State of Vermont v. Yosef E. Pitts; State of Vermont v. Sequoya Pitts
Nos. 07-077 & 07-219
Supreme Court of Vermont
May 22, 2009
2009 VT 51 | 978 A.2d 14
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
Affirmed.
Anna Saxman, Deputy Defender General, Montpelier, and Alison Arms, Office of the Public Defender, Burlington, for Defendant-Appellant Sequoya Pitts, and Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant Yosef Pitts.
¶ 1. Reiber, C.J. Defendants Yosef and Sequoya Pitts appeal from judgments of conviction, entered upon conditional plea agreements, for possession of illegal substances. Each claims that the trial court erroneously denied a motion to suppress based on an illegal search of Yosef‘s person and Sequoya‘s home.1 We affirm in part and reverse in part.
¶ 2. The facts as revealed by the trial record and the court‘s findings may be summarized as follows. In late December 2005, two South Burlington police officers served a subpoena on an individual in connection with a major drug distribution case. The police had information that the individual in question had sold drugs from a white Jeep, accompanied by an Hispanic male from New York. While serving the subpoena, the officers observed a male who appeared to be Hispanic in the apartment. The individual appeared to be nervous about the officers’ presence, and had a New York accent. He identified himself to the officers as defendant Yosef Pitts. After serving the subpoena, the officers waited outside the apartment, observed Yosef enter a taxi, and decided to follow. The officers called the taxi dispatcher and were informed that the taxi was going to an address on Henry Street in Burlington and that the taxi made the same run to the same address several times a day. This aroused the officers’ suspicions further because drug dealers routinely use taxis to avoid detection.
¶ 4. Yosef‘s sister, Sequoya, answered the door. After confirming her identity, the officers informed Sequoya that they had Yosef outside, that he had been coming to see her, and that they had taken a large amount of money and some marijuana from him. The officers sought and received permission to enter the house, where they observed what appeared to be a marijuana roach on a dresser in the living room. An officer then asked for permission to search the house, explaining that he could apply for a warrant but that it would take several hours and require leaving an officer at the scene. Sequoya was concerned about the effect of the search on her son, who would soon be returning from school, and signed a consent form allowing the search. Among other items, a search of the house revealed additional marijuana, cocaine, and assorted drug-related paraphernalia. Both defendants were subsequently charged with possession of illegal substances.
¶ 5. Yosef and Sequoya filed separate motions to suppress the drugs and other evidence taken from the searches. Yosef claimed
I.
¶ 6. In reviewing a motion to suppress, we apply a de novo standard to the trial court‘s legal conclusions and a clear-error standard to its factual findings. State v. Lawrence, 2003 VT 68, ¶ 9, 175 Vt. 600, 834 A.2d 10 (mem.). Yosef contends that he was effectively seized during the encounter with the police outside his sister‘s home; that the police lacked reasonable suspicion to justify the seizure; and that the illegality vitiated any subsequent consent to the search of his person. The claim requires us to determine at what point, if any, during the encounter with the police Yosef‘s right to be free from unreasonable search and seizure was implicated.
