Case: 16-41057 Document: 00514400036 Page: 1 Date Filed: 03/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-41057
Fifth Circuit
FILED
March 23, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
ELIGIO SAN MIGUEL MENDEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, DENNIS, and COSTA, Circuit Judges. ∗
KING, Circuit Judge:
Eligio San Miguel Mendez was one of the targets of a gang and narcotics
investigation. Officers secured a search warrant for his residence but were
unable to arrange for a SWAT team to assist them. As a result, they decided to
wait for him to leave the residence before moving in for the search. Once he
left, the officer leading the search directed nearby officers to stop his vehicle
and detain him while the search was underway. The Government does not
contest on appeal that the stop was in violation of Bailey v. United States, 568
U.S. 186 (2013). After the officers detained Mendez, they found a revolver in
his car. The search team later discovered ammunition and an empty Glock
∗
Judge Dennis concurs in the judgment.
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pistol case in the residence. Mendez was then arrested for being a felon in
possession of a firearm and interrogated at a police station. He told officers
where they could find the pistol, and he confessed to ownership of the firearms
and ammunition. Before trial, Mendez moved to suppress all of the
Government’s evidence, except for the ammunition found during the execution
of the search warrant. The district court suppressed the revolver, but admitted
the pistol and Mendez’s statements. Mendez was convicted following a jury
trial of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). He now appeals the admission of the statements, arguing that they
were tainted by the unlawful stop and search of his vehicle. We conclude that
the connection between the unlawful stop and search and Mendez’s subsequent
statements was sufficiently attenuated and AFFIRM Mendez’s conviction and
sentence.
I.
In January 2015, Special Agent Richard Russell of the Texas
Department of Public Safety (“DPS”) started investigating the Tango Corpitos
gang in Corpus Christi. The investigation quickly led Russell to Eligio San
Miguel Mendez. Russell discovered that Mendez had, in his words, “quite an
extensive criminal history.” During the investigation, Russell, working
undercover, and a confidential source allegedly bought narcotics from Mendez
on several occasions. Russell testified at the suppression hearing that Mendez
sold narcotics from a property that was partially a mechanic shop and partially
a residence. Mendez lived there with his father, girlfriend, and child.
Russell secured a search warrant for Mendez’s residence on February 18,
2015, which he planned to execute two days later. Russell had obtained a no-
knock warrant based on information that Mendez was dangerous and “very
unstable.” Mendez was a suspect in a drive-by shooting, and Russell saw bullet
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holes in vehicles around his residence. Russell was also aware of Mendez’s
extensive criminal history and believed that Mendez had firearms at the
residence. At the suppression hearing, Russell testified that he tried to find a
SWAT team to assist in the search. His efforts were ultimately unsuccessful.
The DPS SWAT team was unavailable. Although the Corpus Christi Police
Department’s SWAT team initially agreed to help, two of its members were
shot the day before the search while executing a narcotics search warrant at
another residence nearby.
Unable to secure a SWAT team, Russell instead decided to surveil
Mendez’s residence and execute the warrant only once he had left. And so
Russell parked his unmarked car across the street from Mendez’s residence at
8:30 in the morning on February 20. An entry team and two marked Corpus
Christi police cars were stationed a short distance away, out of sight of the
residence. Russell waited an hour and a half for Mendez to leave. During that
time, he saw Mendez engage in what he believed, based on his training and
experience, to be hand-to-hand drug transactions.
Mendez finally left the residence with his girlfriend around 10:00 a.m.
As soon as Mendez left the residence, Russell told the entry team to move in
and start the search. Russell then contacted the marked units and told them
to stop Mendez. Russell immediately began to follow Mendez, who, according
to Russell, “was moving pretty quick.” Once the marked units caught up,
Russell pulled over to the side and let them pass him. The marked units
ultimately stopped Mendez less than one minute after he left his residence,
roughly a half-mile away. Russell returned to the residence after he saw the
marked units stop Mendez.
Officer Adam Thurman—one of the officers who stopped Mendez—
testified at the suppression hearing. He explained that he stopped Mendez
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solely because Russell asked him to. He had not seen Mendez commit any
traffic violations and had no reason to believe that he was carrying contraband.
Nor was there any indication that Mendez was returning to the residence.
Thurman knew, however, that DPS believed that Mendez was armed and
dangerous, and he attended Russell’s pre-search briefing. After he stopped
Mendez, Thurman frisked him and detained him in the back of Thurman’s
vehicle. The officers detained Mendez’s girlfriend in a separate vehicle.
