United States v. Maurice Deteige Sheppard

KING, Before GARWOOD SMITH, Judges. Circuit GARWOOD, Judge: Circuit trial, defendant-appel- Following a bench Deteige Sheppard (Sheppard) Maurice lant possessing cocaine with was convicted of appeal intent to distribute it. In this conviction, Sheppard challenges only denial of his motion to the district court’s evidence, contending that the evi- suppress question was the fruit of dence affirm. search. We Proceedings Below Facts January morning On in a arrived California-licensed (Tobin) passenger Cadillac with Keith permanent at the U.S. Border Patrol check- point a few miles west of Sierra located Blanca, checkpoint, At Texas. which twenty miles from the Mexican bor- about der, traveling east agents stop most traffic inquire about the citi- on Interstate zenship occupants. of vehicle Border Pa- (Hillin) approached trol Lonnie Hillin checkpoint’s primary Cadillac questioning, Sheppard signaled Sheppard to stated that the suit area and inspection window, Sheppard belonged did. In bag which to him and that he would not lower his practice, but with his standard looking Upon unzip- accordance mind Hillin’s inside it. any articulable the consent of or without ping bag, Hillin observed a brick- concerning occupants, Hillin suspicion shaped object wrapped tape sitting duct the ear to estab- leaned his head into then top Sheppard on of sweaters. asserted occupants eye contact with lish object pictures that the contained and stat- citizenship. questioning them about their ed, “you don’t need to look at it.” I that “when talk to someone He testified point, Sheppard At this certain that and eye them” and that contact thus look at narcotics, transporting were Hillin Tobin determining was useful in established Sheppard, appeared apprehen- asked who veracity person’s evasiveness of a re- or attempted and to make contact sive questions.1 sponse to Tobin, place his hands on with the car. immediately Hillin detected the odor of (Reza), Agent Jorge Reza who had been freshly marihuana in the interior of burnt Hillin, covering asked to exit the Tobin Cadillac, Sheppard but did not inform Sheppard Hillin that he vehicle. assured of this. He also testified that or Tobin arrest, was not under but would be de- Sheppard appeared and Tobin to be both tained, analysis pending of the brick- asserting dumbfounded and confused when object, shaped weapons. and frisked for citizens, and that they were American this, Sheppard As soon as Hillin said and eyes speech their was slurred and their flee, immediately began shoving Tobin were bloodshot. agents forcibly resisting aside and their Suspicious the car contained contra- prevent escape. pair efforts to band, Sheppard informing but without so hurriedly jumped into the Cadillac and Tobin, Sheppard Hillin directed that sped away checkpoint. from the area and drive to pursuit, Sheppard With hot ab- There, upon inquiry car. from exit the Blanca, to the sconded town Sierra Hillin, Sheppard asserted that the Cad- through way driving a barbed-wire illac’s trunk contained suitcases and cloth- fence, eventually through fled and ing. to Hillin’s to view Blanca, agents ob- desert. Near Sierra trunk, Sheppard replied, the contents of the car, Sheppard stop the remove the served “Sure, problem,” opened no and the trunk trunk, begin bag from the throw- suit key, exposing three and a with a suitcases turned out to be ing objects, some which bag. Sheppard related to Hillin black suit marihuana, bag brush. luggage belonged to Tobin and until the suf- The chase resumed Cadillac bag himself and that the suit held suits and blowout, at which time it became fered a agreed He also to Hillin’s re- sweaters. Sheppard and Tobin surren- disabled bag, saying, quest to look inside the suit dered. Hillin, need, according “anything you need, you anything you whatever need at Agents recovered from Cadillac all.”2 moved the suitcases When percent pure of 92 the brush bricks bag, off the suit Hillin noticed the outline weighing kilograms with cocaine about brick-shaped object of a that felt hard. $300,000. The an El Paso street value of handler on the scene Border Patrol canine Having previously con- seen narcotics cigarette fashion, of a marihuana found the remains cealed in such a Hillin believed bag car, as a as well carrying were and debris pounds of marihuana. Responding containing further .02 contraband. to Hillin’s give he did not testified that 1. To the extent not inconsistent with the trial fact-findings, (Tobin testify); how- court's clearly which are shielded did not consent to search ever, rule, otherwise, the evidence erroneous we state court found the district favorably government, prevail- most to the findings. challenge these does ing party below. See United States v. Maldona- do, (5th Cir.1984). suspicious indices testified that his canine alert- these behavior be- handler also (1) strong him: the Cadillac and fore odor burnt ed exterior vehicle; marijuana emitting com- could the odor of marihuana he detect (2) entering occupants ing from car before it. two had blood-shot eyes speech. and slurred right by jury his to trial Sheppard waived and, parties, by agreement between the his “Sheppard by word consented suppress together to heard

motion to the of the trunk of the deed search the on the merits the with evidence Agent Hillin Shep- automobile. asked The court the bench trial. district denied if pard open he would the trunk not once suppress Sheppard to motion found gave Sheppard twice and but affirma- charged possessing as than guilty more queries, proceed- tive “sure” to both kilograms five of cocaine with intent to open Agent. to trunk for ed the the The him distribute it. The court then sentenced does not find that the circumstanc- imprisonment to be to months’ followed the the inquiry es of or manner of re- years’ supervised Sheppard release. sponse the involuntary rendered consent brings appeal, challenging only the present purposes for the of the Fourth Amend- suppress. the denial of his motion to ment.

