEV; and vice versa.
S14A1375, S14X1376
Supreme Court of Georgia
DECIDED MARCH 27, 2015.
770 SE2d 808
NAHMIAS, Justice.
Judgments affirmed. All the Justices concur.
DECIDED MARCH 27, 2015.
James C. Bonner, Jr., Tyler R. Conklin, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.
NAHMIAS, Justice.
On May 21, 2013, a Fulton County grand jury indicted Mani Chulpayev for the murder of Melvin Vernell III and related crimes. The indictment also charged four other men, including Decensae White and Gary Bradford, with the murder and related crimes. On October 9, 2013, Chulpayev filed a pretrial motion to suppress statements that he made during interviews with Federal Bureau of Investigation (FBI) agents and Sandy Springs Police Department (SSPD) officers on July 30, 2012, October 24, 2012, and April 12,
In Case No. S14A1375, the State appeals the partial grant of Chulpayev‘s suppression motion, and we affirm the trial court‘s rulings based on
1. Viewed in the light most favorable to the trial court‘s findings and judgment, see Brown v. State, 293 Ga. 787, 802 (750 SE2d 148) (2013), the evidence presented at the suppression hearing showed the following.
The Murder and Initial Investigation
On the evening of June 7, 2012, SSPD officers responding to a 911 call found Vernell, who had been shot and killed while sitting in an Audi sedan in a parking lot at Northside Hospital. The officers identified and notified the owner of the Audi, and around midnight, the owner called Chulpayev, whose car rental business had rented the car to Vernell. About 30 minutes later, Chulpayev called the SSPD, identified himself, and provided some information about the car. The next day, June 8, Chulpayev called FBI Special Agent Dante Jackson about the shooting. Chulpayev had served as a confidential informant (CI) for the FBI and other federal agencies since 1998 and had been working with Agent Jackson since November 2009. At the time of the murder, he was helping Agent Jackson investigate alleged drug-related gang activity involving White, Bradford, and Vernell‘s father. During the June 8 call, Chulpayev told the agent that he believed White and Bradford had killed Vernell for stealing their marijuana. Agent Jackson told Chulpayev not to speak to anyone at the SSPD.
Chulpayev‘s July 2012 Statements to the FBI
During the remainder of June and into July 2012, Agent Jackson continued to work with Chulpayev to investigate White and Bradford, although the SSPD also pursued other leads in Vernell‘s murder.1 Chulpayev‘s cell phone records show that he and Agent Jackson exchanged multiple text messages on a nearly daily basis during this period. At the suppression hearing, Chulpayev also testified that, at that time, he and Agent Jackson exchanged between 70 and 100 phone calls monthly. Agent Jackson represented himself to Chulpayev as the lead investigator on the murder case.
On July 27, Agent Jackson sent Chulpayev a text message saying, “Stay where you are until you hear from me. I‘m heading to Sandy Springs PD for a meeting with the chief. To hold off on a murder warrant.” According to Chulpayev, Agent Jackson told him in conversation that he needed to come to the FBI office and give a truthful statement because the SSPD was planning to take out a warrant against him for murder and Jackson could not protect him without knowing everything. Agent Jackson said that he would “keep the murder warrant off” if Chulpayev talked to them. The interview took
At the suppression hearing, the other FBI agent and the Alpharetta officer both testified that Chulpayev was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966), and said he understood them before the audio recording began, although he did not sign an advice of rights form. The agent also testified that Chulpayev was treated as a “source” during the interview, and the officer testified that Agent Jackson represented to Chulpayev that Chulpayev would continue to be a confidential informant on the case and his identity would be disclosed only if he had to testify as a witness. Agent Jackson invoked his Fifth Amendment right against self-incrimination and refused to testify at the suppression hearing.2
During the July 30 interview, Chulpayev reiterated his earlier statements to Agent Jackson that White and Bradford had killed Vernell because they suspected Vernell of stealing their marijuana. Chulpayev also said, apparently for the first time, that two or three days before the murder, White called and asked him to locate Vernell‘s car using the GPS tracker that was installed on all cars Chulpayev rented out. When Chulpayev asked what White was planning to do, White said he just wanted to talk to Vernell, so Chulpayev tracked the car for White, locating it at a hotel on Peachtree Industrial Boulevard. Chulpayev denied ever tracking the car to the hospital where Vernell was killed, and Chulpayev said that he did not expect White to harm Vernell. Near the end of the interview, Chulpayev explained to Agent Jackson that he had not shared the extent of his relationship with White earlier because he was worried that it would look bad that he was making money off of White, who had brought in car-rental customers. Agent Jackson told Chulpayev that how he made his money was not important, saying, “What I think is important is two things, one, to keep you alive and keep you out of jail. Those are the only two things I care about. Those are the things and then lo[c]king them up for murder. I got three things that I have to be concerned about.”
