NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0808n.06
No. 11-1331
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES of AMERICA, ) Jul 26, 2012
)
LEONARD GREEN, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CHARLES EARL WATSON, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
) OPINION
Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
DONALD, Circuit Judge. Defendant-Appellee Charles Earl Watson was charged in the
Eastern District of Michigan with (1) possession with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute marijuana,
in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1). The district court granted Watson’s motion to suppress evidence
found on Watson’s person and his post-arrest statements. The government appeals the district court’s
order granting Watson’s motion to suppress his post-arrest statements. For the following reasons,
we affirm.
No. 11-1331
United States v. Watson
I.
At about 4:25 p.m. on April 20, 2010, Deputy Anthony Shepard and Sergeant Tommy
Schuette of the Jackson County Sheriff’s Department, with the assistance of a confidential informant
(“C.I.”), executed a controlled purchase of crack cocaine in Jackson, Michigan. The C.I. arranged
the purchase with a man named Lewis and instructed Lewis to meet him at Lewis’s home at 808
Second Street (“the home”). Lewis and a female companion arrived at the home in a red Ford
Expedition and went inside with the C.I., who paid for the drugs with two $20 bills with pre-
recorded serial numbers.
After the controlled purchase took place, the C.I. informed the officers that there was an
unnamed man visiting from Detroit in the home and that this man showed him an Arizona Iced Tea
can with a false bottom containing narcotics in the freezer of the home. Sergeant Schuette relayed
this information to Deputy Mark Easter, who was in the area in a marked car. Easter was directed
to go to the Sheriff’s Office and prepare a search warrant for the home.
While awaiting the search warrant, the officers observed Lewis and his female companion
exit the home and drive off in the red Ford Expedition. Deputy Easter was instructed to perform a
traffic stop of the Expedition in the hope of securing any evidence in the couple’s possession. Easter
conducted the stop about three or four blocks from the home. The driver of the Expedition was
identified as Lewis Timothy Earnest, and the woman was identified as Teresa Ann Adams. Earnest
confirmed to Easter that there was a man visiting from Detroit inside the home. During an inventory
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search of the vehicle, Easter discovered one of the pre-recorded $20 bills used in the controlled buy.
After the traffic stop, Deputy Easter returned to the station to prepare a search warrant for the home.
Deputy Shepard testified that he and Sergeant Schuette had previously worked in the
neighborhood and had determined that it was a high drug activity area. Shepard also testified that
it was customary for people in the neighborhood to alert each other to a traffic stop of one of their
neighbors. Believing that someone would alert the unknown man from Detroit to the traffic stop of
Lewis, Shepard and Schuette decided to secure evidence they thought was in the home, even though
they had not yet obtained the search warrant. The officers called for backup, and Shepard went to
the front door of the house while Schuette went to the back door. Officer Thomas Tinklepaugh of
the Jackson City Police arrived at the scene in full uniform and in a marked car. He joined Shepard
at the front door of the house. Shepard noticed that the front door was open but the screen door was
closed. He testified that he smelled raw marijuana and saw a man, later identified as Watson, inside
the home. Shepard opened the screen door, entered the home with his gun drawn and instructed
Watson to get on the floor. Shepard then holstered his gun and performed a leg sweep to take
Watson to the ground. Officers searched Watson’s person and found crack cocaine and $1,992.00
in cash. One of the pre-recorded $20 bills was also found on Watson. Officers did not question
Watson at the scene, but immediately transported him to the Sheriff’s Department.
Shepard and Schuette then conducted a protective sweep of the home to secure their safety.
Both officers testified that they did not search the home for contraband, but only for persons. While
awaiting the search warrant, the officers secured the home and stood inside the living room of the
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United States v. Watson
residence. Schuette testified that he instructed all of the officers on the scene to remain with him and
not to search the home until the warrant arrived. A magistrate judge signed the search warrant at
about 5:55 p.m., and Deputy Easter returned to the home with the warrant. The officers first used
a K-9 unit to search for narcotics. The dog alerted the officers to narcotics, and crack cocaine,
marijuana, heroin, and ecstacy were recovered from the home. Officers also found cocaine inside
a beverage can in the freezer and a bloody, loaded .45 caliber semi-automatic pistol underneath the
couch in the living room.
