United States v. ShrumUnited States v. Shrum
Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender and Timothy J. Henry, Assistant Federal Public Defender, with him on the briefs), Kansas City, Kansas, for Defendant-Appellant.
Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.
Before MATHESON, BALDOCK, and EID, Circuit Judges.
BALDOCK, Circuit Judge.
Following the unexpected death of Defendant Walt Shrum‘s common law wife at the couple‘s home around 5:30 a.m. on March 11, 2015, police officers in Kingman, Kansas “secured” the home, prohibiting Defendant access. Approximately three hours later and without access to his home, Defendant signed a consent to
A grand jury subsequently charged Defendant with two counts of being a felon in possession of a firearm in violation of
I.
The historical facts are not in dispute. Defendant and his wife Candice Hill were at their home in the early morning hours of March 11, 2015. Candice, who had just showered, was not feeling well. Shortly after telling Defendant she was very hot, she experienced a seizure and lost consciousness. At 4:54 a.m., Defendant phoned 911 to report a medical emergency. Defendant informed the 911 operator that Candice was thirty years old, was not breathing, and may have overdosed on prescription medication. Within five minutes, Captain Paul Hinton of the Kingman Police Department (KPD) arrived on the scene. Defendant was performing CPR on Candice in the bedroom. Captain Hinton relieved Defendant until EMS arrived at 5:11 a.m. About twenty-five minutes later, the ambulance, accompanied by everyone at the scene including Defendant, departed for the hospital a short distance away. Medical authorities pronounced Candice dead at 5:45 a.m.
According to a “Crime Scene Entry Log Sheet,” KPD Sergeant Travis Sowers “secured” Defendant‘s home after arriving on the scene at 6:19 a.m. Sergeant Sowers next phoned Dustin Cooke, an investigator with the KCSO. A few minutes later, Investigator Cooke received a call from the KCSO assigning him the case. The police dispatch report indicates Investigator Cooke arrived at the hospital around
Investigator Cooke asked Defendant, who had not yet returned home but remained at the hospital with Candice‘s body, to accompany him to the Kingman County Law Enforcement Center to discuss the circumstances surrounding her death. Defendant agreed. When later questioned about any information he may have had at this point regarding the cause of Candice‘s death, Cooke responded, “I didn‘t have anything.” Investigator Cooke escorted Defendant to a small interview room where he began questioning him shortly after 7:00 a.m. The audio tape recording of the interview reveals Defendant was coherent but frequently overwrought with emotion. Cooke permitted Defendant to make and receive phone calls during the interview. About thirteen minutes into the interview, Defendant phoned a female friend he identified as Teresa. When Teresa told Defendant that she “might be over sometime this morning,” Defendant stated, “I ain‘t home yet because they ain‘t lettin’ me go home yet. I‘m up here at the Sheriff‘s Office.” Defendant told Investigator Cooke that he wanted an autopsy performed to determine the cause of Candice‘s death.
The interview lasted until around 9:20 a.m. with a thirty minute break beginning about 8:37 a.m. During the break, Investigator Cooke learned that the coroner had inquired about Candice‘s medication as well as other medication in the
Investigator Cooke also informed Defendant, “I‘m gonna go ahead and hold onto your house as a scene, okay, until I get done with the autopsy.” Defendant responded, “That‘s fine, cause I told the landlord . . . and he said any way he could help me, he said don‘t worry about nothin‘.” At the suppression hearing, Investigator Cooke described the discussion:
Q. And at some point did you advise Mr. Shrum that you needed to hold onto the house, at least for that day?
A. Yes.
Q. Why did you say that?
A. Just because there was a 36-year-old female that just goes into a code is not a common—it‘s not a normal death. It does happen, but we have to investigate as to why that happened, so securing anything that may have given us information into that was the reason for the scene being held.
Q. All right. And did you tell Mr. Shrum that you were going to need to hold onto the house for a little while?
A. Yes I did.
Q. And what was his response to that?
A. Anything that I can do to help. . . .
Investigator Cooke told Defendant he was “going to do what‘s called a consent to search and I‘m just going in to retrieve the medication.” Defendant quickly responded, “I can‘t do it unless I have an attorney go over it.” Defendant then began to sob, “I wanna know what happened to her. I ain‘t got nothin’ to hide from you people. She‘s my baby, she‘s my everything. I know you have to.”1 For the next few minutes, Investigator Cooke and Defendant discussed Candice‘s ex-husband and family before Cooke returned to the topic of Defendant‘s home: “Let‘s run over to the house. Let‘s get your dogs. Let‘s get the medication.” Defendant suggested he feed his dogs and leave them in the house but Cooke told him the dogs could not stay there: “I don‘t want to leave them in the house not being taken care of.” Cooke explained to Defendant, “Well, I‘m hoping that this is a temporary thing maybe not but through the end of this afternoon, um, to know what‘s going on.”