Thurman then did a “security sweep” of Mendez’s vehicle. He opened a purse
that he found on the floorboard in front of the passenger seat. Inside, he found
an object wrapped tightly in a blue bandana. The object felt like a pistol or
revolver, but Thurman did not unwrap the bandana or inspect the object. That
object turned out to be a revolver, fully loaded with five rounds. During this
time, Thurman asked Mendez for identifying information but did not question
him about anything else.
Thurman drove Mendez back to the residence once it had been secured.
During the search, officers discovered loose ammunition and an empty Glock
pistol case. 1 After officers completed the search, they transported Mendez to
the DPS office, where they placed him under arrest and interrogated him.
Juan Hernandez, an agent of the U.S. Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”), interrogated Mendez along with DPS agent
David Poland and testified at the suppression hearing. The agents advised
Mendez of his Miranda rights, which he agreed to waive. Hernandez testified
that Mendez told officers that the revolver found in the vehicle belonged to
him. Hernandez told Mendez that he had not been able to search the residence
1A confidential source had informed DPS that Mendez owned a Glock pistol. When
Russell heard that Thurman found a gun in Mendez’s vehicle, he initially assumed that it
was the Glock. Only when he saw the revolver at the DPS office did he realize that the search
team had not recovered Mendez’s Glock pistol.
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thoroughly and asked Mendez to tell him what the search team had found.
According to Hernandez, Mendez told him that the search team should have
found some ammunition and a Glock pistol. Based on Mendez’s statements,
Russell and Hernandez returned to the residence to search for the pistol.
Mendez’s father, who lived at the residence, consented in writing to the search.
Russell and Hernandez quickly found the pistol, as well as additional rounds
of ammunition, in the place Mendez told them it would be.
A grand jury returned a one-count indictment charging Mendez with
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
On June 10, 2015, the district court entered a scheduling order requiring all
discovery to be completed within 20 days. Mendez filed his motion to suppress
on September 1, 2015. He requested that the district court suppress any and
all evidence and statements acquired during and as a result of the stop,
including Mendez’s statements to Hernandez and Poland. He argued that the
revolver, statements, and evidence found during the second search were all
“fruit” of the unlawful stop and should be suppressed unless the Government
could demonstrate attenuation. The district court held a suppression hearing
during which the Government called three witnesses: Thurman, Russell, and
Hernandez. Mendez called no witnesses. His counsel cross examined Thurman
and Russell, but declined to cross examine Hernandez. The court took the
matter under advisement and invited Mendez to submit supplemental
briefing, which he did.
The court subsequently granted the motion in part and denied it in part.
Specifically, the court held that the stop of Mendez nearly a half-mile from his
home was unlawful under Bailey v. United States, 568 U.S. 186, 199–200
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(2013). 2 Accordingly, it suppressed the revolver and the ammunition found
therein. The district court reached a different conclusion regarding Mendez’s
statements and the evidence from the second search. It held that the
Government had demonstrated attenuation because Mendez’s lawful arrest for
being a felon in possession of ammunition was a “break in the chain of events
from his detention incident to the search warrant.” Thus, the district court did
not exclude Mendez’s statements or the evidence found during the second
search.
Mendez was convicted following a jury trial during which excerpts from
his custodial interview were played. The district court sentenced him to 84
months of incarceration and three years of supervised release. Mendez now
appeals the ruling on the motion to suppress. He argues that the district court
erred by basing its finding of attenuation solely on his intervening arrest.
Although we conclude that the district court likely erred by considering only
Mendez’s intervening arrest, we nonetheless conclude that the Government
sufficiently demonstrated attenuation.
II.
The parties disagree about the standard of review. On review of a motion
to suppress, we typically review the district court’s factual findings for clear
error and its legal conclusions de novo. See, e.g., United States v. Hernandez,
670 F.3d 616, 620 (5th Cir. 2012). A factual finding “is clearly erroneous if we
are ‘left with a definite and firm conviction that a mistake has been
committed.’” Id. (quoting United States v. Scroggins, 599 F.3d 433, 440 (5th
Cir. 2010)). Where, as here, the district court heard live testimony, our review
is particularly deferential. See, e.g., United States v. Tovar, 719 F.3d 376, 384
2 The Government is not appealing the suppression of the revolver, nor does it
challenge the district court’s conclusion that the stop was unlawful.
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(5th Cir. 2013). “In addition to deferring to [] the district court’s factual
findings, the court must view the evidence ‘most favorably to the party
prevailing below, except where such a view is inconsistent with the trial court’s
findings or is clearly erroneous considering the evidence as a whole.’”
