United States v. Williams

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0234p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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No. 08-4630
v.
,
>
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Defendant-Appellee. -
THOMAS W. WILLIAMS,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00062-001—John D. Holschuh, District Judge.
Argued: April 30, 2010
Decided and Filed: August 6, 2010
*
Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.

_________________

COUNSEL
ARGUED: Michael J. Hunter, ASSISTANT UNITED STATES ATTORNEY,
Columbus, Ohio, for Appellant. Kevin Michael Schad, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael J.
Hunter, Kevin W. Kelley, ASSISTANT UNITED STATES ATTORNEYS, Columbus,
Ohio, for Appellant. Laura E. Byrum, FEDERAL PUBLIC DEFENDER’S OFFICE,
Columbus, Ohio, for Appellee.
_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. On October 12, 2004, Columbus
police officers Robert Vass and T. Pappas pulled up in a police cruiser to a group of

*
The Honorable Thomas B. Russell, Chief United States District Judge for the Western District
of Kentucky, sitting by designation.

1
No. 08-4630 United States v. Williams Page 2

people standing outside an affordable-housing complex owned by Community Properties
of Ohio (“CPO”). Upon exiting the vehicle and moving toward the group, Vass
recognized one of its members, Thomas W. Williams, who was standing on the sidewalk
and leaning against a car. Vass immediately told Williams that he was “again
trespassing on CPO property.” In the ensuing interaction, Williams acknowledged in
response to questions that there might be a warrant out for his arrest and that he was
carrying a gun. The officers arrested Williams, who was later charged with being a felon
in possession of a firearm and ammunition.

On Williams’s motion, the district court ruled that Williams had been illegally
seized, and the court suppressed the physical evidence and Williams’s statements during
the encounter. The government now appeals, making three arguments: (1) Williams
was not seized within the meaning of the Fourth Amendment when Vass first spoke to
him; (2) if Williams was seized, Vass had reasonable suspicion to detain him; and (3)
even if Vass lacked reasonable suspicion to detain Williams, the emergence of
information that Williams was wanted on an arrest warrant constituted an intervening
circumstance that attenuated the taint of the unlawful seizure.

After careful review, we AFFIRM. Williams was seized: a reasonable person
would not have felt free to leave upon being approached by two uniformed officers in
a marked car, singled out of a group, and immediately accused of a crime. The seizure
was unlawful: Williams was not trespassing or committing any other crime when the
officers approached, and the fact that others in his group were drinking publicly and
might have been trespassing did not constitute reasonable suspicion that Williams
himself had recently committed a crime or was about to commit one. Finally, there was
no attenuation: Williams’s statement about the outstanding warrant, made in response
to a question posed by Vass at the outset of the seizure, was not “the product of a free
will.” Brown v. Illinois, 422 U.S. 590, 603 (1975). Thus, the incriminating evidence
was “come at by exploitation of th[e] illegality” of the seizure, not “by means
sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United
States, 371 U.S. 471, 488 (1963).
No. 08-4630 United States v. Williams Page 3

I. BACKGROUND

We accept the district court’s factual findings unless clearly erroneous. United
States v. Martin, 289 F.3d 392, 396 (6th Cir. 2002). The district court found the
following facts, which the parties do not dispute on appeal:

