*1 commerce____ Thus, Congress has state pre- a decision to
made
allow substantial
America,
UNITED STATES of
emption
regulatory authority
of state
Plaintiff-Appellee,
...
the role of this
in reviewing
v.
clearly
such
decision is
different from
George
CARSON,
L.
considering
it assumes in
Commis-
Defendant-Appellant.
pursuant
sion action which is taken
No. 85-2217.
explicit
authority.
less
or less broad
We
rigid require-
therefore hold that
United States Court of Appeals,
ments of North
Carolina
U.S. [325
Tenth Circuit.
507,
U.S.
S.Ct.
Rather, review of the Commission’s deci- governed by
sion herein is 5 U.S.C. 706, and we can agency “set aside ac-
§
tion, findings, [only and conclusions if] found to be arbitrary capri- ... [or]
cious____” Judging the Commission’s standard, by this
action we hold that it
must stand. (first ours). at 169 bracketed material agree with this view articu Accordingly,
lated the Second Circuit. applying this rationale to the cases be us, authority require
fore ICC has the Corporation
the Kansas Commission to ex
plain why intrastate rates lower than are Corporation
interstate rates. The Kansas
Commission failed to do so. ICC or relating
ders Grey both K.G. Lines and are, therefore, arbitrary
hound neither nor
capricious Congres and are in accord with
sional intent as embodied in the Bus Re form Act of deciding, 1982. In so we fol Logan, Judge, Circuit concurred and the above-quoted ruling low Second opinion. filed an rulings and the Circuit other circuits
similar cases. Missouri Public Service
Commission Interstate Commerce
Commission,
(8th Cir.1985);
State New York v. United — (2d Cir.1984), denied, F.2d 163 cert. -, L.Ed.2d 301
(1985); Public Service Commission of Virginia
West v. Interstate Commerce
Commission,
(4th Cir.1984)
(unpublished opinion).
Decisions affirmed.
Benjamin Jr., Burgess, L. Atty. (Robin Fowler, D. Atty., Asst. U.S. with brief), Wichita, Kan., him on plaintiff- for appellee. Holland, Russell, Kan.,
Michael S. for defendant-appellant. BARRETT, LOGAN,
Before and BAL- DOCK, Judges. Circuit BARRETT, Judge. Circuit Defendant-appellant, George Carson, L. charged by was information with the un- possession lawful contrary doves to the migratory among bird treaties the United Britain, Great and the United Mexi- can States violation of 16 U.S.C. 703 § and 50 C.F.R. 20.35 and 20.72. Carson §§ guilty was found and sentenced a Unit- Magistrate ed States on March 1983. appealed magistrate’s Carson decision to the District Court for the District of Kansas, 10, 1983, and on November district magistrate court reversed the dismissed the action that the evi- against dence introduced Carson was the product of an search.
The appealed Government to this court from the district court’s to order Relying 18 3731. opinion U.S.C. on the § Appeals of the United States Court of Fike, the Fifth Circuit in United v. States (5th Cir.1971), F.2d we held that Carson’s consent to a search of his vehicle taint of an Carson, search. United States v. F.2d (10th Cir.1985) (Carson 1). Carson I we remanded the case to the Sonntag to Car- doves. Id. at 11. testified that court determine whether district to search was opinion it was his doves son’s that the dressed voluntary. day had killed because been earlier that warm, they light pinkish were still of a found, remand, court the district On sticky. and their color blood was wet and things, among other that Carson’s Ill, p. Tr. Vol. A second State Game (R., p. voluntary. Vol. search was Protector, Madora, the doves la- handled 148). Consequently, court rein- the district evening ter that concurred with Carson original conviction. stated Carson's Sonntag that the doves had been dressed from court’s order appeals the district now day. Id. killed 27-28. clearly ground court was on the that this relying on in Carson I in United erroneous magistrate At trial before the and dur- Fike, failing and in supra, States ing cross-examination, Branick admitted holding of apply consider recognize, up he lifted the vest order Melendez-Gonzalez, 727 States II, observe the dressed doves. Tr. Vol. (5th Cir.1984),or the constitution- F.2d 407 p. objected 22. Defendant the evi- applicable to evidence seized principles al during dence from this search later testi- prior illegal result search. as a direct mony Sonntag. Id. at 45. The trial continued to allow the defendant I. suppress. file and brief a motion are the appeal before us in this magistrate May The facts at 55-57. ruled on the sake as those I. For same suppression hearing, without a *5 however, our state- clarity, we set out right that the defendant had waived his I, at ment of facts from 762 F.2d Carson object the to to evidence because he 834-35, below: pre-trial sup- to file a failed motion September the defendant by On press required the evidence as Fed.R. County, hunting in Russell 12(b)(3). was doves May resumed Crim.P. The trial Branick, County a Russell Kansas. Joe and found the defendant was him and ob- deputy approached sheriff guilty. Tr. Vol. shooting served him nine doves. appealed judgment defendant the The II, hunting, While was p. 4-5. defendant that the to the district court who found gallon pail and Branick looked into a five magistrate had abused his discretion at least six observed a vest failing to hear the for the defend- reason doves. Id. 6. Branick also dressed at motion to pre-trial failure to file the ant’s the of doves scattered observed remains suppress failing and for to address tops of in the field