Defendant sobbed some more while he reminisced about Candice and how much he missed her. Investigator Cooke again returned the conversation to Defendant‘s home: “Let‘s go get your dogs. Let‘s get this medication. And that way I can start moving forward with today and getting to the autopsy and getting the
The KPD Crime Scene Entry Log shows Investigator Cooke, Defendant, and Defendant‘s friend, Denise Niederman, arrived at Defendant‘s home at 9:30 a.m. Investigator Cooke placed the consent to search form on the hood of his squad car. Cooke wrote “Retrieve Medication” on the form. He read and explained the form to Defendant. Defendant indicated he understood, signed the form, and provided Cooke a key for entry. At some point, Defendant asked Investigator Cooke if he could go inside his home to urinate. Cooke said no and later acknowledged he forced Defendant to “relieve himself outside the house where there were other people standing around.” Once inside the home, Investigator Cooke let the dogs out and
Investigator Cooke was inside Defendant‘s home between ten and fifteen minutes. The entry log shows Cooke departed the scene at 10:05 a.m. while Defendant and Niederman departed at 10:07 a.m. The log indicates Cooke entered the home to “retrieve medications / dogs.” Neither Defendant nor Niederman were permitted to enter the home. While in the home, Cooke took fifty-six photographs of the kitchen and bedroom from various angles.2 One of the photographs depicted ammunition in plain view in the bedroom closet. Cooke testified the closet door was open when he entered the bedroom. Back at headquarters prior to the scheduled autopsy, another officer reminded Cooke that Defendant was a convicted felon:
Q. At some later point did you realize that Mr. Shrum was a convicted felon?
A. I did, and there was two things that kind of sparked that: One, you heard in the interview where it come to my recollection and he even said it was almost six years ago that he and I had talked; and then the other officer that actually was assigned to that case made a comment, he says, you know, I think he was a felon and then it dons [sic] on me, wait a second, I saw ammo in the house. So I go back to my pictures and I‘m like, there‘s the
ammunition, and that‘s what led into this investigation.3
Investigator Cooke attended Candice‘s autopsy in Wichita that afternoon at 1:30 p.m.4 The autopsy lasted approximately two hours. That evening, Cooke contacted Agent Neil Tierney from the Wichita branch of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Cooke asked Tierney to obtain a search warrant for Defendant‘s home based on the ammunition in Defendant‘s closet and his status as a convicted felon. A federal magistrate judge issued the warrant at 10:00 p.m. The Crime Scene Entry Log indicates three ATF agents, including Agent Tierney, accompanied by Investigator Cooke and Sergeant Sowers, executed the warrant beginning at 11:18 p.m. The search concluded at 1:20 a.m. on March 12, 2015. According to the Justice Department‘s “Report of Investigation,” law enforcement seized the following items from Defendant‘s home: (1) a loaded 12-gauge pump shotgun, (2) a loaded .45-caliber semi-automatic rifle, (3) an additional 806 rounds of live ammunition, (4) six glass paraphernalia pipes with residue, and (5) approximately 4.4 grams of suspected methamphetamine.
II.
The court subsequently granted Defendant‘s request for further briefing. In his supplemental brief, Defendant quoted directly from the Supreme Court‘s decision in Segura v. United States, 468 U.S. 796, 804–05 (1984), which in turn quoted from Wong Sun v. United States, 371 U.S. 471, 488 (1963):
Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. The question to be resolved when it is claimed that evidence subsequently obtained is “tainted” or is “fruit” of a prior illegality is whether the challenged evidence was “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
(citation omitted) (brackets and emphasis in original). Defendant concluded by
In denying Defendant‘s motion to suppress, however, the district court never asked whether an illegal seizure tainted Defendant‘s consent to search and the incriminating evidence Investigator Cooke witnessed as a consequence thereof, a taint in turn sufficient to invalidate the subsequent search warrant and its “fruits.” Instead, the court held the seizure of Defendant‘s home did not violate the Fourth Amendment6:
[G]iven the unexpected death of [Candice], the subsequent establishment of probable cause after Investigator Cooke observed the ammunition and learned of defendant‘s felon status, and the time it took to coordinate between state and federal law enforcement to secure a search warrant, the court finds that the “seizure” of defendant‘s residence was reasonable under the Fourth Amendment.
