*1 finding clearly erroneous because into the capable bank was of holding a box neither had protruding wires out of it explosive device, small such aas hand any nor made noise. grenade. Rodriguez asserted that he had a bomb and indicated that it was in the Rodriguez But a convincing ac plausible, box. His claim was and Street tor. Before commencing the robbery, he could not by simple observation ascertain entered the bank styro the small carrying falsity. its We therefore conclude that the foam box in both of his hands. He set the district court did in not err finding that the box a writing down on lobby table reasonably box could regarded as a approached Street. Rodriguez even dangerous weapon light of Rodriguez’s bomb, told tually Street he had a convincing conduct that caused the bank motioning toward the box as he did so. teller to believe such was the case. Because the box opaque, Street could sum, In not see that it bank only put contained robber cannot sandwich on an rather than explosive performance Oscar-ealiber device. Under with the inten- circumstances, (the teller) these tion of convincing we find that a bank his audience that an position opaque teller Street’s package bomb, would have a contains a (the reasonable win trophy basis to ill-gotten cash), believe the box contained a bomb. Rodriguez’s disingenu subsequently claim when caught that his ous despite claim his best efforts to act should have panned. been instead otherwise, convince the teller the box did simply law does op- not tolerate such an not reasonably appear be a dangerous portunistic presentation.
object therefore lacks merit. III. CONCLUSION supported
Our conclusion is the Sev For all of the above, reasons set forth enth Circuit’s decision in United States v. we AFFIRM judgment Hart, district Cir.2000), court. 2B3.1(b)(2)(E) upheld § where court presented
enhancement when with similar Hart,
facts. the defendant robbed mul
tiple .by claiming banks in each instance carrying box, he was a bomb in a
including a lunch box on one occasion and
a shoe box that was wrapped bag inside a America, UNITED STATES of on another. None of the boxes fact Plaintiff-Appellee, explosive contained an device. Id. at 603- 04. The defendant in argued Hart that his HAYNES, Scott Lee Defendant- sentence should not have enhanced Appellant. 2B3.1(b)(2)(E) § under because no reason No. 00-5079. able individual would believed that had a bomb. But the Seventh Circuit United States of Appeals, Court rejected this argument, reasoning that the Sixth Circuit. “packages that [the possessed defendant] Argued: April 2001. were certainly capable holding explosive and, course, devices the tellers had no Decided and Aug. Filed: 2002. way of knowing what they actually con Id. at 608.
tained.”
Likewise, present case, in the styro-
foam sandwich box that Rodriguez brought *3 Grinalds, Leigh
Richard Asst. U.S. At- torney, Register, Lennard B. III (argued briefed), Attorney, Office of the U.S. Jackson, TN, Plaintiff-Appellee. for briefed), (argued C. Mark Donahoe Jackson, TN, Byrd, Byrd, Donahoe & for Defendant-Appellant. CLAY,
Before: BOGGS and Circuit ROBERTS, Judges; Judge.* District * Roberts, Michigan, sitting by designation. Honorable Victoria A. Judge States District for the Eastern District of Janice Justis1 apartment 1998 at J., opinion
ROBERTS, D. delivered arrest to the leading J., . The circumstances CLAY, joined. court, in which Michael Sergeant described 685-687), BOGGS, delivered (pp. J. hearing. suppression during the George concurring part opinion separate part of in the latter George testified part. dissenting information he received September OPINION in Illinois that from authorities parole and for burglaries wanted ROBERTS, Judge. District alleged The items violations. Introduction I. firearms included several have stolen Scott Defendant February On jew- worth of thousand dollars and several *4 (hereinafter, “Haynes”) was Haynes Lee Haynes that informed George was elry. District States in the United indicted handgun, with a semiautomatic armed was of Tennes- District for Western Court attorney his told dangerous, and had was (1) unlawfully pos- for counts: two see on taken alive. not be that he would which, a convicted as sessing a firearm him that led information receiving After 922(g); § felon, of 18 was a violation U.S.C. in was Jus- Haynes staying to believe (2) a stolen unlawfully possessing and Union which within the apartment, was tis’ firearm in transporting firearm and George Authority complex, Housing City commerce, in violation of 18 interstate He was manager. housing contacted 924(a)(4). Haynes 922(j) §§ and U.S.C. Haynes’ de- fitting that a white male told Suppress, Motion to filed a subsequently up in front of Justis’ pulled scription had hearing on following a denied which George was Firebird. apartment gray in 2,1999. July number. plate license given the Thereafter, guilty to Haynes pleaded Rick Lieutenant George then located plea The indictment. 