United States v. Wayne Garfield Brookins, III

investigation validity of bar into should America, old, which were used prior STATES UNITED convictions contrary, Plaintiff-Appellee, for enhancement. On Beto, recognized supra, the Court Craig v. proof existed but difficulty of BROOKINS, III, Wayne Garfield prevent fact did not allow that Court Defendant-Appellant. said, In this case the Court remand. 79-5225. No. problems in cognize the practical

“We in Texas records and witnesses producing Appeals, Court over that occurred in Oklahoma of events Fifth Circuit. However, we ago. think twenty years 3, 1980. April burden, this that Texas should bear support validity necessary, it because has im-

Craig’s conviction Texas, the life sentence in

posed confining Craig under that sen-

presently theory

tence, upon the that the all based valid.” 458 F.2d conviction is

Oklahoma

1131, 1134. Texas held the State Court demonstrating validity

the burden of it had used for

the old conviction which

enhancement. Estelle, supra, the Court did

In Davis proof difficulty

not refer to when that Waco hear- “All of the actors in

said: prosecutor except dead that the

ing are now He living Canyon, may Texas. be still at this late to throw some

able even date

light F.2d at on this matter.” portion vacate remand that

I would judgment the district court’s which de- Baxter’s claim

nied of ineffective assistance County in the Harris case. counsel

I court to take would authorize the district

further evidence and conduct additional may necessary to

proceedings as resolve

this issue. living. had been

apartment where he public intoxica- police arrested voluntarily companion The female tion. belongings of Brookins’ many over turned eigh- about police. These included plates keys, several license teen automobile Columbia, several by the District issued Alabama, receipts there and in tag issued automobiles, Jaguar for several bills sale citations, and two manuals several traffic Theft Automobile published by the National en- only to law Bureau disseminated police The determined forcement officials. identification number the vehicle tag Jaguar (VIN) and the blue license regis- possessed were Brookins then person and had tered to another The two different addresses. obtained with released Brookins and subsequently police legality The possessions. returned his challenged. is not these actions Brook of the Mountain Thompson Officer Jaguar a Dis- white with Police observed a tag local mo- license in a trict Columbia m. on No- at about 1:00 a. parking tel lot 27,1978. tag license He viewed the vember from out- VIN number public number and Nashville, Tenn., Lynn, R. for Richardson immediately checked side the vehicle and defendant-appellant. Informa- National Crime through these Salter, Brooks, J. Frank M. Atty., R. He and local authorities. tion Center Ala., Atty., Birmingham, for Asst. U.S. authori- District of Columbia learned that plaintiff-appellee. the license any record of ties did not have registered VIN was tag and that Fry Birmingham address. a false Ronald Thompson then determined Officer at the motel under registered Brookins was AINSWORTH, VANCE AN- Before address, from Nash- and found a Nashville DERSON, Judges. Circuit was false. that the address ville authorities Little- information to Lt. reported He this

VANCE, Judge: Circuit field, assigned Officer who on November III, Brookins, incoming to ob- day was shift Wayne Garfield con- Watkins on the ob- receiving concealing a until the could stolen serve the victed vehicle, Watkins appeals He warrant. Officer 18 U.S.C. tain § vehicle when he arrived suppress district court’s refusal to certain failed to find the periodically We the motel. He checked evidence. affirm.

through day. I. examined Lt. Littlefield meanwhile telephone long distance Mountain received a motel Brook Police record Brookins, Brookins the numbers that friend of calls and noted complaint from female Nash- sent three Lt. Littlefield asking on that Brookins had called. September found he had numbers that belongings removed her ville and his name of Holt back long distance records to that Carlton to Mountain motel Police, squad. On 27 it re- city’s vice November Brook while Brookins contends name give the name of individual listed to Hurst did not Carlton Holt’s ported might Holt. The also have disclosed (although one number M.D. M.D. Holt it) they a traffic citation that first obtained the investigated belongings interroga- among Sep- directly Brookins’ name Brookins’ found Irondale, It issued in Ala- tember 4. tion statements. Hurst,