¶ 7. In balancing the individual‘s right to privacy against the state‘s interest in crime prevention and detection, courts — including our own — have distinguished various types of interactions between citizens and the police based on the degree of police
¶ 8. The point at which mere questioning or “field inquiry” becomes a detention requiring some level of objective justification is not susceptible of precise definition. In Terry, the Supreme Court held that a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” 392 U.S. at 19 n.16. The oft-stated standard for deciding this question is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 436; see also United States v. Mendenhall, 446 U.S. 544, 554 (1980) (a seizure has occurred “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave“); State v. Paquette, 151 Vt. 631, 634, 563 A.2d 632, 635 (1989) (“A Terry seizure occurs when . . . ‘a reasonable person would have believed he was not free to leave if he had not responded . . . .‘” (quoting State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 593 (1987))). As the high court has
¶ 9. This contextual approach has led, in turn, to a recognition among many courts that while “mere questioning” may not constitute a seizure per se, pointed questions about drug possession or other illegal activity in circumstances indicating that the individual is the subject of a particularized investigation may convert a consensual encounter into a Terry stop requiring objective and articulable suspicion under the
¶ 10. In analyzing the defendant‘s claim that he had been illegally detained, the appeals court acknowledged that the encounter had occurred in a public place, that no physical coercion was evident, and that the officer‘s tone throughout the incident was “unexceptional.” Id. at 953. It concluded, nevertheless, that the officer‘s pointed inquiries as to whether the defendant was in possession of anything illegal made it clear that he was the “subject of a particularized investigation by the questions presupposing the suspicion of criminal conduct” and was “not free to leave.” Id. at 953-54. At that point, the court concluded, “the field inquiry was automatically converted to a Terry stop which would require a reasonable and articulable suspicion before the search was conducted.” Id. In this regard, the court held that the officer lacked any reasonable suspicion of wrongdoing, and that absent a basis for the stop the subsequent search, “with or without [the defendant‘s] permission,” was invalid. Id. at 956.
¶ 12. The Supreme Court of New Mexico confronted a similar scenario in State v. Jason L., 2000-NMSC-018, 2 P.3d 856, where police officers observed two young men on the street at night, one of whom appeared to be continually adjusting his waistband. The officers approached, asked the young men what they were doing, were told that they were “just walking,” and then inquired if they “were armed.” Id. ¶ 13. When the two failed to respond immediately, the officers repeated the question and were told “no.” Id. The officers nevertheless conducted a pat-down search, which revealed a .22 caliber pistol. The state argued that the encounter was consensual until the pat-down search, but the court concluded that “[t]he tenor of the encounter changed when [the officer] asked Defendant if he was in possession of weapons,” id. ¶ 17, which, together with the suspects’ awareness that the officers “had been observing them prior to the encounter” conveyed a clear message that they were “not free to leave” under traditional
¶ 13. Other courts applying traditional
¶ 14. Assessed in light of these standards and authorities, and viewing the encounter in its full factual context, we conclude that a reasonable person in Yosef‘s circumstances would have concluded that he was the subject of a focused police investigation into criminal activity and was not free to disregard the officers’ questions and requests. The encounter with the police, it bears emphasizing, did not begin at Henry Street, but at an earlier time and place several miles away, where Yosef was identified and questioned by officers serving a subpoena at a suspected drug house. As the officers acknowledged, their suspicions were immediately aroused because Yosef appeared to be nervous and
¶ 15. Yosef plainly would have been aware that he was followed across town by the same two officers, who immediately approached his taxi driver for permission to search for anything that Yosef might have left inside. Although the officers’ first few questions to Yosef were the kind that courts have uniformly held to be innocuous and nonconfrontational, they rapidly progressed to inquiries indicating a particularized suspicion of criminal activity. As noted, the officer asked Yosef if he had any weapons on him, although no circumstances suggested that he was armed. Yosef acknowledged that he had a knife in his pocket, which turned out to be a folding pocket knife. The officer testified that he then took the knife off him, patted him down for weapons, and “felt a big wad of cash” in his pocket. The money, according to the officer, “reinforced my suspicion of what might possibly be going on,” and he next asked Yosef whether he had any drugs on him. Yosef again acknowledged that he did have a “little weed” in his pocket, and the officer asked for permission to remove it, to which Yosef again assented.