1 of the Count Vastbinder, went who, Captain with Kelly that the Government provided agreement Patrolmen Dan- apartment. check the to to a Rule 2. Pursuant Count would dismiss were also Tommy Lemons ny Carr reserved the Haynes plea agreement, Ap- apartment. go to to the instructed of Motion to denial his appeal the right to George heard apartment, proaching 11, 2000, Haynes January On Suppress. apart- inside the coming from Kelly’s voice of incarcera- 180 months to was sentenced apartment, entering the Upon ment. supervised release. years and 3 tion woman, Kelly and a white George saw For the reasons appeal followed. This after What occurred Vastbinder. the denial of below, REVERSE we stated dispute. to respect with Suppress to the Motion a bed- he was in George testified that AF- car but Haynes’ found in evidence Haynes was apartment when room of the to state- respect the denial FIRM to be by Carr Lemons discovered following police his gave to ment spring. and box a mattress hiding between arrest. Haynes was knowledge, George’s To Background II. asked in the When cuffed bedroom. while patted down at Haynes was City, whether Union arrested Haynes was think time, “I would so.” replied, George on department October Tennessee "Justis.” now Janice Justis is 1. The former Janice will referred Haynes, but hereinafter keys just asked a set of car When whether didn’t want get daughter from pocket removed the bed- trouble. stated,
room, know, George “I don’t sir.” Armed with what he believed to be keys “may taken I out. Haynes’ consent, Carr key used the they don’t know if were or not.” George open door; the Firebird it had previously having told denied defense counsel and been locked. Investigator Defenders Office Federal Carr, Lemons’ mirrors that of Chris Odden that the keys car were taken except that Lemons did not know whether pocket patted out of when he was the Firebird doors were locked. Lemons down the bedroom. that, additionally during testified his and he, According George, neither Carr Firebird, Carr’s search of the he found a nor Lemons left the bedroom before .357 Magnum under the floorboard was taken out. When Carr and Kentucky some Fried Chicken sacks. outside, Lemons took George re- Lemons also revealed after searching in the mained bedroom. About ten or vehicle, he and Carr removed Haynes later, minutes fifteen Chief of Police squad car and examined his George informed given mouth. *5 to George search his vehicle. de- The testimony of independent three wit- any knowledge entering nied of an officer nesses, Haynes Justis and contradicts that car until he was Haynes’ taken outside and George, Carr and Lemons. Carla Vib- gave his oral consent. bert, who knew of but had never been George Carr’s differs from Haynes, introduced to claimed to have significant respect. one Carr denies that the viewed entire scene outside of Justis’ patted was Haynes down when he was in apartment on the day Haynes that was the bedroom. He states that he and Lem- arrested. Vibbert saw the officers enter Haynes up ons stood him straight and took apartment, only the to have one of the upon Only leaving apartment outside. the apartment officers exit the “open and the Haynes get patted did According down. door and Only car stuff.” that after did Carr, it was not until time that Haynes being see Vibbert escorted from keys removed Haynes’ pocket. the apartment. Haynes the When came out- Haynes After Carr discovered that side, the officer who had been in the Fire- him, keys on Carr testified that he asked shut the Haynes bird door. was then whether the Haynes gray Firebird was his. car, placed patrol and the officers replied his, Haynes that the car was but resumed their search. Vibbert did not see it registered was to his daughter. anything removed from the Firebird be- informed Haynes pur- Carr that he had Haynes brought fore was outside. car, chased the and that in it anything was When asked how Vibbert knew Then, Carr, his. according to he and who person first entered the car awas Haynes had the exchange: following officer, police replied she that he was I told him we needed check the ear wearing a uniform. further identified She we could and asked him if that would be However, George as that officer. all of the okay. yeah He stated but was con- personnel who testified denied daughter, cerned about his about it be- George wearing was a uniform that day. ing registered to daughter. And we Rather, he in plain clothing. was dressed him, him again asked basically, —asked question: the same okay indepen- if it was if we Shannon Brandon is another yeah, searched the He said but he witness who not Haynes dent did know at this,” Haynes heard which time friend, “check visiting her was Brandon time. The officers next jingling. next keys with her mother his car Tasha, lived who they hallway, five or where about Haynes said into She took door to Justis. seeing the law enforce- Haynes does minutes after a few minutes. stopped ten apartment, among enter personnel ment was that Lemons not believe officer, who That out. single officer came escorting him from the who were officers uniform, opened then wearing was, was that Lemons He believes apartment. began look- Firebird the gray door out to instead, who went the officer Thereafter, two saw Brandon ing around. pull his head seeing After Lemons his car. apart- out of the Haynes escort officers door, Haynes the car slam out of something hollering was Haynes ment. doing my asked, you F [are] “What not understand. could Brandon (J.A. 241) Subsequently, vehicle?” being not remember does Brandon car and squad in the sitting any- removing