bama, L. who resided in to David jury in feder- tried before gave the names of Nashville. receiving concealing al district court for and Hurst to an FBI M.D. Holt Jaguar. 18 2313. He a stolen 1974 U.S.C. § Nashville, who them. interviewed suppress trial to the incrimi- moved before Jaguar nating Officer Watkins saw Brookins’ and search statements the consent driving Birmingham on next during interrogation, toward the given the custodial day, He November 28. arrested Brookins granted the motion. Brook- and the court an having improper plate, for license and the and suppress Jaguar ins also moved to charged violating then him with contents, the state its but the denied the mo- court uniform title law a VIN plate because had tion and evidence. He admitted into police Jag- removed. The towed the moved at trial to exclude Carlton Holt’s uar to city inventory. They hall for an interrogation testimony as the fruit of his public discovered that the VIN differed disclosing identity, statement Holt’s the from true VIN and the that doorframe judge court denied that motion also. The VIN had been defaced. Jaguar’s In the up police “picked reasoned that the the lead they trunk plates found a set of VIN for a [they] question- on M.D. Holt before started Jaguar, tag, another a license title certifi- ing,” “clearly that name and Carlton Holt’s cate, tag receipt. police and a The had not they was from discoverable information obtained an arrest warrant or search war- [interrogation obtained of that rant. statement],” although the statement fact a source of Holt’s name. Holt then The Mountain Brook Police incarcerated testified that he assisted Brookins in steal- seventy-two hours, Brookins for ing Jaguar jury Nashville. The presenting magistrate, him to a and interro- guilty. found Brookins gated him a total six seven hours promised of that time. They that Brookins II. WARRANTLESS SEARCH AFTER they “not were you” interested in but want- PROBABLE CAUSE EXISTED. ed information about other automobile “ contends, first, that thieves and that his statements were ‘off ” probable had cause to a obtain warrant and gave record.’ He a handwritten con- search on morning of No- room, sent to a search of his motel and get vember and that their failure made a incriminating some statements re- warrant ille- subsequent liance on renders search promises. those The asked gal as a warrantless search incident to a placed him whether he a call pretext his Holt, arrest. We hold that arrest was anyone gave named and Brookins legal. valid and search them the name of Carlton Holt. Carlton Holt primary later became the witness for upholding exami warrantless prosecution. The released Brook- nation an exterior of automobile ins to federal authorities on December 1. parked public place probable on based At the circumstances, time of the exigent custodial cause and the Su 28-29, of Brookins on November police preme prior Court stated availabili had the name ty and address of M.D. Holt of a warrant did not invalidate the war Lewis, had not then learned of Carlton Holt. The rantless search. Cardwell government argues ambiguity with some U.S. reported the Nashville (1974) later (plurality opinion). ex- should have been principle no know of case

