United States v. Elie

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
No. 96-4638
PATRICK ELIE a/k/a Patrick Gerald
Elie, a/k/a Marie Patrick Elie,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-96-203)

Argued: January 28, 1997
Decided: April 24, 1997

Before HALL, LUTTIG, and WILLIAMS,
Circuit Judges.

_________________________________________________________________
Reversed by published opinion. Judge Williams wrote the majority
opinion, in which Judge Luttig joined. Judge Hall wrote a
dissenting
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marcus John Davis, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Blair Gerard Brown, ZUCKER-
MAN, SPAEDER, GOLDSTEIN, TAYLOR & KOLKER, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Vincent L. Gambale, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellant. Jonathan H. Levy, ZUCK-
ERMAN, SPAEDER, GOLDSTEIN, TAYLOR & KOLKER, L.L.P.,
Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Patrick Elie was indicted by a federal grand jury on two counts of
making a false statement to a firearms dealer, see 18 U.S.C.A.
§§ 922(a)(6), 924(a)(2) (West Supp. 1997), and on one count of
impersonating an accredited diplomat, see 18 U.S.C.A. § 915 (West
Supp. 1997). Shortly thereafter, Elie moved to suppress, among
other
things, the firearms and firearms receipts found in his hotel
rooms, the
firearms transaction records obtained from Gilbert Small Arms (the
firearms dealer), and the testimony of the individual at Gilbert
Small
Arms who sold Elie the firearms. The district court, in a series of
orders, suppressed the evidence as the "tainted fruit" of a Miranda
violation. The district court also ruled that the warned and
voluntary
statements Elie made at the Arlington County Detention Center, in
which he identified the firearms seized from his hotel rooms and
the
firearms dealer that sold him the weapons, did not constitute an
"inde-
pendent source" for admitting any of the challenged evidence. Find-
ing that the "fruit of the poisonous tree" analysis is inapplicable
in
cases involving mere departures from Miranda, we reverse.
I.

Based on a complaint that Patrick Elie, a former cabinet member
in the United States-supported Haitian government led by Jean-
Baptist Aristide, had assaulted Ms. Raymonde Preval-Belot, First
Secretary of the Haitian Embassy in Washington, D.C. and sister of
the current Haitian President, a warrant was issued for his arrest.
The
affidavit in support of the arrest warrant stated that Elie
possessed
firearms and that he also had threatened to harm, among other
people,
the Haitian Ambassador to the United States.

2
On April 23, 1996, several Fairfax County police officers and two
State Department Diplomatic Security Service agents (the officers)
went to the Hunter Hotel in Springfield, Virginia to arrest Elie,
who
was "considered armed and dangerous." Two officers, with guns
drawn, confronted Elie in the hotel restaurant. Elie was ordered to
the
ground, handcuffed, and searched for weapons.1 After being helped
to
his feet, and prior to any police questioning, Elie stated that he
was
a diplomat.

Elie was then escorted out of the dining area and into the hotel
lobby, where he was asked, prior to receiving any Miranda warnings,
whether he had any weapons in his hotel rooms. After responding in
the affirmative, Elie was told that he had the option of having the
weapons and his other possessions secured by either hotel manage-
ment or the police. Elie elected to have the officers secure and
inven-
tory his property.
Elie accompanied the officers to his rooms. In addition to observ-
ing the inventory search from just outside the rooms, Elie
reportedly
"spoke non-stop" during the encounter. Among other things, he
(1)told the officers where they could find certain items, including
weapons; (2)revoked his consent to search a container that
contained
a number of documents; and (3)asked the officers why he had not
been given his Miranda warnings.2

As a result of the search, the officers secured a Colt .223 semi-
automatic assault rifle with a round in the chamber and six
magazines
loaded with armor piercing ammunition; a Remington .22 caliber bolt
action rifle equipped with a telescopic sight; a loaded Steyr 9mm
semi-automatic pistol and 264 9mm rounds, including 180 rounds of
hollow-point ammunition; night vision equipment; two knives;
approximately $4,800 in cash; purchase receipts for three
additional
firearms; and documents relating to, among other things, the
activities
of the Haitian Ambassador.
_________________________________________________________________
1 Although the search did not produce any weapons, the officers did
find keys to two hotel rooms.
2 Despite his inquiry, Elie was not read his Miranda rights until
after
arriving at the Arlington County Detention Center for processing on
the
assault charges.
3
After Elie's property was secured, he was taken to the Arlington
Detention Center for processing on the assault charges. Arlington
Detective Lee Ann Petta gave Elie a routine personal history form
to
complete. Elie wrote his name on the front of the form and,
unsolic-
ited, provided an account of his arrest on the back of the form.
With
a tape recorder running, Elie was given his Miranda warnings,
signed
an advice-of-rights form, and was asked if he would like to answer
questions about the assault charges.

In response to Detective Petta's questions, Elie stated that he
wished to ask some questions of his own. Elie, completely unsolic-
ited, then proceeded to tell Detective Petta that he was in the
United
States conducting an undercover investigation of the Haitian Ambas-
sador. In particular, he was investigating allegations that the
Haitian
Ambassador had embezzled millions in state funds, provided Haitian
passports to terrorists and drug dealers, and plotted to
assassinate both
ex-president Aristide and President Preval.