Discussion alternative, probable In the “... cause Sheppard trafficking to believe that findings The district court’s conclu- in contraband arose first Hillin de- support of its sions entered denial marijuana the smell of tected burned Sheppard’s suppress to motion include area, primary inspection second when following: suspects fled scene of the investi- January “On 1989 Defendant drove gation and third when [footnote omitted] up checkpoint in a 1988 Cadillac throwing Sheppard was observed by Agent to signalled stop and was Hillin brick-shaped out of contents from Border Hillin Patrol. bent bag. comprise suit These indices the ma- to speak down to the Defendant and his give sufficient to trix elements passenger, Keith men Tobin. two probable Sheppard to Agents cause take surprised looked and dumbfounded. custody. into Agent Hillin detected the odor of burnt “... was not taken into cus- marijuana emitting from the inside of the tody attempted until after he to flee Upon replied vehicle. men inquiry, both site.”3 they were U.S. citizens. Hillin ob- served, however, had that both men appeal, Sheppard challenge does not On spoke eyes they and that with blood-shot the district court’s any of determinations He speech. slurred directed the Defen- Rather, presented the text above. he pull dant to vehicle into second- only contends that his Fourth Amendment ary inspection area. rights were when Hillin intruded violated open

his head into the driver’s window of area, primary inspection “At the time referred the Cadillac inspection, smelling Sheppard’s secondary he had marihuana.4 en- thus pane have been 3. district court also determined that where the window would if it "interrogation” prior testimony which occurred not been lowered. Hillin's had pard’s put arrest "did not of- his the window” or "in the he car”; head “into far, specify fend Fourth Amendment and was related to he did not how but infer- legitimate sovereign testimony interest of the to deter- his is that his head entered ence from smug- being enough mine aliens were whether the car far make contact gled into occupants. the United States.” testified that with neck,” shoulders, "just but not Hillin’s en- his urges Although expressly the car. that Hil- the district court did not tered further find, appears until at least so that Hillin lin did not smell the marihuana it uncontroverted head, it, part portion did then of his head was within car. stick his some express beyond Again, Cadillac the district court made no find- to at least some small extent recognized in the follow- as the district court in its sen- encapsulated argument is tire appellant’s brief: ing tencing colloquy his with statement counsel. Next, government argues Sheppard submits that that Hillin’s “Defendant intruding his Agent Hillin’s conduct head insertion of his into the vehicle was the vehicle without head into not inconsistent with the Fourth Amend- unrea- constituted an cause or consent ment, either it was because reasonable or in violation of search sonable (or seizure).6 not constitute a search did Fourth Amendment. rights under the contention, do not reach this We as we to the sec- referral of the vehicle government's argument sustain the final area, ondary inspection affirmance, namely for that the connection trunk, and his actual search of search the challenged Hillin’s conduct—in- trunk, discovery of which resulted open serting his head into the driver’s win- contraband, on what he were based acquisition dow of the Cadillac—and the (the marijuana) odor of burnt observed material guilt the evidence result of this unlawful search. as the question is offense atten- Consequently, the evidence seized as the resulting uated so the taint search, and the result of the unlawful dissipated. conduct is evidence, concerning that testimony Here, inserting his head into the suppressed.” been should have window, Hillin neither observed nor discov- urges affirmance on government anything Sheppard’s guilt material to ered First, grounds. it con- three alternative of the instant cocaine offense. The mari- appeal— on tends that the issue raised noticed, however, Hillin then huana odor of Hillin’s head into whether the insertion did lead to a series of events—his primary inspection area con- the car at the permission trunk for to search the prohibited by an unlawful search stituted flight commencement of not raised the Fourth Amendment5 —was Tobin, cap- their eventual reject this contention as basis below. We ture, finding and the of the cocaine—that affirmance, agreeing with for Sheppard’s guilt ultimately established that, was ade- purpose, for this the issue suppression hearing, possessing cocaine with intent to distribute quately raised though government argument testimony, makes this even ing 6. The on this matter. clear, support Sheppard entirely though tends to neither nor consented stated, variously respect. "When this putting his head in the window and to Hillin’s down, opened I made window was bent regarding suspicion then existed either of no subjects and determined citi- contact with both zenship. government them. The relies our decisions point I to talk At this when bent down Marshall, (5th States v. in United marijuana gentlemen as I I could smell 1989) Taylor, and United States v. No. 88- Cir. gentlemen” talking and "I stuck with the 17, 1989) (5th Cir. March [871 window, my- my then identified head into the curiam) (table) (unpublished). (per Mar ] Patrol, agent, and that is when self as an Border shall, agent checkpoint "detected odor course, marijuana. I didn't I go smell the Of could which, therefore, compelled marijuana him to marijuana. say, yeah, ahead and I smelled interior,” place into the car’s this "in his head my citizenship ahead and conducted deter- went purpose of for the sole trusion ... occurred mination_” The cross-examination of Hillin escaping investigating the odor from further following: includes the car,” “strong marijuana and “the odor” you you "Q. testified that stood there Then agent] could smell it from outside he [the ... put your head in the car and smelled a and strong Marshall, & 1. In 878 F.2d at 163 n. the car.” marijuana, freshly burnt odor of burnt Taylor, cracked when he the driver’s “voice marijuana? agent's checkpoint spoke” to the Yes, "A. sir. agent "leaned his head in questions and the hear [his] window to better ... the driver’s you any “Q. smell You testified that didn’t responses" the odor of marihua your and “smelled marijuana you head in the until stuck (table)]. We held F.2d 118 [871 car? na.” Id. at up legitimate. window was before that.” relies on New "A. The this was Class, York v. related to this issue is whether Hillin 5. A matter (1986). before his head was at smelled the marihuana partially the car. least within nally, the rule does not exclude evidence Assuming arguendo that Hillin’s in- it. inevitably in the window violated would have been discovered head serting his Williams, Nix v. rights, See lawfully. Amendment Sheppard’s Fourth guilt on the issue of evidence relevant the co- innocence — un- thus be inadmissible itself —would caine lead us to con Two circumstances poisonous tree” doc- the “fruit of der case the connec clude that instant trine, it falls within the attenuation unless challenged police activity tion between the exclusionary rule. exception to the acquisition of the relevant evidence and the exclusionary judicially- rule is a any sufficiently attenuated so that taint remedy primary purpose is designed whose allegedly illegal conduct is dissi (or possibly discourage unconstitutional First, United holding in pated. under our illegal) police misconduct. See otherwise v. (5th States 449 F.2d Krull, Illinois 1971), Sheppard’s voluntary consent (1987); 94 L.Ed.2d area search Williams, 841-42 States the causal connection between the broke Cir.1980) (en banc), illegality alleged primary and the evidence 1127, 946, 67 L.Ed.2d 114 101 S.Ct. U.S. Fike, at trial. In defendant left introduced LaFave, Search Seizure: (1981); 1 W. vehicle with an dealer a stolen automobile on the Fourth Amendment