or the officer down patted Justis, stooped down talking to Lemons put pockets before he from his thing form. sign him a consent and asked did, however, car. She squad into refused, You “F no. don’t stating, pull Haynes out the officers seeing recall 243) (J.A. any cause.” mouth and examine his squad car supported hearing, At Justis the car. following their search said that one testimony. She visiting Brandon was Tasha whom sign a con- the officers asked at the who also testified King, was Tasha form, Haynes replied and that sent not also did hearing, who suppression 146) (J.A. I not.” “F no. will stating, apartment King left her Haynes. know apart- did surrounding Justis’ at the scene officers clear that someone and saw It is *6 apartment. forms; entered the Corporal ment. The officers consent-to-search have out, brought of one Haynes was sign Before one for the Terry had Justis Grooms emerged from the uniformed officers apartment. Carr testified of her search Haynes’ car and start- went to apartment, that, had consent-to- may have although he a brought was out searching. ed car, gener- does not in his he forms search and be- by two officers minutes later few signed before the form to ally ask doing fuck are you yelling, “What gan Lawrence Gar- a vehicle. Chief searching was After my in car?” looking department’s police that the ner testified car, re- the officers squad in the placed to search a required written policy Like of his Firebird. their search sumed residence, not a vehicle. but Brandon, Haynes being not recall King did the officers argues also in the being placed prior to patted down to a warrant sought should car, but did recall examination squad claim, support To de- the Firebird. the vehicular following of his mouth testimony from counsel elicited fense search. any had difficul- that he had never George final witness Haynes was the from the warrant securing a search ty He contended hearing. suppression period in of judge less sessions general five, officers, all maybe were “a slew” minutes. thirty than was when he into the bedroom crowded taken to the Eventually, Haynes was the mattress discovered between There, signed he department. handcuffed, brought spring. box He that recited his form Rights Waiver emptied. pockets had his his feet and another, and stated: Miranda rights then said to of the officers One statement, I of my rights have read statement agreed that George did not I my rights say and understand what are. I anything threatening to Haynes. am willing make a statement and topic Another covered the hearing questions. answer I do not want a law- addressed how police department yer at this time. I understand and gained entry into apartment. Justis’ Al- doing. promises know what I am No or though Haynes does not challenge the le- threats have been made to me and no gality of entry the officers’ into and search pressure-or-coereion any kind has apartment, of the argues that the offi- against been used me. cers’ regarding entry their into This is the first indication in apartment the record of Justis’ questions raises with re- being informed of his Miranda spect to their credibility. rights.2 Lieutenant Kelly indicated after he
In the recorded statement to George Captain Vastbinder knocked at the followed, Haynes again agreed that he door, apartment a white woman answered. had been advised of his constitutional Kelly and Vastbinder told her they who rights, rights, understood those had not were looking pointed for. She then in the promised anything or threatened be- direction of the bedroom and up, backed making fore the statement. ac- allowing them into Kelly the house. stated knowledged ownership Mag- the .357 that although gun he had his drawn as he num, saying by” that he “came approached that and apartment, they did not jewelry that was found in apartment He enter the until they identified lot, bought said that he the car with themselves and let the woman know what cash, although it registered they his doing Only there. later did daughter’s name. small Kelly amount of find out that the answering woman marijuana Justis, found the car belonged also the door was not but neigh- was a Haynes. bor, The statement also addressed Tammy Clark. Haynes’ pawning of jewelry Kentucky. Contrary Kelly’s testimony that Clark Although daughter pawned some willingly let the apart- officers into the name, jewelry items of under her ment, Clark opened testified that she suspect she did not that they were stolen. *7 door and up backed because there were Justis was never him when the items guns pointed face; two in her the officers pawned. her apartment. forced back into the How-
During suppression ever, hearing, Haynes if Kelly even lied about the manner that, claimed tape before the recording which the gained entry officers into started, George threatened to involve apartment, Justis’ credibility his is not Haynes’ daughter and if Haynes germane. Justis did Kelly’s alleged lack of credibili- give not the statement. Specifically, ty light sheds no on whether George, Carr George allegedly warned that he would or Lemons lied about the being Firebird Haynes’ have to arrest daughter since the Haynes’ searched with consent. her, car was registered to and that Justis pertinent More George’s testimony.
was
a
harboring
criminal.