[W]e poisoned prob- of this to search on as the tainted fruit suggests right that the cluded reject of seiz- We this contention two the reasonableness tree. able cause and are was attenuated (1) circumstances ing exigent grounds: car under (Part obtained IV illegal police if a warrant conduct foreclosed first, moment. practicable infra) (2) witness would otherwise at the time, may any po- exigency ordinary arise have been discovered might have infra). (Part V investigation fact lice earlier does not ne- obtained a warrant exclusionary rule eviden bars possibility of a current situa- gate the a direct result” of “fruit” obtained “as tiary police action. necessitating prompt tion’s illegal coercive interr or an search Accord, at 2472. Id. Wong v. United ogation.1 Sun Mitchell, United States 407, 416, U.S. 1976) banc), (en L.Ed.2d 792 (en 1978) F.2d 537-38 based on (1977). A warrantless from the “tree” banc). only extends Its bar exigent circumstances probable cause however, “fruit,” if the fruit suffi to the suspect or invalid is not rendered therefore ciently tree: connected of a warrant bypass as a deliberate all is not hold that We need for a probable of cause prior existence simply tree” be- poisonous “fruit of United v. g., warrant. E. States search light come to but it would not have cause 1232-33; Mitchell, at see 538 F.2d Cardwell police. illegal actions of for 595, Lewis, 417 94 at 2471. v. U.S. at S.Ct. Rather, a apt in such question the more inventory of an automobile inci An search “whether, granting establishment case arrest that was made dent to a warrantless evidence to primary illegality, of by invali probable reasonable cause not objection is has been instant made which pretext previous arrest dated as illegality by exploitation of that come at cause, probable even if the occurrence of sufficiently distin- instead means to search uncovers evidence that an primary of purged guishable indictment for different crime. taint.” police delay arresting Brook- The States, at Wong v. 371 U.S. Sun United searching Jaguar his was valid ins and 417, quoting Maguire, R. at 83 S.Ct. if hnd was not “foreclosed a warrant (1959). 221 of Guilt Evidence mo practicable at the first obtained exigent probable ment” cause and connec because form of insufficient One if physi of the circumstances existed at the time and tree occurs between fruit tion evidence, testimony, seizure. Card or the arrest and the automobile’s a witness’ cal Lewis, 595, at at link well v. 417 U.S. 94 S.Ct. has an attenuated statement accused’s Mitchell, v. United Nardone States secured evidence. illegaljy 338, 341, 60 States, at 1233. Brookins’ arrest v. S.Ct. United U.S. inventory 267, (1939); 266, license violations L.Ed. 307 type his were valid. at 538. Another if the deriva inadequate connection arises TO THE III. EXCEPTIONS an source tive evidence has RULE. EXCLUSIONARY objects taken state illegally from second, Lumber Co. United argues, ments. Silverthorne 183, 182, U.S. of the existence and learned v. Houl (1920); United States interrogation, 64 L.Ed. 319 illegal Holt accomplished proper opinion only Miranda are discusses those custodial 1. This warnings. interrogations involuntary or fraudu are voluntary induced, lently not those that are tin, 1027, (5th Cir.), Hennessey a four delay. agreed F.2d month 826, investigation, S.Ct. assist and testified (1978). A category against third insufficient who under oath had told a grand jury connection obtains the derivative evi federal that he was not involved dence, testimony, in this case gambling. would Ceccolini was indicted for inevitably during have been discovered perjury, suppress and moved Hennessey’s police investigation without testimony aid of the as the fruit search. Supreme obtained evidence. We conclude The reversed Court exclusion testimony because, that Holt’s was properly testimony admit although par her “the ted exception under both the attenuation knowledge Hennessey ticular to which testi discovery exception and the inevitable logically fied at trial can be traced back to the exclusionary rule.2 policy slips,” Biro’s her testimony was attenuated