Once officers completed the search of the home, Deputy Easter returned to the station. Easter
read Watson his Miranda rights, but did not have Watson sign anything. At about 10:15 p.m.,
Watson waived his Miranda rights and voluntarily made a statement to Easter admitting knowledge
and possession of the firearm and drugs seized from the home. Deputy Easter testified that he did
not coerce Watson into making the statement.1 He also testified that Watson did not ask for food or
drink, nor did Watson appear intoxicated at the time of his statement.2
On September 13, 2010, Watson filed a motion to suppress evidence seized without a warrant
on April 20, 2010. Watson sought suppression of evidence found on his person, evidence found in
the home, and his post-arrest statements. The district court granted the motion as to the evidence
1
Deputy Easter initially testified that he did not lie to Watson, but he did tell Watson that his
(Watson’s) fingerprints were found on the firearm and the drugs, and that the Detroit Police
Department had been contacted. Neither of these statements was true at the time.
2
Watson did state that he consumed ½ of a ½ pint of alcohol prior to his arrest. Watson does
not claim he was intoxicated at the time of his statement.
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United States v. Watson
found on Watson’s person and denied the motion as to the evidence found in the home. The district
court held a second evidentiary hearing to determine if the post- arrest statements should be
suppressed. The district court ordered supplemental briefing and ultimately granted Watson’s
motion to suppress the post-arrest statements. The district court concluded that the warrantless entry
into the home and arrest of Watson were purposeful and flagrant and that there was no intervening
event sufficient to purge the taint of the illegal entry, and thus Watson’s statements were fruit of the
poisonous tree and must be suppressed. The district court denied the government’s motion for
reconsideration. The government now appeals the district court’s order granting Watson’s motion
to suppress his post-arrest statements.
II.
We review a district court’s grant of a motion to suppress under a mixed standard of review.
Findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. United
States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). When a motion to suppress is granted by the
district court, this Court reviews the evidence in the light most favorable to the defendant. United
States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002).
A. Watson’s Arrest
The Fourth Amendment prohibits unreasonable searches and seizures and mandates that “no
Warrants shall issue but upon probable cause . . .” U.S. Const. amend. IV. The Supreme Court has
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interpreted this as requiring officers to obtain a warrant supported by probable cause before they may
lawfully enter a home. United States v. United States Dist. Ct., 407 U.S. 297, 315-16 (1972).
While “searches and seizures inside a home without a warrant are presumptively
unreasonable,” the Court instructs that without a warrant, “officers need . . . probable cause plus
exigent circumstances in order to make a lawful entry into a home.” Payton v. New York, 445 U.S.
573, 586; 590 (1980); see also Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (emphasis added). “To
be arrested in the home involves not only the invasion attendant to all arrests but also an invasion
of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at
least in the absence of exigent circumstances, even when it is accomplished under statutory authority
and when probable cause is clearly present.” Payton, 445 U.S. at 588-89 (citing United States v.
Reed, 572 F.2d 412, 423 (1978)).
Based on the controlled buy occurring at the home a short time before the entry, officers did
in fact have probable cause to search Lewis’s home. Officers also claimed that exigent circumstances
existed to overcome the lack of a warrant. The Sixth Circuit defines exigent circumstances as
“situations where ‘real immediate and serious consequences’ will ‘certainly occur’ if the police
officer postpones action to obtain a warrant.” Thacker v. City of Columbus, 328 F.3d 244, 253 (6th
Cir. 2003) (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002)). The “need to
prevent evidence from being lost or destroyed” constitutes exigent circumstances permitting an
officer’s warrantless entry into a home. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)
(holding that police may enter a home without a warrant to “prevent imminent destruction of
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United States v. Watson
evidence”); United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988). Whether
exigent circumstances exist in a given situation is not judged by the subjective belief of the officers.