More than two months later, on October 15, 2012, Agent Jackson told Detective Williams and other SSPD detectives about the July interview with Chulpayev, including that Chulpayev had said that he tracked Vernell‘s car for White before the murder. When the detectives suggested that this might make Chulpayev a party to the crime, Agent Jackson responded that they could charge Chulpayev only for “the cars.” Later that day, Agent Jackson called Detective Williams, “cussed [him] out,” and vowed to protect Chulpayev “at all costs.”
Agent Jackson agreed to let Detective Williams interview Chulpayev at the FBI office on October 24, 2012, but with the understanding that Chulpayev would be treated as a confidential informant and used as a witness only if necessary. According to Chulpayev‘s testimony, prior to the interview, Agent Jackson told Chulpayev that an investigator at the SSPD “had it out” for him. Agent Jackson assured Chulpayev, however, that he had nothing to worry about, saying, “I‘m the lead on the case, and as much as you do for me, you know, I will make sure nothing happens to you.... I got you. Just come and do what I‘m asking you to do.” Chulpayev then agreed to the interview. He drove himself to the FBI office and was escorted to the interview room by Agent Jackson, who also escorted Detective Williams and his partner to the room. Agent Jackson did not stay in the room during the interview, but he remained close by and came in the room at the conclusion of the interview. He also sent Chulpayev a text message asking “are you ok” at some point during the interview.
During the interview, which was audio recorded, Detective Williams did not advise Chulpayev of his Miranda rights and did not tell him that he was suspected as a party to the murder. Instead, Detective Williams assured Chulpayev that he was “not in any trouble whatsoever,” that the detective “was working with Dante [Jackson] on this,” that Chulpayev was one of the “good guys,” and that the detective “appreciate[d] everything that [Chulpayev had] done.” Detective Williams also confirmed that the murder investigation was “a joint operation” and Agent Jackson was “kind of the lead.” The detective explained that he was interviewing Chulpayev so that he would have all the information Agent Jackson had. Chulpayev repeated what he had told Agent Jackson in July, including that he gave the location of Vernell‘s car to White two or three days before the murder and that he “didn‘t think [White] was capable” of killing Vernell.
On January 25, 2013, Detective Williams and his partner had a meeting with Agent Jackson and another FBI agent and asked Agent Jackson to set up a meeting with the U. S. Attorney‘s Office to discuss indicting the murder case federally. Later that night, Agent Jackson called Detective Williams and told him “off the record” that Chulpayev was not a registered, officially approved FBI CI and had not been for over two years, but Agent Jackson still used him on cases. An FBI internal investigation of Jackson apparently began shortly thereafter.
On February 22, Detective Williams obtained a court order for Chulpayev‘s cell phone records from June 2012. On February 27, the detective obtained a warrant to search the Audi that Vernell had been driving for GPS tracking devices, rental agreements, and other documents, and the vehicle was searched the next day. All of the information about the trackers included in the search warrant affidavit was attributed to Chulpayev‘s October 24, 2012 statements to Detective Williams. The SSPD had obtained a search warrant for the Audi shortly after the murder eight months earlier, but no trackers had been found; the vehicle was still being held in a police impound lot. This time, when the car was searched, two GPS trackers were found inside, one inside the dashboard in front of the steering wheel and one behind the glove box. The SSPD then contacted the company that monitored the trackers and obtained the tracking records. The records showed that one of the trackers was accessed using Chulpayev‘s e-mail address, user name, and password seven times on the day before the murder and 14 more times on the day of the murder and indicated that the user of the device had purged or attempted to purge data from the server.
On April 10, based primarily on Chulpayev‘s statements in the October 2012 interview and the information garnered from the tracking devices found in the Audi, the SSPD obtained search warrants for Chulpayev‘s house, business, and car. The next day, an arrest warrant for Chulpayev was obtained based on the same information.
On April 12, 2013, Chulpayev was arrested on murder and other charges and the search warrants were executed. At the time of the arrest, Detective Williams told Chulpayev that Agent Jackson was “out of the picture,” which Chulpayev already knew. Chulpayev agreed to talk to Detective Williams and was taken to an interview room at the SSPD, where he was advised of his Miranda rights and acknowledged that he understood them. The interview was videotaped. Detective Williams explained that he was “not allowed to offer
Chulpayev reiterated that he tracked Vernell for White but did not know that White planned to kill Vernell. He also told the detective, for the first time, that at some point before the murder, he gave White the login and password to track the Audi. Chulpayev explained that he felt obligated to give White this information because White had given him a lot of money and they were “technically partners” on some car deals. Chulpayev also said that Agent Jackson had prevented him from talking to the SSPD earlier even though he wanted to. Chulpayev expressed disappointment with Agent Jackson, saying of his federal handlers, “Nobody has given me anything that they have promised.”