Community Properties of Ohio (“CPO”) is a subsidized property
management company that provides affordable housing to low-income
individuals throughout Columbus. (Test. of Joshua Martin, Suppression
Hr’g. Tr. p. 6-7 (“Martin Test.”).) Because a large number of CPO’s
properties are in high crime areas, CPO has instituted several security
programs, one of which is to hire Columbus Police Department officers
to patrol CPO properties as special duty officers. (Id. p. 7.) These
special duty officers, who work in full Columbus Police Department
uniforms and drive marked Columbus Police Department cruisers, patrol
CPO properties and strictly enforce criminal laws and CPO regulations
prohibiting, among other things, trespassing and loitering in an attempt
to “eliminate the elements” of crime. (Test. of Robert Vass, Suppression
Hr’g. Tr. p. 34 (“Vass Test.”).)
Signs that prohibit trespassing and state that trespassers will be
prosecuted are posted on all CPO properties (Def. Supp. Mem. ex.2, doc.
# 32), and special duty officers patrolling CPO properties will engage
nonresidents in conversation to determine if they are trespassing. If the
nonresident can provide some information indicating that they are a
resident’s guest, such as a resident’s name, or a valid reason for being on
the property, then the special duty officer will do nothing other than warn
the nonresident that trespassing is prohibited. (Vass Test. p. 38, 52.) If
the nonresident cannot provide information indicating that they are a
resident’s guest, or if a special duty officer has to talk to a nonresident
about trespassing a second time, the nonresident’s name and picture or
other identifying information will be entered into the CPO’s trespass
logbook, a record of all individuals who have been given trespass
warnings. (Martin Test. p. 11; Vass Test. p. 37.) If a nonresident
trespasses on CPO property after having his or her name entered in the
logbook, the nonresident is arrested for criminal trespass and taken to
jail. (Vass Test. p. 37.) The special duty officers, however, have
discretion to address situations on a case-by-case basis, and do not have
to go through the process of issuing warnings before arresting an
individual for criminal trespass. (Id. p. 38-39.)
At approximately 9:00 p.m. on October 12, 2004, Columbus
Police Department Officers Robert Vass (“Vass”) and T. Pappas
(“Pappas”) were working special duty patrol for CPO. (Id. p. 38-39.)
No. 08-4630 United States v. Williams Page 4

Vass and Pappas were in their cruiser heading southbound on Wilson
Avenue to inspect a CPO property located at 1084 East Whittier Street.
(Id. p. 39.) As they turned onto East Whittier from Wilson Avenue, Vass
and Pappas observed a group of four to five individuals standing at
various locations in front of 1084 East Whittier. Vass and Pappas parked
their cruiser in front of the building and approached the group, and as
they did Vass recognized Defendant, who was standing on the sidewalk
in front of 1084 East Whittier and was leaning against a car parked in the
street. (Id. p. 68; Map of 1084 East Whittier Street, Suppression Hr’g.
Def. Ex. 1.) Vass recognized Defendant from a prior unrelated instance
in which he had arrested Defendant in June 2004. Additionally, Vass
testified that he had also given Defendant a verbal trespass warning after
seeing him at 1084 East Whittier at some time after June 2004 and before
October 2004. (Vass Test. p. 42-44.) Defendant’s name had not been
entered into the logbook as a result of this warning because he had
indicated he was a resident’s guest, but Vass had warned him not to
trespass on CPO property. (Id.)
As he and Pappas approached Defendant, Vass told Defendant
that “he was again trespassing on CPO property.” (Arrest Information
Report, Suppression Hr’g. Gov’t. Ex. 3.) Vass then asked Defendant if
there were any outstanding warrants for his arrest, and Defendant replied
that he thought there might be one related to his June 2004 arrest. Vass
told Defendant he would run a warrant check, and then asked Defendant
if he was armed. (Vass Test. p. 46.) Defendant replied that he “had to
protect himself,” which Vass took to mean that Defendant was in fact
armed. Vass told Defendant he was going to do a pat-down search, to
which Defendant replied that he was carrying a gun, and when Vass
conducted the pat-down search he discovered a firearm concealed under
Defendant’s shirt in the back waistband of his pants. Defendant was then
handcuffed and arrested. (Id.; p. 70-71.)

United States v. Williams, No. 2:08-cr-62, 2008 WL 4758683, at *1–2 (S.D. Ohio Oct.
27, 2008) (unpublished opinion) (footnote omitted).

A grand jury indicted Williams on one count of being a felon in possession of a
firearm and one count of being a felon in possession of ammunition. Williams filed a
motion to suppress the physical evidence and statements he made during the encounter,
which the government opposed. Following an evidentiary hearing on June 25, 2008 and
supplemental briefing, the district court issued a written opinion granting the motion on
October 27, 2008. The government timely appealed, and the district court stayed the
case pending appeal.
No. 08-4630 United States v. Williams Page 5

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s legal conclusions in granting a motion to
suppress. United States v. Cohen, 481 F.3d 896, 898 (6th Cir. 2007). “Where the district
court grants a motion to suppress, we view the evidence in the light most favorable to
the defendant.” United States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002).