Scroggins, 599 F.3d at 440 (quoting United States v. Shabazz, 993 F.2d 431,
434 (5th Cir. 1993)). Thus, the district court’s ruling “should be upheld ‘if there
is any reasonable view of the evidence to support it.’” United States v. Gonzalez,
190 F.3d 668, 671 (5th Cir. 1999) (quoting United States v. Tellez, 11 F.3d 530,
532 (5th Cir. 1993)).
The Government concedes that this standard should apply to Mendez’s
argument that the district court erred by concluding that the intervening
lawful arrest, standing alone, established attenuation. However, the
Government argues that plain error review should apply to Mendez’s
argument that the district court was required to examine other factors relevant
to the attenuation analysis. According to the Government, Mendez should have
objected below and given the district court the opportunity to correct these
alleged errors.
The Government is only half right. An error not brought to the district
court’s attention is, as the Government notes, subject to plain error review. See
Fed. R. Crim. P. 52(b). But taking an exception to an adverse ruling is
unnecessary. See Fed. R. Crim. P. 51(a); United States v. Delgado, 672 F.3d
320, 348 (5th Cir. 2012). Here, the Government bore the burden of
demonstrating attenuation, as Mendez argued in his briefing in the district
court. As far as the stop is concerned, Mendez “plainly asserted his view that”
his confession was the fruit of an unlawful stop and that the Government could
not prove any of the factors demonstrating attenuation, even if he “did not
make the best case to the district judge” for why attenuation was lacking.
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United States v. Martinez, 486 F.3d 855, 860–61 (5th Cir. 2007). Mendez put
the Government and district court on notice of the relevant legal standard,
allowing “the trial court to take testimony, receive argument, or otherwise
explore the issue raised.” Id. at 860 (quoting United States v. Burton, 126 F.3d
666, 673 (5th Cir. 1997)). Accordingly, insofar as Mendez argues that his
statements were “fruit” of the unlawful stop, we apply the usual standard of
review, rather than plain error. See id. at 860–61.
But Mendez also argues on appeal that the unlawful search of his vehicle
tainted his subsequent statements. This presents a related but different issue.
As we explain later, the attenuation analysis differs slightly when the official
misconduct is a search rather than a seizure. Mendez’s failure to identify the
search as a source of his statements, independent of his arrest, deprived the
Government of the opportunity to meet its burden to show attenuation in the
district court. Although the Government called Hernandez to testify, Mendez
did not cross examine him or present any other evidence that Hernandez used
the revolver to pressure Mendez into confessing to ownership of the
ammunition and pistol. As a result, we review this separate claim only for plain
error. Mendez must demonstrate a plain error that affected his substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993). In order to be
“plain,” the error must be obvious and beyond reasonable dispute. See Puckett
v. United States, 556 U.S. 129, 135 (2009). Even if he does demonstrate plain
error, we retain discretion over whether to correct the error. See Olano, 507
U.S. at 732. The Supreme Court has admonished us to exercise that discretion
only if the error “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (alteration in original) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)). This is a “stringent and difficult” standard.
United States v. Escalante-Reyes, 689 F.3d 415, 422 (5th Cir. 2012) (en banc).
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III.
The Fourth Amendment commands that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” The exclusionary rule provides
the typical remedy for Fourth Amendment violations: suppression of the
evidence at trial. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016); Mapp v.