The Suppression Hearing and Order
At the suppression hearing, Chulpayev testified that Agent Jackson had repeatedly expressed that it was important to the agent to keep Chulpayev out of jail. Chulpayev testified that he made his statements in the July and October 2012 interviews to ensure that Agent Jackson would be able to protect him from a murder charge. In its order, the trial court concluded that Chulpayev‘s statements in the July and October 2012 interviews were involuntary and inadmissible under
2. In its appeal, the State argues that the trial court erred in granting Chulpayev‘s motion to suppress his July and October 2012 statements. Under Georgia statutory law, “[t]o make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.”
As discussed above, Chulpayev testified at the suppression hearing that Agent Jackson repeatedly indicated that he would protect Chulpayev from going to jail, and from a murder charge in particular, and the trial court credited that testimony.5 Specifically, before the July 2012 interview, the FBI agent told Chulpayev that he would “keep the murder warrant off” if Chulpayev talked to him. The
Accordingly, the record supports the conclusion that Chulpayev‘s statements during the first two interviews were induced by promises related to the potential criminal charges he faced, and the trial court did not err in suppressing those statements pursuant to
Case No. S14X1376
3. In his cross-appeal, Chulpayev claims that the trial court erred in denying his motion to suppress his April 2013 statements to the SSPD, which he gave about two hours after he was arrested. Chulpayev does not contend that these statements were themselves involuntary under
As explained below, the trial court did not correctly analyze Chulpayev‘s argument. The court proceeded on the premise that the “fruits” doctrine applies to violations of
However, as discussed in subdivision (b) below, the trial court‘s decision that Chulpayev‘s April 2013 statements should not be suppressed on statutory grounds is right for a different reason, because the court‘s premise was incorrect.
(a) Under a “broad exclusionary rule” that encompasses the fruit of the poisonous tree doctrine, the court must suppress not only illegally acquired evidence but also evidence derived from the tainted primary evidence. Wong Sun, 371 U. S. at 485. But not all evidence is deemed fruit of a poisonous tree “simply because it would not have come to light but for the illegal actions of the police.” (punctuation omitted) Id. at 487-488. The proper question is whether the challenged evidence ” ‘has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. at 488 (citation and punctuation omitted). Accord Vergara, 283 Ga. at 184. In deciding whether the primary taint was sufficiently dissipated, the court must consider the ” ‘facts of each case,’ ” looking to such factors as ” ‘the time elapsed between the illegality and the acquisition of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct.’ ” Spence v. State, 281 Ga. 697, 700 (642 SE2d 856) (2007)
In denying suppression of Chulpayev‘s April 2013 statements, the trial court assumed that the fruits doctrine as set forth in Wong Sun applied to the analysis of those post-arrest statements because the court had determined that Chulpayev‘s previous statements were obtained in violation of
The trial court analyzed the taint question as if Chulpayev simply came in for another interview with Detective Williams in April 2013, with nothing else relevant occurring since his previous interview except for Agent Jackson leaving the case. In fact, much more occurred in the interim. As detailed in Division 1 above, on February 27, 2013, a few weeks after the SSPD learned that Chulpayev was not a properly registered FBI confidential informant and Agent Jackson was taken off the case, the police searched the victim‘s Audi, looking for GPS tracking devices and documents. This search was the direct result of the police‘s use of Chulpayev‘s earlier statements, as demonstrated by the search warrant affidavit, which attributed the information about the trackers exclusively to Chulpayev‘s October 2012 statements to Detective Williams.