B. Whether Williams Was Seized

The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. This protection,
however, applies only if a person is “seized” within the meaning of the Fourth
Amendment. Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir. 2005). The
government contends that Officers Vass and Pappas never seized Williams.

“Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “[I]n order to determine whether
a particular encounter constitutes a seizure, a court must consider all the circumstances
surrounding the encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to decline the officers’
requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 438
(1991); see also Michigan v. Chesternut, 486 U.S. 567, 573–74 (1988) (stating that an
individual is seized if “a reasonable person would have believed that he was not free to
leave” and noting that the test is an objective one (internal quotation marks omitted)).
In addition, an individual must actually submit to the show of authority to be seized
within the Fourth Amendment. California v. Hodari D., 499 U.S. 621, 626 (1991);
United States v. Jones, 562 F.3d 768, 774–75 (6th Cir. 2009).1 For this reason, “a

1
The record makes clear that Williams in fact submitted, and the government does not argue
otherwise.
No. 08-4630 United States v. Williams Page 6

consensual encounter does not amount to a seizure.” United States v. Campbell, 486
F.3d 949, 954 (6th Cir. 2007).

Officers do not seize people “merely by approaching individuals on the street or
in other public places and putting questions to them.” United States v. Drayton, 536
U.S. 194, 200 (2002). That said, “words alone may be enough to make a reasonable
person feel that he would not be free to leave.” United States v. Richardson, 385 F.3d
625, 629 (6th Cir. 2004). We consider the following factors as evidence of a seizure:
“‘the threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s request might be compelled.’”
Campbell, 486 F.3d at 954 (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980) (opinion of Stewart, J.)).

The district court held that Williams was seized as of the officers’ initial contact:

Vass and Pappas arrived on the scene in a marked Columbus Police
Department cruiser and exited in full uniform. Once they did, they
immediately singled Defendant out of a larger group and approached
him. . . . Additionally, as he approached, the first thing that Vass did was
accuse Defendant of breaking the law by trespassing. . . . [U]pon being
accused of breaking the law by a uniformed police officer, a reasonable
person would not feel free to leave.

Williams, 2008 WL 4758683, at *4.

We agree with the district court’s analysis. Vass and Papas did not draw their
weapons or touch Williams. But the fact that there were two officers, that they were in
uniform and arrived in a marked police car, and that they immediately focused their
attention on one person, Williams, in a group of four or five contributed to their show
of authority. And although those facts alone would not reasonably make Williams feel
that he could not leave, as the officers could have engaged him in a consensual
encounter, the encounter differed markedly from those that we have deemed consensual.
It did not involve a nonthreatening question, see United States v. Waldon, 206 F.3d 597,
603 (6th Cir. 2000) (defendant not seized when officer merely “asked . . . what he was
No. 08-4630 United States v. Williams Page 7

doing in the area”), a request for identification that did not imply that compliance was
mandatory, see Campbell, 486 F.3d at 956 (defendant not seized when officer stated
“that he would like to see [his] ID”), or a mere request to speak together, see United
States v. Peters, 194 F.3d 692, 694, 698 (6th Cir. 1999) (defendant not seized when
officer approached and asked whether he could speak with him); United States v.
Frazier, 936 F.2d 262, 265 (6th Cir. 1991) (defendant not seized when two agents
approached and inquired whether they could ask him some questions); United States v.
Moore, 675 F.2d 802, 808 (6th Cir. 1982) (DEA agent did not seize defendant when he
approached him and inquired “Can I ask you a few questions” in nonthreatening
manner). Here, instead, Vass immediately accused Williams of a crime. A reasonable
person would not have felt free to walk away under such circumstances.