Elie also told Detective Petta, without any prompting, about "the
guns." After Detective Petta asked him to what he was referring,
Elie
identified the two rifles and the handgun seized from his hotel
rooms.
Later in the interview, again without any prompting by Detective
Petta, Elie volunteered that he had purchased the firearms at
Gilbert
Small Arms.
While Elie was detained at the Arlington County Detention Center
on the assault charges, State Department Diplomatic Security
Service
agents (DSS agents) interviewed the employees of Gilbert Small
Arms and reviewed the firearms transaction records related to the
sale
of the aforementioned firearms. As a result of their investigation,
the
DSS agents believed that Elie knowingly made a false statement,
both
to the firearms dealer and on the firearms transaction records,
with
respect to facts material to the lawfulness of the sale of the
weapons.
Specifically, Elie stated that he resided at 2500 Clarendon
Boulevard,
Arlington, Virginia; a claim the DSS agents believed to be false.3
_________________________________________________________________
3 DSS agents believed Elie's claim to be false for several reasons.
First,
the firearm transaction records discovered at Gilbert Small Arms
revealed that the weapons found in Elie's hotelrooms were purchased

4
Thereafter, based on a DSS agent's affidavit that Elie made a false
statement to a firearms dealer, a federal warrant was issued for
his
arrest.

On April 29, 1996, two DSS agents arrived at the Arlington County
Detention Center to execute the federal arrest warrant. However,
before Elie was released into their custody, an official at the
Arlington
County Detention Center asked him several routine discharge ques-
tions. Of particular importance in this case, Elie stated, both
orally
and in writing, that he was a resident of "Port Au Prince."

Although DSS agents read him his Miranda warnings as they
placed him under arrest, Elie refused to sign the form
acknowledging
or waiving his rights. Notwithstanding his refusal, Elie engaged
the
DSS agents in conversation while they were en route to the location
where Elie would be processed on the firearms charges. Elie told
the
DSS agents, among other things, that there was a"cancer" in both
the
Haitian police force and the Haitian Embassy in Washington, D.C.,
that he was conducting an undercover investigation of the Haitian
Ambassador, and that he kept weapons in his hotel rooms to defend
himself in case the people whom he was investigating tried to
assassi-
nate him.
_________________________________________________________________

between March 30, 1996 and April 17, 1996. However, after searching
the electronic indices of the Treasury Enforcement Communications
Sys-
tem, DSS agents determined that Elie had entered the United States
most
recently on March 26, 1996. Prior to March 26, 1996, Elie had last
entered the United States on November 9, 1994 and departed on
Novem-
ber 22, 1994. Although a search of the electronic indices of the
Non-
Immigrant Information System of the Immigration and Naturalization
Service (INS) did not reflect Elie's entry on March 26, 1996, it
did con-
firm that Elie entered the United States on November 9, 1994 and
departed on November 22, 1994. Second, Ms. Raymonde Preval-Belot,
the woman Elie allegedly assaulted, lived at the address that Elie
gave
to Gilbert Small Arms. Ms. Preval-Belot confirmed that Elie did not
live
at that address. Third, the general manager of the apartment
complex
located at that address stated that Elie did not live there.
Fourth, DSS
agents obtained documentation that Elie was registered at the
Quality
Hotel when he made his first firearms purchase at Gilbert Small
Arms.

5
Elie was subsequently indicted by a federal grand jury on two
counts of making a false statement to a firearms dealer, see 18
U.S.C.A. §§ 922(a)(6), 924(a)(2), and on one count of impersonating
an accredited diplomat, see 18 U.S.C.A.§ 915. Thereafter, Elie
moved to suppress (1)his statement that he was a diplomat; (2)his
statement acknowledging that there were firearms in his hotel
rooms;
(3)all the tangible evidence, including the firearms and firearms
receipts, found in his hotel rooms; (4)his written statements on
the
back of the personal history form; (5)the statements he made to
Detective Petta; (6)his written statement concerning his residency;
and (7)the statements he made to the DSS agents.

After an evidentiary hearing on Elie's motion, the district court
(1)denied suppression of Elie's statement that he was a diplomat,
finding that the statement was not made in response to any police
interrogation; (2)suppressed Elie's statement that he had weapons
in
his hotel rooms, finding that the statement was made while he was
in
police custody, in response to police interrogation, and without
the
necessary Miranda warnings; (3)suppressed all the tangible evidence
found in Elie's hotel rooms, including the firearms and firearms
receipts, finding that the evidence was the "tainted fruit" of the
Miranda violation; (4)denied suppression of Elie's written state-
ments regarding his arrest and his residency, finding that the
state-
ments were made in response to routine booking questions and,
therefore, not given Fifth Amendment protection; and (5)denied sup-
pression of Elie's warned statements to Detective Petta and the DSS
agents, finding that he had waived his Miranda rights.

In assessing whether Elie had voluntarily, knowingly, and intelli-
gently waived his Miranda rights, the district court examined the
totality of the surrounding circumstances, which included the
defen-
dant's age, education, intelligence, and familiarity with the
criminal
justice system. Specifically, the district court found that Elie
was
forty-six years old, was well educated with an advanced degree in
chemistry, spoke fluent English, and was familiar with the criminal
justice system and its consequences.