The record shows no intervening circumstances or voluntary acts by Chulpayev or anyone else between October 2012 and the Audi search sufficient to eliminate the connection to the previous statements. The State offered no evidence, for example, that the owner of the Audi had come forward with information about the GPS trackers and consented to a search of the car. Compare Spence, 281 Ga. at 701-702 (concluding that evidence from a search that was initially
As a result, the evidence found in the Audi search, in particular the GPS trackers, was tainted by Chulpayev‘s July and October statements, as were the tracking records that the police then acquired using evidence gained from the Audi and from Chulpayev. And as demonstrated by the content of the arrest warrant affidavit Detective Williams submitted on April 10, 2013, Chulpayev‘s arrest on April 12 was likewise based almost entirely on Chulpayev‘s prior statements, the GPS trackers found in the Audi search, and the resulting tracker records. Again, the record shows no relevant intervening circumstances. The fruit of Chulpayev‘s detention, therefore, must also be treated as the fruit of his prior statements, unless the causal connection was otherwise eliminated. See Taylor v. Alabama, 457 U. S. 687,
The State points out that before giving his post-arrest statements, Chulpayev was advised of his Miranda rights and indicated that he understood them and wanted to talk to Detective Williams. Absent a tainted arrest just two hours earlier, such indicia of a willingness to speak to the police might be seen as “sufficiently an act of free will to purge the primary taint” of the preceding police conduct. Wong Sun, 371 U. S. at 486, 491 (concluding that a statement made by a defendant who had been illegally arrested was admissible because he was released and then returned voluntarily several days later to make the statement). However, compliance with Miranda and avoidance of other conduct that would itself render a suspect‘s statements involuntary is not sufficient to eliminate the taint from an improper arrest made a mere two hours earlier. See Taylor, 457 U. S. at 691-692 (holding that giving the defendant three Miranda warnings and allowing him a short visit with his girlfriend did not break the connection between his illegal arrest and the statement he gave six hours after he was arrested); Robinson v. State, 166 Ga. App. 741, 742-743 (305 SE2d 381) (1983) (holding that the causal connection between the defendant‘s illegal arrest and his confession was not broken by any intervening events when he was interrogated after being arrested and advised of his Miranda rights).
In sum, contrary to the trial court‘s conclusion, Chulpayev‘s April 2013 statements are the fruit of his July and October 2012 statements, which the court properly held were involuntary and inadmissible under
(b) The broad exclusionary rule, with its fruit of the poisonous tree extension, operates only in limited circumstances, usually only where a defendant‘s constitutional rights have been violated, because the exclusion of evidence that is relevant to a criminal prosecution is a potent remedy that “must be justified by an over-riding public policy
The legislature may also provide for the exclusion of evidence or its fruits as a matter of statutory law, but suppression is not required merely because evidence was obtained in violation of a statute. See, e.g., State v. Lampl, 296 Ga. 892 (770 SE2d 629) (2015) (holding that a violation of statutory provisions limiting the scope of a grand jury‘s duties did not authorize as a remedy the suppression of testimony given before the grand jury); Tew v. State, 246 Ga. App. 270, 272-273 (539 SE2d 579) (2000) (physical precedent only) (holding that the exclusionary rule did not apply to evidence derived from marijuana used in a reverse drug sale that was illegal because a statute required the police to destroy or send away forfeited dangerous contraband, where the statute did not include a suppression remedy and was not “enacted to protect a defendant‘s constitutional rights“). Instead,
the exclusionary rule is an appropriate sanction for a statutory violation only where the statute specifically provides for suppression as a remedy or the statutory violation implicates underlying constitutional rights such as the right to be free from unreasonable search and seizure.
United States v. Abdi, 463 F3d 547, 556 (6th Cir. 2006). See also Sanchez-Llamas v. Oregon, 548 U. S. 331, 348 (126 SCt 2669, 165 LE2d 557) (2006) (explaining that “[t]he few cases in which we have suppressed evidence for statutory violations” involved evidence that “arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests“); Lampl, 296 Ga. at 896 (“Unless expressly authorized by statute, [the exclusion of evidence] generally ‘cannot be imposed absent a violation of a constitutional right‘....” (citation omitted)).
The statute at issue in this case,
We must still determine, however, if the exclusion of the fruits of a statement obtained in violation of this statute is required by either the statute or the Constitution. Looking first to the statute itself,
To the contrary, where the General Assembly wants courts to invoke the “fruits” doctrine, it knows how to express that intention in the text of the statute. See
Moreover,
As for whether suppression of the fruits of an
But a violation of
Under English common law at the time of Georgia‘s independence in 1776, confessions that were made “under threats and promises” were inadmissible as evidence at trial. See George E. Dix, Mistake, Ignorance, Expectation of Benefit and the Modern Law of Confessions, 1975 Wash. U. L. Q. 275, 280, n. 7 (1975) (” ‘The instance has frequently happened, of persons having made confessions under threat or promises: the consequence as frequently has been, that such examinations and confessions have not been made use of against them on their trial.’ ” (quoting The King v. Rudd, 168 Eng. Rep. 160, 161 (K.B. 1775))). This exclusion was based not on notions of fairness but on the perceived unreliability of such statements. See id. at 280. In The King v. Warickshall, 168 Eng. Rep. 234, 235 (K.B. 1783), for example, the court explained that “a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it.” Id. at 235.