¶ 16. While the record reveals neither physical restraint nor blatantly aggressive or intimidating language, these circumstances — including the fact that the suspect was obviously followed for a substantial distance, that his taxi was searched, and that he was successively questioned about weapons and drugs — are precisely the kind which courts have characterized as a particularized inquiry into criminal activity which the average person would not have felt free to disregard or terminate. We conclude, therefore, that Yosef was effectively seized for purposes of
¶ 17. In so holding, we are aware of the criticism engendered by several of the Supreme Court‘s seminal decisions governing consensual encounters, particularly Bostick and United States v. Drayton, 536 U.S. 194 (2002). In both cases, the high court held that bus passengers subjected to organized police interrogations and searches were not detained, and remained free to decline the officers’ requests and terminate the encounter where the police did not block the doors to the bus or otherwise employ physical force, weapons, or intimidating language. See Bostick, 501 U.S. at 436-38; Drayton, 536 U.S. at 203-04; see also Mendenhall, 446
¶ 18. However one views the Supreme Court‘s approach as reflected in cases like Bostick and Drayton, we are satisfied that our conclusion here is consistent with both cases and with subsequent
¶ 19. Other courts, to be sure, have reached similar holdings in reliance solely on state law, implicitly or expressly acknowledging the criticism of the high court‘s approach. See, e.g., State v. Quino, 840 P.2d 358, 359 (Haw. 1992) (relying on state constitution to hold that, although no physical force was used, defendant was effectively seized when “general” questioning by narcotics detectives turned to “inquisitory” questions about possession of drugs); People v. Hollman, 590 N.E.2d 204, 210 (N.Y. 1992) (relying on state common law to hold that field inquiry by narcotics officers in a bus terminal escalated into investigative detention requiring reasonable suspicion when officers requested consent to search for drugs). This Court has also consistently held that
¶ 21. In addition to the evidence illegally obtained from his person, Yosef claims that the cocaine and marijuana subsequently seized from the search of the residence should have been suppressed as the tainted “fruit” of the initial illegality. Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Phillips, 140 Vt. 210, 218, 436 A.2d 746, 751 (1981). He essentially argues in this regard that, but for the evidence taken from his pockets, the police would not have approached his sister‘s house, sought and obtained entry, and discovered the additional drugs in the ensuing search. The record evidence does not support the claim. The investigating officer here testified that they approached the house to “[v]erify [Yosef‘s] ID and continue investigating whether this was some kind of drug operation.” When the question was then posed, “if you hadn‘t talked to Yosef, you would have had no reason to go to 13 Henry Street,” the officer initially responded “correct” but then qualified his response by recalling the information they had received earlier from the taxi company. In essence, the officer indicated that their interest in the house flowed from the taxi dispatcher‘s initial identification of 13 Henry Street as the address where a taxi was regularly sent from a suspected drug-dealing operation in Burlington. Their suspicions were aroused, the officer explained, because drug dealers regularly travel in taxis between locations to avoid police detection. Thus, the officers had ample information independent of the money and drugs seized from Yosef to investigate the residence.
¶ 22. Yosef was charged with one count of possession of less than two ounces of marijuana and one count of possession of cocaine. Having upheld the search of the house from which the cocaine was seized, we find no basis to disturb the possession-of-cocaine conviction. The record is unclear, however, whether the possession-of-marijuana charge was based on the evidence illegally seized from Yosef‘s person or the marijuana legally seized from the house. Accordingly, the matter must be remanded to the district court for further proceedings to address this issue and make any necessary modifications to the judgment and sentence.
II.
¶ 23. Turning from Yosef to Sequoya, we note that the latter also relies on the allegedly illegal detention of Yosef to support her claim that the evidence subsequently seized from the residence was tainted by the initial illegality and therefore should have been suppressed. The claim raises an interesting question concerning Sequoya‘s standing to assert the illegal detention of Yosef, but we deem it unnecessary to resolve the issue. For even assuming that Sequoya had standing under these circumstances, the record — as discussed above — does not establish the necessary causal nexus between the illegal detention of Yosef and the evidence subsequently seized from the house. Moreover, contrary to Sequoya‘s corollary claim, we conclude that the evidence supports the trial court‘s finding that Sequoya voluntarily consented to the officer‘s entry and search of the house.