Brigham, 547 U.S. at 404. “An action is ‘reasonable’ under the Fourth Amendment, regardless of
the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the]
action.” Id. (emphasis in original).
Officer Shepard testified that they entered the home based on exigent circumstances because
they believed that someone in the neighborhood would alert Watson to Lewis’s traffic stop and that
Watson would then attempt to flee the home with evidence or destroy evidence before officers could
obtain a search warrant. The district court did not credit this argument and aptly stated:
The Prosecution’s argument that “someone” from the neighborhood would send a
“heads up” to “someone” at the 808 Second residence is too broad and sweeping of
a statement especially since in this instance the man was not from the neighborhood.
It may be, as testified to by the deputies at the hearing, that the neighborhood is
known as a “high crime” area. It may be that the neighbors are well known to each
other. However, the Court is unable to jump to the conclusion that just because
“everyone” in the neighborhood knows “everyone else” in the neighborhood, that
“everyone” or “anyone” or “someone” who saw the traffic stop a few blocks from
808 Second, would call “someone,” who is not from the neighborhood, at 808
Second, to report the traffic stop. This would mean that “everyone” in the
neighborhood was in some way aiding “everyone else” or “anyone else” in the
neighborhood, in hiding a crime, in this case, distribution of drugs. There was no
testimony that anyone witnessed the traffic stop a few blocks away from 808 Second.
There is also no testimony that if witnessed, those persons who witnessed the stop
knew those who were stopped or knew where they came from or where they lived.
The Court finds unreasonable that persons who may have witnessed the traffic stop
a few blocks away, would necessarily know what the traffic stop was about and to
whom it should be reported. The traffic stop could have very well been a “normal”
traffic stop, such as speeding, as opposed to a traffic stop in order to prevent the
destruction of evidence from a controlled buy which occurred a few blocks away
from 808 Second. How would a person who witnessed a traffic stop a few blocks
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away know that it was a result of a controlled buy which occurred a few minutes
earlier at that address?
(emphasis in original). The district court correctly found that the officers’ belief that exigent
circumstances existed to enter the home without a warrant was unreasonable in light of the facts of
this case. Since the officers lacked exigent circumstances to enter the home, Watson’s arrest was
the product of an illegal entry and was therefore unconstitutional. Payton, 445 U.S. at 590.
Because the entry into the home violated the Fourth Amendment, Watson’s subsequent arrest
was unlawful, and his post-arrest statements that flowed from the unlawful arrest are fruit of the
poisonous tree and subject to the exclusionary rule. Id.
B. Post-Arrest Statements
“In order to make effective the fundamental constitutional guarantees of sanctity of the home
and inviolability of the person, ... evidence seized during an unlawful search could not constitute
proof against the victim of the search[,] . . . The exclusionary prohibition extends as well to the
indirect as the direct products of such invasions.” Wong Sun v. United States, 371 U.S. 471, 484-85
(1963).
The government relies on New York v. Harris to argue that because Watson’s post-arrest
statements were made at the police department hours after his arrest, the exclusionary rule does not
bar their admission. 495 U.S. 14, 21 (1990). Harris held that “where the police have probable cause
to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the
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defendant outside of his home, even though the statement is taken after an arrest made in the home
in violation of Payton.” Harris, 495 U.S. at 21; see also United States v. Hudson, 405 F.3d 425, 439
(6th Cir. 2005). The Harris court’s holding is premised on the existence of probable cause to arrest
prior to entry into the home. Harris specifically states that “[b]ecause the officers had probable
cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the
station house, given Miranda warnings, and allowed to talk.” Id. at 18. Watson’s case is therefore
distinguishable on the very grounds on which the Harris decision was based.