Shortly thereafter, Elie filed a motion in limine to suppress the
fire-
arms transaction records related to the sale of the weapons found
in
his hotel rooms and the testimony of the individual at Gilbert
Small
6
Arms who sold him the weapons. Reasoning that the Government
identified Gilbert Small Arms from the firearms receipts obtained
during the unlawful search of Elie's hotel rooms, the district
court
held that any evidence obtained from Gilbert Small Arms must also
be the "tainted fruit" of the Miranda violation.
The Government, however, argued that Elie's warned and volun-
tary statements to Detective Petta, in which he identified the
weapons
seized from his hotel rooms and the firearms dealer that sold him
the
weapons, constituted an "independent source" for admitting the evi-
dence obtained from Gilbert Small Arms -- the firearms transaction
records and the testimony of the individual who sold him the
firearms.
Although noting that Elie voluntarily waived his Miranda rights
before Detective Petta, the district court reasoned that that was
not
sufficient "to break the causal connection between the illegality
of the
search and seizure and [Elie's] responses to Detective Petta's
ques-
tions which unduly exploited the Fourth Amendment violation." (J.A.
at 39.) As a result, the district court concluded that Elie's
statements
to Detective Petta did not constitute an "independent source" for
admitting the evidence obtained from Gilbert Small Arms. Accord-
ingly, the district court suppressed both the firearms transaction
reports and the testimony of the individual who sold Elie the
firearms.
This appeal followed.

II.

On appeal, the Government does not contend that the district court
erred in suppressing the statements Elie made prior to receiving
his
Miranda warnings.4 Rather, the Government argues that the district
court erred in suppressing the firearms and firearms receipts found
in
Elie's hotel rooms, the firearms transaction records obtained from
Gilbert Small Arms, and the testimony of the individual at Gilbert
Small Arms who sold Elie the firearms. The Government contends,
specifically, that the district court erred in applying the "fruit
of the
_________________________________________________________________

4 Specifically, the Government does not appeal the suppression of
Elie's statement that he had weapons in his hotel rooms.

7
poisonous tree" doctrine to the challenged evidence in this case.
For
the reasons that follow, we agree. 5

In reviewing the district court's suppression rulings, the evidence
must be construed in the light most favorable to Elie. See United
States v. Han, 74 F.3d 537, 540 (4th Cir. 1996) (noting that the
evi-
dence must be construed in the manner most favorable to the
prevail-
ing party below). We review the district court's legal conclusions
de
novo. See United States v. McDonald , 61 F.3d 248, 254 (4th Cir.
1995). As a result, we review the district court's application of
the
"fruit of the poisonous tree" doctrine de novo.

A.
In suppression cases, the challenged evidence is usually "direct"
in
its "relationship to the prior arrest, search,[or] interrogation."
Wayne
R. LaFave & Jerald H. Israel, Criminal Procedure§ 9.3(a), at 734
(1984). Examples of this type of evidence include statements made
in
response to police questioning, such as Elie's statement that he
had
weapons in his hotel rooms, and physical evidence found as a result
of a search or arrest. If the arrest, search, or interrogation was
unlaw-
ful, the direct evidence, absent an exception to the exclusionary
rule,
must be suppressed.

In other cases, however, the challenged evidence is"derivative" in
character. See id. Examples of this type of evidence include
physical
evidence discovered as a result of a statement made in response to
police questioning, such as the firearms and firearms receipts
found
in Elie's hotel rooms, and a witness discovered as a result of
physical
_________________________________________________________________
5 In the alternative, the Government contends that the district
court
erred in finding that Elie's warned and voluntary statements to
Detective
Petta did not constitute an "independent source" for admitting both
the
firearms transaction records and the testimony of the individual at
Gilbert
Small Arms who sold Elie the firearms. Because we find that the
district
court erred in its application of the "fruit of the poisonous tree"
doctrine,
we need not, and do not, address whether the district court also
erred in
its application of the "independent source" doctrine. See Karsten
v. Kai-
ser Found. Health Plan, 36 F.3d 8, 11 (4th Cir. 1994) (per curiam)
(not-
ing that alternative holdings should be avoided).

8
evidence found during a search or arrest. If the arrest, search, or
inter-
rogation is later held to be unlawful and thus requires the
suppression
of the direct evidence, the derivative evidence must also be sup-
pressed in certain circumstances. Specifically, derivative evidence
must be suppressed when, as Justice Frankfurter explained, it is
the
"fruit of the poisonous tree." Nardone v. United States, 308 U.S.
338,
341 (1939).

With that background, our analysis begins with the seminal case of
Wong Sun v. United States, 371 U.S. 471 (1963), in which the
Supreme Court explicitly articulated the "fruit of the poisonous
tree"
doctrine.6 According to the Wong Sun majority, derivative evidence,
such as physical evidence, a confession, or the testimony of a
witness,
is not "`fruit of the poisonous tree' simply because it would not
have
come to light but for the illegal actions of the police." Id. at
488.
Rather, derivative evidence must be suppressed as"fruit of the poi-
sonous tree" if it was discovered by exploiting an illegal search.
See
id.; see also Oregon v. Elstad, 470 U.S. 298, 305-06 (1985) (noting
that the "fruit of the poisonous tree" doctrine is drawn from Wong
Sun, where "the Court held that evidence and witnesses discovered
as
a result of a search in violation of the Fourth Amendment must be
excluded from evidence" (emphasis added)). Consequently, if the
derivative evidence is discovered "by means sufficiently
distinguish-
able [from the illegality] to be purged of the primary taint," Wong
Sun
371 U.S. at 488, then it is admissible.