In Florida v. Royer, 460 U.S. 491 (1983), the Supreme Court cited a criminal
accusation by law enforcement as a factor indicating that an individual is seized. See id.
at 501 (holding that detectives seized the defendant “when the officers identified
themselves as narcotics agents, told [him] that he was suspected of transporting
narcotics, and asked him to accompany them to the police room”). We have recognized
the impact of such an accusation, as well. In United States v. Tolbert, 692 F.2d 1041
(6th Cir. 1982), we held that DEA agents seized the defendant when they “approached
[her] as she was attempting to enter a taxi, again requested her ticket and identification,
informed her that they suspected she was a narcotics courier and . . . asked her to
accompany them.” Id. at 1046. Under those circumstances, we held, “a reasonable
person would not have felt free to ignore the agents and depart.” Id.2 In United States
v. Saperstein, 723 F.2d 1221 (6th Cir. 1983), another drug-courier case, we found that
a DEA agent had seized the defendant in part because that agent “informed the
[defendant] . . . that he specifically had information concerning the [defendant’s]

2
We also held that the defendant had not been seized when a different agent stopped her in a
different airport earlier that day. In that interaction, the agent “stated that he was attempting to determine
if she was transporting drugs and requested her consent to search her purse and luggage.” Tolbert, 692
F.2d at 1043. (She refused and went on her way unimpeded.) The earlier agent’s words were clearly less
accusatory than the later agents’ statement “that they suspected she was a narcotics courier.” Id. at 1046.
No. 08-4630 United States v. Williams Page 8

possible involvement in drug transportation.” Id. at 1223, 1226 & n.7.3 And relatedly,
in United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995), we held that the defendants
were seized in part because “[t]he very act of bringing [a police canine] out to sniff the
vehicles tells a reasonable person ‘we are investigating you for drugs and you may not
move these vehicles until we are through.’” Id. at 1225. Other circuits likewise have
held that individuals were seized based in part on being accused of a crime. See United
States v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008) (holding that defendant with open beer
bottle in hand was seized by officers who “told him he was violating the law”); United
States v. Smith, 423 F.3d 25, 30 (1st Cir. 2005) (citing, in support of holding that
defendant was not seized during encounter, the fact that officers “did not accuse him of
any crime”); Jordan v. City of Eugene, 299 F. App’x 707, 708 (9th Cir. 2008)
(unpublished opinion) (holding that encounter “became a non-consensual seizure when
the officer told the plaintiff he needed to speak with him because the officer believed the
plaintiff was carrying a gun”).

The government contends that a reasonable person would have felt free to leave
because Vass’s words “were not an unequivocal command or request to stop.”
Appellant Br. at 15. Although an explicit directive may be sufficient to render an
individual seized, see Richardson, 385 F.3d at 630 (officer’s statement to driver of
vehicle, “Okay, just hang out right here for me, okay?” resulted in seizure), it is not
essential. The test is not whether police expressly instruct a person not to leave, but
whether the totality of the circumstances would convey to a reasonable person that she
is not free to leave. Drayton, 536 U.S. at 201; Bostick, 501 U.S. at 439.

At oral argument, the government suggested that whether a reasonable person
would feel free to leave when accused of committing a crime depends on the seriousness
of the offense. The government suggested that although a person would not feel free to
leave the scene upon being accused of armed robbery, he or she would see departure as
an option when the charge is trespassing. We do not find this argument to be persuasive.

3
We recognize that Royer, Tolbert, and Saperstein also involved requests to accompany agents
to a separate location for further questioning. Still, in each case we clearly relied on the fact of a criminal
accusation in concluding that the defendant was seized, and we consider that fact here.
No. 08-4630 United States v. Williams Page 9

No reasonable person would feel entitled to ignore an officer, turn, and walk away upon
being accused of trespassing under the circumstances in the present case.

Finally, the government argues that a reasonable person may have interpreted
Vass’s statement that Williams was “again trespassing on CPO property” as an
instruction to depart the area or as an inquiry into whether Williams was in fact
trespassing. Neither interpretation is plausible. Vass made the statement while
advancing toward Williams after pulling up in a marked cruiser; Vass’s objective
conduct suggested an intent to engage Williams, not send him away. Thus, this case is
not like United States v. Brown, 310 F. App’x 776 (6th Cir. 2009) (unpublished opinion),
cited by the government, in which an officer approached two men while still in her
vehicle and expressly “instructed the men to take their activities elsewhere.” Id. at 777.
And Vass’s statement plainly was an assertion of fact—in other words, an
accusation—not a question inviting Williams to clarify whether he was or was not
trespassing.

In sum, viewing the situation in its entirety, we agree with the district court that
Williams was seized when Officer Vass accused him of “again trespassing on CPO
property.” A reasonable person would not have felt free to leave upon being approached
by two uniformed officers in a marked car, singled out of a group, and immediately
accused of a crime.