Officers did not enter Lewis’s home with the intent to arrest Watson; they instead entered for
the purposes of securing evidence. Given that officers only had probable cause to search Lewis’s
home but lacked probable cause to arrest Watson, Harris does not control. Under Harris, if officers
lack probable cause to arrest, the arrest is illegal, and the officers’ control over the defendant’s
person then results in wrongful detention. Harris, 495 U.S. at 18. Thus, because Watson was
illegally arrested and, as a result, wrongfully detained, his post-arrest statements are not admissible
absent sufficient attenuation.
C. Attenuation
In Wong Sun, the Supreme Court explained the doctrine of attenuation by stating, “We need
not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to
light but for the illegal actions of the police. Rather, the more apt question in such a case is
‘whether, granting establishment of the primary illegality, the evidence to which instant objection
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is made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’” 371 U.S. 471, 487-88. As such, Brown v. Illinois
suggests four factors relevant to the attenuation analysis: the voluntariness of a confession, the
temporal proximity of the illegality and the evidence at issue, whether intervening circumstances are
present, and whether the official conduct was purposeful and flagrant. 422 U.S. 590, 603-604
(1975); see also United States v. Fofana, 666 F.3d 985, 993 (6th Cir. 2012).
Thus, the primary inquiry here is whether Watson’s post-arrest statements should be admitted
into evidence despite the illegal actions of the police because they came “by means sufficiently
distinguishable to be purged of the primary taint.” Brown, 422 U.S. at 599. To determine whether
a confession was obtained by exploitation or is sufficiently attenuated from the taint of the illegal
arrest, we first look to see if Miranda warnings were given and if the resulting confession was an act
of free will. Id. at 600-02.
i. Voluntariness
While at the police station, Deputy Easter read Watson his Miranda rights. Watson waived
his rights under Miranda and subsequently offered a statement claiming ownership of the gun and
some of the drugs found at the home after the search. Watson does not claim that he was forced or
coerced into making these statements, and thus, they appear to be voluntary under the Fifth
Amendment. Brown, 422 U.S. at 601-602; United States v. Shaw, 464 F.3d 615, 626 (6th Cir. 2006).
Miranda warnings, however, do not, by themselves, “attenuate the taint of an unconstitutional
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arrest[.]” Brown, 422 U.S. at 602.
ii. Temporal Proximity
“There is no ‘bright-line’ test for temporal proximity.” United States v. Wolfe, 166 F. App’x
228, 234 (6th Cir. 2006) (unreported) (quoting United States v. Reed, 349 F.3d 457, 463 (7th Cir.
2003). Courts have found that, standing alone, as little as two hours of illegal detention to as many
as six hours were insufficient to purge the taint. Dunaway v. New York, 442 U.S. 200, 218 (1979);
Taylor v. Alabama, 457 U.S. 687, 691 (1982). Here, Watson was illegally detained for
approximately five hours before his statements were made. Because the length of detention is not
dispositive, the temporal proximity factor should be considered “in conjunction with any intervening
circumstances.” Wolfe, 166 F. App’x at 234; see Reed, 349 F.3d at 464.
iii. Intervening Circumstances
The government argues that the execution of the search warrant for Lewis’s home serves as
an intervening circumstance sufficient to purge the taint of Watson’s illegal arrest. Case law does
not support this argument. The government cites United States v. Gross, 662 F.3d 393, 402 (6th Cir.
2011),3 to support its contention that the executed search warrant weighs in favor of attenuation. The
Government’s position is based on a mischaracterization of the Gross opinion. Gross specifically
3
The government originally cited Unites States v. Gross, 624 F.3d 309, 318-319 (6th Cir.
2010) as authority for this point of law. However, the Gross opinion was amended and is now cited
as United States v. Gross, 662 F.3d 393 (6th Cir. 2011).