In Michigan v. Tucker, 417 U.S. 433 (1974), the Supreme Court
was asked to apply the "tainted fruits" doctrine to the testimony
of a
witness whose identity was discovered as the result of a statement
obtained from the defendant in violation of Miranda. In declining
to
extend the "tainted fruits" doctrine to the facts in Tucker, the
Supreme
Court noted that the unwarned questioning did not abridge the
defen-
dant's Fifth Amendment privilege, "but departed only from the pro-
_________________________________________________________________
6 Although the doctrine traces its roots to the Supreme Court's
decision
in Silverthorne Lumber Co. v. United States, 251 U.S. 385(1920),
and the
phrase itself was coined in Nardone v. United States, 308 U.S. 338
(1939), the doctrine took on its present form in Wong Sun. See
Oregon
v. Elstad, 470 U.S. 298, 305-06 (1985) (noting that the "fruit of
the poi-
sonous tree" doctrine is drawn from Wong Sun ).
9
phylactic standards later laid down by this court in Miranda to
safeguard that privilege." Id. at 445-46. Because the defendant's
con-
stitutional rights were not infringed, the Court in Tucker
determined
that the "fruit of the poisonous tree" doctrine did not apply. Id.
at 445
n.19. As a result, although the direct evidence (the defendant's
unwarned statement) had to be suppressed, the derivative evidence
(the testimony of the witness discovered as a result of the
unwarned
statement) was admissible. Id. at 445-46.

When presented with another opportunity to extend the "tainted
fruits" doctrine, the Supreme Court in Elstad once again declined
the
invitation to do so. In Elstad, two officers went to the
defendant's
home with a warrant for his arrest. 470 U.S. at 300. After
executing
the warrant, the officers questioned Elstad about his role in the
bur-
glary of a neighbor's house. As a result of the interrogation,
Elstad
confessed to his involvement in the crime. See id. at 301. The
defen-
dant was then escorted to the police station where the officers
advised
him for the first time of his Miranda rights. After waiving his
rights,
the defendant once again confessed to the burglary. See id. Later,
the
defendant sought to suppress his second confession as the "fruit of
the
poisonous tree," arguing that it was obtained only as the result of
his
first confession that was made in violation of Miranda. See id. at
302.

The Elstad majority, however, held that the"tainted fruits"
doctrine
did not apply to the second confession for the same reasons the
doc-
trine did not apply in Tucker. See id. at 308. Specifically, the
Court
held that "[s]ince there was no actual infringement of the
suspect's
constitutional rights, the case was not controlled by the doctrine
expressed in Wong Sun that fruits of a constitutional violation
must
be suppressed." Id. (emphasis added). As a result, although the
direct
evidence (the defendant's first confession) had to be suppressed,
the
derivative evidence (the second confession that was obtained as a
result of the first confession) was admissible. See id. at 309.

Although the Supreme Court has not specifically rejected applica-
tion of the "fruit of the poisonous tree" doctrine to physical
evidence
discovered as the result of a statement obtained in violation of
Miranda,7
_________________________________________________________________
7 Prior to writing the majority opinion in Elstad, Justice O'Connor
argued against applying the "fruits of the poisonous tree" doctrine
to

10
it is clear to us that the Court's reasoning in Tucker and Elstad
com-
pels that result.8 Accord United States v. Gonzalez-Sandoval, 894
F.2d
_________________________________________________________________

physical evidence discovered as the result of a statement obtained
in vio-
lation of Miranda. See New York v. Quarles, 467 U.S. 649, 671 n.4
(1984) (O'Connor, J., concurring) ("Wong Sun is inapplicable in
cases
involving mere departures from Miranda. Wong Sun and its `fruit of
the
poisonous tree' analysis lead to exclusion of derivative evidence
only
where the underlying police misconduct infringes a`core'
constitutional
right."). In Quarles, a young woman told two police officers that
she had
just been raped. After describing Quarles, the victim told the
officers that
he had just entered a store located nearby and that he was carrying
a gun.
After entering the store the officers quickly spotted a man fitting
the
description of Quarles. After a short chase, Quarles was caught and
searched. Because he was wearing an empty shoulder holster, the
arrest-
ing officer asked Quarles, prior to reading him his Miranda
warnings,
where the gun was. See id. at 651-52. Quarles nodded in the
direction of
some empty cartons and stated, "the gun is over there." Id. at 652.
The
majority held that the state court had erred in suppressing
Quarles's
statement and the gun. According to the Court, a statement made
without
the necessary Miranda warnings is admissible if obtained under
emer-
gency circumstances. See id. at 655-56. Justice O'Connor, however,
believed that the defendant's statement concerning the location of
the
weapon should have been suppressed, but that the actual weapon
should
have been admitted. See id. at 660 (noting that "nothing in Miranda
or
the privilege itself requires exclusion of nontestimonial evidence
derived
from informal custodial interrogation").
8 In applying the "fruit of the poisonous tree" doctrine to the
facts in
this case, the district court cited for support this Court's
decision in
United States v. Mobley, 40 F.3d 688 (4th Cir. 1994), cert. denied,
115
S. Ct. 2005 (1995). In Mobley, FBI special agents arrived at
Mobley's
apartment with arrest and search warrants. Prior to executing the
search
warrant, Mobley was asked, after he had invoked his right to speak
to an
attorney, whether he had any weapons in his apartment. After
stating that
there was a weapon in his bedroom closet, Mobley led the officers
to it.
See id. at 690-91. Although agreeing that Mobley's answer to the
police's questioning regarding the presence of a gun should have
been
suppressed, the Court held that the gun was admissible because
discov-
ery of it was inevitable. See id. at 693 (noting that the police
had a search
warrant for Mobley's apartment). In addition to so holding, the
Mobley
Court mused that absent the search warrant, the gun obtained as a
result
of the Miranda violation might be suppressed as "fruit of the
poisonous