on the tall weeds le- question of whether the search was 7. hunting. Id. at where defendant was aside the gal. The trial court then set these remains Branick concluded that action be- and dismissed the conviction clung way they fresh based on the were search cause it determined that Branick’s of the blood. to the weeds and the color illegal. was Doug got Branick then in touch with Id. I, district we affirmed the Carson Sonntag, Protector em- a State Game ruling magistrate that the erred court’s and Game ployed by the Kansas Fish refusing grant, relief from the defendant legality of concerning the Commission 12(f) Feder- provision of Rule waiver bag Branick and possession. defendant’s of Criminal Procedure. Id. at 835. al Rules Sonntag area where de- returned to the that agreed with the district court We also hunting asked him for was and fendant Branick, he first search which pickup. Defend- permission to search his dressed up the vest to reveal the six picked consented, vehicle, took unlocked the ant Fourth doves, violation Sonntag, pail, and in front of out the sat noted, however, that Id. We doves, Amendment. up freshly killed picked who magis- nor the 11 dressed neither the district court up a vest removed lifted and validity trate discussed the and effect of thereby evidence obtained consensual search. Id. any taint from the unlawful first search. supported holding We our relying exclu- considering validity Before and effect on sively the Fifth Circuit’s decision in search, quoted we consensual Fike, supra. United States v. testimony regarding sec- Recognizing, however, at 836. ond follows: admissibility that the of the evidence ob- The officers returned area through depended tained the second search pickup. encountered at his defendant upon whether Carson’s consent was volun- testified, Ill, Tr. Vol. pp. Defendant GO- tary under Bustamonte, Schneckloth v. 64: “Q. What occurred when two (1973), not made either the pickup? them came to the magistrate or court, the district we re- talking A. stood around little manded issue to the district court as bit, just visiting. Mr. Branick follows: said, said, George, well he I want you I you many tell think shot too argument [by Government] and I doves couldn’t believe I it. defendant’s consent to the sec- uh, oh, thought, go again. here So brought ond search was to the attention him, I you asked I said what makes of the trial court but not considered it. think that? And he said saw because I validity Because the of the second search some feathers some blood and question fact, involves a else, said, something sticking he consent to the second the district something, some weeds or which I nev- court, remand, on may wish to remand see, quite er frankly. did magistrate case for determina- Q. you Did he tell at that he time tion the facts. your had searched bucket? No, A. he did not. On remand the district court found that Q. Okay, else say? what did he Carson’s consent to the second search was *6 Well, again, A. he asked Mr. Bran- voluntary: ick if they asked he ... if could could Court, having This reviewed the tran- my said, look into pickup and I well script and proceedings record of trial be- certainly____ Magistrate fore ... finds that under Q. What happened then? totality circumstances, Mr. got A. We pick- back to ... product Carson’s consent was the of his up where the vehicles un- were. I own free will and unconstrained choice. locked the truck on the driver’s I side. finds that Mr. Carson’s con- passenger reached across the side sent the search was voluntary. got brought the bucket and it out to- (R., I, p. 137.) Vol. Based on this factual my pickup ward the rear of it and set ground. determination on the the district court Sonntag pro- Mr. then reinstated freshly by ceeded to take un- affirmed killed Carson’s conviction (R., I, top magistrate. 148.) dressed doves off p. of the hunt- Vol. ing jackets, ground. laid them on the In the instant appeal, challenges Carson hunting jackets, Then he lifted out two contending his conviction that this court then plastic bag____ lifted off the clearly holding erred in I in Carson that Now, Q. doves, regard in to the “defendant’s consent the second many how dressed doves were there? any search of taint from the first search.” A. There were 12.” I, First, 762 Carson F.2d at 836. Carson I, Carson 762 F.2d at light clearly 835-36. contends erred in I Carson in testimony, this in we held on relying Fike, supra, Carson I that United States v. in light Carson’s consent to the second search of the Fifth Circuit’s deci-
1147 finding the district court’s factual that sion in United v. Melendez-Gonza- Car- States voluntary. lez, principles recog- ar- son’s consent was supra, and constitutional Second, jurisdic- nize that law of the case is not a by Court. ticulated rule; applied tional rather it is a rule to be that even if the subse- Carson contends the sound discretion of the court purges quent consensual search the taint proper jus- effectuate the administration of the evidence tice: because it obtained should be excluded was
as a direct result of the initial phrase, “In the absence of statute the search. case, applied law of the to the effect previous orders on the later action of
II. rendering them in court the same case, merely expresses practice considering Before the merits of generally reopen courts to refuse to by appeal, procedural this two issues raised decided, what has been not a limit to First, parties should be addressed. Anderson, power.” Messenger their v. the Fifth Circuit’s Carson contends 444, 225 436 32 S.Ct. 56 in v. decision United States Melendez-Gon practice rigidly L.Ed. 1152. The is not zalez, appropriate sets forth the supra, binding, generally appellate but court applicable to I and rule of law Carson depart will not from a rule of law estab- effectively the Fifth de overrules Circuit’s appeal deciding lished on an earlier Fike, supra, v. cision United States issues, except cogent same reasons. relied this court Carson I. Melendez-Gonzalez, 1351, Bromley Crisp, 727 561 F.2d “United States (5th Cir.1984), (10th Cir.1977), denied, 908, cited F.2d 407 cert. 1458, (1978). opinion, fully court in its initial 55 L.Ed.2d Con arguments sidering discusses the doctrine of ‘consent Carson’s and the dis search,’ legal consequences specifi regarding its trict court’s observations our cally rejected holding holding that evi this court’s Carson we believe the admin justice first dence derived istration of this circuit will be upon subsequent application con is admissible based furthered our review and (Appel at 413-14.” I rule here. We therefore sent search. the Carson de 11.) p. limit Brief, lant’s It well settled cline to our review district appeals the decisions one circuit court of court’s that Carson’s binding upon voluntary. are not another circuit.