A Treatise cars. while he test drove one of the dealer’s 1.1(f) (1987). suppress It functions to § return, defendant failed to the dealer When indirectly directly obtained or evidence lot, summoned the where offi through illegal police activity. Wong Sun the car and removed it to the cers searched States, 471, v. 371 83 S.Ct. U.S. Following capture, office. his de sheriff’s (1963). 407, 416, 9 L.Ed.2d 441 fendant consented to a search of the ve Supreme has established four hicle, yielded the vehicle identifica which exclusionary rule that exceptions to the number that was admitted as evidence tion for the admission of evidence when allow at trial. by which it was are the means obtained Sun, Wong The Fike following panel, sufficiently distinguishable from the chal- supra, rejected argument defendant’s First, is lenged police conduct. evidence suppression required was because but for if as a result admissible even it is obtained search, search would the first the second wanting of a warrant is concluding never have occurred. technically long is defective so as cause or dissipated, any taint had this Court assert- objective good have relied in authorities “[cjonsent search has been re- ed that See Unit- facially faith valid warrant. on peatedly recognized as sufficient to waive Leon, 897, 104 ed States 468 U.S. S.Ct. rights” it Fourth Amendment and that also 3405, 3415, (1984); Massa- any the al- acts to sever nexus between Sheppard, 468 chusetts v. 104 Amendment violation and the leged Fourth 3424, 3428, (1984). 82 L.Ed.2d S.Ct. 737 discovery of evidence in the second search. Second, exclusionary rule is not em- Id. at 194. ployed when the nexus between the essentially the same Sheppard makes police activity and attainment of the evi- argument did the defendant “but for” as dence attenuated so that the is that the evi- but fails to demonstrate resulting taint is dissi- misconduct Sun, by exploitation” Wong pated. at 417. dence “has been come See 83 S.Ct. Sun, alleged illegality. Wong Third, is not excluded if the evidence suggest at 417. does not government it from a source inde- S.Ct. obtained appeal that his consent to the search See Silverthorne pendent illegality. of the States, secondary inspection was involun- Lumber area Co. v. United 251 U.S. (1920). tary,7 he here contend that Fi- nor does 64 L.Ed. 319 (“Voluntariness (5th 1986) question Cherry, is a United States v. Cf. challenged was influenced tween the decision to so consent conduct and Hillin had smelled short, the fact that marihuana pard’s consent was we cannot find unaware) (a fact of which the second search resulted from the had inserted his head into the car. See exploitation challenged conduct.10 Fike, 449 F.2d at 194; United States Sheppard's voluntary consent to the search Carson, 1151 & n. 1 of the Cadillac served to attenuate the con- Fortier, See also State v. Cir.1986). alleged nection between the misconduct (1976).8 P.2d 1206 Ariz. discovery and the of the contraband. Additional factors that we must consider persuades The second circumstance that determining whether the evidence exception appo us that the attenuation is by exploitation discovered of the al- case illegal flight site this leged temporal proximi- misconduct are the area. Such and, ty “particular- the two intrusions as a reaction to the search to which ly” purpose flagrancy important, activity had consented constituted criminal Brown v. See challenged action. any and functioned to break nexus between Illinois, 2261- challenged insertion of Hillin’s head not L.Ed.2d While deter- window and the evidence seized mining whether conduct following apprehension constituted an we conclude Nooks, and Tobin. See United States v. the brief intrusion into the Cadillac to (5th Cir.), occupants establish contact with its gauge veracity or evasiveness of their (1971) (illegal flight broke nexus between responses citizenship inquiries ap arrest and search flagrant, at all but was at worst a most Bailey, United States v. prehension); minor and technical invasion of 691 denied, (11th cert. rights.9 though Cir.1982), span Even the time be- F.2d 1009 461 upheld promote fact to be decided the trial court and work to the deterrence function of the erroneous.”). clearly appeal Leon, exclusionary unless See also rule. 104 S.Ct. at 3412- Cf. Gonzalez-Basulto, United States v. 1011, (exclusionary 898 F.2d applied 15 rule should be Cir.1990) (defendant's (5th 1012 consent at objectives thought when "its remedial are most voluntary though Sierra Blanca was even defen- served”). efficaciously right dant was not informed of his consent). to refuse to checkpoint 10.We observe sending need not articulate reason for motor recognize 8. We that our decision in United secondary inspection ists to the area. See Jack Melendez-Gonzalez, 407, States v. 727 F.2d 413- son, Therefore, F.2d at 862. we cannot even (5th 1984), appears contrary. to be to that, necessarily say but for the con However, cannot we reconcile Melendez-Gonza duct, the evidence would not have been discov with which does lez Melendez- Gonzalez And, event, any ered. in referral to Indeed, cite. cites no au Melendez-Gonzalez area did not of itself issue, thority at all on this and does not even detention, illegal amount to an in contrast to the purport to address attenuation doctrine. As Rawlings Kentucky, situation in v. 448 U.S. Melendez-Gonzalez, precedes Fike by we are bound 2556, 2562-64, (1980). 100 S.Ct. 65 L.Ed.2d 633 See, e.g., County Fike. Alcorn v. U.S. Inter There, being suspect confessed after in what Inc., (5th Supplies, state illegal forty- was assumed to be an detention for Cir.1984). We also observe that in Carson the Applying excep five minutes. the attenuation expressly Tenth Circuit elected to follow Fike in rule, exclusionary empha tion to the Carson, preference to See Melendez-Gonzalez. sized the informal nature ther, the detention. Fur F.2d at putatively illegal here the conduct—Hil inserting lin’s his head into the window—had purpose putting 9. We note that Hillin’s Sheppard gave an end come to his con head in the vehicle was not to conduct a aware, sent, and, so far as was then ascertaining but rather to assist in the citizen- longer any (by had relevance to the situation no ship occupants of its function as a Border —his contrast, Rawlings illegal detention con Jackson, agent. Patrol See United States v. made, and the (5th Cir.1987) (en banc) (ve- tinued until the confession was 861-62 confessor was at all times aware of the deten may briefly be hicles Sierra Blanca detained purpose). its See also New York v. occupants questioned tion and so that can be about their — U.S.