C. Reasonable Suspicion

Because Williams was seized, the Fourth Amendment’s protections apply. At
the initial point of seizure, the encounter was not a full-blown arrest, but an investigatory
detention under Terry v. Ohio, 392 U.S. 1 (1968). We therefore analyze it under the line
of cases from the Supreme Court and this circuit applying Terry.

“An officer can stop and briefly detain a person when the officer has reasonable,
articulable suspicion that a person has been, is, or is about to be engaged in criminal
activity.” United States v. Smith, 594 F.3d 530, 536 (6th Cir. 2010) (internal quotation
marks, alteration, and emphasis omitted). That suspicion “must be based on specific,
No. 08-4630 United States v. Williams Page 10

objective facts,” Brown v. Texas, 443 U.S. 47, 51 (1979); an “inchoate and
unparticularized suspicion or ‘hunch’” will not suffice, Terry, 392 U.S. at 27. In
evaluating whether an officer had reasonable suspicion, we must consider the totality of
the circumstances rather than analyze each fact in isolation. United States v. Arvizu, 534
U.S. 266, 274 (2002); Martin, 289 F.3d at 398.

In this case, the district court held that Vass lacked reasonable suspicion to detain
Williams:

Vass did not have reasonable suspicion to believe that Defendant was
trespassing on CPO property. Defendant was standing on a public
sidewalk when Vass approached and stated that Defendant was
trespassing, not on CPO property as the Government argues, and Ohio
law clearly states that actual entry onto the premises of another is
required to commit trespass. Ohio Rev. Code Ann. § 2911.21 . . . . The
fact that Vass observed Defendant standing on a public sidewalk in front
of CPO property would not support a reasonable belief on Vass’ part that
Defendant was actually trespassing on CPO property . . . . Suspecting
that others were violating loitering or open container laws says
absolutely nothing about whether Vass had reasonable suspicion to seize
and detain Defendant to investigate whether Defendant was trespassing.

Williams, 2008 WL 4758683, at *5–6. On appeal, the government argues that the
district court failed to take an objective view of the facts and to consider the totality of
the circumstances.

Conceding that Williams was not trespassing, loitering, or drinking in public
when the officers arrived, the government argues that the officers nonetheless had
reasonable suspicion that Williams had recently violated the law or was about to do so.
It points to nine facts: (1) there had been complaints of drinking and loitering in the
area; (2) Williams was standing immediately next to CPO property; (3) others in his
group were standing on CPO property; (4) Vass had previously encountered Williams
trespassing on CPO property; (5) the group was loitering outside CPO property; (6)
some in his group were drinking from open containers; (7) Vass suspected that Williams
might have an outstanding warrant; (8) Vass had previously arrested Williams and found
him to be armed; and (9) the group was blocking the sidewalk.
No. 08-4630 United States v. Williams Page 11

These facts do not support an objective finding of reasonable suspicion. Several
of these facts must be set aside as simply not probative of potential criminal activity.
First, there is no evidence that Williams was in fact trespassing when Vass previously
encountered him on CPO property.4 In fact, at that time, Williams “did identify that he
knew somebody at CPO at that property,” Vass accepted his explanation for his presence
there, and Vass did not write him up for trespassing. Joint Appendix (“J.A.”) at 42–43,
53. Second, any loitering is immaterial because loitering is not a crime under state or
local law. Third, there is no evidence that Williams and his mates were blocking the
sidewalk. This accusation is an attempt to shoehorn Williams into the state’s disorderly-
conduct provision, which prohibits “[h]indering or preventing the movement of persons
. . . upon public . . . property . . . by any act that serves no lawful and reasonable
purpose.” Ohio Rev. Code § 2917.11 (cited in Reply Br. at 7).5 Fourth, Vass’s
subjective suspicion that Williams might be wanted on a warrant was a mere hunch. The
fact that a person has previously been arrested cannot provide objective reasonable
suspicion that he missed a court appearance; otherwise, officers could detain anyone
they know to have pending criminal charges. Fifth, Vass’s prior discovery of a gun on
Williams’s person is not enough for reasonable suspicion that Williams was guilty of
being a felon in possession of a firearm on the night in question—otherwise, Vass could
stop Williams any time, any place, forevermore—and it is totally irrelevant to whether
he was committing any of the criminal violations of which Vass actually suspected him.