11
1043, 1048 (9th Cir. 1990) (finding that the "tainted fruits"
doctrine
does not apply to physical evidence obtained as a result of a
Miranda
violation); see also Wayne R. LaFave & Jerald H. Israel, Criminal
Procedure § 9.5(b), at 201 (Supp. 1991) (noting that " Elstad only
rejected application of the fruits doctrine as applied to a
subsequent
confession" and stating that "there is much in the Court's opinion
that
suggests that the fruits doctrine should also be inapplicable to
physi-
cal evidence acquired through a Miranda-violative confession"). The
holdings in Tucker and Elstad could not be any clearer: the
"tainted
fruits" analysis applies only when a defendant's constitutional
rights
have been infringed. See, e.g., Elstad at 305 (noting that the
"`fruit of
the poisonous tree' [doctrine] assumes the existence of a constitu-
tional violation"); id. at 308 (noting that "[s]ince there was no
actual
infringement of the suspect's constitutional rights, the case was
not
controlled by the doctrine expressed in Wong Sun "); id. (noting
under
the Wong Sun doctrine "that fruits of a constitutional violation
must
be suppressed"). It is well established that the failure to deliver
Miranda warnings is not itself a constitutional violation.9 As a
result,
_________________________________________________________________
tree." Id. (citing Wong Sun v. United States, 371 U.S. 471 (1963)).
How-
ever, the "tainted fruit" discussion in Mobley was neither
necessary for
the Court's actual holding nor asserted as a correct statement of
the law
and can be best described as dicta. See Bettius & Sanderson, P.C.
v. Nat'l
Union Fire Ins. Co., 839 F.2d 1009, 1019 n.3 (4th Cir. 1988)
(Murna-
ghan, J., concurring in part and dissenting in part) (stating that
"[t]o reach
out and decide what need not be decided is frequently denigrated as
dic-
tum"). As a result, the district court was not bound by Mobley in
this
case. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115
S. Ct. 386, 391 (1994) (observing that a court may refuse to follow
dicta
contained in a prior decision).
9 "The prophylactic Miranda warnings . . . are `not themselves
rights
protected by the Constitution.'" New York v. Quarles, 467 U.S. 649,
654
(1984) (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)); see
also
Oregon v. Elstad, 470 U.S. 298, 306 (1985) (noting that the Miranda
exclusionary rule "may be triggered even in the absence of a Fifth
Amendment violation"); Edwards v. Arizona, 451 U.S. 477, 492 (1981)
(Powell, J., concurring) (noting that the Court in Miranda "imposed
a
general prophylactic rule that is not manifestly required by
anything in
the text of the Constitution"); Miranda v. Arizona, 384 U.S. 436,
467
(1966) (disclaiming any intent to create a "Constitutional
straightjacket").

12
we hold that Wong Sun and its "fruit of the poisonous tree"
analysis
is inapplicable in cases involving mere departures from Miranda.
Accordingly, derivative evidence obtained as a result of an
unwarned
statement that was voluntary under the Fifth Amendment is never
"fruit of the poisonous tree." See id. at 309; see also Correll v.
Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995) (noting that evidence
obtained in violation of Miranda is not necessarily tainted), cert.
denied, 116 S. Ct. 688 (1996); United States v. Crowder, 62 F.3d
782,
786-88 (6th Cir. 1995) (noting that the "fruit of the poisonous
tree"
doctrine does not apply to evidence obtained as a result of an
unwarned statement if the statement was voluntary under the Fifth
Amendment), cert. denied, 116 S. Ct. 731 (1996); United States v.
McCurdy, 40 F.3d 1111, 1116-117 (10th Cir. 1994) (same).

B.

In light of our conclusion that a Miranda violation cannot be a
"poisonous tree," whether the challenged evidence must be sup-
pressed as "tainted fruit" turns on whether Elie's statement that
he had
weapons in his hotel rooms was involuntary under the Fifth Amend-
ment. The Fifth Amendment guarantees that "[n]o person . . . shall
be
compelled in any criminal case to be a witness against himself . .
.
without due process of law." As a result, a statement is
involuntary
under the Fifth Amendment only if it is "involuntary" within the
meaning of the Due Process Clause. See Elstad , 470 U.S. at 304
(cit-
ing Haynes v. Washington, 373 U.S. 503 (1963)); Chambers v.
Florida, 309 U.S. 227 (1940)). In Colorado v. Connelly, 479 U.S.
157
(1986), the Supreme Court held that "coercive police activity is a
nec-
essary predicate to the finding that a [statement] is not
`voluntary'
within the meaning of the Due Process Clause." Id. at 167. The
ques-
tion before us then is whether Elie's statement was the result of
coer-
cive police conduct or activity. That question can be answered only
_________________________________________________________________
As a result, errors made by law enforcement officers in
administering the
prophylactic Miranda procedures are treated differently from errors
that
violate a constitutional right like the Fourth or Fifth Amendment.
See
Elstad 470 U.S. at 306 (noting that the Court"explained in Quarles
and
Tucker, [that] a procedural Miranda violation differs in
significant
respects from violations of the Fourth Amendment").

13
by reviewing the circumstances under which the statement was made.
See Haynes, 373 U.S. at 513-14 (noting that we must review the
total-
ity of the circumstances surrounding each statement).