-, Gonzalez-Basulto, Harris, citizenship); 109 L.Ed.2d 110 S.Ct. at 1012. Exclu- (1990). greatly sion of the evidence here would not fleeing pard’s shoving Hillin aside and 103 S.Ct. fleeing il (1983) (defendant’s response response alleged police not a direct to for which defen misconduct, is new crime legal arrest but rather was constitutionally arrested and be may dant voluntarily-consented-to search at may be incident to arrest evidence obtained result, inspection As a secondary area. Garcia, States v. trial); used at primary link the intrusion at the between Cir.), (9th 423 U.S. F.2d 318 inspection area and the evidence recovered (1975) 46 L.Ed.2d 96 S.Ct. attenuated after the chase is even more pre nexus between (illegal flight broke than in those cases. following illegal stop and search sumed Further, ruling against Sheppard should v. also United States See apprehension). misconduct; encourage police not serve (search Walker, 535 F.2d 896 (5th Cir.1976) setting in this is not a foreseea such warrantless arrest valid pursuant to second activity consequence police ble held under notwithstanding defendant still secondary question or the search arrest, first, first putatively illegal by the area and could not be counted on summoned second officer arresting officer salvage an search. Border Patrol who, investigation after further therefore would not Exclusion this case scene, made suspect same offense promote “the fundamental tenets of the v. arrest). United States the second Cf. United States Cec exclusionary rule.” Garcia-Jordan, Cir.1988) (5th 860 F.2d 159 colini, (false following made statement See also New York L.Ed.2d 268 misconduct; stop is not fruit of — U.S.-, Harris, Bailey Nooks approval). with citing Garcia, Nooks, (1990).11 Bailey, Unlike by allowing principal points citizenship inquiry Hillin to make briefly respond 11. We occupants per- Judge King’s contact with the car's in order to dissent. We are not made in veracity responses ques- gauge their to his conflicts with United suaded that our decision here, Hence, Robinson, Cir.1980). respect. unlike Brown tions in this States v. Robinson, meaningful nexus there is no we did not hold that the consent Robinson purpose putatively prior putatively illegal search was tainted seizure, allegedly tainted consent. conduct and the a determina- but rather remanded for others) Moreover, (along with after con- overemphasizes tempo- tion of cluding issue the dissent the mere fact that the proximity that under Brown elevates to ral it in substance —which voluntary ignores purpose. did not of itself necessar- per consent was ily Brown a se status—and considered, progeny, taint. Brown and its remove the indicates that of all the factors to be case, Robinson, present pur- "particularly" so "the and differ from the which is relevant is concerned, pose flagrancy to search is in and of the official misconduct." far as the consent Brown, Id., (footnote omitted). aspects. important S.Ct. at 2262 Lack of several flagrancy, challenged which the dissent in essence concedes confession the defendant time of the here, may temporal custody being pursuant alone suffice to overcome held in to Rawlings proximity, demonstrates. Here violation was as only arrest—the Fourth Amendment Here, flagrancy, putatively illegal but also lack ongoing. intrusion there is not lack ceased, purpose legality of the wholly of the refer- of nexus between had and the thereby, secondary way depended what was disclosed in on it. conduct and either ral to Further, no consent, or the evidence in issue. the defendant knew he was in Brown any voluntary custody not hold that consent to pursuant to the arrest and that the We do prior necessarily purpose questioning attenuates search of itself illegality. arrest was made for However, more this case involves to which he then confess- him about the murder Here, simply voluntary judicia, Sheppard, consent. the intru- ed. sub when than But in the case secondary, prior consent and did had ended he to the search at sion pard consented anything had been dis- was unaware know Hillin had smelled marihuana that intrusion. Consider- briefly put the window or covered as a result of ing he had his head in flagrancy putative anything purpose of” the and head had "the that such insertion of Hillin’s secondary dictates of misconduct” and the further to the referral to "official do with circumstances, Brown, Finally, as the referenced permission as well for to search. consent, voluntary hold that the we purpose arrest was to and the Brown the of the murder, challenged intrusion question between the about the connection the defendant subsequent search of the trunk questioning and the to that the defendant contrast, murder; here, hy attenuated. confessed to the flight Finally, Sheppard's in the and Tobin’s purpose putatively intrusion contraband, inspection secondary area after to aid in the car from not to detect but rather following ap- and the evidence seized Conclusion prehension and Tobin.” I dis- reasons, we are unable foregoing For sent because the consent to search and the district court erred to conclude that subsequent flight occurred within moments suppress, denying Sheppard’s motion of, products of, Agent were the Hillin’s accordingly Sheppard’s conviction is unconstitutional Sheppard’s intrusion into AFFIRMED. If vehicle. the attenuation doctrine can be legitimize used a Fourth Amendment KING, Judge, dissenting: Circuit violation under the facts of this case— majority, relying on States v. separate a few minutes (5th Cir.1971), concludes violation circumstances that the light that in of the “minor technical majority holds sever the causal nexus be- issue,1 Sheppard’s “consent to invasion” at tween the violation and the sei- any to sever nexus between search ... acts zure—then the attenuation doctrine essen- alleged Fourth Amendment violation tially the Fourth obliterates Amendment. discovery of evidence in the second and the Alternatively, majority con- search.” I. Sheppard’s cludes that “functioned concluding first errs in any nexus between break Hillin’s head into the window consent to moments af- insertion of undisputed per It Hillin had commenced to search the trunk that vehicle searches at Blanca, checkpoints, detained informed that he would be manent such as Sierra pending weapons upon probable frisk and examination of the must be based cause. United bricks, clearly Jackson, wrapped quite a forcible involved States Cir.1987) (en banc), 860-61 impeding and assaultive 111(a). performance U.S.C.§ of their duties. 