Thus, the case for reasonable suspicion boils down to the following two-part
thesis: (a) because Williams was standing near CPO property and others in his group
were standing on CPO property, where people have been known to trespass, he might
have been trespassing just before Vass and Pappas arrived or been getting ready to do
so; and (b) because others in his group had open containers, Williams might recently
have held or been about to hold one when the officers arrived.

4
In this way, the instant case is distinguishable from United States v. Reed, 220 F.3d 476, 477 (6th
Cir. 2000) (officer had probable cause to arrest defendant for trespassing on housing development’s
property based on previous trespass).
5
In any event, standing on a sidewalk and leaning against a car while spending time with friends
is not an “act that serves no lawful and reasonable purpose.” Ohio Rev. Code § 2917.11.
No. 08-4630 United States v. Williams Page 12

Such speculation is insufficient under the Fourth Amendment. That Williams
stood on a public sidewalk next to property on which trespassing is a problem is
minimally probative of his recent or imminent trespassing. If anything, remaining on
public property while others tread on the grass suggests an effort not to trespass.
Moreover, the argument for reasonable suspicion based on others’ drinking and presence
on CPO property is weak in light of the Supreme Court’s emphasis on “individualized
suspicion of wrongdoing.” Chandler v. Miller, 520 U.S. 305, 313 (1997); see also
United States v. Cortez, 449 U.S. 411, 418 (1981); United States v. Patterson, 340 F.3d
368, 372 (6th Cir. 2003) (holding that the fact that police observed one man in
defendant’s group throw something toward the bushes when they approached “lends
little more to the totality of the circumstances” suggesting the defendant’s involvement
in drug activity). In fact, the argument for trespassing is even more attenuated than that.
There is no evidence that all of the other people in Williams’s group were nonresidents
of the CPO complex. Had at least one been a resident, the others would have been
lawful guests. Thus, the government’s argument is really that Williams might have been
trespassing because he was with other people who might have been trespassing. This
sort of guesswork is not remotely enough for reasonable suspicion.

Considering the totality of the circumstances, then, we agree with the district
court that the seizure was unconstitutional.

D. Attenuation of the Taint

Finally, the government argues that even if the officers seized Williams without
reasonable suspicion, the district court should not have suppressed the physical evidence
recovered and the inculpatory statements Williams made during the unconstitutional
detention. The government insists that this evidence is admissible because Vass’s
suspicion that Williams had an outstanding warrant, and Williams’s admission of the
same, were intervening events that attenuated the taint of the unlawful seizure. The
government did not make this argument at the district court, and its contention
notwithstanding that fact that “attenuation was at issue below, because the district court
applied fruits principles” is a stretch. Reply Br. at 8. “[A]s an appellate court, we do not
No. 08-4630 United States v. Williams Page 13

ordinarily consider issues that are not raised in the district court.” United States v.
Archibald, 589 F.3d 289, 295 (6th Cir. 2009) (holding that the government waived
argument that search occurred incident to arrest by failing to present it to the district
court); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . .
that a federal appellate court does not consider an issue not passed upon below.”);
Giordenello v. United States, 357 U.S. 480, 488 (1958) (declining “[t]o permit the
Government to inject its new theory into the case at this stage” in a Fourth Amendment
case). Nonetheless, we will exercise our discretion to resolve the issue because “the
issue is presented with sufficient clarity and completeness.” See Pinney Dock & Transp.
Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988).

“In order to deter law enforcement officials from violating the Fourth
Amendment by stopping persons without reasonable suspicion or by arresting them
without probable cause, the Supreme Court has directed that ‘all evidence obtained by
an unconstitutional search and seizure [is] inadmissible in federal court regardless of its
source.’” United States v. Pearce, 531 F.3d 374, 381 (6th Cir. 2008) (quoting Mapp v.
Ohio, 367 U.S. 643, 654 (1961)). “This exclusionary rule is supplemented by the ‘fruit
of the poisonous tree’ doctrine, which bars the admissibility of evidence which police
derivatively obtain from an unconstitutional search or seizure.” Id. The Supreme Court
has explained, however, that not all evidence must be suppressed “simply because it
would not have come to light but for the illegal actions of the police.” Wong Sun v.
United States, 371 U.S. 471, 487–88 (1963). Rather, these doctrines will not apply when
“the connection between the [detention] and the [evidence] had become so attenuated
as to dissipate the taint.” Id. at 491 (internal quotation marks omitted).

