346 F.3d 618 | 6th Cir. | 2003
Lead Opinion
KATZ, D.J., delivered the opinion of the court, in which ROGERS, J., joined. MOORE, J. (pp. 633-637), delivered a separate dissenting opinion.
OPINION
Defendant-Appellant Stephen D. Akridge appeals from his convictions for possessing crack cocaine with the intent to distribute, conspiring to possess crack co
I. BACKGROUND
On January 25, 1999 Chattanooga police officers obtained a warrant to search Kelvin Ellison’s residence, pursuant to which officers recovered marijuana and firearms. At the time, Ellison was a convicted felon and the matter was referred to Special Agent Cordell Malone at the Bureau of Alcohol, Tobacco and Firearms (“ATF”), who in turn presented the case to the United States Attorney’s Office for prosecution.
In the early morning of May 2, 2000, Chattanooga police officers received an anonymous telephone tip reporting that the residents of 824 Arlington Avenue were selling drugs. In response to the complaint, officers conducted a “knock and talk” at the residence, which was shared by Akridge and his roommates Kevin Ellison and Tiffany Stewart. During a search of the apartment, officers found marijuana, cocaine, and three loaded semi-automatic pistols.
Following the search an officer suggested that the three residents decide who would accept the blame for the contraband, and allegedly indicated that he would see that the other two residents would not be charged. As a result, Stewart was taken to jail and Akridge and Ellison were left at the apartment. Stewart apparently was later released on her own recognizance.
On June 19, 2000 ATF officials interviewed Akridge, Ellison, and Stewart regarding the May 2000 search of their residence. All three admitted to selling crack cocaine and marijuana, and Akridge allegedly further admitted to firearms possession and selling drugs from the Arlington Avenue residence, although he denies making such a confession.
Akridge, Stewart, and Ellison subsequently were arrested on June 20, 2000 for drug trafficking and firearms possession. On June 27, 2000 Stewart executed a plea agreement, not entered of record with the Court until January 5, 2001, in which she pled guilty to a charge of aiding and abetting Ellison and Akridge in drug trafficking. On October 3, 2000 the Government reached a plea agreement with Ellison.
On January 22, 2001 the district court granted Akridge’s September 11, 2000 motion to suppress evidence seized during the May 2000 search of his apartment, as well as his subsequent statement given on June 19, 2000.
The district court conducted a hearing on the motion on April 30, 2001. By agreement of the parties, the court did not hear testimony but rather relied on the factual findings from the earlier suppression hearing, plus three new affidavits from Stewart, Ellison, and ATF Agent Malone. After review of the record, the district court denied Akridge’s motion and on May 7, 2001 Akridge proceeded to trial.
At trial Ellison and Stewart testified on behalf of the prosecution. The Government also presented the testimony of Ak-ridge’s neighbor and Akridge’s aunt,
Ellison testified at trial that he had known Akridge for approximately fifteen years and had lived with him from October 1999 until June 2000. According to Ellison, he and Akridge supported themselves during this period by selling crack cocaine and marijuana. Ellison also testified about Akridge’s possession and use of firearms.
Stewart, Ellison’s girlfriend, lived with Ellison and Akridge and testified about her role in distributing drugs for Akridge and Ellison. Stewart also testified about Akridge’s possession and use of firearms.
The jury returned guilty verdicts on Counts 1, 4, 5, and 6, which respectively charged Akridge with conspiracy to distribute in excess of fifty grams of cocaine base in violation of 21 U.S.C. § 846, possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), possession of a 9mm semi-automatic pistol in furtherance of drug trafficking crimes for the period October 1999 to May 2, 2000 in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a 9mm semi-automatic pistol on or about December 31, 1999 in violation of 18 U.S.C. § 922(g)(1).
A pre-sentence report was prepared, to which Akridge objected in part because the report included information predicated upon statements made by Ellison and Stewart. The district court ultimately sentenced Akridge to 360 months on Counts 1 and 4 to run concurrently with 120 months on Count 6. The district court further sentenced Akridge to 300 months on Count 5 to be served consecutively, resulting in a total of 660 months imprisonment.
Akridge timely filed a notice of appeal on September 21, 2001 and asserts that the exclusionary rule requires suppression of the statements and trial testimony of Ellison and Stewart.