IV. HOLT’S IDENTITY WAS Id. at search. 98 S.Ct. at 1062. The ATTENUATED FROM THE applied admissibility Court a test for INTERROGATION. (1) degree assessed “the of free will exer witness,” id. upholding cised at at first basis for the ad (2) 1060 and balanced the social testimony mission of Holt’s cost derives from perpetually “exclusion disable [that] a witness from testifying about relevant against efficacy and material facts” Court held that the attenuated connection “ exclusion in furthering pur between ‘deterrent search and a witness’ ” pose rule,’ id. dissipated the illegal taint 1060, 1061. ity so as to render the admissible. We believe that the attenuated connection requirement Both the voluntariness

between tree and fruit requires, in that case greater requirement social cost are fortiori, finding a a of a broken connection readily more challenged satisfied the de- here. testimony rivative evidence is rather than 276-77, 278, physical officer, Biro, evidence. Id. at police im S.Ct. at 1060-1061. properly envelope lying searched an on a register cash shop drawer in a that he degree had . of attenuation [T]he entered to employee, visit with an Hennes dissipate sufficient to the connection be- sey, and Biro gambling slips discovered tween the illegality testimony. and the envelope. the He had not shop entered the The evidence overwhelmingly indicates or envelope searched the with the intent to testimony given by that the the witness look for gambling evidence or to locate a witness. He asked Hennessey whom the n no way ^[1] an act of her own free will coerced or even induced by offi- [a] envelope belonged, replied and she it authority cial as a result of Biro’s dis- owner, belonged to the shop Ceccolini. Biro covery policy slips, the Nor were [b] conveyed this agent, information to an FBI slips the questioning themselves used in telling obtained, him how was Hennessey, periods Substantial [c] Hennessey interviewed after elapsed time between the time of the phrase by We have used the “inevitable dis- have been discovered other than the tainted covery exception” designa- circuits, is precedents because that the source. Unlike from those employed by frequently tion most ruling other circuits the in this case on two addition- is based and Although employ first, commentators. we their prosecutor al factors: the demon- terminology, application its leads, discovery in this case in- strated that the which made volves a rather inevitable, narrow possessed by construction of the ex- were the and ception. Compare V(A) Part being infra with Part actively pursued by police prior were the V(C) adopt- infra. Like other circuits that have illegal police conduct; the occurrence of the rule, require ed the we do not second, absolute inevita- question the evidence in was the bility simply a reasonable voluntary testimony of a witness. probability question that the evidence in testimony Holt’s is indicated ness of the initial contact with search and hand, no witness, testimony and be- was “in (a) on the one his the similar factors: testimony at sense, the latter and tween al in the Ceccolini way coerced” interrogation of Brookins and given voluntarily Id. lenged much interrogation, whereas ins’ tity and between the trial tionship known to those There evidence to less shop intent of ing fect on an willing could not have tify very likely negligible Biro. The cost ed Hennessey order to secure such well telephone list and system identity of information against respondent. on the other. testimony in Ceccolini. Holt’s iden as is, testimony can be traced the behavior of to Brookins’ disclosure picked up same with the . finding tangible evidence bear- illicit of law enforcement is too suggest knowledgeable addition, . way gambling operation, Hennessey and her rela- by Holt is attenuated in the intent about Holt great investigating the respondent as was the connection slightest permanently silencing rule in this situation Hennessey’s at 1062. [e] the traffic envelope with the for an even-hand- an officer such as deterrent not Biro entered the speculative ^[2] witness to tes- and the chal . gained in the deterrent ef- Application were well during [d] [B]oth finding to Brook- slightest citation3 testimo bear in effect. much case. though dence time at vestigation significance because traffic Mountain Brook conduct lice here were not search, arrest, and tempted illegally ession.5 purportedly about other criminals “ tiary significance, per ry and witness witness whose attributes ‘The fact immunity; (D.C.1963), accomplice activities would have been actually passed between arrest, was used at 1060 it was citation, although volition interact interrogation;4 is an individual human occurred; As the Court noted in disclosed to he U.S.App.D.C. theft; the time factor partially will (b) Police when the quoting the name of a to use an no (c) give.’ questioning interrogation, but at will, perception, reported Holt was not guilty of an illegally seized although very little se, (e) initially induced (d) Holt’s to determine what in the routine ” interrogation and Smith since Id. may be of back list and personality him about no as a conf potential identity a grant present eviden memo living mis evi less po in (1964). (2) 12 L.Ed.2d 498 ny only could be traced to the information against the deter (1) Balancing the social cost gained in Biro’s search. The voluntari subsequent discovery falsely promising use immuni- duct Brookins of Carlton in testimony ty testimony give list not have and from the to he would that fully given promised and the traffic more citation is discussed Brookins if the had not V(D). immunity. in Part 4. As one indication of of the the voluntariness purposes for attenuation also is 5. Voluntariness testimony, recognizes that witness’ Ceccolini by “[p]roof that the witness would indicated testimony obtained some after the witness time volition, by regard- have his own come forward likely confronts official is more vol- misconduct by illegal his the search” less of identification untary testimony than at the same time elicited witness com- “evidence that the was the In witness confronts the misconduct. pletely uncooperative originally when discover- witness, Hennessey, present the was illegal changed ed the search but later his building gam- in the when the found the officer necessary supplied the informa- attitude bling only testify slips, but was asked to some Marder, tion.” United States being requested months later rather than (5th 1973). Accord United States Cir. testify clutching by an a handful of officer Houltin, also United case, 566 F.2d at 1032. See gambling slips. present the wit- The second Holt, F.2d at 543. ness, present was Mountain not when the first, factor, although true of Holt. interrogated so Brook Police not coerced influenced miscon-