The test for attenuation is whether the evidence sought to be introduced—here,
the gun, the ammunition, and Williams’s inculpatory statements—“has been come at by
exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.” Id. at 488 (internal quotation marks omitted). The
Supreme Court has set forth three factors to guide this inquiry: “[t]he temporal
proximity of the [unlawful detention] and the [emergence of the incriminating evidence
No. 08-4630 United States v. Williams Page 14

at issue], the presence of intervening circumstances, and, particularly, the purpose and
flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603–04 (1975).

Applying the Wong Sun/Brown test, we reject the government’s attenuation
argument. First, Williams’s incriminating statements about the outstanding warrant and
his firearm possession came immediately after Vass accused him of trespass and
unlawfully detained him, and Vass recovered the gun and ammunition moments later.
J.A. at 70. That only seconds had passed between the start of the seizure and the
emergence of the evidence indicates that the taint of the illegality had not dissipated. See
Brown, 422 U.S. at 604 & n.11 (holding that fact that less than two hours passed
between unlawful arrest and post-Miranda confession weighed against dissipation, and
emphasizing that Wong Sun involved an attenuation period of several days); United
States v. Baldwin, 114 F. App’x 675, 683–84 (6th Cir. 2004) (unpublished opinion)
(holding that passage of two months was insufficient to free confession of taint of illegal
search).

Second, there were no intervening circumstances of any consequence between
the unlawful detention and the discovery of the incriminating evidence. The government
suggests two possibilities. It contends that Vass’s belief that Williams had an
outstanding warrant constituted an intervening circumstance. The objective
circumstances of the encounter make clear that Vass’s own intuition, however, did not
amount to reasonable suspicion. It was based only on the fact that Williams previously
had been charged with a crime. The government next claims that Williams’s statement
“I think I got one” constitutes an intervening circumstance that purged Williams’s
subsequent adverse statements and the physical evidence recovered from his person of
the unlawful seizure’s taint. But this statement—made in response to a question posed
by Vass—is not the kind of “intervening spontaneous action” that typically supports
attenuation. Certainly, it is a far cry from the circumstances held adequate to purge the
taint by the Supreme Court and this court. See United States v. Ceccolini, 435 U.S. 268,
279 (1978) (holding witness’s testimony admissible because it derived from a police
interview of her and was in no way connected to an illegal search of defendant’s
No. 08-4630 United States v. Williams Page 15

business four months earlier); Wong Sun, 371 U.S. at 491 (holding defendant’s
confession admissible, despite the fact that his arrest had been unlawful, because he
made the statement upon voluntarily returning to the narcotics bureau several days after
being lawfully arraigned and released on personal recognizance); Pearce, 531 F.3d at
382 n.2 (holding that even if officer’s stop of defendant, who was on foot, was unlawful,
search of parked car was justified by different officer observing a gun magazine in plain
view in the car); cf. United States v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990)
(suggesting consultation with an attorney as an important intervening event). In fact,
this case looks more like those in which the government has been unable to prove
attenuation. See Buchanan, 904 F.2d at 355–56 (no intervening circumstances between
officers’ illegal entry into defendant’s home and his consent to a search one hour later;
no suggestion that his consent was itself an intervening event); see also Brown, 422 U.S.
at 604–05 (holding defendant’s confession at station-house inadmissible because
Miranda warning did not attenuate taint of arrest made in violation of probable-cause
and warrant requirements and there were no other intervening circumstances); United
States v. Shaw, 464 F.3d 615, 629 (6th Cir. 2006) (holding that “post-arrest discovery
of new evidence” through interviews conducted with witnesses while defendant was
being interrogated did not constitute intervening circumstance).