He stated that he assumed that the woman
George
using any
denied
opened
Justis,
threats or co- who
the door for him was
compel
ercive actions to
Haynes
give
to
but he later saw Justis and learned who
Lemons,
the statement.
who witnessed
she was when she
being questioned by
Arizona,
436,
1602,
2.
(1966).
Miranda v.
86 S.Ct.
Kelly at the only key was the that the Haynes realized that asserted then George should not Jus- belonged the door was had that opened thing who he ever woman indicating report tis, out his a hard time later filled court had he The district father. the door. answered a key that Justis Haynes kept believing that and, thus, Haynes’ found family heirloom impeached. credibility was also Lemons’ incredible. entire testified in if he had He was asked hun- was one that he proceeding earlier additionally concluded court The district who the woman that certain percent dred consented, had not if even re- Lemons was Justis. door opened the basis to search had a sufficient the officers that only testified had plied that he States, 267 v. United car under Carroll Haynes’ at- like” Justis. “looked woman (1925) 69 L.Ed. U.S. Lem- transcript where torney from read 42, 90 Maroney, 399 U.S. v. and Chambers asked, you sure are “How ons had been 1975, L.Ed.2d 419 S.Ct. the door when opened Justis that Janice “A hun- replied, Lemons you arrived?” III. Discussion percent.” dred of Review A. Standards suppression July Following issues, re Haynes’ we suppression court denied district “On hearing, the acknowl- findings The court of fact Suppress. court’s Motion to view district gave testi- of citizens group error, conclusions edged that we review all clear but “entirely different” Crowder, mony that was v. of law de novo.” United States concluded, officers, “It Cir.1995). In this F.3d into the somebody went seems clear Suppress, the Haynes’ Motion appeal in the still Mr. car while in the the evidence consider Court must Nevertheless, the court found house....” government. to the most favorable light gave verbal that, Haynes later Shamaeizadeh, 80 F.3d States would vitiate that consent to the (6th Cir.1996). 1131, 1135 taken previously the bad search con- court Ultimately, the district place. B. of the Firebird Search consent, but give did cluded that found that an officer court The district “finding the acknowledging that only after came car Haynes’ before had searched trying like is sort of truth in one the' outside; consented jar because there in a catch moonbeams search; the consent for second of what many different accounts are so search; first bad vitiated the second search happened.” justi- and, also circumstances exigent consented, dis- To find that *8 If the Haynes’ car. of fied the search upon the statement relied trict court cir- upheld exigent proposition is latter —if He reasoned police. to the Haynes gave nei- a search—then justified cumstances searched with- that, car been Haynes’ search re- the second the first nor ther express against his consent out Haynes’ consent. quired the state- wishes, given have he would not therefore, begins analysis, This Court’s cooperative conciliatory ment such exigent cir- of question the whether Further, court found district the tone. We the searches. justified cumstances credibility. In lacked testimony Haynes’ because they did not conclude that so, Haynes’ upon relied doing he cause to probable did not key ring officers key on his a handcuff kept that he
677
was,
upon
search the car.
Carney to reverse
holdings
of the
thus, necessary
justify
the search. For Pennsylvania Supreme Court in two cases.
below,
additionally
the reasons stated
we
case,
In each
Pennsylvania
sup-
court
conclude that
the Government failed to pressed evidence found during vehicular
positive
demonstrate
clear and
testimo-
that,
searches reasoning
although they
ny
consented to the second
supported by probable cause,
that,
did,
search and
even
that con-
justified
warrantless searches were not
sent did not vitiate or remove the taint of
exigent
reject
circumstances. To
those
the first bad search.
holdings, the Labron
reemphasized
Court
ready
that the
mobility of a motor vehicle
exigent
support
l.Did
circumstances
is,
itself,
in and of
“an exigency sufficient
the search of the car?
to excuse failure to obtain a search war-
The Government has the burden of
probable
rant once
cause to conduct the
proof
justify
a warrantless search. See
Id.,
940,
search is clear.”
518
U.S.
116
Pollard,
643,
v.