II. DISCUSSION
A. Standard of Review
We review the district court’s ruling on Akridge’s suppression motion under a mixed standard of review. See United States v. Galloway, 316 F.3d 624, 628 (6th Cir.2003). We reverse the district court’s findings of fact only if they are clearly erroneous, but review de novo the district court’s legal conclusions. United States v. Hurst, 228 F.3d 751, 756 (6th Cir.2000). Where, as here, the district
B. Exclusionary Rule
The exclusionary rule generally bars the admissibility at trial of tangible evidence, as well as verbal statements, acquired through unconstitutional means. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The rule excludes from admissibility “not only primary evidence obtained as a direct result of an illegal search or seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)); see also Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (“[T]he exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the taint’ ”). “The suppression or exclusionary rule is a judicially prescribed remedial measure and as ‘with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’” Segura, 468 U.S. at 804, 104 S.Ct. 3380 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)).
As explained in Segura:
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.’ ”
It has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is “so attenuated as to dissipate the taint,” Nardone v. United States, supra, at 341, 60 S.Ct. 266. It is not to be excluded, for example, if police had an “independent source” for discovery of the evidenced]
Segura, 468 U.S. at 804-05, 104 S.Ct. 3380 (internal citation omitted).
Like many legal principles, the exclusionary rule is subject to numerous exceptions that diminish its scope. In addition to developing the independent source doctrine, not at issue in the instant action, the' Supreme Court has also endorsed the inevitable discovery doctrine, see Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), under which the exclusionary rule is inapplicable, even if the initial search and arrest were unlawful, as to evidence that inevitably would have been discovered by lawful means. Murray, 487 U.S. at 539, 108 S.Ct. 2529 (“The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.”).
In the instant action, the district court determined that under both Ceccolini and the inevitable discovery doctrine, the exclusionary rule did not require exclusion of Ellison’s and Stewart’s testimony. On appeal, Akridge asserts that neither of these doctrines is applicable to save the testimony from exclusion. Upon review, we find that the district court properly denied Ak-ridge’s motion.
C. District Court’s Findings
In the enlargement motion, Akridge moved to suppress “any and all statements given, [and] previous testimony or future testimony of co-defendants Kelvin L. Ellison and Tiffany Stewart ... [as] directly derived as a result of an illegal search.” J.A. at 118. In support of the motion, Akridge argued that “the witnesses were discovered as the direct result of the illegal search of the apartment[;][t]he presence and identity of the witnesses and their relationship to the defendant was not previously known to the police, and would not have been discovered in the absence of the illegal seareh[; and] [t]he witnesses provided statement [sic] regarding crimes which would not have been discovered absent the illegal search and consequent prosecution.” J.A. at 124.
In ruling on Akridge’s suppression motion, the district court articulated two separate bases for denying the motion. Relying on the fact that Ellison was already under federal investigation for drug trafficking and firearms possession, the district court first determined that the trial testimony of Ellison and Stewart inevitably would have been discovered. The court reasoned that the investigation of Ellison would have revealed his relationship to Akridge and Stewart, and in light of Ellison’s averment that the prior firearms charge heavily influenced his decisions with respect to the instant action, the court determined that the exclusionary rule did not apply to Ellison’s testimony. As to Stewart, the court reasoned that the Government would have elicited testimony from Stewart, notwithstanding the May 2000 search, due to Stewart’s relationship with Ellison and her willingness to enter her plea, even before the district judge had ruled on whether to adopt the magistrate’s recommendation to suppress the evidence of the May 2000 search.
As an alternative basis for its ruling, the district court determined that the Ceccoli-ni factors weighed against exclusion. In general, the court reasoned that due to Ellison’s investigation, law enforcement most likely already knew of Akridge’s relationship to Ellison. The court was further persuaded by the timing of Ellison’s and Stewart’s pleas vis-a-vis the May 2000 search and the magistrate’s recommendation to grant Akridge’s initial suppression
Although the district court relied primarily on the inevitable discovery doctrine, we first address the district court’s Ceccolini analysis because we find that it more clearly applies to the instant action. Because we determine that the Ceccolini factors weigh against exclusion as to both Stewart and Ellison, we affirm the district court’s ruling on that basis and do not reach the merits of the district court’s “inevitable discovery” determination.
D. Ceccolini
In Wong Sun, the Supreme Court indicated that “the policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence.” 371 U.S. at 486, 83 S.Ct. 407. In Ceccolini, the Court addressed the concept of attenuation in the context of verbal evidence, ultimately rejecting the foregoing pronouncement from Wong Sun. In so doing, the Court reasoned that “the issue [of attenuation] cannot be decided on the basis of causation in the logical sense alone, but necessarily includes other elements as well.” Ceccolini, 435 U.S. at 274, 98 S.Ct. 1054. Thus, the Court expressly rejected the conclusion that “if the road were uninterrupted, its length was immaterial.” Id. at 275, 98 S.Ct. 1054.