Newsweek, Inc. v. United States Postal III. (2d Service, Cir.1981), affirmed, 462 U.S. A. *7 (1983). rely L.Ed.2d 195 While we often precise legal issue which Car analysis and decisions of other in the ease at is whether son raises bar appeals, as we did in circuit courts Car necessarily consent to a search by we are not bound their decisions son that the evidence is obtained free of means of those decisions. As or modifications exploitation police prior of the fruits of such, by any we are not bound modifica conduct or is obtained in a man unlawful Fike, supra, by tions of United States v. distinguishable sufficiently ner from the subsequent Fifth decisions. We do Circuit prior illegality purge the evidence of the Melendez- not believe that United States v. primary Wong taint. Sun v. United Gonzalez, correct supra, sets forth the 471, 487-88, 407, States, 371 U.S. 83 S.Ct. any way by bound rule of law nor are we 417-18, (1963). 441 reaffirm 9 L.Ed.2d it. our rule in I. We hold that volun Second, argues as defined for Fourth tary the Government purposes, intervening is an act I is of the case which Amendment that Carson law police primary appeal exploitation free of of the limits our review in the instant 1148 Accord,
illegality sufficiently distinguishable States, Segura and is taint. v. United illegality purge 796,104 primary from the 468 U.S. S.Ct. primary
evidence of
taint.
(1984).
supported
holding
by
Our
the United
is
further,
proceeding
Before
how
opinion
Supreme
Wong
States
Court’s
ever,
pur
we believe it will
useful for
be
States, supra.
Wong
United
poses
opinion
implica
of this
to discuss
Sun,
83
471 the
supra, at
S.Ct. at
pivotal language
tions of this
from Wong
Supreme Court considered whether evi-
note that in
first
Sun. We
sentence of
illegally
result
prior,
seized
dence
as
above-quoted
Sun,
language
of Wong
should be
as
obtained statements
excluded
Supreme
rejected
Court
a “but for”
poisonous
“fruits of the
tree.” The Court
exclusionary rule for evidence which comes
Sun,
the facts of Wong
noted that under
as a
light
result of
actions of the
excep-
neither one of
two established
See,
police.
e.g., Dunaway
York,
v. New
poisonous
of the
tree”
to the “fruit
tions
200, 217,
2248, 2259,
99 S.Ct.
60
rule,
doctrine,
independent
source
(1978);
Illinois,
L.Ed.2d 824
Brown v.
422
Co. v. United
Silverthorne Lumber
590, 603,
2254, 2261,
U.S.
95 S.Ct.
45
385, 392,
182, 183,
States, 251
40
U.S.
S.Ct.
(1974).
also,
416
L.Ed.2d
See
United
(1920),
L.Ed.
nor the
64
319
attenuation
Fallon,
(10th
States v.
20
doctrine,
308
Nardone
(“the
Cir.1972)
would not have
[evidence]
266, 268,
U.S.
L.Ed.
been
had
obtained
the defendant not been
(1939), applied to cure
of the
the taint
However,
stopped and detained.
we do not
Nonetheless,
primary illegality.
the Court
Wong
holding
read the
Sun case as
that a
though
held that even
evidence would not
“but for” factual
is legally
connection
suf
light
have come to
but for
render
ficient
the evidence inadmissi
[to
conduct,
inad-
police
such evidence is not
ble]”).
Supreme
quite
As
Court makes
per
missible
se:
clear,
purposes of the “fruit
We need not hold that all evidence is
doctrine,
poisonous tree”
the issue of
poisonous
“fruit
be-
simply
tree”
whether evidence is admissible is not re
light
cause it would not have come to
but
by determining
solved
actions of
police.
for the
actions of the
obtaining
evidence were com
Rather,
apt question
the more
in such a
pletely
by
lawful. The
issue
resolved
“whether, granting
case is
establishment
determining whether the evidence is ob
illegality,
of the primary
the evidence to
exploitation
tained either free of
which
objection
instant
is made has been
illegality
sufficiently
or
means
distin
come at
exploitation
guishable
illegali
the taint of the
sufficiently
or instead
means
distin-
ty-
guishable
primary
to be
Guilt,
Maguire,
taint.”
Evidence of
Supreme
Unfortunately,
Court
(1959).
“exploitation”
has not defined the terms
Sun,
487-88,
at
“sufficiently
distinguishable”
used
quite
417. The rule of
Sun is
clear:
purposes
opinion,
For
of this
Wong Sun.
should
be excluded
“fruit
as a
important
it is
to define what we believe
poisonous
simply
it
tree”
because
intended when it
light
prior illegal
comes to
result of
adopted
employed
these terms.