States
More
in Pennsylvania
Labron,
As a
foregoing, Haynes’
result
(1996),3
secured
exists,
and,
though
probable
even
whether
cause
readily
mining
mobile
was
cle
custody, could
that occurred
may
in
not look to events
Haynes was
we
else. The offi-
away by
subjective
someone
driven
search or to the
after the
prevent anyone
able
may
officers; instead,
have been
cers
we look to
of the
intent
with the Firebird
taking
off
else
the officers
objective facts known to
But there is no dis-
effectively seizing it.
the time of the search. See United
at
tinction,
purposes,
constitutional
be-
for
385,
Ferguson,
v.
8 F.3d
391-92
States
searching
and
it.
a car
seizing
tween
banc).
Cir.1993)(en
(6th
51-52,
Chambers,
at
90 S.Ct.
399 U.S.
1070, 1074-
Thornburg, 136 F.3d
Smith v.
Furthermore,
if the Firebird
even
1975.
Cir.1998).
(6th
75
mobile,
expecta-
the lesser
readily
not
case,
objec
at the
looking
In this
accept-
in automobiles is
privacy
tion of
time
known to the officers at the
tive facts
searching
for
without
justification
ed
probability that con
a fair
warrant,
probable
provided
there is
did not exist.
traband would be found
cause.
George
had been informed that
Thus,
hand is
question
at
suspected
stealing
for
firearms
Haynes’ car was
the search of
whether
of the officers had been
jewelry, but none
A
by probable cause.
district
supported
any information that would lead to
given
legal
finding
probable
cause is
court’s
suspicion
any more than
mere
that must be reviewed de novo.
conclusion
those articles
Haynes stored
Padro,
120, 122
States v.
Houghton,
v.
526 U.S.
Compare Wyoming
(6th Cir.1995).4
297-298,
1297,
295,
143 L.Ed.2d
probable cause as ‘reasonable
define
We
(1999)
occupant
(finding
408
belief,
supported
less
grounds
stopped
hypodermic
needle
vehicle
than
prima
proof
than
but more
facie
acknowledged he had
plain view that he
v. Ben-
suspicion.’
mere
United States
Labron,
939,
518 U.S. at
drugs);
used for
Cir.1990).
(6th
nett, 905 F.2d
934
respondent
(finding
116
2485
S.Ct.
when there is a
Probable cause exists
transacting
drugs
taken from the
seen
probability that contraband or evi-
‘“fair
car);
Chambers,
trunk of
399 U.S.
in a
a crime will be found
dence of
(vehicle
matched that
Determining
probable cause ex-
whether
case,
recently held
the Tenth Circuit
stant
the time of the search is a
isted at
‘
probable cause to
lacked
“eommonsense, practical question” to
the car at
In United States
search
issue.
“totality-of-the-cir-
from the
judged
’
Edwards,
Cir.2001),
679
tripped
employees
They
the silent alarm.
would reveal contraband or further evi-
activity.
dence of criminal
girlfriend
found the defendant and his
open
in front of
standing
the bank with
Edwards,
camera view. 242 $2000 Likewise, case, was not F.3d at 931. Red smoke came from the at arrested or near his car and there was bag, exploded dye evidence of an red suppression no at the hearing out, As it pack.5 Holly- Id. turned police from which the could deduce a fair wood, probability California bank the defendant was that a search of the Firebird would reveal robbed; contraband or evidence standing found in front of of was not activity. criminal robbery the cash had come from a in Boul- der, subsequent Colorado. Id at 932. A Consequently, the Court finds that search of Edwards’ rental car revealed police probable officers lacked cause to dye-covered full bags currency which search the Firebird without con- sent. together was bundled with Federal Re- wrappers
serve
from the bank Boulder.
2. Was there consent to
Id.
the second search?
Although the Edwards court concluded
crediting
After
Carr’s and
police
probable
that the
to ar-
cause
testimony,
Lemons’
the district court addi
defendant,
probable
rest
it held that
tionally found that Haynes consented to
lacking
cause was
to search the car in the
When,
second search of the Firebird.
which the defendant and his girlfriend
here,
as
it is alleged that
the defendant
arriving
were seen
at the bank. The court
consented to the
“[i]t is the Gov
burden,
reasoned:
preponderance
ernment’s
evidence,
through
to show
‘clear and
Edwards and Dittrich were not arrested
positive testimony' that valid consent was
and,
in or near the
although they
vehicle
obtained.” United
v.