Ohio, 367 U.S. 643, 648 (1961). The exclusionary rule reaches not only the
evidence uncovered as a direct result of the violation, but also evidence
indirectly derived from it—so-called “fruit of the poisonous tree.” Strieff, 136
S. Ct. at 2061 (quoting Segura v. United States, 468 U.S. 796, 804 (1984)); see
Nardone v. United States, 308 U.S. 338, 341 (1939). In this context, the
exclusionary rule is subject to three safety-valve doctrines: independent
source, inevitable discovery, and attenuation. See Strieff, 136 S. Ct. at 2061
(first citing Murray v. United States, 487 U.S. 533, 537 (1988); then citing Nix
v. Williams, 467 U.S. 431, 443–44 (1984); and then citing Hudson v. Michigan,
547 U.S. 586, 593 (2006)). The last is at issue here.
The attenuation doctrine “evaluates the causal link between the
government’s unlawful act and the discovery of evidence.” Id. Evidence may be
sufficiently attenuated from the Fourth Amendment violation even where the
violation is a but-for cause of the discovery of the evidence. See Hudson, 547
U.S. at 592; Wong Sun v. United States, 371 U.S. 471, 487 (1963). The key
question is whether the evidence “has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.” Brown v. Illinois, 422 U.S. 590, 599 (1975). The relevant factors
to determine attenuation will depend on the type of evidence challenged and
official misconduct alleged. In Brown, the Court laid out the factors to be
considered when, as here, challenged custodial statements are the “fruit” of an
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unlawful arrest: (1) the provision of Miranda warnings; (2) the temporal
proximity between the unlawful arrest and the challenged statements; (3)
intervening circumstances; and (4) the purpose and flagrancy of the official
misconduct. See Kaupp v. Texas, 538 U.S. 626, 633 (2003) (per curiam) (quoting
Brown, 422 U.S. at 603–04); Hernandez, 670 F.3d at 621. Of these factors, the
Supreme Court has emphasized that the fourth—purpose and flagrancy—is
particularly important. See Strieff, 136 S. Ct. at 2062. If the unlawful conduct
at issue is a search, the court should also consider whether the officers
exploited any illegally obtained evidence to secure the defendant’s statement.
See United States v. Shetler, 665 F.3d 1150, 1158 (9th Cir. 2011); 6 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(c)
(5th ed. 2012). The court cannot apply the attenuation analysis, however,
unless it first determines that the challenged statements were voluntary. See,
e.g., United States v. Martin, 431 F.3d 846, 849 (5th Cir. 2005) (quoting Brown,
422 U.S. at 604).
A.
The district court correctly recited the relevant attenuation factors in its
order but provided no analysis of temporal proximity or flagrancy. Rather, it
determined that Mendez’s lawful arrest for being a felon in possession of
ammunition “was sufficient to constitute a break in the chain of events.” As we
have already made clear, however, the intervening development of probable
cause to justify a previously unlawful arrest is an “important attenuating
factor” but is not by itself sufficient to establish attenuation. See United States
v. Cherry (Cherry II), 759 F.2d 1196, 1211–12 (5th Cir. 1985). A district court
must consider each factor and determine the cumulative effect of all factors in
each case. See United States v. Cherry (Cherry III), 794 F.2d 201, 206 (5th Cir.
1986) (“The totality of their effect must be evaluated in relation to the
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particular facts of each case.”); see also Brown, 422 U.S. at 603 (“No single fact
is dispositive.”). Thus, it was error for the district court to base its attenuation
analysis on a single factor.
The parties disagree about the import of this error on appeal. Mendez
asks that we vacate his conviction and remand to the district court to make the
appropriate findings. The Government, by contrast, urges us to review the
record independently and make the attenuation determination ourselves. The
Government has the stronger argument in this particular case. Even where
the district court has not made any factual findings, we have “independently
review[ed] the record to determine whether the district court’s decision is
supported by ‘any reasonable review of the evidence.’” United States v.
Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (quoting United States v. Yeagin,
927 F.2d 798, 800 (5th Cir. 1991)); see United States v. Jarman, 847 F.3d 259,
266 (5th Cir. 2017). But in cases where the district court failed to “ask[] the
right legal questions” and expressly declined to make factual findings
necessary to resolve those questions, we have declined to resolve those factual
disputes in the first instance. See United States v. Guzman, 739 F.3d 241, 247–
49 (5th Cir. 2014). Here, the district court made detailed factual findings
following a suppression hearing during which it heard live testimony from
three witnesses. The district court invoked the correct legal standard, even
though the court applied that standard incorrectly. Moreover, the resolution of
this case turns on the significance of largely undisputed facts. 3 This is prime
appellate territory. No remand is necessary here.
3 Mendez does argue on appeal that a remand is warranted to further explore whether
the police used the revolver found during the illegal search to secure Mendez’s confession. As
we explain later, however, this single factual dispute does not warrant remand to the district
court, nor does it change the result on appeal.
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B.
At the outset, we must determine whether Mendez’s statements were
voluntary before proceeding, if they were, to the attenuation analysis. See
Brown, 422 U.S. at 603; Martin, 431 F.3d at 849. When a defendant challenges
the voluntariness of a statement, the Government bears the burden of proving
voluntariness by a preponderance of the evidence. United States v. Reynolds,
367 F.3d 294, 297–98 (5th Cir. 2004) (per curiam). A statement is voluntary if,
“under the totality of the circumstances, the statement is ‘the product of the
accused’s free and rational choice.’” Id. at 298 (quoting United States v. Garcia
Abrego, 141 F.3d 142, 170 (5th Cir. 1998)). A statement cannot be involuntary
in the absence of coercive police activity. See Garcia Abrego, 141 F.3d at 170
(quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
Under the circumstances, Mendez’s statements were voluntary. Poland
advised Mendez of his Miranda rights, which Mendez (twice) confirmed he
understood and voluntarily waived. Cf. Cherry III, 794 F.2d at 206 (concluding
that defendant’s statement was voluntary where he was twice advised of and
voluntarily waived his Miranda rights). There is also no evidence of physical
coercion: Hernandez testified that during the 90-minute interview, Mendez
was handcuffed from the front rather than from behind, was allowed to take
breaks, and was offered water. The officers also did not threaten Mendez.