The common law of England as of May 14, 1776, has long been the backstop law of Georgia, see
This regard for the weakness of humanity and the strong probability that one accused of crime may be induced to say that which is not true, through hope of benefit or fear of punishment, accounts for the existence of the strict rule stated in [the Code].... This statute, however, is not a fresh particle dropped into the theretofore existing body of the law, but it is to be regarded as a rule deducible from the common law, and from many decisions of the courts since the beginning of our jurisprudence.
Wilson v. State, 19 Ga. App. 759, 766-767 (92 SE 309) (1917). None of the early cases applying this rule discuss it in relation to constitutional doctrine.
Th[e] principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exist at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false.... It is true, that many able judges have conceived that it would be an exceeding hard case, that a man whose life is at stake, having been lulled into a notion of security by promises of favor, and in consequence of those promises has been induced to make a confession by the means of which the [stolen] property is found, should afterwards find that the confession with regard to the property found is to operate against him. But this subject has more than once undergone the solemn consideration of the twelve judges; and a majority of them were clear of opinion, [t]hat although confessions improperly obtained cannot be received in evidence, yet that any acts done afterwards might be given in evidence, notwithstanding they were done in consequence of such confession.
168 Eng. Rep. at 235.
The Warickshall court added that if evidence found because of an involuntary confession was admitted at trial, it “must be fully and satisfactorily proved, without calling in the aid of any part of the confession from which they may have been derived.” Id. However, this point — whether the court could admit at trial only the fruits of an involuntary confession or also the portion of the confession that led to them and thus was shown to be reliable — was not settled in the common law. See State v. Douglass, 20 W.Va. 770, 784-785 (1882) (discussing this disagreement, contrasting Hodge‘s Case, 2 East P.C. 658 (1790), in which the court admitted testimony that the defendant described the place where the stolen goods were found, with Harvey‘s Case, 2 East P.C. 658 (1800), in which the court did not admit any evidence of the confession‘s contents).
Georgia adopted the common-law evidence rule allowing the admission of fruits derived from an involuntary confession, as well as
The reason for rejecting confessions improperly obtained is, their liability to prove false by reason of the motive which induce them, but when they are corroborated and confirmed by the discovery to which they lead, the reason for their rejection ceases, and ratione cessante ipsa lex cessat [the law itself ceases if the reason of the law ceases].
A version of § 3718 remained in the Georgia Code alongside the predecessors of
While the constitutional jurisprudence on confessions also has its roots in the reliability concerns developed in the English common law of evidence, which became the Georgia evidence law now codified in
The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false. The criteria for decision of that question may differ from those appertaining to the State‘s rule as to the admissibility of a confession.
Id. at 236. See also Dickerson v. United States, 530 U. S. 428, 433 (120 SCt 2326, 147 LE2d 405) (2000) (tracing the history of the admissibility of confessions).
We have found no case holding that the fruits of a confession that is inadmissible under
(c) This does not necessarily mean that the trial court reached the right result with respect to the motion to suppress the April 2013 statements, because Chulpayev also claimed that his July and October 2012 statements were obtained in violation of his constitutional rights, and the broad exclusionary rule, including the fruits doctrine, does apply to constitutionally involuntary confessions. See Lall, 607 F3d at 1291. See also Michigan v. Tucker, 417 U. S. 433, 446-447 (94 SCt 2357, 41 LE2d 182) (1974). As explained above, the statutory and constitutional voluntariness standards differ, and while proof that a confession was induced by a hope of benefit in violation of the statute is significant proof that due process was also infringed, the court must consider that factor among the totality of the circumstances. The trial court did not distinctly rule on Chulpayev‘s constitutional claim, and so we have nothing to review on that point. See Marks v. State, 280 Ga. 70, 74 (623 SE2d 504) (2005) (“This Court ... ‘will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point.’ ” (citation omitted)). We therefore vacate the trial court‘s judgment with respect to Chulpayev‘s April 2013 statements and remand with direction for the court to decide whether any of his statements were obtained in violation of his constitutional rights and whether, as a result, the April 2013 statements must be suppressed.
Judgment affirmed in Case No. S14A1375. Judgment vacated and case remanded in Case No. S14X1376. All the Justices concur.
DECIDED MARCH 27, 2015.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I. Krick, Joshua D. Morrison, Assistant District Attorneys, for appellant.
Tanya F. Miller, Renee R. Rockwell, for appellee.