In the
*8
evidence,
activity;
knowl-
police
rather
consent,
voluntary
context
of
hold that
edge of which
obtained as a
of
result
“exploitation
primary illegality”
of the
police
long
prior
illegality, is admissible so
police
that the
the fruits of
means
use
(1)
subsequently
it
has not been
obtained primary illegality to coerce defendant into
(2)
through exploitation
illegality,
of that
his
granting
consent.
subsequently
by
has
it
been
obtained
pursuant
Evidence
sufficiently distinguishable
means
obtained
to con
by
of
prior illegality
purge
to
the evidence
sent “has been come at”
defendant’s
consent,
by
police request,
edge
illegally acquired may
of facts
of
not
not be
grant
defendant,
regardless
request
against
of how reasonable the
used at all
the knowl-
might
exploitation
The
issue focuses
edge
be.
may
against
of these facts
be used
consent,
of
solely
grant
on defendant’s
not
if
gained
indepen-
defendant
it is
from an
request, or the reasons under-
on the bare
dent source. Silverthorne Lumber Co. v.
police may exert
lying it. While the
coer-
385, 392,
40 S.Ct.
they request
in
in which
cion
the manner
(1920).
requesting consent. the “suffi- or and ciently distinguishable” indulge every pre- standard focuses the courts reasonable by sumption against on the method which evidence is ob- the waiver of funda- case, rights tained. a consent because the mental constitutional and there of obtaining method is the defend- convincing must be evidence that such consent, grant “sufficiently ant’s of rights waived. were distinguishable” standard focuses on the 883, Abbott, 546 United States v. F.2d 885 grant not of consent and on (10th Cir.1977), citing Villano v. United attempting reasons for to use that officers’ 680, (10th Cir.1962). F.2d 310 684 obtaining of method evidence. also, Gay, See v. United States 774 F.2d 368, (10th Cir.1985); 376 v. States B. Recalde, 1448, (10th Cir. We next decide what of “volun- standard 1985). It clear is that Fourth Amendment satisfies either one tariness” of two by requires showing “voluntariness” a Wong standards. We hold that the Government that defendant’s is consent Supreme by tests articulated Court and voluntary free of is coercion and to determine Fourth court Amendment definition, then, By Fourth Amend- fact. “voluntariness,” definition, satisfy, by ei- necessarily ment “voluntariness” requires Wong ther Sun standard. In Schneckloth finding by a the district court that Bustamonte, 218, 248-49, 412 U.S. freely evidence was obtained and not 2041, 2058-59, (1973), S.Ct. L.Ed.2d 854 police “exploitation illegali- primary] of [the held that consent to a ty____” Sun, supra, 371 U.S. at Fourth Amendment must be volun- 487-88, making S.Ct. the two tary under and free coercion findings Moreover, fact mutually exclusive. totality the circumstances: Sun, pur- under Wong a search conducted only hold that when the State ... sufficiently suant is consent a attempts justify search on basis distinguishable obtaining evi- means of of his the Fourth and Four- pri- dence to it of the taint of the require teenth Amendments [the mary illegality. demonstrate that the con- Government] for While “voluntariness” voluntarily given, sent was fact and satisfies the Fourth Amendment consent coercion, not the result of duress or ex- standards, the tests for “volun Wong Sun press implied. Voluntariness is a constitutionally tariness” to waive other question of fact to be determined from therefore rights differ and do protected circumstances, all the and while the sub- necessarily satisfy Sun stan ject’s knowledge right of a to refuse is a example, dards. For the standard “vol account, into pros- factor be taken for untariness” consent waive Fourth required ecution is not to demonstrate rights Amendment stan differs knowledge prerequisite such as a to es- dard of “voluntariness” tablishing consent. rights. waive Fifth Amendment A valid This set court has out a three-ti rights may waiver of Fourth Amendment determining ered standard for whether presumed only not be may but be effected Government has sustained the burden of discharges when the bur Government its showing that to search fact proving den that defendant’s consent is voluntary v. Busta Schneckloth fact; a valid waiver Fifth monte, supra: rights presumed may Amendment be when
(1) positive incriminating There clear de must be and tes- statement made timony “unequivocal given warnings consent was fendant he is after Arizona, “freely intelligent- required specific” Miranda v. (2) ly” given; government (1966). must — prove given Elstad, U.S.-,-, Oregon consent was without duress See
1151
1285, 1292-94,
222
Fourth Amendment issue would not
105 S.Ct.
84 L.Ed.2d
have
(1985). Yet,
to be reached.
may
while statements
be
valid,
an otherwise
vol-
made
Beyond
requirement,
this threshold
rights,
untary
of Fifth Amendment
designed
waiver
test
Brown articulated a
to vin-
not
policies
Fifth Amendment “voluntariness” does
dicate the “distinct
and interests
underly-
Id.,
of an
necessarily purge the taint
of the Fourth Amendment.”
602
at
violation,
ing Fourth Amendment
such as
S.Ct.
[95
2262].....
Illinois,
an
arrest. Brown v.
York,
200, 217,
Dunaway v. New
U.S.
590,
2254,
Illinois,
the law in this
supra, clarifies
required
the Government is
to show attenu
area.
primary police illegality
ation between the
Illinois, supra,
In Brown v.