The Fourth Amendment provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .”
A.
The Supreme Court has told us a Fourth Amendment “seizure” occurs “when there is some meaningful [government] interference with an individual‘s possessory interests in . . . property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also United States v. Hill, 805 F.3d 935, 937 (10th Cir. 2015). Given the Supreme Court‘s description of a seizure, we have little difficulty concluding local law enforcement in Kingman, Kansas seized Defendant‘s home no later than 7:02 a.m. on March 11, 2015. The police dispatch report indicates Sergeant Sowers arrived at Defendant‘s home at 6:19 a.m. The KPD Crime Scene Entry Log indicates he promptly began securing the scene upon arrival. According to the dispatch report, the police were still “securing [the] scene” at 7:00 a.m., and had commenced a “criminal death investigation” by 7:02 a.m. By this time if not before, the police had asserted “dominion and control” over Defendant‘s home (and effectively everything within it) as part of their investigation into Candice‘s death. See Jacobsen, 466 U.S. at 120 & n.18.
The Government says the police “understandably” secured Defendant‘s home from the outside. The police never entered the interior of Defendant‘s home, let alone searched it, prior to Defendant‘s subsequent consent to search. But how these observations bear on the question of whether a Fourth Amendment seizure—defined as a meaningful interference with an individual‘s possessory
The Supreme Court reminded us just this past term that “when it comes to the Fourth Amendment, the home is first among equals. At the Amendment‘s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018) (citations and quotation marks omitted); see also Wong Sun, 371 U.S. at 484 (recognizing the “fundamental constitutional guarantee[] of sanctity of the home“). The right to retreat into one‘s abode following the unexpected death of a loved one would ring hollow if law enforcement could simply “secure” the home under the
B.
Of course, not every seizure at the hands of government officials violates the Fourth Amendment. Only unreasonable seizures are proscribed. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). At its inception, a seizure must be reasonable to comport with the Fourth Amendment. Roberson, 864 F.3d at 1121. The seizure must then remain reasonable “throughout its duration and in the entirety of its scope.” United States v. Martinez, 518 F.3d 763, 766 (10th Cir. 2008). The reasonableness of police conduct turns on the facts and circumstances of each case viewed in the light of established Fourth Amendment principles. Ohio v. Robinette, 519 U.S. 33, 39 (1996); see also United States v. Rabinowitz, 339 U.S. 56, 83 (1950) (Frankfurter, J., dissenting). In particular, to determine whether the seizure of Defendant‘s home in this case was reasonable we need look no further than the Fourth Amendment principles established in Illinois v. McArthur, 531 U.S. 326 (2001).
In McArthur, the complaining witness told a police officer that the defendant,
McArthur plainly teaches us a police officer armed with probable cause to believe a home contains evidence of a serious crime that might otherwise be destroyed may lawfully secure the home and restrict entry while waiting for an assisting officer to diligently procure a search warrant. See id. at 333–34; see also
Neither, unlike in McArthur, has the Government ever suggested that some sort of exigency justified the seizure of Defendant‘s home. Absent valid consent, the warrantless seizure of a home even in the presence of probable cause “is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.‘” Coolidge v. New Hampshire, 403 U.S. 443, 474–75 (1971); see also Brigham City, 547 U.S. at 403. At the suppression hearing, Investigator Cooke stated that when Defendant‘s home was “secured” on the morning of Candice‘s death, he “didn‘t have anything” other than a death that was “not normal.” Moreover, Cooke previously explained that the initial report he received was “it was not a suspicious death.” In
Nor did the police in this case, again unlike in McArthur, make any effort to reconcile their law enforcement needs with Defendant‘s Fourth Amendment interests in his home as a place of refuge, privacy, and comfort. See Place, 462 U.S. at 703. This seizure was not minimally intrusive; rather it was the commencement of a fishing expedition to see what sort and how big of fish the police might catch. The police completely disregarded Defendant‘s constitutional rights and seized his home so they could find out, again in the words of Investigator Cooke, “what‘s going on.” Inexplicably, Cooke would not even allow Defendant supervised entry into his own home to urinate. For reasons unclear to us apart from Investigator Cooke‘s preference and convenience, the seizure extended over a period of eighteen hours even though probable cause arose sometime around 11:00 a.m. or about four hours into the investigation. By then, Cooke had seen the ammunition inside the bedroom closet and learned of Defendant‘s felony status and had all the probable cause he needed to procure a search warrant. ATF agents at the behest of Cooke, however, did not procure a warrant until eleven hours later or 10:00 p.m.