18 98 L.Ed.2d 661 In the began Agent "Sheppard el- case, Reza testified that majority correctly instant notes that face,” bowing, throwing Agent elbows at Hillin's Agent probable Hillin had neither cause nor "started our little after which Reza and Tobin Thus, suspicion. question articulable boils going match to see who was and who wasn't placing down to whether his head trying going,” physically which involved Reza (and detecting within vehicle car, prevent getting Tobin from back in the marihuana) scent of was a search. I have no making thought a move for what Reza concluding trouble it was. weapon, drawing gun, and Tobin was a Reza jurisprudence, agents may peer Under our trying to close the door on Reza. Another violating into a vehicle from the outside without observing struggle agent testified to “a of some Brown, the Fourth Amendment. Texas v. seeing Sheppard push "kind him sort” and (1983) by Shep- off.” None of this was denied [Hillin] (“There legitimate expectation privacy is no (Tobin pard testify). did not This scenario fits shielding portion of the interior of an ... Bailey, plainly within the rationale of well may automobile which be viewed from outside fleeing halting provided cause for passerby inquisitive the vehicle either or dili out, Bailey points Wong Sun in- vehicle. As officer.”). Agents may employ gent police their "pure flight” any "physical strug- volved without olfactory v. Mar faculties as well. United States agents by gles” with the and was considered Cir.), tinez-Miramontes, (9th 494 F.2d 808 'ambiguous Supreme Court "to be conduct' be- 176, 42 U.S. 95 S.Ct. L.Ed.2d reasonably may not have cause the defendant Marshall, (1974); United States v. persons pursuing known or believed that the However, (5th Cir.1989). Supreme truly law officers.” Bail- him were enforcement as a whole Court has held that “a car’s interior Here, contrast, by ey, 691 F.2d at 1019 n. 12. subject to Fourth Amendment is nonetheless physical struggles agents, with the there were protection” even a minor "intrusion in that flight,” “pure Sheppard and there was no ” space a ‘search.’ New York constitute^] government clearly knew the were offi- 106, 114-15, Class, S.Ct. U.S. 965- engaged performance openly cials Thus, (1986). where an offi L.Ed.2d 81 government premises, and there their duties on only by leaning the view cer "could obtain nothing ambiguous about their whatever LaFave, car," W. a search has occurred. flight. A Treatise on the Fourth Search and Seizure: (em 2.5(c) (1987 Supp.1990) assumes, & deciding, § Amendment majority 1. The without Here, Agent phasis original). Hillin detected in Shep- Agent his head within Hillin’s insertion of only intruding marihuana after pard’s the scent of vehicle constituted a Fourth Amendment attenuation, Sheppard’s vehicle. Un the interior of find no within violation. Because I would Class, briefly der a search occurred. address this issue. post-Brown that the majority majority Thus, The concedes zalez. illegal intrusion. short time after an challenged conduct span between the “time recognize “the distinction Fike failed to Sheppard’s consent was short....” and proof both voluntariness and need for of Indeed, immediately directed Robinson, Agent 625 F.2d at attenuation.” secondary inspection area Fike). (citing 1220 n. 14 County opinion. conflicting precedents, Alcorn U.S.Inter choosing the earlier 2. In presumptively That Supplies, the older rule is correct. state intervening presumption 1984). where an is rebutted Supreme decision Court casts doubt of by Agent Sheppard’s trusión Hillin into detecting the scent of marihuana. after Yet, concludes that the search automobile was not an isolated incident. majority area, Indeed, moments Agent it was Hillin’s “standard at intrusion, agent’s unconstitutional practice” persons’ after the to invade Fourth Amend- sufficiently attenuated. The attenuation is protected space by placing ment his head in however, greater tem- requires exception, the interior of individuals’ automobiles.3 minutes. than seconds or poral distance Agent systematic Hillin’s fourth amend- Wong Supreme decisions since Sun heighten ment violations the need for det- must generally have found that hours errance, majority fails but to take this purged its elapse before evidence is of reality account. into Brown, 422 U.S. at taint. sum, majority commits three er- (statement illegal separated from ar- concluding rors when con- not attenuat- by than two hours rest less purged Agent sent to search the taint of ed); Dunaway, First, illegal majori- Hillin’s intrusion. (incriminating state- S.Ct. at ty opinion life breathes illegal an hour of arrest ments made within Second, analysis laid to rest Brown. attenuated); Taylor v. Ala- majority weight underestimates the of bama, Amendment violation at the Fourth issue (1982) (confession six hours the attendant need for the deterrent illegal purged arrest not of taint of after exclusionary Finally, rule. force of arrest). Moreover, span the time illegal perhaps significantly, majority most shorter than that in Melen- here was even import of the time element to belittles dez-Gonzalez, the defendant’s car the attenuation issue. consented searched, he taken to the illegally only moments to a search of automobile to a station and then consented as, after, and at the same location rule, per I there is no se search. While illegal by Agent light Hillin. In intrusion join majority’s cannot conclusion that (and temporal spatial) proximity be- vehicle, occurring the search tween the consent and Agent Hillin’s unconstitu- moments after considering all the factors relevant to the virtually the same tional intrusion and at issue, say I attenuation cannot location, free taint. the seized evi- consent to search attenuated that the “mi- suggests also its taint. dence from of the Fourth nor and technical” character supports Amendment violation at issue II. exception the attenuation their view that holding, majority’s alternative “the applies. acknowledges Brown was attenuated the seizure flagrancy of the official mis- purpose and scene, fled the search because is a relevant factor in attenuation conduct” approach rejected upon per se rests 95 S.Ct. at 2262. analysis. improperly applies our attenua- Brown and exclusionary rule’s This is so because the Brown, numer- jurisprudence. Under tion primary function is deterrance. do not as- are to be considered when ous factors majority's suggestion that quarrel with the sessing whether the taint intrusion of Hillin’s head into including temporal purged; conduct pard’s was a minor violation automobile However, intervening circumstances proximity, in- Fourth Amendment. help you citi- Q. to determine testimony suppression Would that hearing frequency by sticking your zenship, of his fourth head in the window revealed amendment violations: of an automobile? Yes, purpose sticking your Q. What is the sir. A. citizenship, the window to determine you head in Q. to all automobiles? Do do that Yes, sir? A. sir. Establishing eye with who I am A. contact talking talking I like to look at who I am to. by person. that to and be looked at 1240 422 will.” concluded that the police of misconduct. The Court under flagrancy