After thoroughly reviewing the circumstance under which Elie
stated that he had weapons in his hotel rooms, we can find no evi-
dence that the officers used any technique or method that would
offend due process. The officers did not harm or threaten to harm
Elie
if he did not answer their questions. See, e.g. , Beecher v.
Alabama,
389 U.S. 35, 36 (1967) (statement obtained after police held a gun
to
suspect's head); Payne v. Arkansas, 356 U.S. 560, 564-65 (1958)
(statement obtained after police threatened to turn suspect over to
an
angry mob); Brown v. Mississippi, 297 U.S. 278, 281-82 (1936)
(statement obtained after police whipped suspect). The officers did
not deprive Elie of anything. See, e.g., Malinski v. New York, 324
U.S. 401, 403, 406-07 (1945) (statement obtained after forcing sus-
pect to remain naked); Reck v. Pate, 367 U.S. 433, 441 (1961)
(state-
ment obtained after depriving suspect of adequate food, sleep, and
contact with family); Brooks v. Florida, 389 U.S. 413, 414-15
(1967)
(statement obtained after depriving suspect of food and keeping
sus-
pect naked in a small cell). The officers did not subject Elie to
a
lengthy period of interrogation or isolation. See, e.g., Ashcraft
v.
Tennessee, 322 U.S. 143, 154 (1944) (statement obtained after
inter-
rogating suspect virtually nonstop for 36 hours); Davis v. North
Carolina, 384 U.S. 737, 52 (1966) (statement obtained after
isolating
suspect for several weeks). Nor did the officers try to deceive
Elie.
See, e.g., Spano v. New York, 360 U.S. 315, 323 (1959) (statement
obtained after suspect erroneously told that a friend, who had
three
children and a pregnant wife, would lose his job); Leyra v. Denno,
347 U.S. 556, 559-61 (1954) (statement obtained after hours with
psychiatrist trained in hypnosis, although suspect erroneously told
that doctor was a general practitioner). In short, we cannot find
the
kind of coercive police conduct that is necessary to render Elie's
statement involuntary under the Due Process Clause.

Elie contends that his unwarned statements at the hotel, which
would include his statement concerning the location of the weapons,
were involuntary because they were obtained immediately after he
was arrested at gunpoint and placed in handcuffs. Although Elie was
arrested at gunpoint and handcuffed in the hotel restaurant, his
state-

14
ment concerning the weapons was made after the police holstered
their guns and moved him to another part of the hotel. In any
event,
we have previously held that neither the drawing of a gun by the
interrogating officer nor the handcuffing of the confessor "estab-
lish[es] involuntariness in and of [itself]." United States v.
Seni, 662
F.2d 277, 281-82 (4th Cir. 1981) (holding in custodial
interrogation
case that voluntariness is "to be determined from the `totality of
all
the surrounding circumstances'" (quotation and citations omitted)).

Because a defendant must demonstrate that the police activity used
to elicit the incriminating statement was coercive, it is not
surprising,
as Judge Posner has noted, that "very few incriminating statements,
custodial or otherwise, are held to be involuntary." United States
v.
Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990). We find that this
case
is no exception. Elie's incriminating statement was elicited
without
the aid of any coercive conduct on the part of the officers.
Specifi-
cally, nothing in the record suggests that Elie's"will was
overborne."
See Reck, 367 U.S. at 440. As a result, Elie's statement was
voluntary
under the Fifth Amendment. Accordingly, we find that the district
court erred in suppressing the challenged evidence as "fruit of the
poi-
sonous tree."

III.

Although we conclude that the district court erred in suppressing
the evidence found in Elie's hotel rooms as "fruit of the poisonous
tree," there must be a basis under the Fourth Amendment for
allowing
the Government to introduce the evidence in its case in chief. It
is
well established that "[t]he Fourth Amendment prohibits
unreasonable
searches, and searches conducted without a warrant are per se
unrea-
sonable unless a valid exception to the warrant requirement is
applica-
ble." United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996)
(en
banc). However, voluntary consent to a search, which the Govern-
ment contends Elie gave, is such an exception. See id.
In determining whether Elie's consent to search was freely and vol-
untarily given, the totality of the circumstances surrounding the
con-
sent must be examined. See Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973). In viewing the totality of the circumstances, we look
for

15
guidance to the factors this Court recently set forth in Lattimore,
87
F.3d at 650. According to Lattimore:

[I]t is appropriate to consider the characteristics of the
accused (such as age, maturity, education, intelligence, and
experience) as well as the conditions under which the con-
sent to search was given (such as the officer's conduct; the
number of officers present; and the duration, location, and
time of the encounter).

Id.
Whether Elie voluntarily consented to the search of his hotel rooms
is a factual question. See id. As a result, this court must affirm
the
determination of the district court unless its findings are clearly
erro-
neous. See id.; cf. Anderson v. City of Bessemer City, N.C., 470
U.S.
564, 573-74 (1985) (holding that a district court's finding that
consent
was voluntary can be reversed only if the district court's view of
the
evidence is implausible in light of the entire record). With that
having
been said, we note that the district court had no occasion to
determine
whether Elie voluntarily consented to the search of his hotel rooms
because it found that Elie's unwarned statement automatically
tainted
the evidence found in the search. Normally we would remand a case
in this situation for the district court to make the necessary
factual
findings. However, we believe, for the reasons that follow, that
remand is unnecessary in this case.