Nor do the Seventh Circuit cases that the government cites establish the existence
of any relevant intervening circumstance here. In each of those cases, police detained
the defendant illegally, learned of a warrant for his arrest during the illegal detention,
and then arrested the defendant and searched him incident to the arrest. See United
States v. Johnson, 383 F.3d 538, 540 (7th Cir. 2004) (after unlawfully stopping a car and
walking up to it, officer “immediately recognized the driver as . . . a man whom he had
known for some ten years . . . and whom [the officer] knew to be wanted on an
outstanding arrest warrant”); United States v. Green, 111 F.3d 515, 517, 521 (7th Cir.
1997) (officers stopped vehicle expecting to find suspect inside, instead found two other
men, ran their names, and discovered an outstanding warrant for one of them). Although
we have observed that the Seventh Circuit treats the discovery of a warrant as an
intervening circumstance sufficient to render incriminating evidence admissible, we have
No. 08-4630 United States v. Williams Page 16

never adopted its approach as the law of this circuit. See United States v. Hudson, 405
F.3d 425, 440–41 (6th Cir. 2005) (noting the holdings of Green and Johnson, but relying
on them for the separate proposition that evidence obtained pursuant to an illegal seizure
must be suppressed when the police target the defendant). Other circuits, meanwhile,
have applied the exclusionary rule despite the emergence of a valid arrest warrant during
the course of an illegal encounter. See, e.g., United States v. Lopez, 443 F.3d 1280, 1286
(10th Cir. 2006); United States v. Luckett, 484 F.2d 89, 90–91 (9th Cir. 1973).
Ultimately, the facts of this particular case guide us. Vass obtained his information by
asking Williams a question during an illegal encounter in which a reasonable person
would not feel free to leave or to refuse to answer questions. Thus, the information
obtained was not “the product of a free will under Wong Sun.” Brown, 422 U.S. at 603.
Instead, the statement was itself “primary evidence obtained as a direct result of an
illegal . . . seizure” that should be suppressed under the exclusionary rule. Segura v.
United States, 468 U.S. 796, 804 (1984).6

Finally, although Vass’s misconduct was not flagrant, his purpose weighs against
attenuation. The Supreme Court has explained that the purposefulness factor is met
when the unlawful action is investigatory, that is, when officers unlawfully seize a
defendant “in the hope that something might turn up.” Brown, 422 U.S. at 605; Shaw,
464 F.3d at 630–31. The purpose of stopping Williams was to seek evidence against
him, and toward that end Vass immediately asked several questions related to criminal
activity other than trespassing. See Hudson, 405 F.3d at 440–41 (distinguishing Green,
111 F.3d 515, by reference to the Seventh Circuit’s statement that “the purpose of the
stop was not to seek evidence against the [defendants]”). Indeed, the warrant and
firearm evidence came out only because Vass asked about it. Cf. United States v.
Akridge, 346 F.3d 618, 628 (6th Cir. 2003) (finding attenuation where “police were not
specifically in search of the particular evidence sought to be suppressed in this case”).

6
Moreover, allowing information obtained from a suspect about an outstanding warrant to purge
the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage
officers to seize individuals without reasonable suspicion—not merely engage them in consensual
encounters—and ask them about outstanding warrants.
No. 08-4630 United States v. Williams Page 17

The totality of the circumstances, analyzed through the Brown factors, makes
clear that there was no attenuation of the connection between Vass’s unconstitutional
seizure of Williams and the incriminating evidence. Rather, this case calls for a
straightforward application of the exclusionary rule and the related fruit-of-the-
poisonous-tree doctrine. Because the incriminating evidence was “come at by
exploitation of th[e] illegality” of the seizure, not “by means sufficiently distinguishable
to be purged of the primary taint,” Wong Sun, 371 U.S. at 488, the district court correctly
suppressed it.

III. CONCLUSION

For the foregoing reasons, we conclude that the district court correctly
determined that Officers Vass and Pappas seized Williams without reasonable suspicion
of criminal activity. Neither Vass’s hunch that Williams might have an outstanding
warrant nor Williams’s statement “I think I got one” purged the incriminating evidence
of the taint of the unlawful seizure. We therefore AFFIRM the district court’s order
granting Williams’s motion to suppress and REMAND the case to the district court for
further proceedings.