the 603-04, at circumstances, 2261-62. “No Toy U.S. at 95 S.Ct. was “almost im- at single dispositive.” arrested,” Id. fact mediately handcuffed and it was teachings, Despite Brown’s at 2261. Toy’s S.Ct. to infer that “unreasonable adopt per a rule would se that the sufficiently an purge was act of free will to of the taint of flight seized evidence rids the taint of the invasion.” Id. at unlawful any prior conduct— unconstitutional 416. 83 S.Ct. at The Court also held here, where, flight and the subse- even as heroin, subsequent that the later seizure direct- quent of the evidence flowed seizure location, day in the and at a was different ly initial intrusion. from the by agents’ illegal entry the also tainted because “the narcotics were ‘come at itself, flight the of James Wong Sun ” exploitation illegality.’ at the of that Id. agents’ the purge not taint of ToyWah did 487-88, at 417-18. illegal entry Wong into his home. Sun v. States, 371 S.Ct. Similarly, Sheppard’s flight a direct was (1963). The in Wong officers L.Ed.2d of, from, Agent result and flowed conspiracy. a investigating drug Sun were stopped intrusion. investigation, to that the officers Pursuant discovered, an upon and based Laundry” “Oye’s and met arrived at were intrusion, unconstitutional that Toy agents Toy. at told the door possess might agent narcotics. The laundry In re- open. that was secondary inspec- directed badge sponse, Agent Wong removed his area, tion and to obtained consent Toy that he a was narcotics informed of Sheppard’s search the trunk automobile. immediately agent. Toy slammed the door Within moments of the initial laundry living to his ran away and Tobin broke open The broke the door quarters. officers fled in car— Toy Toy. down then ar- and tracked captured drugs be have seized. subsequently made incrimina- rested and Toy Sun, Sheppard’s flight Wong Like that in re- ting day, Later statements. a within few moments of initial by Toy, sponse disclosures the officers product agent’s intrusion of the Johnny