In addition to Candice‘s unexplained death, which in itself was no basis for
The court‘s second rationale to justify the seizure was “the time it took to coordinate between state and federal law enforcement to secure a search warrant.” As for this rationale, we simply observe that the time taken to procure a warrant to search a previously seized home has no bearing on the legality of the home‘s initial seizure. Rather, the time taken to procure a warrant bears upon the continuing reasonableness of a seizure reasonable at its inception. See Segura, 468 U.S. at 812 (plurality) (recognizing a seizure reasonable at its inception may become unreasonable as a result of its duration); see also United States v. Villa-Chaparro, 115 F.3d 797, 801–03 (10th Cir. 1997) (separately addressing the questions of whether a seizure was reasonable at its inception and whether that seizure became
IV.
Having held without any difficulty that law enforcement‘s initial securing of Defendant‘s home on the morning of Candice‘s death constituted an unreasonable seizure in violation of the Fourth Amendment, we are now prepared to consider the effect of this illegal seizure on what followed.8 A defendant has the initial burden of establishing a causal connection between an illegal seizure and the evidence he seeks to suppress. United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir. 2006). Specifically, the defendant must establish the incriminating evidence “would not have come to light but for the illegal [seizure].” Wong Sun, 371 U.S. at 488 (emphasis added). “But for” causation, however, is only a necessary condition for suppression; it is not sufficient. Torres-Castro, 470 F.3d at 999. Once a defendant establishes “but for” causation, the Government may still avoid suppression. Id. At this point, the relevant inquiry becomes whether the Government has proven the
This latter inquiry is tied to the aims and costs of the exclusionary rule. The fact that a Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies.
Herring v. United States, 555 U.S. 135, 140 (2009). The exclusionary rule is not a constitutional right but a prudential doctrine that the Supreme Court has created to compel respect for Fourth Amendment guarantees. Davis v. United States, 564 U.S. 229, 236 (2011). The rule’s sole purpose . . . is to deter future Fourth Amendment violations.
Id. at 236–37. Before exclusion is appropriate, the deterrence benefits of suppression must outweigh the rule’s costly toll upon truth-seeking and the law enforcement objectives
of apprehending criminals and protecting the public. Herring, 555 U.S. at 141.
Where an unlawful seizure of a home precedes a consensual
search of the home and the discovery of incriminating evidence then used to procure a search warrant, the Government’s burden to prove the primary taint of the illegality has been purged, i.e., that the search warrant and its fruits
are valid, is two-fold. See Murray v. United States, 487 U.S. 533, 540 (1988) (recognizing that evidence discovered as a result of an unlawful entry cannot be used to establish probable cause before a magistrate
). The Government must prove the voluntariness of a defendant’s consent consistent with the principles set forth in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). But in addition, the Government mustit is extremely important to understand that (i) the two tests are not identical, and (ii) consequently the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of prior illegality.
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(d) at 101 (5th ed. 2012) (emphasis in original). This means the fruit of the poisonous tree doctrine [may] also extend[] to invalidate consents which are voluntary
in the traditional sense.9 Id. § 8.2(d) at 102 (emphasis in original); see Florida v. Royer, 460 U.S. 491, 495, 501, 507–08, 509 (1983) (plurality plus Brennan, J., concurring) (holding an illegal seizure of the defendant tainted his subsequent consent to search without questioning the trial court’s ruling that his consent was freely and voluntarily given
). We require the Government to demonstrate a break in the causal chain for two reasons. United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). First, we are concerned the illegal seizure may have affected the voluntariness of the defendant’s consent that led toheavier burden
to carry when consent follows an illegal seizure). Second, we are bound, where appropriate, to effectuate the exclusionary rule’s deterrence principle. Id.
A.