¶ 24. As we have explained, “the inquiry in a consent search context is restricted to whether the consent was voluntary, not whether there was a ‘knowing’ and ‘intelligent’ waiver of a constitutional right.” State v. Zaccaro, 154 Vt. 83, 88, 574 A.2d 1256, 1259 (1990) (citation omitted); accord State v. Stevens, 2004 VT 23, ¶ 11, 176 Vt. 613, 848 A.2d 330 (mem.); Sprague, 2003 VT 20, ¶ 23. Voluntariness is to be determined from the totality of the
¶ 25. The court here found that, when Sequoya answered the door, the officer asked if he could come in and talk to her and “[s]he said he could.” The court further found that
[u]pon stepping over the threshold, the officer began to tell [Sequoya] about the marijuana and cash found on her brother. From his location he could observe a marijuana roach on a dresser in the living room. He asked [Sequoya] if he could search the home based on the presence of marijuana. After the defendant said she wasn‘t sure, [the officer] said he would seize the residence and apply for a search warrant.
[Sequoya] decided to consent to the search. She knew that a search warrant might take hours to obtain and she didn‘t want her young son to have to stay at another residence while waiting for the warrant.
Sequoya signed a consent-to-search form, indicating that she had freely given permission to search the house and that no threats or promises had forced her consent.
¶ 26. Although she did not argue below that her consent to the entry was involuntary, Sequoya asserts on appeal that this Court should adopt a special standard, requiring the police to expressly inform a resident of his or her right to refuse consent as a precondition to a residential search in these circumstances. Sequoya relies in this regard on State v. Ferrier, 960 P.2d 927 (Wash. 1998), a ruling in which the Washington Supreme Court criticized the so-called “knock and talk” procedure whereby the police ask a resident if they may enter a residence to talk about a matter and once inside seek permission to search. The Washington court found this common technique to be “inherently coercive to some degree,” id. at 933, and held “that when police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can
¶ 27. Whatever the merits of the Ferrier decision, we need not address its application on the facts presented here.3 First, the argument was not raised below, and therefore need not be addressed on appeal absent a showing of plain error. State v. Lee, 2008 VT 128, ¶ 11, 185 Vt. 110, 967 A.2d 1161 (we review arguments not raised initially in the trial court solely for plain error amounting to a miscarriage of justice). Second, even considered on its merits the Ferrier decision is inapposite. The Washington court was careful to limit its holding to circumstances where, as the evidence there showed, the police conducted the knock and talk for the express “purpose of obtaining consent to search a home.” Ferrier, 960 P.2d at 934. Indeed, in a later decision the same court held that a ”Ferrier warning” before entry is not required when the police seek merely to speak to a resident in the course of a criminal investigation and not “for the purpose of obtaining consent to a warrantless search.” State v. Khounvichai, 69 P.3d 862, 867 (Wash. 2003). Here the officers’ stated intentions were to confirm Yosef‘s identity and continue their investigation into drug dealing. Sequoya does not claim, nor does the record show, that the police sought entry for the purpose of conducting a warrantless search. Indeed, the undisputed evidence reveals that the search request occurred only after the officers entered and observed marijuana in plain view. Accordingly, we find no grounds to require a pre-entry warning.
¶ 28. Nor do we discern any basis to disturb the trial court‘s finding that Sequoya‘s consent to the subsequent search of her house was voluntary. Sequoya claims that her consent was
¶ 29. The record here contains no evidence that the police coerced Sequoya‘s consent to search through the use of physical force, threats, or intimidation. Nor did Sequoya‘s concern that withholding consent might inconvenience her son amount to the sort of psychological pressure that courts view as impermissibly coercive. Cf. United States v. Ivy, 165 F.3d 397, 404 (6th Cir. 1998) (defendant‘s consent to search of home held to be involuntary where police handcuffed his girlfriend to a chair for an hour and a half and periodically removed their baby threatening to place it in protective custody unless he consented); People v. Haydel, 524 P.2d 866, 871 (Cal. 1974) (consent held to be product of “psychological coercion and involuntary” where it was induced by police promises to release wife and son from custody).