rent effect of exclusion ineluctably Twomey, ex rel. Owens v. testimony the conclusion that Holt’s should 1974). 865-66 admitted, V(C) be discussed in in Part recently suggest- has Supreme Court that, fra. We conclude as in exception exclusionary ed this to the rule in witness’ was attenuated from the Williams, Brewer v. properly misconduct and was admit (1977). Comment, See ted trial. 47 Cin.L.Rev. 489 n.17 In that case, right violated the to counsel V. HOLT’S IDENTITY WOULD an by eliciting accused murderer incrimi- OTHERWISE HAVE BEEN natory statements and then the location of DISCOVERED. body the victim’s after the accused had A. The Discovery Exception Inevitable terminated interrogation until he reached Exclusionary Rule. lawyer. The court sustained exclusion The second basis sustaining the ad- incriminatory themselves, of the statements mission factually of Holt’s is a suggested but admission location application limited of the inevitable dis- and condition of body might the victim’s covery exception rule. proper “on theory body would unlimited, Note 2 if supra. exception, That event, any have been discovered in even had permits admission of derivative evidence incriminating statements not been elicited.” fact resulted illegal from the n.12, Id. at 406 97 S.Ct. at 1243.6 but that would have been illegal police without that action. B. Fifth Precedent Circuit on Inevitable words, In other prosecution must show Discovery. probability reasonable police' Two applied would decisions of this circuit have uncovered derivative evi- principles exception apart dence which this illegal from the rests actions. slightly different context. In Gis- exclusionary rule does not come [T]he Wainwright, sendanner v. 482 F.2d 1293 play merely into proffered because the 1973), obtained confes- product is in fact of an provided sion the identities of illegal two accused act. If act rapists presence and accounted for their merely contributed the discovery of lineup lineup identification. The and sub- allegedly tainted information and sequent valid, however, convictions were such information would have rapists’ because the acquired identities lawfully proba- even the bly have act had been discovered transpired, subsequently never dur- presumptive removed, ing ordinary investigations. taint is and the apparently poi- soned fruit is made whole. In other Certainly, any consequences before so words, if act was society’s destructive of right pro- to be not an indispensable cause of the dis- tected from violent crimes to be set [are] covery proffered evidence, the ex- motion, there would have to be a re- clusionary rule does not apply. spectable (i) showing solely it was Maguire, How Unpoison to the through Fruit — The such invalid source that Fourth Amendment Exclusionary (ii) was ascertained and there was no Rule, J.Crim.L., 55 Criminology, and Police likelihood that it would subsequent- have 307, (1964). Sci. 313 ly United States through other anticipated, 858, 6. Some circuits have (7th 1974); Virgin while others 865-66 Cir. Islands v. embraced, Supreme Gereau, have 914, (3d 1974), Court’s recom 502 F.2d 927-28 Cir. discovery denied, of excep 829, mendation 909, inevitable cert. 420 U.S. 42 Schmidt, 1057, tion. States, (1975); States v. Killough 573 F.2d L.Ed.2d 839 v. United (9th Cir.), denied, 1065-66 n.9 U.S.App.D.C. 929, cert. 439 U.S. 119 336 F.2d 881, 221, (1978); (D.C.Cir.1964). Unit Twomey, ed States ex rel. Owens v. 508 F.2d quarters, was to the search of Wilson’s showing In there is no summary, efforts. nor- inter- . . in the product on this record . of ultimate investigation their identi- police work mal ceptions of Wilson’s mail. up. ties would not have turned added; footnote (emphasis 301 F.2d at 373 added). court (emphasis The

Id. omitted). evidentiary fruit thus admitted however, circuit, panel Another of this subsequent dis probability reasonable discovery expressly rejected the inevitable investi covery through “normal work Houltin, 525 F.2d v. rule United States Although that had been gation.” (5th Illegal interception 1976).7 Cir. fact source of found in apprised Drug En- telephone conversations confession, illegally ac an excluded agents forcement Administration indispensable quired evidence was not the leaving were in their aircraft defendants Similarly, in source of the identification. airport, and this infor- from a Mexico New (5th 301 F.2d 361 Harlow v. United agent to follow their mation enabled an denied, Cir.), cert. apprehend them flight to Mexico and to interception (1962), 9 L.Ed.2d cargo marijua- with a upon their return of mail contributed to the disclosure government’s rejected na. The court interroga led identity and McLane’s illegally argument that even bribery conspiracy. His ensu tion about investigat- were the ba obtained information ing confession and disclosures returned to incriminating ing warrant for would have sis a search the defendants implicating Harlow and Wilson. letters have flown airport, would the New Mexico absent, confession and disclosures were not ex finding defendants on Mexico cluded, however, both because on their them apprehended would have rule) (the independent source also led return. McLane and because the “inevitable argument is based on This had a reason his confession and disclosures doctrine, this circuit has discovery” which probability of occurrence otherwise able Es rejected. Parker v. unambiguously rule). (the discovery inevitable 629-30 telle, F.2d Cir. forev- agents were not investigating 963, 95 n.12, precluded McLane interrogating er ; . . . 44 L.Ed.2d 450 [1975] merely and pressing him to confess be- Castellana, 488 F.2d they oth- cause thereafter seized McLane tending implicate er evidence opinion The Castellana 525 F.2d at 949. bribery McLane did not scheme. Houltin, however, was Court in cited indicate that he would not confessed rehearing en grant of upon vacated interception if he had not been told of the banc) 1974) (en F.2d 325 Cir. banc 500 investigating mail Wilson’s rendering (finding illegality occurred no know, agents. all McLane For we Parker, irrelevant). issue suppression regardless whether this have told all Houlton, sole- authority cited relied other imparted to him the information opinion. ly that vacated Castellana agents. . . McLane investigating Parker, this court observed panel may persuaded that well have been rule dictum that the inevitable “jig up” and that it would be best for rejected Castella- in United States “was him to make a full disclosure his deal- 1974); cf. na, (5th ings with Harlow and Wilson. We are therefore, Wainwright, the infor- Gissendanner say, unable Estelle, McLane, 1973).” Parker v. which led mation received from denied, remand, grounds Cir.), (5th cert. 7. Vacated on other sub nom. Croucher 1027 566 F.2d States, 725, 826, 97, 1034, L.Ed.2d 118 v. United 429 50 439 99 S.Ct. 58 U.S. 97 S.Ct. U.S. grounds, (1977), (1978). modified on other 745 1977), modified after 553 F.2d 991 1046