went the house of Yee and fourth amendment violation.4 small amount heroin. seized a The majority cites United States though determined even Court Nooks, (5th Cir.), de cert. Toy agents, was neither fled from there nied, L.Ed.2d S.Ct. grounds nor cause for reasonable (1971), proposition for the 479-84, Toy’s at arrest. necessarily prior unconstitu attenuates at Court then turned to 412-15. however, “Much, tional intervened search. Toy’s declarations were fruits of whether earlier [the event] [subse actions. The agents’ unlawful quent] search of the automobile” in Nooks. evidence which de- determined “verbal In the Id. at 1287. time frame between an immediately rives from unlawful en- so searches, indepen two Sheriff obtained try unauthorized arrest as the offi- and an suspects’ dent evidence identification present cers’ case is no action less radio, suspects over the car fired shots illegality of official than the ‘fruit’ Sheriff, necessary it became fruits unwar- tangible more common open the trunk of vehicle to rescue two intrusion.” Id. 83 S.Ct. at ranted 1287-88; persons trapped inside. Id. see finding Toy’s 416. In statements were Cherry, 794 F.2d also United States v. tainted, specifically rejected the the Court (5th Cir.1986), Toy’s disclo- Government’s contention 1056, 107 their of U.S. purged sures taint because were (1987) III) in- (Cherry (noting that “intervening independent act of free Nooks Yet, Sun, Moreover, Toy. Wong Court concluded that 4. sei- ments of narcotics, primary day "purged of zure home were not later in narcotics Yee, U.S. at 83 S.Ct. at even attenuated the state- taint.” Id. 371 more than Agent independently directly flowed Hillin’s “development of volved the following an il- probable cause and there was no untainted evi- procured arrest”).5 upon subsequent legal dence which to base the Therefore, I search and seizure. would Nooks, agents in the instant Unlike not conclude that the seizure was suffi- Sun) (like had no inde- Wong those case ciently attenuated.6 upon which pendent and untainted evidence Sun, held that Wong prog- a search. We have Under Brown and their to conduct subsequent a probable eny, cause for the seizure of narcotics from upon tainted or arrest is itself based pard’s search vehicle was not attenu- evidence, exception the attenuation Agent ated from search. satisfied: circumstances, intervening the con- Both probable by cause acquiring flight, of sent to search and occurred within logically