¶ 30. Of more concern is whether the officers’ statements that they would apply for a warrant if Sequoya withheld consent rendered the consent involuntary by implying that any refusal would be futile.4 A substantial number of cases and commentators have considered this issue. One leading authority has summarized the law by observing that consents given in response to police statements indicating an intent “to seek a warrant have been upheld as voluntary” while threats “to obtain” a warrant may present a closer question, particularly where legal grounds for the warrant are lacking. 4 W. LaFave, Search & Seizure § 8.2(c), at 70, 72 (4th ed. 2004). The former may be said to describe what will occur in the event of a refusal, while the latter may be an overstatement of authority “by suggesting that a search is inevitable and that the withholding of consent will be futile.” Commonwealth v. Mack, 796 A.2d 967, 973 (Pa. 2002) (Saylor, J.,
¶ 31. The officer here testified that he told Sequoya that he thought he had probable cause “to seize the residence and apply for a search warrant,” and the court so found. Thus the officer did not communicate that a warrant would automatically issue regardless of Sequoya‘s decision or that her refusal would be a futile gesture; rather, he indicated truthfully and accurately that a refusal would result in an application for a search warrant involving the submission of an affidavit. Accordingly, in conformity with the weight of authority, and absent other evidence of coercion, we discern no ground to reverse the court‘s conclusion that the consent to search was voluntary, and therefore no basis to disturb the judgment of conviction of Sequoya.5
Affirmed in part, reversed in part, and remanded for further proceedings consistent with the views expressed herein.
¶ 33. As an initial matter, before addressing Sequoya‘s claim that the evidence seized from her residence was tainted by the prior unlawful search of Yosef, I see no merit to the State‘s contention that Sequoya lacks standing to make this claim. Assuming that Sequoya requires independent standing to rely upon an illegality already found by this Court in the companion case against Yosef, her standing under the circumstances of this case is apparent. To establish standing for the assertion of an
¶ 34. In support of her standing claim, Sequoya asserts not only a possessory interest, but also a participatory interest, which we defined in Welch as “‘connot[ing] some involvement in the underlying criminal conduct’ that generated the seized evidence.” Id. (quoting State v. Mollica, 554 A.2d 1315, 1321 (N.J. 1989)). Sequoya‘s alleged “involvement in the underlying criminal conduct that generated the evidence” is not difficult to discern from the record. The investigating officer readily acknowledged his suspicion that the cash and drugs seized from Yosef represented evidence of “some kind of drug operation” potentially involving Sequoya, with whom Yosef was staying. Indeed, immediately following the illegal detention and search of Yosef, the officer approached Sequoya‘s home to further his investigation of drug dealing and confirm his suspicions that had been further aroused by the evidence taken from Yosef. As it turned out, based on the discovery of drugs and other contraband subsequently seized from the house, which were linked to the evidence seized from Yosef minutes earlier, the investigating officer alleged in his affidavit of probable cause that “Miss Pitts . . . and [Y]osef Pitts are conspiring to transport large quantities of cocaine to Vermont for sale.” The record thus amply supports Sequoya‘s claim to participatory standing to assert the illegal detention of Yosef as a basis to suppress all of the evidence that flowed therefrom.
¶ 35. Indeed, the State does not even contest that Sequoya has participatory standing, but rather argues only that she failed to claim participatory standing before the district court. This argument is unavailing. Sequoya explicitly claimed standing, citing the applicable test set forth in Wood and noted above. Although she did not specify why in this case she had participatory, as opposed to possessory, standing, the State did not contest her standing on any basis, and the district court ruled only that she did not have possessory standing. Under these circumstances, we should consider the argument properly preserved; but even if we did not, it
¶ 36. Regarding the merits of Sequoya‘s taint argument, the majority concludes that (1) the record does not establish a causal nexus between Yosef‘s illegal detention and the seizure of evidence from Sequoya‘s home; and (2) the record supports the trial court‘s finding that Sequoya voluntarily consented to the search of her home. In reaching these conclusions, the majority considers whether Sequoya voluntarily consented to police entering and searching her home as if her consent were completely independent of the prior illegal detention and search of her brother. That is inconsistent with the applicable standard of review:
Although, to be sure, evidence obtained by means of a valid consent following an illegal detention may in some circumstances be admissible where the causal nexus with the original illegality is sufficiently attenuated, the voluntary nature of any consent that follows must necessarily be established by the State with clear and positive evidence.