Based on Ceccolini, it is now clear “that the exclusionary rule does not invariably bar the testimony of a witness whose identity is revealed to the authorities as the result of an illegal search.” United States v. Reyes, 157 F.3d 949, 954 (2d Cir.1998). Instead, exclusion is dependent upon the degree of attenuation between the illegal search and the testimony. Relying upon the attenuation principle announced in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), and expounded upon in Wong Sun, the Ceccolini Court weighed a number of considerations, including that (1) “the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority,” (2) “substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness ... and between the latter and the testimony at trial,” and (3) the identity of the witness and her relationship with the defendant “were well known to those investigating the case.” Ceccolini, 435 U.S. at 279, 98 S.Ct. 1054. The Court ultimately concluded that “application of the exclusionary rule in this situation could not have the slightest deterrent effect.” Id. at 280, 98 S.Ct. 1054.
We find no published opinions in this Circuit applying Ceccolini in the context of exclusionary determinations relating to witness testimony.
(a) the degree of free will exercised by the witnesses;
(b) the role of the illegality in obtaining the testimony;
(c) the time elapsed between the illegal behavior, the decision to cooperate, and the actual testimony at trial; and (d) the purpose and flagrancy of the officials’ misconduct.
Relevant to the foregoing factors, a court might further consider: the stated willingness of the witness to testify; the presence of intervening circumstances; the time, place, and manner of the initial questioning of the witness; whether the witness himself was a defendant; whether the illegally-seized evidence was used in questioning the witness; the time between the illegal search and initial contact with the witness; whether investigators knew of the relationship, if any, between the witness and the defendant prior to the illegal search; and whether the police conducted the illegal search intending to find evidence implicating the defendant.
With this framework in mind, we turn to the parties’ contentions.
E. Identity of the Parties
Akridge appears to make two primary contentions on appeal: first, that were it not for the illegal search, Stewart’s existence, and the relationship of the parties to one another, would not have been discovered, and second, even if the identities and the parties were known or would have become known, it does not necessarily follow that Ellison and Stewart would have offered incriminating statements and trial testimony against Akridge were it not for the illegal May 2000 search.
As to the former assertion, Akridge’s arguments focus primarily on Stewart. Akridge argues that unlike Ellison, Stewart was not known to investigators prior to the illegal search, and although Stewart lived with Ellison, “that fact alone does not demonstrates [sic] that she or her testimony would have been inevitably discovered but for the illegal search on May 2, 2000.” Appellant’s Br. at 16-17, 23. Akridge further argues that “[b]ut for the May 2 search, [Stewart’s] relationship to Akridge may not have been discovered.” Appellant’s Br. at 25.
In addressing these contentions, we find crucial the time line relating to events surrounding the May 2000 search. According to Appellant’s own recitation of facts, upon arrival at the 824 Arlington Avenue residence, Chattanooga police officers Darrell Turner and Anthony Sutton knocked at the door, spoke with Akridge, and requested consent to search. In response to this request, Akridge announced that he would first have to speak with Ellison and Stewart because their names were on the apartment lease. Akridge then went inside the apartment and asked Ellison and Stewart to step outside to speak with officers. Akridge and Ellison apparently proceeded outside to the yard
Based on the foregoing, it is clear that at the moment Akridge opened the door and identified himself as an occupant of the apartment and further identified his roommates as Ellison and Stewart, his identity and a relationship to Stewart and Ellison were established, independent of the illegal search. Chattanooga police officers were legitimately responding to an anonymous tip regarding drug sales originating from Akridge’s apartment, and there is no assertion that the apartment’s occupants were lured or otherwise illegally compelled outside the apartment to discuss the issue of consent to search.
Although Akridge argues strenuously that his connection to Stewart and Ellison would have remained unknown were it not for the subsequent illegal search, this argument ignores the fact that the identities of Ellison and Stewart and their status as occupants of the apartment whose consent was needed prior to search, were made known to the police officers prior to any asserted illegality.