F.2d at 629-30 n.12.8 Examination illegal search rendered the testimony admis- may cited authorities call the correctness of 279, sible. Id. at 98 S.Ct. at 1061. question Houltin into the extent reaching its holding it drew distinction applicable it controls unless its current applies which here.

force has subsequent been influenced have adopt “per declined to se [W]e holdings Supreme Court. ‘but for’ rule” that inadmis- would make evidence, any sible tangible whether C. Application Reasons for of the Inevi- (cid:127) testimony, live-witness which somehow Discovery table Rule. light through came to a chain of causa- given binding Houltin cannot effect began tion that with an arrest. respect with voluntary testimony of a Illinois, 590, 603, Brown v. 422 U.S. who witness would have been discovered 2254, 2261, (1975). S.Ct. 45 L.Ed.2d 416 illegality through not occurred ordi- nary police investigations lawfully . “The fact that the name of a case, obtained pos- evidence. In this potential is witness disclosed to being pursued, by sessed and se, of no evidentiary significance, per prior to the occurrence illegality living since the witness an individual inevitably would have led to the discovery personality human whose attributes Supreme of Holt. Court decisions subse- will, perception, memory and volition in quent conflicting decisions of this teract to determine what he given circuit have strong support to the ” give. will . . . Smith v. United rationale adoption of the inevitable dis- States, 1, 4, U.S.App.D.C. . . . covery exception in Gissendanner and Har- 879, (D.C.Cir.1963), cert. de low and have undercut the reasons for its nied, 954, 1632, 377 U.S. 84 S.Ct. rejection in First, Houltin and Parker. as (1964) L.Ed.2d 498 . . .. above, we have described recently the Court suggested an 276, unlimited discovery 277, inevitable Id. at at S.Ct. 1060-1061. rationale for admitting tainted evidentiary Third, Supreme recent Court deci fruit in Williams, Brewer v. 430 U.S. at 406 reject sions portray earlier statements that n.12, 97 S.Ct. at 1243. exclusion of obtained evidence Second, the Supreme specifi- Court dealt as constitutionally required and make clear cally with admissibility of testimony de- that the exclusionary reduces a “ju rule rived in fact from police action in dicially remedy” created applied only to be United States v. 268, judicial when advances its purpose. 1054, S.Ct. (1978).9 L.Ed.2d 268 Calandra, 338, United 414 U.S. Court held that the attenuated 348, 613, 620, connection 38 L.Ed.2d 561 between the testimo- United States v. 435 U.S. ny of a witness at 98 S.Ct. at 1059.10 In the fourth decision, Resnick, 8. One other pendent inevitably United States v. source or would (5th Cir.), 483 F.2d 354 discovered; 414 U.S. if neither of these rules (1973), 38 L.Ed.2d 246 has here, apply, was found to the Court would rejecting discovery been cited as the inevitable still somehow take into account attenua- [as exception. Resnick relied on the tion] fact that . witnesses some- exception, source 483 F.2d at and did not times do come forward of their own volition. any reach discovery inevitable issue.. J., (Marshall, Id. 98 S.Ct. at 1066 dissenting) (emphasis added). Although decision Ceccolini rested on exception attenuation Powell, 465, 482, 10. See also Stone v. 428 U.S. rule and did not reach the inevitable 3037, 3046, (1976); 49 L.Ed.2d 1067 holding court, of the lower 435 U.S. Janis, 433, 446, United States v. analysis provides sup- S.Ct. at its some (1976); Unit- port discovery exception. for the inevitable As Houltin, 1030; ed States v. 566 F.2d at Sosa v. dissenting observed, opinion 1977). apparently The Court would first determine whether the evidence stemmed from an inde-