State v. Sprague, 2003 VT 20, ¶ 31, 175 Vt. 123, 824 A.2d 539 (emphasis added; citation omitted); see United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1099 (7th Cir. 1980) (“The government bears a heavy burden of demonstrating that consent given subsequent to an illegal detention was properly obtained.“); State v. Arroyo, 796 P.2d 684, 687-88 (Utah 1990) (“When the prosecution attempts to prove voluntary consent after an illegal police action . . . the prosecution has a much heavier burden to satisfy than when proving consent to search which does not follow police misconduct.” (quotation omitted)).
¶ 37. Neither the trial court nor the majority have examined Sequoya‘s consent under this more onerous standard in light of the prior illegal activity. Cf. Sprague, 2003 VT 20, ¶ 31 n.2 (concluding that defendant‘s multiple consents to search following illegal police conduct were tainted and ineffective, and noting that trial court found consents to be voluntary without considering them “in the context of the immediately preceding illegal seizure“). Examined in light of the proper standard, the record reveals that the State has failed to meet its heavy burden of demonstrating by clear and positive evidence that police obtained
¶ 38. The leading commentator on search and seizure law has noted that, when confronted with the question of whether to admit physical evidence obtained by a purported consent following some form of illegal police activity, some courts have focused on the voluntariness of the consent, while others have sought to determine if the evidence was tainted by the prior illegality. 4 W. LaFave, Search & Seizure § 8.2(d), at 76 (4th ed. 2004). Professor LaFave has emphasized that the issues are not identical and that evidence obtained by a purported consent following illegal police activity “should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.” Id. Thus, while consent certainly could be deemed involuntary due to the taint of prior unlawful police conduct and other relevant circumstances, the consent need not be involuntary for the taint from the prior unlawful conduct to be sufficient to require suppression of evidence obtained as the result of that consent. Id. at 76-77; see Brown v. Illinois, 422 U.S. 590, 601-02 (1975) (rejecting notion that confession obtained after illegal arrest is untainted merely because it was voluntary in
¶ 39. Several factors come into play in making this determination in the context of a consent to search following unlawful police conduct. Chief among them are (1) the temporal proximity of the
¶ 40. Each of these factors militate in favor of Sequoya in this case, precluding the State from meeting its heavy burden of demonstrating that its prior illegal activity did not taint its subsequent search of Sequoya‘s home. This is not a situation, as in Phillips, 140 Vt. at 219, 436 A.2d at 751, where the police obtained the challenged evidence through a search “made with probable cause, based on information received totally independently of” the claimed illegality. To the contrary, the record reveals, as acknowledged by the trial court and the majority, that the investigating officer approached Sequoya‘s home immediately following his unlawful investigatory detention and search of Yosef, during which he discovered evidence that further aroused his suspicions of drug activity at Sequoya‘s home. The officer testified at trial that he approached Sequoya‘s home to verify information that Yosef had provided during the illegal detention and to “continue investigating whether this was some kind of illegal drug operation.” It could not be more plain that the illegal detention and search of Yosef, and the resulting recovery of drugs and cash on his person, led police to approach Sequoya‘s residence and make further investigatory inquiries based on aroused suspicions of a drug operation at the house. See 4 LaFave, supra, at 88 (“If . . . the prior illegal search provides a significant lead in terms of indicating what other evidence [police] ought to seek or where they ought to seek it, or if the illegal search provided the means of gaining access to the person from whom the consent was
¶ 41. The majority attempts to deny the apparent connection between the illegal police conduct and the search of Sequoya‘s home by pointing to a single line of testimony by the investigating officer, who initially agreed that he would not have had any reason to go to Sequoya‘s home if he had not talked to Yosef, but then appeared to qualify that response by stating: “Well, other than the cab driver telling me.” This single statement is not “ample” information demonstrating an independent basis for police to approach and search Sequoya‘s home, as the majority states, ante, ¶ 21, and hardly satisfies the State‘s heavy burden of showing, by clear and positive evidence, the absence of taint following the illegal police conduct. On the whole, the record does not support speculation that the police would have approached Sequoya‘s house to confirm Yosef‘s identification or further investigate drug dealing based solely on the cab dispatcher‘s statement, absent the statements made by Yosef and the evidence seized from him following his unlawful detention. This is borne out by the fact that, upon arriving at the house, the officer immediately told Sequoya that he had her brother outside and had found drugs and a significant amount of money on him. In any event, it is undisputed that the police approached Sequoya‘s house immediately following the unlawful detention and search of Yosef; thus, the temporal proximity factor must be weighed in favor of Sequoya.