F. Testimony
Regarding the actual statements and trial testimony offered by Ellison and Stewart, Akridge appears to contest on appeal the statements made during the course of three separate events, i.e., the June 19 interviews, the preparation of Ellison’s and Stewart’s affidavits used to oppose Ak-ridge’s enlargement motion,
Akridge’s general argument is that every statement made after the May 2000 search is tainted and thus should be suppressed. Akridge further argues that the affidavits and testimony “do not reflect what the respective position of each witness would have been the instant before the illegal May 2 search.” Appellant’s Reply at 6. Akridge therefore reasons that the Government cannot establish that the incriminating information about Akridge contained in the affidavits and testimony would have been inevitably discovered.
As to the factors set forth above, we find most dispositive the degree of free will exercised by Ellison and Stewart, as well as the temporal attenuation between the May search, the June questioning, and the subsequent plea agreements and trial testimony.
With respect to the purpose and flagrancy of the police misconduct, Akridge asserts that the sole purpose of the May 2 search was to uncover evidence of drugs. Certainly, a clear intent to uncover illegality though illegal means would seem to weigh in favor of suppression. However, we note that the police were not specifically in search of the particular evidence sought to be suppressed in this case, i.e., witness testimony.
As to the role that any illegal fruits from the May 2000 search played in obtaining Stewart’s and Ellison’s testimony, we find it beyond dispute that the threat of prosecution played some role in their decision to submit to questioning in June, as well as their ultimate decisions to enter into plea
1. Ellison
Regarding the June 19 interview, on that day officers returned to the Arlington Avenue residence to further question Stewart. Akridge and Ellison initially indicated that Stewart was not at home, but eventually went inside the residence to summon Stewart. Affidavits indicate that a crowd was gathering outside the apartment, so the officers thought it would be safer to conduct the questioning at the police station and requested that Akridge, Ellison, and Stewart all come in for questioning. As recounted by Akridge, Agent Malone “invited Akridge and Ellison to meet with officers at the police station to discuss the May 2 search of their apartment and Stewart’s arrest. The three cooperated and admitted to selling crack cocaine and marijuana.” Appellant’s Br. at 10.
Per police procedure, Akridge, Stewart, and Ellison were handcuffed during transport to the police station, but were not handcuffed during their interviews. All three parties signed a waiver of rights, admitted to various drug and weapons related incidents, and ultimately were arrested.
Akridge emphasizes that it was not until after the June arrest that Ellison made the “final decision” to plead guilty and “turn his life around.” However, in the affidavit presented at the second suppression hearing, Ellison states that the reason for his decision was that he was facing exposure to enhanced sentencing as a career criminal under 18 U.S.C. § 924(e) due to the January 1999 firearms charge and that this charge was “a major factor” in his decision to enter a plea. Ellison also explained that he knew he had been a poor role model for his son by getting caught up in selling drugs and wanted to serve his time to “be a good example for [his] son.” Ellison’s affidavit further reflects that in deciding to cooperate, Ellison knew that he would have to disclose Akridge’s and Stewart’s involvement with guns and drugs, but having made the decision to cooperate, he “could not do it half way.” Based on this decision, Ellison testified favorably for Ak-ridge at the suppression hearing but offered testimony against Akridge at trial.
Although Ellison’s direct relationship with Akridge may not have been revealed until May 2000, it is undisputed that , Ellison was facing prosecution as a career offender. While Ellison appeared for questioning at the Government’s behest, he did so voluntarily and without coercion.
We find that the foregoing supports the conclusion that Ellison’s cooperation and trial testimony resulted from an exercise of Ellison’s free will, and was the “product of detached reflection and a desire to be cooperative.” Ceccolini, 435 U.S. at 277, 98 S.Ct. 1054. Admittedly, this is not as clear a case as in Ceccolini, in which the witness was not a putative defendant, and Abridge asserts that due to their impending prosecutions, Ellison and Stewart were faced with a Hobson’s choice that cannot fairly be regarded as a product of their free wills. However, Ceccolini instructs:
Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses even putative defendants from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify bnowledgeable witnesses from testifying at trial are, in the word of Professor McCor-micb, “serious obstructions to the ascertainment of truth” accordingly, “[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions.” C. McCormicb, Law of Evidence § 71 (1954). [* * *] For many of these same reasons, the Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant’s statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U.S. 433, 450-451, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).
Ceccolini, 435 U.S. at 277-78, 98 S.Ct. 1054.