1047 actions, because moti- illegal out the “single context, and dis amendment search or inter- exclusionary rule is vation for for the purpose tinct” of that con quest violations was not for deriva- rogation deterrence against unreasonable protection were al- stitutional tive evidence Tehan v. United seizures. probably searches and would pursuing and ready 413, 406, Shott, 86 382 U.S. ex rel. States any event. been discovered (1966). 459, 463, Ac 15 L.Ed.2d 453 S.Ct. exclusion becomes argument against 433, Janis, 428 U.S. cord, v. United States evidentiary if the fruit particularly forceful 3028, 446, 3021, 49 L.Ed.2d 1046 S.Ct. 96 physical than evidence testimony is rather fifth and sixth amendment (1976).11 In the because, Supreme Court held Cec- as context, “prime purpose” the exclu colini, greater willingness “[t]he sionary applied rule as the fruits testify, freely . . witness [to] government is deni illegality deterrence that he or she will be greater the likelihood privilege or the al of the self-incrimination and, means concomi- legal discovered Calandra, right, v. counsel United States the incentive to conduct tantly, the smaller 619; 347, accord, at 414 at 94 S.Ct. U.S. an search to discover witness.” 275, v. 435 at U.S. States 276, at 1060. 435 U.S. at 98 S.Ct. 12 1059, secondary purpose 98 at but S.Ct. The trustworthiness purpose is ensuring is trustworthiness incrimi only slightly served exclusion of the Tucker, statements, Michigan v. 417 nating inevitably discovered fruits 446-47, 448, 2357, 433, 94 2364- S.Ct. U.S. probable interrogations, searches or because 2366, (1974); 2365, 41 L.Ed.2d 182 see subsequent discovery that same evidence 590, 600-01, Illinois, v. 422 U.S. 95 Brown permits its ensures trustworthiness (1975).13 S.Ct. government counsel for and for the exception The attenuated connection disprove accused to corroborate or that de justi are exception source impact rivative The deterrent evidence.14 unlikely suppression it is fied because excluding and trustworthiness effect from independently discovered of attenuated inevitably evidence must bal would deter mis derivative evidence against enforcing the state interest in anced untrustworthy evi conduct and bar protecting society the criminal laws E. v. g., dence. United States Powell, 428 criminals. v. U.S. from Stone 1062; 280, 98 at see United U.S. at S.Ct. 3049; 487, v. at at United States Houltin, at v. 566 F.2d 1030-31. Janis, 453-54, at 3031- 428 U.S. at justification applies This also the inevita application 3032. [exclusion “[T]he ble discovery exception. to those restricted areas ary] rule has been objectives thought are served where remedial its marginally only Deterrence United States efficaciously most served.” derived by suppression of 348, Calandra, at 620. v. at S.Ct. U.S. testi- such obtained Powell, at v. 428 U.S. Stone with- been discovered mony would have upheld Powell, there admission of the witness’ testimo- at also See Stone v. 11. 3048; ny at 581 F.2d because S.Ct. 1978) (en banc). 538 n.1 prosecution The evidence which success- fully sought was to introduce not confes- integrity” longer regarded no 12. “Judicial respondent, guilt by sion of independent purpose or rationale party rather a third who Tucker, Michigan rule. pressures. subjected to no custodial n.25, U.S. plainly to believe that [the There is no reason untrustworthy simply testimony is witness’] Houltin, respondent 13. United States v. of his See also advised because 1030; Leary right appointed at v. United counsel. 1977). Tucker, Michigan 1270-71 original). (emphasis The same consid- Tucker, parallels in which the This case admitting erations in favor militate was disclosed and location of witness testimony. the accused in an warnings. Supreme Court full Miranda tary testimony prosecu at 3048-3049.15 harms result- admissible if the ing and proves from exclusion relevant reliable tion the witness and his testi prosecution that the proba- would mony would have been discovered in a law bly despite manner, have had prior illegality misconduct ful had the oc slight curred, outweighs ordinary deterrence and trust- investigations virtue of produced by suppression worthiness already of inev- of evidence or posses their itably discovered evidence. sion. approach This does not mean Probability Discovery. D. The of Holt’s any illegally obtained evidence can be Brook The Mountain Police saw the simply admitted because law enforcement day calls the telephone list of Brookins’ officials assert that it would have been in arrest, they before consequently and