Because here the historical facts are undisputed and the record of the district court proceedings, which includes Investigator Cooke’s taped interview with Defendant, was adequately developed, we exercise our discretion to proceed.10 Accordingly, let us commence the proper analysis by considering whether Defendant has established but for
causation. Justifiably apart from any unwarranted speculation about what might have transpired if the police had not unlawfully seized Defendant’s home, Defendant can easily meet his burden to show that but for the illegal seizure, law enforcement would not have discovered the incriminating evidence he seeks to suppress. If Defendant is allowed to access his home and
Next, we must determine whether the Government may avoid suppression of the evidence notwithstanding the illegal seizure of Defendant’s home. Inevitably, our analysis at this stage becomes much more complex. Setting aside the question of whether Defendant’s consent was voluntary in the traditional sense under the principles established in Schneckloth, we turn our attention to that part of the Government’s burden requiring it to break the causal chain. Three exceptions to the exclusionary rule address the causal relationship between the unconstitutional act and the discovery of evidence.
Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). Two of these exceptions, however, do not address whether the taint has been purged despite but for
causation, but rather bear upon but for
causation itself. The independent source doctrine permits courts to admit evidence notwithstanding a prior illegality if law enforcement acquired the incriminating evidence from a separate, independent source. Id. The inevitable discovery doctrine countenances the admission of evidence that would have been discovered regardless of prior police illegality. Id.; see Murray v. United States, 487 U.S. 533, 539 (1988) (recognizing the latter doctrine is in reality an extrapolation
of the former doctrine because if
through such a source).
In this case, nothing in the record remotely suggests law enforcement obtained the incriminating evidence against Defendant from an independent source, i.e., a source wholly separate from the illegal seizure of Defendant’s home and what followed therefrom. See Segura, 468 U.S. at 815 (applying the independent source doctrine because the unlawful entry into the home did not contribute in any way to discovery of the evidence seized under the warrant
). Additionally, any suggestion that the police inevitably would have discovered the incriminating evidence against Defendant had they not initially seized his home and prohibited him access is far too speculative. [I]nevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification . . . .
Nix v. Williams, 467 U.S. 431, 444 n.5 (1984). What would have transpired had the police not illegally seized Defendant’s home from the outset and denied him access is anybody’s guess. This leaves us to examine the third exception to the exclusionary rule bearing upon causation—the attenuation doctrine.
The notion of attenuation or
Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J.,dissipation of the taint
[of the prior illegality] attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.but for
causation. Attenuation occurs when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.
Strieff, 136 S. Ct. at 2061.
The factors the Supreme Court articulated in Brown and reiterated in Strieff guide our determination of whether the illegal seizure of Defendant’s home tainted the incriminating evidence or whether such taint has been purged. Brown, 422 U.S. at 603–04; Strieff, 136 S. Ct. at 2061–62. First, we consider the temporal proximity between the illegal seizure and discovery of the incriminating evidence used to prosecute Defendant to determine whether time has rendered the connection between the illegality and the evidence remote and suppression inappropriate. Strieff, 136 S. Ct. at 2062. Second, we look for the presence of any intervening circumstances during this time period to determine, just as we must under our first inquiry, whether suppression would serve the interest protected by the Fourth Amendment’s proscription against unreasonable seizures. Id. Third, and
we examine the purposes and flagrancy of the official misconduct. Id. (quoting Brown, 422 U.S. at 604). This factor favors exclusion particularly
significant,only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.
Id. at 2063. Where the district court fails to employ the Brown factors
B.
Recall the time line in this case. Local law enforcement seized Defendant’s home around 7:00 a.m. Defendant spent the next two and a half hours at the police station speaking with Investigator Cooke and others. About 9:30 a.m., Defendant signed a limited consent to search form outside his home authorizing Investigator Cooke to enter the home and retrieve Candice’s medication. Cooke completed his search of Defendant’s home around 10:00 a.m. By 11:30 a.m. Cooke possessed sufficient knowledge to procure a search warrant. He knew Defendant was a convicted felon and had ammunition in his bedroom closet. Cooke did not seek a search warrant, however, until the early evening hours.11 The only event of sufficient note during the period between the establishment of probable cause that morning and the process of procuring a search warrant that evening was Candice’s autopsy which began at 1:30 p.m. and concluded around 3:30 p.m. A federal
In Strieff, the Supreme Court observed that its precedents have declined to find that [the temporal proximity] factor favors attenuation unless
Strieff, 136 S. Ct. at 2062 (quoting Kaupp v. Texas, 538 U.S. 626, 633 (2003) (per curiam)). The longer the time lapse between the initial illegality and the acquisition of the challenged evidence, especially where the evidence is verbal, the more likely such evidence has been purged of the illegality’s primary taint, i.e., has become attenuated.12 Wong Sun is the best example. There the Supreme Court held that where the defendant had been arraigned and released on his own recognizance and then voluntarily returned several days later to make an incriminating statement, thesubstantial time
elapses between an unlawful act and when the evidence is obtained.become so attenuated as to dissipate the taint.