2. Stewart
As to Stewart, Akridge argues that “[e]ven if a relationship had been discovered, Stewart would have had no incentive to offer testimony against Akridge absent the arrest stemming from the May 2 search.” Appellant’s Br. at 25-26. Akridge further submits that “[i]t is illogical to assume that it was an exercise in free will that caused [Stewart] to plead guilty and cooperate when all evidence against her could have been suppressed.” Appellant’s Br. at 18. We draw the opposite conclusion.
As with Ellison, Stewart voluntarily returned to the station for questioning. Notably, Stewart entered her guilty plea on January 5, 2001, after the magistrate recommended that the court grant Akridge’s motion to suppress all physical evidence seized, as well as Akridge’s statement, in relation to the May 2000 search. Via affidavit Stewart averred that she knew she could attempt to suppress the firearms seized on May 2, 2000 but did not wish to do so due to a desire to cooperate and tell the truth. Despite a potentially favorable suppression ruling, Stewart still decided to enter a guilty plea instead of challenging the evidence against her. Had Stewart’s motivation been solely to avoid prosecution, she could have waited for a suppression ruling. Instead, Stewart entered her plea without challenging the admissibility of the evidence against her.
As to the earlier statements made on June 19, we note that unlike Akridge and Ellison, Stewart had been previously in custody in relation to the events about
In so ruling, we are mindful of the Supreme Court’s repeated admonition that the exclusionary rule is not a per se rule; rather, the rule is to be applied only in those instances where exclusion would result in the appropriate deterrent effect.
“[W]e have declined to adopt a ‘per se or “but for” rule’ that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.” United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). Rather, in this context, we have stated that “[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.” Id., at 279, 98 S.Ct. 1054.
New York v. Harris, 495 U.S. 14, 17, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). We are also mindful of the Court’s admonition that “[t]he exclusionary rule should be invoked with greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a five witness than when a similar claim is advanced to support suppression of an inanimate object.” Ceccolini, 435 U.S. at 275, 98 S.Ct. 1054. In this case, we determine that the statements and trial testimony of Ellison and Stewart were procured through means sufficiently distinguishable from the illegal search as to be purged
III. CONCLUSION
Based on the foregoing, we AFFIRM the judgment of the district court.
. As discussed further infra, the officers conducted the search pursuant to the residents' consent, which the district court ultimately determined was coerced.
. The district court determined that the Chattanooga police officers’ method of obtaining consent to search warranted exclusion of not only the physical evidence seized in the May 2000 search, but also Akridge’s subsequent June 19 confession.
. Akridge’s aunt and neighbor both testified that they had purchased drugs from Akridge.
. As characterized by the Government, during this phone call Akridge criticized Ellison’s cooperation with the Government and complained that Ellison was disclosing everything that Akridge had done since he was released from the penitentiary.
. We find only one case in this Circuit, albeit an unpublished opinion, applying Ceccolini in the context of a suppression determination with respect to witness testimony. See United States v. Millis, 89 F.3d 836, 1996 U.S.App. LEXIS (6th Cir. June 19, 1996) (rejecting defendant’s arguments for exclusion, reasoning that the fact that the co-defendant witness "initiated his cooperation with authorities on his own initiative, several days after the arrest” demonstrated an independent willingness to testify that dissipated the taint of the original stop).
. This list of factors is neither exclusive nor exhaustive, and clearly not all factors may be relevant to every situation.
. In reasoning that police knew of the link between Stewart, Ellison, and Akridge only via the illegal search, the dissent ignores the timeline which we have gone to lengths to set forth. As noted supra, prior to the illegal entry, Akridge informed officers that he needed to talk to his roommates, Ellison and Stewart, and asked them to step outside. At this point in the sequence of events, even if officers had walked away from the scene without illegally entering the apartment, they would have known of Stewart and Ellison and would have known that they were all living together in an apartment from which drugs allegedly were being sold.
. Even assuming some illegality, Akridge's "but for” argument fails. Under Ceccolini, the mere fact that an illegality is a "but for” cause of disputed testimony is insufficient to warrant exclusion. See Ceccolini, 435 U.S. at 276, 98 S.Ct. 1054 ("Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a 'per se or “but for” rule’ that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.”).
As to the discovery of the parties’ relationship to one another as drug dealers, as opposed to merely roommates, this information came to light not only through the evidence found at the apartment, but also from statements made by the parties during questioning and at trial. We address Akridge's objections to these statements infra.
. These affidavits set forth Ellison’s and Stewart’s reasons for entering into plea agreements.