States Riascos-Sua
carrying
appeared
what
to be con-
rez,
Cir.1996)
(quot
F.3d
bag,
traband
Dittrich’s camera
there
Scott,
ing United States v.
578 F.2d
testimony presented
sup-
was no
at the
(6th Cir.1978)).
“Whether consent to
pression hearing
support
that would
voluntarily given
a search is
a question
police
belief
that additional con-
Erwin,
of fact.”
United States
traband or evidence could be found in
(6th Cir.1998).
Hence, a trial court is
Furthermore,
the vehicle.
by the time
given
credibility
wide latitude to assess the
the police decided to search the rental
City
of witnesses. Anderson v.
Bessem
car,
police
City
were aware that the
N.C.,
564, 573-75,
City,
er
robbed,
National Bank had not been
S.Ct.
With Haynes’ search of by car was vitiated his given by ance on the later statement subsequent consent. consent, Haynes to establish this Court If gave car, consent to search that by Haynes cooper- finds that the time that then that any would vitiate bad search atively gave expressed the statement and that had taken place previously. Even protecting an interest in daughter, his gone someone had into the car and weapon already and contraband had looked without consent and then Mr. Haynes’ protect found. desire to consents, Haynes later then that vitiates daughter necessarily would not have led search. bad cooperate him to the search that before court, disagree We with the district but revealed those items. whether the consent vitiated the first ille- be, found, may It as the district court gal really search is not at issue. It is the consented to the search of his second search that the Government is at- already begun. car after it had Nonethe- justify. tempting Having decided that less, clear, foregoing as the makes Haynes gave oral consent after the first particularly given testimony of inde- pertinent query before the dis- pendent witnesses and the inherent incred- trict court was whether that consent re- testimony, ibleness Carr’s and Lemons’ moved the taint of illegal search and the Government has failed to sustain its validated the second search. The district demonstrate, proof burden of through engaged court never in that crucial analy- positive clear and testimony, that valid sis. consent was obtained. The district court To determine whether the taint of acknowledged as much when it stated illegal search was removed Haynes’ “finding the truth in this one is sort of like consent, alleged apply this Court must trying jar to catch in a moonbeams be- “independent source” ‘in doctrine. “This many cause there are so different accounts dependent source doctrine’ deems evidence happened.” of what admissible those situations where an short, the district court’s reasons for illegal place point search takes at some sorting contradictory testimony out the in during investigation, a criminal but where the manner it did were insufficient to over- proper, independent led to the clarity come the lack of in the Govern- question.” evidence in United States v. presentation ment’s Finding evidence. Dice, (6th Cir.2000). 978, the truth in this matter continues to be “upon policy The doctrine rests catching jar, like moonbeams in a and the government profit while the should not Government has failed to demonstrate illegal activity, from its neither should it be positive clear and placed position in a than it worse would consented to the search of the Firebird. occupied.” Murray otherwise have v. States, Although explicitly it did not ana
United
2529, 101
lyze
“Dissipation
alleged
L.Ed.2d 472
whether
entry
the district
did
resulting
illegal
voluntary,
taint
court
consider
showing
Haynes’ experience
jus
‘ordinarily involves
there was
with the criminal
time,
intervening
space,
system
lack of
significant
rough
tice
treatment in
some
”
Buchanan,
holding
or event.’ United States
that he had consented to the
(6th Cir.1990),
(quoting
F.2d
search. These are
factors
relevant
Vasquez,
States v.
F.2d
voluntarily
whether
assessing
consent was
*13
(2nd Cir.1980)).
397,
528
v.
given.
Ivy,
States
165 F.3d
United
(6th Cir.1998).6 Yet,
402
the district court
case, virtually no
In this
time
prior
did
the
not examine
effects of the
and
elapsed between the first
second
illegal
of
search
vehicle. When
car,
parties
the
and the
search of
involved
illegal
an
the
consent follows
Gov
during
peri-
left the
never
scene
time
ernment must demonstrate that the “con
Hence, the only question is whether
od.
‘sufficiently
sent
an
free
act of
will to
intervening
dissipated
an
event
the taint.
purge
primary taint of the unlawful
the
The district court held
con
” Buchanan,
355,
F.2d at
invasion.’
904
to the search of his
sented
Under
Illinois,
590,
Brown v.
422
(quoting
U.S.
circumstances,
voluntary
a
some
consent
599,
2254,
95 S.Ct.
search had witnessed the
Of additional relevance is the fact that
consent, although perhaps
volun-
witnessed the initial illegal Watson,
411,
Howard,
(9th
United States v.