Wong Sun, 371 U.S. at 491 (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). In other words, the defendant’s statement on this later date was sufficiently an act of free will to purge the primary taint of the unlawful [arrest].
Id. at 486.
Unlike Wong Sun, however, the facts in this case reveal Defendant had little time to exercise free will
between the unlawful seizure of his home and his execution of the consent to search form two and a half hours later. See Brown, 422 U.S. at 604–05 (concluding a two hour separation between an illegal arrest and confession without any intervening event did nothing to dissipate the taint). And once Investigator Cooke had completed the search of Defendant’s home thirty minutes after that, the length of time taken to procure the search warrant and execute it rested entirely outside Defendant’s control. While most Fourth Amendment cases such as those addressing traffic stops or arrests involve relatively brief time spans, Defendant’s home remained under the dominion and control of the police throughout the duration of the day long episode. Thus, the time that elapsed between the initial unlawful seizure and discovery of the incriminating evidence used to prosecute Defendant in itself no way rendered the connection between the two remote. While the temporal proximity between an illegal seizure and discovery of the evidence a defendant seeks to suppress is never immaterial, we conclude here that this factor does nothing to advance the Government’s burden to prove attenuation. See UnitedStates v. Ceccolini, 435 U.S. 268, 275 (1978) ([T]he Court of Appeals was simply wrong in concluding that if the road were uninterrupted, its length was immaterial.
).
Turning to a consideration of intervening events, what transpired in the two and a half hours between the seizure of Defendant’s home and his consent to search is critical to our analysis. Specifically, we refer here to Investigator Cooke’s interview with Defendant. The record first reflects Defendant’s knowledge of his home’s seizure a few minutes after 7:00 a.m. when he called his friend Teresa from the law enforcement center and told her: I ain’t home yet because they ain’t lettin’ me go home yet.
Some two hours later, after Defendant had expressed the desire for an autopsy because he wanted to know why Candice died and Investigator Cooke had told him the coroner needed Candice’s medication, Cooke informed Defendant that the police would hold onto your house as a scene
until the autopsy was concluded. Defendant responded [t]hat’s fine
and [a]nything I can do to help.
The district court found Defendant seemingly consented
(whatever that means) to his home’s seizure when he agreed with Cooke during the interview that the police should hold onto
his home. The Government suggests this agreement
effectively purged the subsequent taint of any illegal seizure; in other words, this was the first intervening event that broke the causal chain
between the illegal seizure and the evidence Defendant seeks to suppress.
But under the circumstances presented, Defendant’s responses hardly establish his after-the-fact consent to his home’s unlawful seizure. Investigator Cooke offereda mere submission to a claim of lawful authority.
Kaupp, 538 U.S. at 631 (quoting Royer, 460 U.S. at 497). Defendant’s statement to Teresa that they ain’t lettin’ me go home yet,
indicates to us that Defendant understood he did not have much say in the matter or much of a choice. Of course, the concept of choice, i.e. the right to say yes or no, is inherent in the definition of consent. Cf. United States v. Jones, 701 F.3d 1300, 1314 (10th Cir. 2012). The Government cannot meet its burden by showing no more than acquiescence to a claim of lawful authority.
Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968).
The Government further tells us Defendant’s execution of the consent to search form authorizing Investigator Cooke to enter his home was the second intervening event that broke the causal chain. Again the details of what transpired immediately preceding Defendant’s consent are critical. After Investigator Cooke informed Defendant he was going to do what’s called a consent to search and I’m just going in to retrieve the medication,
Defendant referenced the need for an attorney (a reference clearly audible on the audio tape) and hesitated before breaking down: I wanna know what happened to her. I ain’t got nothin’ to hide from you people. She’s my baby, she’s my everything. I know you have to.
Shortly thereafter Cooke sought to prompt Defendant to action while reassuring him: Let’s run over to the house. Let’s get your dogs. Let’s get the medication.