. Ellison's plea agreement is part of the record on appeal and clearly contains a cooperation provision. Stewart’s plea agreement is not included in the joint appendix, but the Government does not dispute the assertion that pursuant to her plea, Stewart was obligated to provide trial testimony against Ak-ridge.
. We do not find as critical the time elapsed between trial and original contact with the witnesses in this case, for while a year elapsed between trial and the May 2000 search, Stewart and Ellison were obligated as part of their plea agreements to assist in the Government’s investigation and prosecution of others. Therefore, as of the entry date of their plea agreements, Ellison and Stewart were essentially bound by their pleas to offer testimony at Akridge’s trial. Nonetheless, we note that approximately eight months transpired between the search and actual entry of Stewart’s plea and five months between the search and Ellison’s plea.
. As noted in Ceccolini, the analysis might differ "where the search was conducted by the police for the specific purpose of discovering potential witnesses.” Ceccolini, 435 U.S. at 277 n. 4, 98 S.Ct. 1054. The Court noted that there was "not the slightest evidence to suggest that [the officer] entered the shop ... with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing witness to testify against respondent.” Id. at 279-80, 98 S.Ct. 1054.
. Though, as noted by the district court, Ellison and Stewart "were picked up and interviewed by law enforcement, rather than coming forward wholly on their own,” J.A. at 165, and while Ellison, Stewart, and Akridge were handcuffed during transport to the police station, the officers made clear that none of the parties were under arrest. The handcuffs were removed at the station, and upon arrival all three executed a waiver of rights prior to issuing statements and confessions.
. Emphasizing the benefit gained by Stewart and Ellison, i.e., reduced sentences in exchange for their cooperation, and their status as co-defendants, the dissent discounts any possibility that the witnesses could have entered plea agreements and offered testimony against Abridge of their own free will. However, under the rationale espoused by the dissent, it is difficult to imagine any scenario under which a co-defendant witness would be permitted to testify where the co-defendant's identity was initially discovered by an illegal search. The dissent's position would invariably preclude the testimony of all such co-defendants that have entered plea agreements, merely by virtue of the benefit received and the witnesses' status as co-defendants. Notably, this is the precise outcome expressly rejected by Ceccolini, i.e., the perpetual disablement of witnesses, even co-defendants, from testifying. 'Post-Ceccolini, courts have consistently rejected the notion that Ceccolini applies only to the disinterested, non-party, civic minded witness and have instead applied the case to co-defendants’ testimony under various factual circumstances. E.g., United States v. Padilla, 960 F.2d 854, 863 n. 7 (9th Cir.1992), rev’d on other grounds, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) ("This court has never adopted a per se rule limiting Ceccolini to ‘good citizen' witnesses who testify 'out of a sense of civic duty’ "); United States v. Leonardi, 623 F.2d 746, 752 (2d Cir.1980) (deeming admissible testimony of coconspirator "confronted with the fruits of the illegal search at the time his cooperation was first solicited[,]” though witness was facing substantial jail time for another crime, testified pursuant to a plea bargain, and viewed by court as likely testifying out of self-interest); United States v. Brookins, 614 F.2d 1037, 1043 (5th Cir.1980) (testimony partially induced by a grant of immunity); United States v. Stevens, 612 F.2d 1226, 1229-30 (10th Cir.1979) (deeming admissible testimony from coconspirator who testified pursuant to plea bargain, reasoning that witness “was entitled to raise the defense of the illegality of the wiretaps and the inadmissibility of evidence resulting therefrom in the case against him[,] [b]ut he offered to testify; his
. We also find it of note that not only Ellison, but also Akridge, were already known drug dealers. Ellison was under investigation and about to be prosecuted in connection with the 1999 search. Akridge was a prior offender and the affidavit testimony of Agent Malone reflects that he had been receiving updates on Akridge’s criminal activities.
. Citing United States v. Ienco, 182 F.3d 517 (7th Cir.1999), the dissent posits that “other circuits have unflinchingly rejected the majority's position.” However, lenco does not stand in contradiction to our holding and is clearly distinguishable, in that the contested witness' statements "were made at 4:15 a.m. after he had been in custody and questioned at the police station for almost eleven hours.” Ienco, 182 F.3d at 530. The witness was not "Mirandized,” nor did he have an attorney present during questioning. And, as stressed by that court, the "subsequent confession and trial testimony were made after Judge Duff denied the motion to suppress.” Id. Faced with what the court characterized as “the choice between testifying against lenco ... or going to trial where tainted and incriminating evidence would be used against him, Iovine chose to testify.” Id. Here, the parties submitted to questioning after executing waivers, entered pleas well-after the initial illegality, and did so in the face of a potentially favorable suppression ruling.