U.S.
423
96
8. United States v.
randa and to rights having and admitted stitutional legal against action threatening to take by justice the criminal ample experience in Fifth The Haynes’ daughter. Justis and investigate alleged threats to system. The from prohibits prosecutor Amendment daughter were not of Haynes’ and Justis v. El testimony. Oregon compelled using ordinary person, gravity such 306-307, stad, Haynes’ age of much less someone Where a confes 84 L.Ed.2d have lost the will experience, would involuntary to have been alleged is sion resist. coercion, some element of because of im rights are process the defendant’s due such, the Court affirms denial of As appellate review of the plicated, and the Suppress respect Motion to Rigsby, novo. States claim is de at issue. to the statement Cir.1991). (6th F.2d IV. Conclusion to be “An is deemed admission reasons, foregoing Court For the law enforce the conduct of coerced when denial of the district court’s REVERSES as to overbear ment officials is such respect Suppress with Haynes’ Motion v. Ed to resist.” Ledbetter accused’s will Firebird, from the evidence seized Cir.1994). to the wards, respect to the denial with AFFIRMS but mental may coercion Unconstitutional the statement. Arizona v. Fulmi physical. well as say BOGGS, Judge, concurring in He patted Circuit does not part dissenting part. in apartment. down in the He concedes that if any keys he did not know were removed Judge District James United States Haynes, officer, nor did he see any specific credibility finding Todd made a Lemons, especially not Carr or depart with case, Haynes, the defendant (JA 102-03) the keys. had consented to a search of his car. The judge having hearing did so after a full points by The other stated our court in personally which he observed casting some doubt credibility on the of witnesses, potential including all of the the Carr and Lemons either relate to earlier defendant himself. I believe that the dis- entry house, events such as the into the judge trict did not commit clear error in Maj. 675-76, Op. or simply are determination, factual and thus I expected variations that can be in any would affirm his denial of the motion to vigorous situation with and clever cross I suppress gun found that search. examination. It is not for this court to respectfully dissent as to as therefore judge decide the district un- chose I contrary holding of the court. con- wisely deciding to believe the main (exigent cur in Parts III.B.l circumstances of thread the officers’ account rather than search) (af- support do not and III.C that Haynes and his witnesses. suppress firming Haynes’s refusal state- A conflicting story provided line ment) opinion. court’s Haynes, supported in varying degrees any by a large As with event testified to by several citizen story witnesses. This witnesses, and contentious number line is that a single officer left the house are there some contradictions between the while and other officers still testimony many of the witnesses. How- inside the house. That officer went into ever, fairly story emerge two clear lines car, possibly keys using obtained from testimony given from the before the dis- Haynes, partially and was at least inside judge. story trict line of the basic brought car when out of *16 government police is that a number of building by By the two officers. Haynes hiding upstairs officers found in an account, Haynes loudly, pro- reacted bedroom. He was arrested and hand- fanely, negatively pres- and to the officer’s point, cuffed at that out was escorted account, By ence. his at no time building by the Officers Carr and Lem- any consented to search of his car. they patrol ons. arrived car When at a balance, Todd, Judge having On had the waiting building, that was in front of the witnesses, opportunity to observe all of the down, him they patted keys found the car, concluded that he credited the officers’ specific and obtained his consent to that had It completely the This account is accounts consented. is colorful, with testimony consistent of Carr and judge gave true that the some Lemons, specifically and is not contradict- perhaps ill-advised the circum- under by any testimony ed of the the other stances, descriptions of the difficulties of police officers. case, characterizing “trying it as (JA 251) jar.” catch moonbeams in a De- George, testimony
Officer whose is cited spite phrase majority’s reliance on this Carr, contradictory Maj. as to Lemons and (see 681), I not it as the pages do read Op. simply contradictory. is not judge admitting that no truthful determi- merely He indicates that he assumed that thus, fortiori, pat nation could be made and down would have been done in the (“I 102). apartment. would think so.” JA no conclusion as to the voluntariness of so as Officer the officer who did Rather, simply being identified I read it as consent. testified, the evi- that the search- indicating George, that but also way of a colorful uniform, an ultimate when it is un- conflicting that was in ing officer dence was so possible in only plain in clothes. might George was disputed resolution that God, judge charged 114-17). (JA but implies mind of that Lemons judge responsibility, decision-making him out of the participate taking in did not be credible. officers to found the (JA 240), plausible for making it building searching the initial Lemons to have been his oral the of course It is true officer, explanation for he then no bench, but has judge from the presentation the two officers identity of the other of that does seem clear that: “[it] stated building, Mr. him out of the and even the car while who took went into somebody 250). (JA agree in the house.” that there Haynes was still his own witnesses ultimately placed controlling no Since he did two officers who that. statement, his statement that