evitably the. discovered. The mere assertion of knew about his with conversation someone discovery inevitable must fail. After the Holt before the house M.D. challenged legality accused has of the interrogation. po set They had in motion acquisition witness’ of the use and of the inquiries lice in Nashville. The Mountain testimony, witness’ must show possessed Brook properly Police the traffic the illegality they pos that when occurred they citation that had found in the invento actively pursuing sessed and were the evi ry search of the after Brookins’ dence leads that would have led to the arrest, Part II supra. Before the discovery challenged witness and interrogation the Nashville investigation there was a probability reasonable Hurst, had led them to contact David thereby that witness would have L. been dis citation, recipient prosecution covered. The must bear the a friend with proof frequently on whom Brookins Maguire, stayed burden this issue. 315; supra Illinois, see Brown v. Nashville. More proba than á reasonable (1975). bility existed that investiga normal tion, The court then must find if interrogation that reasonable had never oc probability subsequent curred, discovery existed identity have disclosed the showing based on this gener Holt,16 and the record Carlton which would have led to ally. therefore, that, holding, Our knowledge de of his involvement in the auto spite prior illegality which led to the mobile theft. The record reflects that discovery witness, aof that witness’ volun investigations Nashville actually yield did registered motel, 15. See also United States v. 581 F.2d at Brookins was at the our n.1; Houltin, &538 United States v. 566 F.2d at officers looked at the motel bill which had 1032-33. it, long phone their distance bills with phone Mr. Holt’s number was there also. He inevitability of Carlton called, had been had called that [Brookins] is evident from registered number while he was at the motel following and other of Officer arrested, before he was and before we arrest- Watkins and Lt. Littlefield of the Mountain mean, September, November, himed I police. Brook excuse me. THE How COURT: did it lead to Mr. Holt? They -judge, MR. WATSON: interviewed — But, LIEUTENANT LITTLEFIELD: I be- right I don’t have in front of me the exact talking lieve also what Mr. Watson was procedure They that led to Mr. Holt. inter- about, got I believe the car that he [traf- viewed the mother and an individual Irondale, ticket in in I Hurst, fic] registered believe it was really posi- name of Mr. I and am not know, to a Mr. I exactly, Hurst. believe it was you tive where [Carlton] after the interview up during investiga- [in Mr. Hurst Nashville] Holt’s name came they got Holt’s name there a tion. I know Mr. second that the [in Nashville] that, but, positive time. I called am not me said that he had run I believe across Mr. way investigation. Holt that’s the it was. you got something THE The Mountain COURT: Have Brook sent “leads” from add? number list and traffic citation Yes, sir. LIEUTENANT LITTLEFIELD: Nashville law enforcement authorities be- that, addition when we checked at the fore the excluded at which Brook- who, registration name, motel for the Mr. ins although see disclosed Carlton Holt’s question that There is no Mr. Holt’s name. interroga in the Brookins’ own statements trial, as the from his tion must be excluded recognized. See United court

district Castro, F.2d 213 v. Del Soccorro 1978) in (excluding statements warnings).

terrogation without Miranda Tucker, U.S. at Michigan v. Cf. statements, (excluding some fruit, violation although not their taken in rule). Miranda Exclusion of ac however, evidence, “does mean

quired sacred the facts thus obtained become Lumber Co.

and inaccessible.” Silverthorne States, 251 U.S. at 40 S.Ct. at

v. United Accord, United States v.

183. 274, 98 at 1059. The fruit of statements, testimony, which

those inevitably been dis

would otherwise

covered, suppressed. need not be

AFFIRMED. ANDERSON, III, Circuit

R. LANIER

Judge, part: concurring

I in all concur the result and ground for the

opinion except the alternate opinion. expressed part IV the

decision Dahlin, II, De- Federal Public

Roland E. Jr., fender, Szekely, Asst. Feder- S. Charles America, Tex., Defender, Houston, UNITED STATES de- for al Public Plaintiff-Appellee, fendant-appellant. Potter, Atty., U. Hous- M. Asst. S. John Tex., ton, plaintiff-appellee. RIVERA, Jr., Jose Armando Defendant-Appellant.

No. 79-5588

Summary Calendar.* Appeals, Court of GEE, HENDERSON Before Fifth Circuit. Judges. HATCHETT, Circuit

April

PER CURIAM: Ar- appellant, Jose July On Jr., Rivera, to an indict- pled guilty mando nary investigation under the circumstances and infor- name did not receive case. this Brook- with collaboration about Holt’s mation interrogation. until after ins’ thefts * 34(a); Fed.R.App.P. R. 18. 5th Cir. name and would have of ordi- the course Holt in of Carlton

Case Details

Case Name: United States v. Wayne Garfield Brookins, III

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 3, 1980

Citation: 614 F.2d 1037

Docket Number: 79-5225

Court Abbreviation: 5th Cir.