Let’swhat’s going on.
A few minutes later Cooke repeated himself: Let’s go get your dogs. Let’s get this medication,
all the while reminding Defendant: I can’t let you go in the house. I’ll just tell you I can’t let you go in the house, but if you’ll tell me where the stuff is.
Well established precedent teaches us that the question here is not only whether Defendant’s consent was voluntary but also whether his consent was an act of free will [sufficient] to purge the primary taint of the unlawful invasion.
Kaupp, 538 U.S. at 632 (brackets in original) (quoting Wong Sun, 371 U.S. at 486). Under the second Brown factor, the Government must establish facts or events which ensure that the consent provided was not the fruit of the illegal seizure. The facts or events must create a discontinuity between the illegal seizure and the consent such that the original illegality is weakened or attenuated.
Fox, 600 F.3d at 1260 (brackets, ellipses, and quotation marks omitted); see Royer, 460 U.S. at 501 (plurality) (Brown hold[s] that statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will.
).
Here the facts suggest Defendant’s consent to search was the direct result of the illegal seizure of his home rather than an act of free will sufficient to purge its taint. By all appearances, Investigator Cooke consciously designed the circumstances under which Defendant provided his consent to convince him that he had no choice but to accede to the investigator’s wishes. When a police officerI know you have to,
and Cooke’s subsequent reminder, I’ll just tell you I can’t let you go in the house, but if you’ll tell me where the stuff is.
Nothing between the time of law enforcement’s illegal seizure of Defendant’s home and Investigator Cooke’s search of the home broke the causal chain. Because Defendant’s consent was tainted, Cooke’s search pursuant to that consent also was tainted. And any evidence obtained as a result of an unlawful search cannot be used to establish probable cause for issuance of a search warrant. See Murray, 487 U.S. at 540.
This leaves us to consider the purpose and flagrancy of the illegal seizure of Defendant’s home. Because the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct
in addition to recurring or systemic negligence,
only by considering law enforcement’s culpability may we determine the efficacy of excluding the incriminating evidence against Defendant in deterring future Fourth Amendment violations and in particular unreasonable seizures of the home. Herring, 555 U.S. at 144. The Supreme Court has told us a court should suppress evidence only if a police officer may properly be charged with knowledge, that the [seizure] was unconstitutional.
Id. at 143 (quotation marks omitted). The
of the officer. Id. at 145 (quotation marks omitted). We ask whether a reasonably well trained officer would have known
the seizure of Defendant’s home was unlawful under the totality of the circumstances. Id. (quotation marks omitted).
For reasons we explained in Part III of our opinion, we have no difficulty concluding that a reasonably well trained officer would have understood the seizure of Defendant’s home under the circumstances presented was contrary to the Fourth Amendment. At the suppression hearing, the only explanation Investigator Cooke gave to justify the warrantless seizure of Defendant’s home following Candice’s demise was that it was not a normal death. . . . [S]o securing anything that may have given us information into that was the reason for the scene being held.
But as the astute reader well knows by now, Investigator Cooke’s justification falls woefully short of what the Fourth Amendment requires to justify a warrantless seizure of a home. Absent consent, the Fourth Amendment requires probable cause and exigent circumstances. See McArthur, 531 U.S. at 333–334. Neither is it any use to say the ATF agents who were primarily responsible for obtaining and executing the search warrant were blameless and acted in good faith. Otherwise a police officer could illegally seize a home, obtain a tainted consent to search, and then, equipped with incriminating evidence, rely on colleagues ignorant of the circumstances used to justify the search warrant to obtain the same. Such an approach would do little to
* * *
To recap: Law enforcement unreasonably seized Defendant’s home in violation of the Fourth Amendment. Immediately thereafter, Investigator Cooke interviewed Defendant for over two hours at the police station. Defendant subsequently signed a consent to search form permitting Cooke to search his home. But given the undisputed record facts, Defendant’s consent was not an act of free will sufficient to purge the primary taint of the illegal seizure. Rather, his consent was come at by exploitation
of such seizure. Wong Sun, 371 U.S. at 488. Consequently, Cooke unlawfully searched Defendant’s home and witnessed ammunition in the home’s bedroom closet. Probable cause, tainted from the unlawful search, arose when Cooke connected Defendant’s status as a convicted felon with the ammunition. Cooke requested federal agents to procure a search warrant and a neutral magistrate judge unknowingly issued a tainted warrant. Law enforcement executed the tainted warrant and discovered the incriminating evidence Defendant now seeks to suppress. Necessarily, this evidence too was tainted. While the causal chain is relatively long, nowhere along the links of the chain were the fruits
of the unlawful seizure of Defendant’s home purged of their primary taint. Accordingly, the district court’s denial of Defendant’s motion to suppress is REVERSED. This cause is REMANDED for further proceedings consistent with this opinion.