¶ 42. Nor can the State reasonably claim that there were any intervening factors that purged the taint. While the investigating officer noticed what he believed to be a marijuana roach in plain view once he crossed the threshold of the house, the evidence is equivocal at best from the State‘s perspective — certainly not clear and positive — as to what the officer said before Sequoya consented to his entry into her home. On this point, the officer testified, “I asked her if I could come in and talk to her. She said yes. And I told her what it was about. You know, that Yosef was coming up there, and he had a large amount of money and marijuana.” Later, however, on cross-examination, the officer testified that when he asked Sequoya if he could come in, she asked “what was it about. I told her it was about Yosef.” According to the officer, he told Sequoya that Yosef “had a little weed on him, and he was coming upstairs.”
¶ 44. But even if it did, the State failed to meet its heavy burden of demonstrating that the extension of the police investigation to Sequoya‘s home and the subsequent discovery of drugs there did not result from exploitation of the immediately preceding unlawful detention and search of Yosef. The record plainly reveals that the police gained entry to Sequoya‘s home largely through exploitation of the original illegality — by using the fruits of the illegal detention and search of Yosef as leverage to obtain Sequoya‘s acquiescence in the officer‘s request. Cf. Hernandez, 279 F.3d at 308-09 (concluding that although defendant voluntarily consented to having police search her suitcase, the consent and ensuing search resulted from exploitation of prior unlawful police conduct related by temporal proximity and unbroken by intervening events); United States v. Oaxaca, 233 F.3d 1154, 1158 (9th Cir. 2000) (concluding that sister‘s consent for police to search her home immediately following her brother‘s illegal arrest was voluntary but tainted by illegal police conduct). In short, absent the drugs and money recovered illegally from Yosef, it is difficult to imagine that the police would have sought permission to enter the house so persistently, or that consent would have been obtained so readily.
¶ 45. Given the record before us, there is some doubt about the voluntariness of Sequoya‘s consent to search her home. The investigating officer testified that he told Sequoya he had probable cause to obtain a search warrant and seize her apartment in the
I continued explaining to her that I believed that I had probable cause to seize the apartment. She could consent to a search or request that I write an affidavit for a search warrant. If you chose that route it does not mean that I am going to leave you alone here for two hour[s] while I go write an affidavit. . . . I asked her how she wants to do this.
Sequoya testified that she consented to the search because her son was coming home soon and she did not want him to witness the search and be locked out of his home.
¶ 46. These facts make the voluntariness of Sequoya‘s consent at least questionable, but even assuming that the trial court correctly ruled that there was no coercion and that the consent was voluntary, surely the State has failed to demonstrate an absence of taint resulting from the prior illegal search. For these reasons, I would conclude that the evidence seized from the house was illegally obtained and should have been suppressed.
¶ 47. I am authorized to state that Justice Skoglund joins this dissent.