United States v. Padilla, 960 F.2d 854 (9th Cir.1992), rev’d on other grounds, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), also cited by the dissent as repudiating our free will analysis, is similarly distinguishable. In Padilla, the discovery of drugs and the questioning of the testifying party "were virtually simultaneous events,” “the identities of the defendants would not have been known without the seizure and subsequent questioning,” and there was "no indication that the informant would have come forward of his own accord.” Padilla, 960 F.2d at 863. As noted supra, the plea agreements here were entered months after the illegal search, the existence and identities of Stewart and Ellison were made known prior to the illegal search, and the record is completely devoid of any evidence to justify the dissent’s supposition that the affidavits were executed under threat of revocation of the plea agreements.
Dissenting Opinion
dissenting.
On May 2, 2000, police officers approached an apartment where the defendant Stephen Akridge was living together with Kevin Ellison and Tiffany Stewart. The police flatly and repeatedly lied to Akridge to persuade him to let them search the apartment, rendering the search undisputedly unconstitutional. In the illegal search, the police seized significant quantities of crack and marijuana, as well as several firearms. On June 20, 2000, Ellison, Stewart, and Akridge were arrested and charged. One week later, on June 27, 2000, Stewart entered into a plea agreement with the government. Akridge and Ellison both moved to suppress the search. While their motion was pending, however, Ellison entered into a plea agreement with the government in October of 2000, waiving the suppression issue and leaving Akridge to litigate it on his own. Eventually, on January 22, 2001, the district court ordered the physical fruits of the search suppressed. Without this physical evidence being directly admissible, the prosecution used Ellison and Stewart to establish its existence indirectly, through testimony. On the basis of their testimony, Akridge was convicted.
The majority concludes that Ellison’s and Stewart’s testimony was admissible against Akridge, in spite of the 'fact that it was the fruit of the illegal search. It argues that their testimony was sufficiently “attenuated” from the illegal search as to fall within the exception to the fruit-of-the-poisonous-tree doctrine under United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). After analysis, I must disagree.
Any discussion of the “attenuation” doctrine must begin with an analysis of Cec-colini itself. In Ceccolini, the FBI was investigating suspected gambling operations in New York. The defendant’s flower shop was one of the places under surveillance. One year after surveillance ended, a local police officer, Ronald Biro, spent his break casually talking with his friend Lois Hennessey, who was working at the shop. During the conversation, Biro picked up an envelope lying on the drawer of the cash register and discovered that it contained money and policy slips. Without telling Hennessey what he had seen, he asked her to whom the envelope belonged. Hennessey explained that it belonged to the defendant, Ralph Ceccolini. Biro mentioned this to another local detective, who passed it along to the FBI. Four months later, the FBI interviewed Hennessey at her home and asked for information regarding Ceccolini; the FBI did not mention the earlier incident with Biro at the flower shop. Hennessey, who was studying police science in.college, was eager to help. She related to the FBI the events that had occurred during her visit with Biro. When Ceccolini denied before a grand jury that he knew anything about any gambling operations, the government had Hennessey testify in Ceccolini’s resulting trial for perjury. The question in the case was whether Hennessey’s testimony was admissible, despite the fact that it was clearly, though remotely, derived from an admittedly illegal search — Biro’s improper seizure of the envelope and discussion with Hennessey.
The Supreme Court held that Hennes-sey’s later testimony was sufficiently attenuated from the initial illegal search as to be admissible on the basis of five considerations. Most significant to the Court
Consideration of the Ceccolini factors in this case can lead to only one conclusion— that the testimonial evidence in this case must be suppressed. The first factor, the issue of free will, is the most fatal to the prosecution’s case. The majority argues that Ellison’s and Stewart’s testimony was not a product of any governmental coercion or inducement, but was a product of their own volition. I completely disagree. Ellison and Stewart had just been found with large quantities of drugs and several firearms; the statutory sentencing ceiling for the charges in their initial indictments was life in prison. The government offered Ellison and Stewart the following options in the form of a plea bargain: Testify against Akridge and receive a lighter sentence, or litigate the suppression issue and risk a significantly increased prison sentence. Ellison and Stewart chose the former. Although it is impossible to discern from the record just how much of a lighter sentence Ellison and Stewart received by virtue of their cooperation, it is clear that their sentences were significantly reduced.