In determining whether consent to search was given voluntarily, we
are instructed by Lattimore to consider the characteristics of the
accused. 87 F.3d at 650 (mentioning age, maturity, education,
intelli-
gence, and experience). These factors are identical to the factors
that
the district court considered when it determined that Elie
knowingly
waived his Miranda rights by speaking to Detective Petta and the
DSS agents. As a result, the district court has already made the
neces-
sary findings of fact.
The district found that Elie was intelligent, well educated, and
familiar with the criminal justice system and its consequences. In
making these findings of fact, the district court noted that Elie
is
forty-six years old, speaks fluent English, holds an advanced
degree

16
in chemistry, and was aware of his Miranda rights. Specifically,
the
district court noted that it was Elie who asked the officers why he
had
not been given his Miranda warnings.

We find that the district court's findings were not clearly
erroneous
and, in fact, were supported by additional evidence in the record.
For
example, the district court's finding that Elie was familiar with
the
criminal justice system extends well beyond his knowledge of
Miranda. Elie claims to have had significant law enforcement
respon-
sibilities with the Haitian Government, at one point boasting to
Detec-
tive Petta that he "almost invented law enforcement" in Haiti.
(J.A.
at 47, 51, 76.) In addition, by revoking his consent to search
certain
documents in his hotel rooms, Elie demonstrated that he was aware
of his right to refuse consent to the search of his hotel rooms.
Based
on this record, it is clear that Elie was no newcomer to the law.
See
United States v. Watson, 423 U.S. 411, 424-25 (1976) (noting that
the
absence of any indication that the defendant was a"newcomer to the
law" is an important factor in determining whether consent was vol-
untary).
In determining whether consent to search was given voluntarily, we
are also instructed by Lattimore that it is appropriate to consider
the
conditions under which the consent to search was given. 87 F.3d at
650 (mentioning factors such as the officer's conduct; the number
of
officers present; and the duration, location, and time of the
encoun-
ter). Obviously, the district court did not make these findings
when
it determined that Elie had waived his Miranda rights by speaking
to
Detective Petta and the DSS agents. Nevertheless, after carefully
reviewing the record, we find nothing in the conditions surrounding
Elie's consent that would render it involuntary. Specifically, the
inci-
dent occurred during the middle of the afternoon in a hotel lobby
and
was not of inordinate duration. Any tension created by the initial
arrest, where Elie was confronted at gunpoint, ordered to the
floor,
and handcuffed, had been defused by the time Elie consented to the
search. The police had long since holstered their guns and Elie had
been moved from the hotel restaurant, where the arrest occurred, to
another part of the hotel. In any event, as we previously noted,
neither
the drawing of a gun by an arresting officer, nor the handcuffing
of
the accused "establish[es] involuntariness in and of [itself]."
Seni, 662
F.2d at 281 (citations omitted). Moreover, although there were at
least

17
six officers present when Elie granted his consent to search,
nothing
in the record indicates an environment that was coercive or
intimidat-
ing. In fact, Elie engaged the officers in friendly conversation
throughout the encounter. As one officer explained, Elie "spoke
non-
stop; we couldn't shut him up." (J.A. at 121.)

Furthermore, Elie's warned statements to Detective Petta make it
unmistakably clear that his consent was given voluntarily. For
exam-
ple, after telling Detective Petta that his hotel rooms contained
the
evidence he had collected during the course of his undercover
investi-
gation of the Haitian Ambassador, Elie warned that he did not "want
to go back to th[ese] room[s] and find that the[y] ha[d] been
cleaned
out by people other than [the police]." (J.A. at 48.) Later, in an
attempt to illustrate the importance of securing the property in
ques-
tion, Elie dramatically declared: "[The Government can] put me in
solitary, but please, the stuff that I have in the room[s] must be
secured." (J.A. at 72.) In fact, Elie's overriding concern during
his
interview with Detective Petta was not the pending assault charges,
but the security of his property. See, e.g., (J.A. at 57 (stating
that the
contents of his hotel rooms were "extremely important")); (J.A. at
64
(noting that the hotel rooms are not secure and that he feared the
offi-
cers did not secure all of his property)); (J.A. at 80 (explaining
that
he insisted that the officers secure the papers in his hotel
rooms)). In
light of the entire record, the only plausible conclusion is that
Elie
voluntarily consented to the search of his hotel rooms.

Elie, of course, disagrees. He argues that his consent to search
the
hotel rooms was not voluntary because it followed a Miranda viola-
tion. Although the absence of Miranda warnings is a factor to be
con-
sidered in assessing whether a defendant's consent was given
voluntarily, see Watson, 423 U.S. at 424-25, we must look at the
totality of the circumstances in determining whether Elie's consent
was given voluntarily. For the reasons already stated, and in light
of
the fact that the district court specifically found that Elie was
aware
of his Miranda rights, we find this argument to be without merit.

Elie also argues that his consent was not voluntary because the
officers failed to inform him of his right to refuse consent.
However,
"the Government need not demonstrate that the defendant knew of his
right to refuse consent to prove that the consent was voluntary."

18
Lattimore, 87 F.3d at 650. In any event, Elie's argument is belied
by
his own conduct. By revoking his consent to search certain
documents
in his rooms, Elie conclusively demonstrated that he knew of his
right
to refuse consent. See Bustamonte, 412 U.S. at 249 (noting that
although the accused's knowledge of his right to refuse consent is
not
a prerequisite in establishing consent, it is a factor).
Consequently, we
find this argument to be without merit.