EID, J., concurring in part and dissenting in part.
I agree with the majority that the seizure of Defendant’s home was unreasonable. The Fourth Amendment allows for a temporary seizure [that is] supported by probable cause and . . . designed to prevent the loss of evidence while the police diligently obtai[n] a warrant in a reasonable period of time.
Illinois v. McArthur, 531 U.S. 326, 334 (2001). Here, as we conclude today, the seizure was none of those things. I disagree, however, with the majority’s decision to go on to determine whether the attenuation and independent source exceptions to the exclusionary rule apply (ultimately deciding that they do not), rather than remanding the case for such a determination. I come to this conclusion for three reasons.
First, although the district court made some passing references to Defendant’s consent to the search, it did not consider whether his consent constituted a break in the causal chain under the attenuation doctrine because it did not need to under its understanding of the case – namely, that the initial seizure of the home was reasonable (an understanding we find erroneous today). Nor did the district court find it necessary to consider the independent source doctrine. It is the general practice of this court to remand for determination of such issues, see, e.g., United States v. Carter, 360 F.3d 1235, 1243 (10th Cir. 2004) (concluding that the district court is better able to address
whether defendant’s consent was the product of the preceding illegal search and remanding for such a determination), and indeed the Supreme Court did so, after itcrime scene exception
to the warrant requirement. Flippo v. West Virginia, 528 U.S. 11, 15 (1999) (per curiam) (remanding for consideration, inter alia, of whether defendant impliedly consented to the search); Maj. Op. at 17 (citing Flippo). I see no reason to depart from this general practice in this case. Thus, while I do not question the court’s authority to decide the issues here, I would not exercise our discretion to do so in this case.
Second, the issues of attenuation and independent source received virtually no attention in the briefing before this court. And significantly, to the extent they did receive attention, Defendant urged this court to remand for their determination. See, e.g., Aplt. Br. at 35 (arguing that [t]he district court should decide, in the first instance, whether Mr. Shrum’s consent purged the taint of the unconstitutional seizure
); id. at 42 (This court should also remand for an additional determination on the independent-source doctrine
).1 The lack of adequate briefing on these issues further convinces me that they are best left to a remand.
Finally, the majority interprets and applies Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056, 2061 (2016), the Court’s most recent pronouncement on the doctrines of attenuation, independent source, and inevitable discovery – three exceptions to theinvolve the causal relationship between the unconstitutional act and the discovery of evidence.
The majority opinion in this case marks the first time in a published opinion this court has interpreted and applied Strieff. In my view, the better course of action would be to explore the parameters of Strieff in a case in which there is a district court decision on the matter as well as adequate briefing before this court.
For these reasons, I would remand this case to the district court to consider the issues of attenuation and independent source in the first instance. Accordingly, I dissent from that portion of the majority opinion declining to remand the case.
Notes
what must the prosecution prove to demonstrate that a consent wasSchneckloth, 412 U.S. at 223. Notably no police misconduct preceded the consent to search in that case.voluntarilygiven.
come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.Wong Sun, 371 U.S. at 488 (quotation marks omitted). Nonetheless, because proceedings in the district court
resulted in a record of amply sufficient detail and depth from which th[is] determination may be made,we decline to remand this case so that the district court may undertake the proper analysis in the first instance. Brown v. Illinois, 422 U.S. 590, 604 (1975); accord United States v. Fernandez, 18 F.3d 874, 881 n.7 (10th Cir. 1994).
Mr. Shrum and possibly others still have access to the residence and could remove the ammunition and other evidence if it is not located and removed immediately. If the search warrant is not executed at night there is the possibility that evidence of a crime could be removed or destroyed.This representation, of course, was simply not true but rather verifiably false and is indicative of the shoddy course of the investigation into Candice’s death.
In so reasoning, the Court modified its observation in Wong Sun thatWitnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence.
the policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence.Id. at 275 (brackets in original) (quoting Wong Sun, 371 U.S. at 486).