Somehow, the majority refuses to acknowledge these basic facts, pointing to Ellison’s and Stewart’s affidavits. These affidavits state that Ellison’s and Stewart’s decisions to testify against Akridge were voluntary, that they wanted to turn their lives around and tell the truth. Of course, there is a gentle irony in these affidavits— namely that the government presumably required Ellison and Stewart to sign these affidavits under threat of revoking their plea agreements. But even assuming that Ellison and Stewart were cooperating in part because they wished to tell the truth, it is clear that they only wished to tell the truth to avoid the effects of the incriminating and illegal search. No one argues the implausible thesis that Ellison and Stewart would have told the truth had they never been found by the police in the illegal search.
Of course, Ellison’s and Stewart’s decision to plea bargain was “voluntary” in the sense that they did choose to plea bargain over their other alternatives. But that does not make their decision “voluntary” within the meaning of Ceccolini, under which we must differentiate between witnesses who testified of their own volition and those that testified because of inducement or coercion on the part of the government.
In conclusion, all of the Ceccolini factors point toward suppression of Ellison’s and Stewart’s testimony. With Akridge’s conviction, the prosecution has successfully managed to escape with the fruits of its
. Under their plea agreements, Stewart received a 12-month sentence while Ellison (who had a more extensive criminal history and was convicted of several additional charges) received a 115-month sentence. In contrast, Akridge received a 660-month sentence. Given the fact that Akridge had roughly the same role in the alleged offenses as Ellison and Stewart, and received a sentence fifty times more severe than Stewart (and five times more severe than Ellison, who had roughly the same criminal history as Akridge), it seems beyond dispute that Ellison and Stewart both received a significant reduction in prison time by entering into a plea arrangement with the government.
. Because Stewart was unknown as a suspected criminal to the police until the illegal search, all of the charges against her were based on evidence discovered in the illegal search. And although the police had found firearms and marijuana in another of Ellison’s residences over a year earlier, Ellison was also charged with several additional crimes as a result of the illegal search. As is explained below, it is therefore clear that the illegal search itself induced (if not coerced) both Ellison and Stewart into entering a plea agreement with the government.
While the majority emphasizes that the bare identities of Stewart and Ellison became known to the police before the unlawful
. The majority claims that the position advocated here would lead to a per se rule that was rejected by Ceccolini and its progeny. This assertion fails to take account of the particular circumstances that make this case so clearly one in which the taint of illegality has not been attenuated. In no case cited by the majority where the taint has been held to be attenuated has the government's case against a testifying potential codefendant been so wholly and entirely a product of the illegal behavior. The position advocated here does not amount to a per se rule, but instead a recognition that when the free will of a witness has been so obviously affected by the discovery of adverse evidence in an illegal search, it will take an extremely strong showing in the other factors to shift the balance towards attenuation.
. In a case similar to the case at bar, the Seventh Circuit held that a putative defendant's decision to enter into a plea agreement
Similarly, in United States v. Padilla, 960 F.2d 854 (9th Cir.1992), rev'd on other grounds, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), Luis Arciniega had been illegally stopped and found with hundreds of pounds of cocaine in his car. Arciniega confessed that he was a drug mule and led the police to the heads of the criminal enterprise, including Xavier Padilla. At Padilla's trial, the government argued that Arciniega’s testimony was sufficiently attenuated from the illegal stop. The Ninth Circuit flatly rejected the government's argument that Arciniega was testifying of his own free will, recognizing "the heavy weight upon a man’s shoulders who has just been arrested with hundreds of pounds of drugs in the car he was driving.” Id. at 862.
While the majority attempts to distinguish Padilla and lenco by asserting that the timing of the witnesses’ cooperation is key in determining their free will, it cannot point to any similar case where the testimony of cocon-spirators under threat of prosecution based primarily or exclusively on evidence seized in an illegal search has been held to be sufficiently attenuated. That Stewart and Ellison surrendered more quickly to prosecutorial pressure than their cognates in Padilla and lenco does not serve to demonstrate their free will, but perhaps even more clearly their lack of it.
One commentator, noting the practice of the federal courts generally, remarked that when it "appear[s] that the witness has been pressured and that the pressure is a consequence of the prior Fourth Amendment violation ... a finding of attenuation is unlikely to be justified.” Wayne R. LaFave, 5 Search And Seizure: A Treatise On The Fourth Amendment § 11.4 (3d ed.1996).