Su-
beyond the
and the evidence obtained
Fifth
giving of
preme Court held that the mere
standard,
Amendment “voluntariness”
se,
warnings,
per
can-
“Miranda
alone
.
Supreme
Court intended
Brown v. Illi
sufficiently a
always
not
make the act
nois, supra,
that a defendant’s consent to
break, for Fourth
product of free will to
rights
waive his Fifth Amendment
also
purposes, the causal connec-
Amendment
meet the Fourth Amendment “voluntari
and the confes-
tion between
satisfy either Wong
ness” standard to
Sun
at 603 and
search illegal, we hold that the evi- gained dence as a result of the second IV. search, only evidence of which the circuit, holdWe that the of this law complains, defendant was admissible. voluntary which purposes consent for This of is so the voluntary because consent Fourth Amendment satisfies to the either defendant second standard, found Wong Sun the district court and is consistent with the affirmed Court, this independent was an Supreme Court’s act interpreting decisions sufficient to break causal connection Wong Sun and the Fifth Circuit’s decision alleged primary between the illegality Fike, supra. reject United States v. We and the evidence found as a result of the proposed analysis to contrary Carson’s second search and admitted at trial. The and his reliance on United States v. Melen- above, only, consent not as discussed dez-Gonzalez, a supra, as correct state- served to validate the second search for ment the law. purposes Fourth Amendment but also Fike, In United supra, States v. defend- purged the search second of the “pri- ant left a stolen automobile with a car mary taint.” while dealer he test drove one of the deal- Relying opinion Id. at 193. on its earlier er’s vehicles. failed Defendant to return (5th Bretti v. 439 F.2d Wainwright, the vehicle within two hours and the dealer Cir.), denied, cert. police called to the car lot. There the (1971), the court con automobile, searched the stolen re- cluded that a as matter law office, it to the moved sheriff’s and arrest- independent consent is an act sufficient custody, ed defendant. While in defendant break the causal connection between consented to a second search of the illegal activity and a search. yielded automobile. The second search In Bretti the search would not have tak- vehicle identification number from the arrest, place en yet “but for” frame the car which was admitted at Court, once consent was tags trial. Automobile license and bolt cut- found, determined that evidence seized ters observed the trunk as a result of the as a result of the search was admissible. first search were not introduced at trial. We reasoning applies feel that equal- appeal challenged On defendant the le- bar, ly well to the case at where volun- gality both searches. court ex- tary similarly breaks the “but plained argument as follows: for” admissibility. chain and allows appellant “The does contend that repeatedly Consent to search has been second search was tainted recognized as sufficient to waive Fourth by the first search rather but rights. Amendment It is also an inde- second search itself was tainted. Assum- pendent any act sufficient to break caus- ing argues, appellant the second may al chain which exist between the place would not have taken ‘but for’ alleged primary of the first search, and, result, the first it is search and the evidence seized as a re- Fike, tainted.” v. United States sult of the second search and introduced (footnote omitted). The at 194 Fifth at trial. Cir-
United, Fike, any make their F.2d at 194 does not actions less a v. States practical omitted). pur- “search.” Since for all (citations poses, the search was conducted on the Melendez-Gonzalez, su- United States highway, the consent form which defend- contrary to contends is pra, which Carson simply signed ants at the station came Fike, su- States and overrules United late. too stop automobile of an pra, involved (citations omitted). agree at 413-14 roving patrol to search border agents given conducted that consent to search af- Law enforcement aliens. *12 search, time the at the of ter an does not transform a search of the vehicle trunk, opening legal the the law stop. Upon prior illegal the search into a one. marijuana. Circuit, agents smelled disagree enforcement with the Fifth how- at that time and ever, was seized No evidence to the extent Melendez-Gonzalez was taken to the nearest the defendant purged holds that evidence is not signed a consent police station. Defendant prior police activity taint of when a agents gave the Mi- search, to search form after to which the defendant advised him of his warnings and consents, randa voluntarily yields that evidence. sign the consent form. right to refuse to in Melendez-Gonzalez indicates that the something more Fifth Circuit than Fourth held that both the The Fifth Circuit Amendment “voluntariness” is needed for ensuing roadside search were stop and the consent to the taint defendant’s agents did not have illegal because the illegal police activity. example, For also for either. The court probable cause reviewing the district court’s factual stop if were law that even the initial held finding regarding defendant’s consent to ful, would nonetheless the roadside search search, the court set forth its roadside supported it was neither illegal because be determining whether consent standard nor conducted by probable cause purges prior illegality: the taint of at 412-13. Final consent. Id. attempting prove voluntary reversed the district court’s When ly the court following to search that the defendant’s finding and conclusion police stop, the Government has a much heavier second search at the consent to the satisfy proving than when con- given, burden to voluntarily “was and that station legitimate after a initial allegedly illegal sent to search consent vitiates the such stop. proving In addition to valid and v. Melendez-Gonza stop.” United States reversing lez, In 727 F.2d at held, ex- court, must also establish the Fifth Circuit with Government
district
intervening
Fike,
factors which
supra:
istence
citing
States v.
out
United
sufficiently
that the consent was
prove
dispute
not
the fact that defend
We do
illegal stop____
attenuated from the
signed the consent form or
actually
ant
Further,
voluntarily.
so
(citations
even that he did
empha-
at 414-15
omitted and
rule that
accept the well-established
added).
that under
sis
We do
believe
pursuant to consent
Illinois,
“a search conducted
Sun, supra, or Brown v.
proba
requirements of
excepted
is
from
required
supra,
the Government is
to show
There is no
cause on a warrant.”
voluntary,
ble
beyond a
attenuation
however,
justifies an
authority,
which
under Fourth Amendment
valid consent
upon the later
illegal search based
earlier
reject the Fifth
standards. We
Circuit’s
additional search.