weight on inconsis- extent there were To the that view, example can, be read as a my best stories, as in the officers’ various tencies the bench ruling from dangers (JA 250), by Judge passing Todd stated transcript and a a review of the without to focus on appear those inconsistencies or cor- conformation subsequent written entry building, by into the Vast- the initial Rather, I would transcript. rection of binder, others, centering on Kelly, and contradicting not that statement as read door, opened and how who it was that credibility, simply but general the officers’ thus no person was treated. There is fact that there was consistent noting the in the inconsistency, logically or either wit- of the defense some credibility, Judge Todd’s weighing of then judge nesses as to their version. finding. that there was chose to rule on the basis in the problematic result The second even there been valid consent opinion legal the correct majority concerns earlier search. rule, we that there had even when assume are officers’ accounts particular, the this cir- an earlier search. Under officers, two Carr consistent cumstance, the court is correct Lemons, Haynes in the took control evi- if it uncovered relevant earlier bedroom, building took outside the him dence, by a subse- not be validated would key. him and obtained the and searched However, principle quent consent. any source There is no indication that a second established equally well and Lemons other Carr any officer than *17 supported by if inde- can be valid search endeavor, any in nor that participated States v. pendent consent. See keys and specific took the other officer (6th Cir.2000); Dice, 200 F.3d went out to the Carson, 793 F.2d United States hand, testimony On the other Cir.1986). case, it In this 1155-58 is uncertain and con- opposing witnesses that undisputed from the facts seems If and Lem- tradictory point. on this Carr search, that search there were earlier custody who took ons were the two officers evidence of uncover the relevant did not him out of the build- and took only testimony as firearm. the illicit alleged the officer who made the ing, then firearm is that it discovery of to the that have been someone “early search” must Lemons, subsequent by Officer was done witnesses have no else. Yet the citizen placed in the having been Haynes’s that officer was. theory who consistent was found behind Vibbert, police gun car. The witness, specifically Carla One seat, pa- general under KFC sacks and circumstances. Other than the driver’s (JA 165). Therefore, arrest, the first pers.” being fact of under which does not only the extent would be relevant search vitiate consent to a there was noth- way in overbore the will of that it some in ing the facts found credible the dis- any him to believe that Haynes or caused trict judge that would lead to a finding of futile. I request to a would be resistance lack judge’s of voluntariness. On the cred- support the record will not believe that ibility finding, Haynes’s statements were such conclusion. positive” “clear and as to consent. First, no in the there is indication testimony It is true that the reveals two findings even knew of judge’s very I, general any different stories. or any putative majori- earlier search. The record, judge, reading might other the cold ty’s opinion states that he saw an earlier Haynes’s be inclined to believe that is clos- Maj. Op. at search. 683-84. While er to the truth than that of the that the Haynes’s version of facts is However, officers. is not our task. on when he came out of going search was witnesses, judge The district saw the made house, nothing judge’s there is in the in defensible conclusion the face of con- that indicates that he credited that ruling evidence, not, flicting my opin- and did fact, Judge specifically statement In Todd ion, commit factually, any clear error or (JA 253), “I stated don’t credit Mr. Indeed, legally. error the majority opin- Haynes’ testimony.” states, be, page may ion at 18: “It as the
There is also no indication that the offi-
found,
district court
consent-
any
persuasive
made
coercive or even
cers
ed to
search of his car after it had
based
the earlier
statements
on
so,
already begun.”
If that
is
then the
(for example, something
like: “We judge
possible
made a choice between two
you
gun
go
know
have a
there” or: “It’ll
analysis
stories. The court’s
of reasons to
consent”).
you
Haynes’s
if you
easier on
disagree
Judge
(especially
Todd
familiarity
jus-
extensive
with the criminal
356-99)
not, in my opinion,
lines
does
rise
system,
parties,
tice
alluded to
all
City
level cited Anderson v.
court,
opinion,
the majority
district
564, 575,
City,
Bessemer
support
finding
some
for a
con-
objective
interpreting a far more set ambiguous