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states, “We have never adopted ...[the Seventh Circuit’s treatment of a warrant as an intervening
circumstance] approach as the law of this circuit.” Id. at 403. Moreover, attenuation in Gross was
found as it pertained to a DNA swab of the defendant five days after his arrest and only after police
obtained a search warrant. Additionally, the defendant in Gross voluntarily sought out authorities
to give another statement two months after the arrest and a second waiver of his Miranda rights. Id.
That situation is clearly distinguishable from the case at bar where Watson’s statements were made
after a warrantless entry into the home in which he was staying in the immediate aftermath of his
illegal arrest.
The government’s reliance on Hudson v. Michigan, 547 U.S. 586, 592 (2006), also misses
the mark. The government’s brief quotes Hudson for the proposition that “‘[w]hether that
preliminary misstep of [illegal arrest] had occurred or not, the officers would have executed the
warrant they had obtained, and would have discovered the gun and drugs inside the house.’”
(Appellant’s Br. at 18) (quoting Hudson, 547 U.S. at 592). In Hudson, the Supreme Court held that
violation of the knock-and-announce rule did not require the suppression of all evidence found in
the search. 547 U.S. at 594, 599. The police in Hudson already possessed a valid search warrant and
were executing it on the residence in question when they violated the knock-and-announce rule. Id.
at 588. The Hudson court indicated that “the knock-and-announce rule has never protected . . . one’s
interest in preventing the government from seeing or taking evidence described in a warrant[,]” and
it also has “nothing to do with the seizure of the evidence, [and thus] the exclusionary rule is
inapplicable.” Id. at 594. In contrast, there was no search warrant at the time officers entered
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Lewis’s home to arrest Watson. The exclusionary rule is certainly potentially applicable in the face
of this Fourth Amendment violation. See Payton v. New York, 445 U.S. 573, 577 (1980).
The government further argues that even if they did not have probable cause when Watson
was arrested, they surely had it once the search warrant was executed. Officers must have probable
cause at the time of the arrest, not afterwards. Beck v. State of Ohio, 379 U.S. 89, 91 (1964)
(“Whether [the] arrest was constitutionally valid depends in turn upon whether, at the moment the
arrest was made, the officers had probable cause to make it . . .”) (emphasis added).
Given the foregoing, we reject the government’s argument that the later-obtained search
warrant serves as an intervening circumstance for attenuation.
iv. Purpose and Flagrancy of Police Misconduct
In determining the purpose and flagrancy of police misconduct, we consider whether the
arrest was investigatory by design and execution and also whether the arrest was calculated to “cause
surprise, fright, and confusion.” Wolfe, 166 F. App’x at 236 (citing Brown, 422 U.S. at 605). An
investigatory arrest is prohibited in the absence of probable cause. Shaw, 464F.3d at 631; see also
Brown, 422 U.S. at 606 (finding the arrest investigatory because “the detectives embarked upon this
expedition for evidence in the hope that something might turn up”). Moreover, a finding of
“‘purposeful and flagrant’ misconduct is not limited to situations where the police act in an outright
threatening or coercive manner.” Shaw, 464 F.3d at 630; see Dunaway, 442 U.S. at 218-19.
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The district court found that the officers’ misconduct was purposeful and flagrant.
Purposefulness was found on the basis that officers purposefully entered the home without a warrant,
without probable cause to arrest, and lacking exigent circumstances. Id. The district court reasoned
that the officers’ misconduct was flagrant because after they arrested Watson their “full intent . . .
was to question him after the search had taken place.” Id. The district court’s conclusion was
correct.
In sum, while Watson’s post-arrest statements were voluntary, the remaining Brown factors
do not support a finding that there was sufficient attenuation between the arrest and his statements
to purge the primary taint.
III.
Because officers lacked exigent circumstances to enter Lewis’s home without a warrant,
Watson’s arrest was illegal, and his post-arrest statements were not sufficiently attenuated from the
illegal arrest to purge its taint. We therefore affirm the district court’s order granting Watson’s
motion to suppress his post-arrest statements.
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