Melendez-Gonzalez,
consent to an
to the ex-
analysis in
case,
contrary
is
to the Fifth Circuit’s
defendants’
tent
it
present
In the
...
Fike,
privacy was
earlier decision United States
expectation of
reasonable
clearly and
which we believe more
agents
supra,
highway
on
when
violated
accurately
applicable
states the
law. More-
mari-
and first smelled
sprung the trunk
over,
is consist-
the law the Tenth Circuit
agents
did not
The fact that
juana.
Fike, supra.
point
ent with United States
exploration at this
their
continue
Sor-Lokken,
Rather,
apt
United States v.
the more
question in such
(10th Cir.1977),
‘whether,
F.2d 755
defendant’s ex-
case
granting
is
establish-
permitted
wife
law enforcement officers to
primary
ment of
evi-
illegality, the
unreg-
enter defendant’s house to examine
dence to which
objection
instant
istered firearms. Defendant’s ex-wife did
made
been
by exploitation
has
come at
not own
house but became aware
of that
or instead
means
visiting
weapons’
her chil-
existence while
sufficiently distinguishable
to be
custody
dren who were
defendant’s
purged
primary
taint’.”
living at his home. When defendant fled
Sun v.
supra,
home due to the
of a
his
commencement
“We need not evidence hold that all that under the facts poisonous simply Recalde, ‘fruit of the tree’ be- the district court’s of valid light cause it would not have come was clearly erroneous. police. but for the actions of the Id. at 1458.
V. canee on the fact that the doves seized in illegally this case were the same evidence the case the facts of We believe prior observed as a result of the search for the precisely the reasons bar illustrate Deputy Sheriff Branick. The means hold, as we reaffirm here. We rule which ultimately which the evidence was seized I, initial did in that the we Carson consent) (voluntary was constitutional Branick of Carson’s by Deputy Sheriff sufficiently distinguishable from the under- containing the dressed doves was bucket lying illegality. agree While we that the Carson, however, illegal. was not aware of prior illegal legal by search is not rendered (R., I, p. Vol. the initial search. Depu- Carson’s so that 136.) Deputy Branick and When Sheriff ty precluded Sheriff Branick would be scene, Sonntag later returned to the Mr. testifying about his observations and agreed willingly to let them look Carson knowledge obtained as a result of the il- The district court pickup into his truck. legal hold the is none- consent was the found that “Mr. Carson’s primary illegality theless product his own free will and uncon legally is admissible because it was ob- The Court finds that Mr. strained choice. tained consent.2 the search was volun consent to Carson’s In the Memorandum and Order Au- (R., 137.) p. tary.” Vol. gust the district court commented in the record There is no evidence upon the rule set forth in I. We information showing that the officers used response our to the district believe court’s search to obtained following help explain observations will consenting into to the subse coerce Carson holding. our his quent search.1 Carson waived Fourth *14 analysis, In the final this Court views rights by voluntarily consent Amendment voluntary the issue as whether a consent search, ing independent of the to a always to search will constitute a suffi- activity of which he did not know. police independent cient act to break the causal recently stated in As the Court illegal governmental connection between --- U.S.-,-, Burbine, Moran v. challenged conduct and the evidence. (1986): Appeals in The Tenth Circuit Court of occurring presence of “Events outside stated, the instant case “[D]efendant’s suspect entirely of and unknown to him any consent the second search of bearing capacity surely can have no on the from the first search and validated taint comprehend knowingly relinquish a to and Fourth Amend- the second search for right.” We see no reason to constitutional purposes.” Slip op. ment at F.2d [762 permit rights to reassert those or to citing at United States Fike. 836] lawfully through exclude evidence obtained Nevertheless, of the Fifth Circuit Court the consensual search. years Appeals, in a case decided 10 after addition, Fike, contrary held that a it decided contention, given illegal after an search did place signifi- we no consent Carson’s pursuant illegal evidence to an of coercion in the man- officers seize 1. If there were evidence rule, requested police con- ner in which the sent, Carson’s under our search then it is inadmissible affect the determina- regardless subsequent that evidence would consent to of defendant’s was search; tion of whether defendant's consent volun- having been obtained a the evidence find, tary. were to after a If a district court direct result of an unconstitutional search and determination, that consent to a search factual merely perceived If evidence is as a seizure. involuntarily given, would be left with police illegal result of an search and officers inescapable that the offi- conclusion consensual, seize it to a original illegality exploited and that cers admissible; search, it the evidence valid then is insufficiently distin- defendant’s consent was having obtained as the result of a constitu- been guishable purge primary taint. independent any tional search and seizure illegality. previous distinguish evidence 2. We intend to between illegally illegally perceived and If seized. when the tion of the taint consensual that citizen. This Court believes yielded previ- search evidence fly the same that such directly law would in the ously illegally. The Fifth Cir- discovered Indeed, face of the Fourth Amendment. stated, authority, no cuit “There is how- protects the Fourth private Amendment ever, illegal justifies which earlier against very govern- citizens kind this later consent based to an mental interference. Melendez-Gonzalez, additional search.” Nevertheless, recognizes this Court supra, Court This believes the consent, that an individual’s when it is governed by facts of this case are knowing completely voluntary, may Specifically, case. Melendez-Gonzalez be in independent itself an act sufficient- bar, under the facts the case at this ly illegal removed or attenuated from the challenged Court finds that the conduct government permit directly illegal derived first use of the discovered evidence in a crimi- search; Carson’s consent was not inde- against nal trial spite that individual. In pendent because the offi- problems the severe and fundamental requested cers would not have application this Court has with the search; but the first and de- such a rule to the facts of the case at voluntary, fendant’s however bar, position this Court not in a did not break the causal connection be- reverse the