Finally, Elie argues that his consent was not voluntary because he
was given a "Hobson's choice" when told that he had the option of
having his weapons and other possessions secured by either hotel
management or the police. We reject this argument as well. The
police can give a defendant truthful information, even if that
informa-
tion forces the defendant to make a choice between two unpleasant
alternatives. See United States v. Pelton, 835 F.2d 1067, 1072 (4th
Cir. 1987) (noting that "`a law enforcement officer may properly
tell
the truth to the accused'" (quoting United States v. Williams, 479
F.2d
1138, 1140 (4th Cir. 1973)). Indeed, "[t]ruthful statements about
[the
defendant's] predicament are not the type of`coercion' that
threatens
to render a statement involuntary." Id. at 1073.
IV.

In conclusion, we find that the district court erred in suppressing
the challenged evidence as "fruit of the poisonous tree." The
"fruit of
the poisonous tree" doctrine simply does not apply where, as here,
the
fruits are discovered as the result of a statement obtained in
violation
of Miranda. In addition, we find that Elie voluntarily consented to
the
search of his hotel rooms. As a result, the district court's orders
sup-
pressing the firearms and firearms receipts found in Elie's hotel
rooms, the firearms transaction records obtained from Gilbert Small
Arms, and the testimony of the individual at Gilbert Small Arms who
sold Elie the firearms are reversed, and the case is remanded for
fur-
ther proceedings.

REVERSED
HALL, Circuit Judge, dissenting:

Where an accused's supposed consent to a police search of his per-
son or property is at issue, the law is clear that the reviewing
court

19
must examine the totality of the circumstances to ensure that the
con-
sent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S.
218,
227 (1973). A court should consider (1)the personal characteristics
of the accused, (2)the conditions under which the consent was
obtained, and (3)whether the accused knew that he could lawfully
withhold his consent. United States v. Lattimore , 87 F.3d 647, 650
(4th Cir. 1996) (en banc).

In this case, the court below has made specific findings regarding
only the first of the three Lattimore factors, i.e., that Elie was
a
mature, intelligent, educated adult, who was not entirely
unfamiliar
with our criminal justice system. Confronted with the district
court's
silence as to the second and third factors, the majority has deemed
it
appropriate to make its own findings. See ante at 15-18. In the
course
of its assumption of the district court's role, the majority has
chosen
to emphasize Elie's relative sophistication, while simultaneously
downplaying the manner in which the police obtained Elie's consent
to search his motel rooms.
The conduct of the police in this case was not up to standard.
After
Elie was handcuffed, Sgt. William Desmond asked him whether he
would rather have the contents of his rooms "secured" by the motel
management or by the police. The question is reminiscent of the
hoary chestnut "When did you stop beating your wife?"; it relies on
a wholly speculative assumption to guarantee the answer desired by
the questioner. There was, of course, no reason for Desmond to pre-
sume that Elie would wish to have his possessions"secured" by any-
one, or that Elie could not himself arrange for the security of his
effects.

Under ordinary circumstances, Desmond's concern for an
arrestee's possessions might have been laudable. But these were no
ordinary circumstances. During the course of the investigation,
Des-
mond learned (1)that Elie had made serious threats against
officials
of the Haitian embassy and (2)that he had ready access to firearms.
It is certainly understandable that Desmond would be concerned that
the targets of Elie's threats were at considerable risk of bodily
harm.
Unfortunately, Desmond had no probable cause to believe that Elie
had committed any firearms violations; he could arrest Elie only
for
20
assault and battery, a relatively minor charge that would ensure
Elie's
detention for but a short while.

Viewed in the above light, one must acknowledge the probability
that Desmond's questioning was predesigned to trick Elie into
grant-
ing the arresting officers permission to search his motel rooms for
evidence of crimes more serious than that described in the arrest
warrant.1 If Desmond were found to have engaged in a deliberate
sub-
terfuge, then that fact -- either alone or in conjunction with the
some-
what intimidating tactics used by the police during the arrest --
would support the conclusion that Elie, notwithstanding the
evidence
of his sophistication, did not voluntarily consent to the search.2

An accurate analysis under Lattimore depends, in this case, on an
evaluation of the credibility of the government's witnesses. The
dis-
trict court, unlike the majority, has observed the witnesses'
demeanor
and has, no doubt, made a preliminary assessment of their
credibility.
I would afford the district court the opportunity to perform its
assigned role as the finder of fact. On remand, the court might
well
find that Elie, despite his apparent worldliness, did not
voluntarily
consent to the search of his motel rooms. The government could
appeal such a finding, but we would be bound to let it stand unless
it were clearly erroneous. Lattimore at 650-51. The majority has
fore-
_________________________________________________________________
1 Although I do not subscribe to the majority's conclusion that
evidence
may never be suppressed as the "fruit" of a Miranda violation, ante
at
9-13, I agree that the district court's focus on Elie's failure to
receive
Miranda warnings was misplaced in this case. In my view, Desmond
would likely have tried to obtain Elie's consent to search even had
Elie,
in response to Desmond's unwarned questioning, denied having
firearms
in his motel rooms. It seems far more probable that the seized
evidence
were fruits of an invalid consent search than of the Miranda
violation.
2 The government has argued that the testimony and other evidence
obtained from the firearms dealer, who was identified from receipts
found in Elie's rooms, would have been inevitably discovered as the
result of Elie's mentioning the transactions during the course of
his for-
mal interrogation. The government has neglected to acknowledge the
likelihood that, had the arresting officers not searched Elie's
motel
rooms, he would have had no reason to refer to the firearms during
his
questioning.
21
closed this possibility by circumventing the long-settled practice
of
limited appellate review. Though I am certain that the majority
intends nothing more than to achieve the just result in this case,
I can-
not approve of its approach; our job is difficult enough without
assuming the mantle of factfinder.

I respectfully dissent.
22