police ... neither breaks of moments the unconstitutional intrusion. pur- Moreover, causal chain ... nor view under all the facts and circum- exclusionary rule necessar- poses stances, product the seizure was a point to the ily attenuates that relation Thus, respectfully Hillin’s search. excluded. that the evidence need not be dissent. seen, theory underlying As we have poisonous tree doctrine is

the fruit of

that, there is a close causal connec- prior police misconduct

tion between availability evi-

dence, suppressed the evidence should be the deterrent value of exclusion

since outweighs competing interest in hav- SHAH, Syed Plaintiff-Appellant, ing factfinder_ probative put evidence before the all v. intervening dis- QUINLIN, al., et Michael covery support cause to Defendants-Appellees. detention, itself, by ‘cannot as- suspect’s every the Fourth sure case No. 89-1678 violation not been un- Amendment has Summary Calendar. duly exploited.’ Appeals, United States Court 1196, Cherry, v. 759 F.2d United States Fifth Circuit. (5th Cir.1985) (Cherry II) (citing 1211-12 2261); Brown, 422 U.S. at 95 S.Ct. at May 1990. Walker, F.2d v. United States (5th Cir.), denied, 982, 97 cert. 429 U.S. (1976) (“[W]e do

S.Ct. can

not here hold that an arrest subsequent arrest

always be cured cause.”). Here, upon probable there

based very tight nexus the seizure

is a Agent Hillin’s uncon the narcotics and Indeed, Sheppard’s

stitutional search. Garcia, involving flight. Similarly, United States (11th Cir.1982), F.2d not even cases 5. in United States (9th Cir.), denied, Bailey, cert. 423 U.S. 1019 n. 12 (1975), flight, 46 L.Ed.2d "[t]ogether untainted evidence with the other (1983), specifically its hold limits officer," provided sufficient atten known uation. ing to cases where the defendant's a violation of 18 U.S.C. conduct constitutes Here, Bailey, the Government unlike § remaining are 6. The cases cited forcibly resisted does not contend that Walker, easily distinguishable. United States v. U.S.C. 111. § in violation of 18 arrest 1976) and United States v. Garcia-Jordan, (5th Cir.1988), are intrusion into notes Agent Hillin’s ter vehicle, attenuates the officer’s v. Melendez- decision United States Sheppard’s conclusion, Cir.1984) reaching Gonzalez, (5th its In can- intrusion. ig- precedent, on outdated majority Mysteriously, relies not be reconciled with Fike. temporal proximity between the close nores bound Fike as it feels illegal search and Agent Hillin’s However, precedes Melendez-Gonzalez. consent, and underestimates pard’s effectively rejects analy- our since Brown sys- deterrence need for Fike, Robinson, recognized in sis as we Amendment violations. tematic Fourth decision post-Brown of Melendez-Gon- the rule of this circuit.2 zalez becomes on the 1971 deci- majority’s reliance misplaced. v. Fike is sion of United States Melendez-Gonzalez, roving pa- In border Robin- States v. explained United As we agents illegally stopped Melendez-Gon- trol Cir.1980), son, the Fike F.2d 1211 zalez and asked him for his identification. Supreme rest analysis laid to examination, agents noticed a Upon Illinois, 422 U.S. in Brown Court in the trunk of his car. The small hole (1975). also See burlap a agents peered inside and detected York, 442 216- New Dunaway v. object. covered Melendez-Gonzalez re- 2258-60, open fused the officer’s Brown, held that the Court In Nevertheless, partially trunk. the officers to an made statements sprung lid of the trunk with a tire tool though those tainted even might arrest be Later, and discovered marihuana. after voluntarily given under statements were the station and Melendez-Gonzalez was at 601-02, Amendment. the Fifth warnings, given had been his Miranda he holding, 2260-61. so 95 S.Ct. at car, signed a search the written consent to approaches per se rejected various the officers removed the marihuana. Instead, multi- analysis. attenuation Melendez-Gonzalez, recog- unlike employed. Id. at be factor test to search does not neces- nized consent 603-04, Under that 95 S.Ct. at 2661-62. prior illegality. sarily sever the nexus to a as consent to test, intervening factors such Rather, must also “the Government ... relevant, single but fact is search are “[n]o sufficiently prove consent was at- that the 95 S.Ct. at 2261. dispositive.” Id. illegal stop.” 727 tenuated from the approach functional to Brown’s Critical at 414. the facts in Under Melendez-Gon- of time. As the Court was the element zalez, despite the court concluded that chain for a causal under explained, order lapse time between the search broken, question to be Wong Sun station, search the consent to purged primary of its evidence is whether was not attenuated seizure taint, “temporal proximity” must be illegal stop and search. from the earlier answering question. Id. considered at 409. Id. However, Fike at 2261. case, In the the causal connection instant merged “pre-Brown opinions and other the unconstitutional intrusion into attenuation, for voluntariness tests” automobile and sub- prior consent severed a uncon- finding that his trunk sequent consent to the search of necessarily removed stitutional search than that of is even closer Melendez-Gon- occurred if consent its taint —even

Case Details

Case Name: United States v. Maurice Deteige Sheppard

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 14, 1990

Citation: 901 F.2d 1230

Docket Number: 89-1422

Court Abbreviation: 5th Cir.