Ap- Tenth Circuit Court of tween the first search and the peals proceed and must with disposi- challenged evidence discovered in the tion of this case in accordance with the second search. Circuit Court’s remand. Nevertheless, hardly Court is Therefore, only issue which is actu- position to the Tenth reverse Circuit ally before this is the factual de- Appeals. possible Court of It is termination Mr. of whether Carson vol- when an govern- individual’s consent to a untarily consented and this mental product search is the of that indi- gave Court finds that Mr. Carson his full will, always vidual’s free the consent will search. independent be an act so (R., 146-48.) pp. Vol. governmental conduct consent alone will vitiate the taint of the correctly The district court states that *15 When, however, prior illegality. as I, the under our in rule defendant’s case, govern- Court has found in this the long consent to a is so it volun- request ment’s for consent search is tary fact, sufficiently in constitutes a inde- by motivated critical information ascer- act pendent purge evidence of the by prior illegal tained conduct of the prior illegal taint of the Government con- government, questions this Court how duct. This is when so even voluntary the individual’s consent alone voluntary granted illegal after an realign can government’s actions search, yields evidence previously the same within the bounds the Fourth and illegally. discovered impor- Fourteenth Amendments. Most however, disagree, We with the tantly, questions the Court a rule of law finding district court’s that “Carson’s con government which allows the to make a independent sent was not of the surreptitious entry into the home of a not citizen, because officers would have re illegal wiretap per- conduct an quested search____” illegal the first but any illegal form other conduct invasive for added). (emphasis then, Id. at privacy, a citizen’s on the finding directly district gleaned The court’s is con- basis of the information trary conduct, cajole expressed Court’s illegal the consent of Sun, citizen, rejection supra, in unwitting Wong and then find that of a “but The incriminating exclusionary discovered is for” issue is ad- rule. not prosecu- missible a criminal evidence in whether the officers “would not have re- incriminating find that quested consent but first evidence discover- for search,” but rather whether the officers ed is admissible evidence in a criminal illegal activity prosecution the fruits of their of that exploited citizen. way that consent to the in such a Carson’s (R., I, p. (emphasis added).) Vol. If the involuntary search was under Fourth unwitting consent of an citizen has been Sun, supra Amendment. “cajoled” based on the conduct of at 417-18. 83 S.Ct. officials, Government then the citizen’s con- “voluntary.” sent is not If Government disagree also with the district officials use the fruits their con- a de court’s and conclusion that “cajole” duct to the consent of an unwit- consent does not fendant’s citizen, ting then the evidence is obtained prior illegality of the when the taint by exploitation primary illegality request Government’s for consent sufficiently is not obtained means distin- by illegally obtained search is motivated guishable from the illegality purged to be “When, however, information. as the primary agree taint. We that there case, in this Court has found Govern may be certain in situations which Govern- request ment’s for consent to search is officials, using illegally ment obtained in- by critical information ascer motivated formation, might cajole coerce or the de- prior illegal conduct of the tained consenting fendant into to a search. Under Government, questions how the this Court such circumstances the consent would be voluntary consent alone can individual's involuntary, illegal, the search and the evi- realign actions within the Government’s thereby dence seized rendered inadmissible. Fourth and Fourteenth the bounds of the (R., 147.) p. Amendments.” Vol. Finally, considering policy rea motivation is irrelevant Government’s underpinning rule, exclusionary sons or not the evidence is the issue of whether extending we hold that the “fruit of the “sufficiently obtained means distin poisonous tree” doctrine to exclude evi primary guishable to be dence obtained a case which defendant taint,” police exploitation of the or free of voluntarily consents to waive his constitu Sun, prior illegality. Wong 371 U.S. at rights justify tional does costs at 417. In a consent case 83 S.Ct. enforcement. As Powell law Justice stated Sun, only inquiry is concurring opinion in his in Brown v. Illi nois, 590, 608-09, grant whether the defendant’s 2264-65, (1975) (Powell, J., totality under the of the cir purpose, concurring part): cumstances. The officers’ motivation, merely requesting or basis rejection Wong The Court’s defendant to waive his Fourth Amend test, today a “but for” reaffirmed ... bearing validity rights ment have no on the recognizes some circumstances consent once it is and effect of defendant’s strict adherence to the Fourth Amend- determined that this consent is exclusionary imposes greater ment rule *16 totality of the circumstances. legitimate cost on the demands of law justified by enforcement than can be disagree with the district We also purposes. rule’s deterrent The notion of following statement: court’s “dissipation attempts of the taint” importantly, questions a Most point mark the at which the detrimental government rule of law which allows the consequences illegal police action surreptitious entry into the to make become so attenuated that the deterrent citizen, illegal conduct an wire- home of a exclusionary longer effect of the rule no illegal tap perform any other conduct justifies its cost. then, privacy, of a citizen’s and invasive pursuant A gleaned information search conducted on the basis of the conduct, voluntary specifically consent is one of the illegal cajole this the con- from exceptions and then established to the technical re- unwitting sent citizen 1158
quirements
the Fourth Amendment. Wong
permit
Sun refused to
defendant
Excluding
Toy’s
evidence,
evidence obtained
although
statements into
protects
neither
Fourth
allegedly
given,
voluntarily
because of the
rights,
which are
Amendment
waived
particular circumstance of that case. The
consent, nor deters law en-
the defendant’s
door,
officers had broken down his
fol-
conducting illegal
from
forcement officials
bedroom, handcuffed,
lowed him into a
little, if
searches and seizures which are of
him;
arrested
his consent in those circum-
obtaining
any,
value to the
defend-
stances did not
the taint of the initial
subsequent
ant’s
consent. The
486,
unlawful invasion.
at
Id.
83 S.Ct. at
hope
they may
mere
later be able to
hand,
Wong
On the other
defendant
voluntary consent to a
obtain defendant’s
Sun’s statement was admissible because he
po-
little incentive for
search is
gave
days
it several
after his release on his
initially
proceed illegally.
In
lice
addi-
recognizance
own
and after he had volun-
tion,
inability of law enforcement offi-
tarily
police.
returned to the
In such cir-
rely
illegally
cials to
obtained evi- cumstances the Court found that the taint
valid search
dence to obtain
warrants or to
dissipated.
had been
legally
probable
obtain
sufficient
cause for
Illinois,
590,
Brown v.
422 U.S.
95 S.Ct.
sufficiently protects
searches and seizures
2254,
(1975),
which also
rights
Amendment
Fourth
deliberate
admissibility
involved the
of a confession
police violations. In cases which defend-
following
arrest,
illegal
clarified the
ant’s
consent to search is ob-
holding of Wong Sun.
In
Brown confes
tained,
exclusionary
strict adherence to the
sion had been obtained after a Miranda
impose greater
rule would
costs on the
warning;
the Court held it was not auto
legitimate demands of law enforcement
matically admissible
if
even
it was volun
justified by
than can be
the rule’s deterrent
Rather,
tary.
it stated that a court must
purposes.
view the
arrest under the Fourth
AFFIRMED.
Amendment and determine whether the
by exploitation
confession was obtained
LOGAN,
Judge, concurring:
Circuit
making
arrest.
In
that determi
agree
I
majority
with the result
“temporal proximity
nation the
of the ar
parts
decision. But
III and IV state a
confession,
presence
rest and the
willing
accept.
broader rule than I am
intervening circumstances,
and, partic
...
ularly,
purpose
flagrancy
First,
I do not read
Sun v. United
official misconduct are all relevant.”
at
Id.
471,
407,
371 U.S.
83 S.Ct.
603-04,
(footnotes
H59
have known the
places
Carson must
doves would
tary,
majority
insufficient
found; apparently
For exam-
weight on the Brown factors.
he
confident that
be
was
that be-
majority
in effect states
ple,
possession
legal,
was
or that the offi-
his
unaware of
defendant Carson was
cause
prove
would be
that
cers
unable
search, it
not affect the
previous
could
day. In these circum-
were shot that
doves
(citing
At 1155
the consent.
validity of
I
stances
do
believe
second search
—
Burbine,
U.S.-,-,
v.
Moran
through “exploitation” of the first
arose
(1986)).
1135, 1141-42,
span between the initial mis-
pose flagrancy
conduct, other factors seem and whatever in the circumstances case
relevant whether exclusion is nec-
before we decide police con-
essary to deter unconstitutional preserve judicial integrity. duct and to Joyce Jane NIEHAUS Neumann, Appellants, If initial the instant if particularly egregious, or case had been conduct, engaged in coercive had ASSOCIATION, BAR John KANSAS require exclusion I would read Brown to Gardner, Poell, and Marcia despite Carson’s Appellees. Perez-Esparza, 609 second search. See 85-1304, Nos. 85-1305. permit But I would the ad- F.2d at 1289. Although of the evidence here. an mission Appeals, United States Court knowledge first obtained officer Tenth Circuit. five-gal- by lifting covering a vest doves not an pail illegally, lon this was June as, flagrant example, break- search as ing unlawfully tapping into a home implicating the deter-
telephone, thus not exclusionary consideration of the
rence Leon, 468 U.S.
rule. States v. Cf. 3405, 3412-15, 897, -, (1984) (exclusionary rule
L.Ed.2d 677 “its remedial only applied be when
should efficaciously thought most
objectives are Further,
served”). there was no hint I Carson had been
coercion. believe Fish and Game Commis-
employee of the knew the officers. apparently
sion and given. freely
The consent to search