Mendez argues in his brief that a transcript of excerpts from his
interrogation shows that Hernandez threatened to charge Mendez’s girlfriend
with possession of the revolver discovered during the illegal search. Mendez
does not actually argue, however, that this alleged threat rendered his
statement involuntary, merely that it demonstrates that the officers exploited
the illegal search to obtain a confession. Moreover, by that point in the
interview, Mendez had already told Hernandez that he had ammunition in the
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residence, that he owned the pistol, described where the pistol was, and
admitted that he bought the pistol for “two bills” (i.e., $200). Those statements
all concerned evidence found legally at the residence, not evidence obtained
from the illegal stop and search. They demonstrate that Mendez was already
talking freely and voluntarily by the time Hernandez brought up Mendez’s
girlfriend. Accordingly, it is clear that Mendez “spoke as a result of his free and
rational choice, with an awareness of his abandonment of the right to remain
silent and of the consequences of that decision.” United States v. Rico, 51 F.3d
495, 507 (5th Cir. 1995).
C.
Having determined that Mendez spoke voluntarily, we move on to the
attenuation analysis. Although, as noted previously, the stop and search are
analytically distinct in some respects, they were roughly contemporaneous and
led to a single challenged confession. Thus, our analyses of the first three
Brown factors for the stop and search largely overlap. To the extent that these
analyses overlap, we apply the more generous standard of review applicable to
our analysis of the stop. Once the analyses begin to part ways, however, a plain
error standard will apply to our attenuation analysis of the search.
As noted previously, the officers read the Miranda warnings to Mendez,
confirmed that he understood them, and secured a knowing waiver of his
rights. This weighs in favor of attenuation.
However, the temporal proximity factor favors Mendez. There are no
precise time limits for temporal proximity. See United States v. Montgomery,
777 F.3d 269, 273–74 (5th Cir. 2015). But where relatively little time has
elapsed, the determination generally turns on the conditions of custody. See 6
LaFave, supra, § 11.4(b) (“[A] shorter lapse of time will be tolerated when the
circumstances of the detention are less severe.”); compare Taylor v. Alabama,
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457 U.S. 687, 691 (1982) (holding that six-hour interval did not favor
Government where defendant was “in police custody, unrepresented by
counsel, and he was questioned on several occasions”), with Rawlings v.
Kentucky, 448 U.S. 98, 107–08 (1980) (holding that 45-minute interval favored
Government where defendant was allowed to move around house freely and
atmosphere was congenial). The parties agree that only a few hours elapsed
between the stop and Mendez’s statements. Indeed, the Government estimates
that less than two hours may have elapsed between the stop and the custodial
statements. Cf. Brown, 422 U.S. at 604 (“Brown’s first statement was
separated from his illegal arrest by less than two hours . . . .”). Moreover,
Mendez was continuously in custody—at first in the back of Thurman’s vehicle
and then at the DPS office. Consequently, the temporal proximity factor weighs
against attenuation. Even so, “temporal proximity is not dispositive,”
Montgomery, 777 F.3d at 274, and is typically the “least determinative factor
involved,” LaFave, supra, § 11.4(b).
The intervening circumstances, by contrast, favor the Government. In
Cherry III, evidence independent from the illegal arrest established probable
cause to arrest the defendant. See 794 F.2d at 206. The court concluded that
the intervening circumstances favored the Government because “[t]he
development of independently procured probable cause following an illegal
arrest is a critical factor attenuating the taint of the initial illegal arrest.” Id.;
cf. Strieff, 136 S. Ct. at 2062–63 (holding that intervening discovery of valid
arrest warrant following unlawful stop “strongly favor[ed] the State”). Shortly
after the illegal arrest, the Government discovered ammunition in Mendez’s
residence pursuant to the search warrant. Mendez does not dispute that the
search warrant was valid—indeed, he conceded during the suppression
hearing that it was. Nor does he dispute that officers had probable cause to
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arrest him after discovering the ammunition. As such, the intervening
circumstance of Mendez’s lawful arrest strongly favors the Government.
Finally, the purpose and flagrancy factor favors the Government with
respect to both the stop and subsequent search. Suppression of inculpatory
evidence is an extraordinary remedy. See Hudson, 547 U.S. at 591. This factor
ensures that it is applied only where it serves its purpose of deterring police
misconduct. Strieff, 136 S. Ct. at 2063. In order for a violation to be “purposeful
or flagrant,” it must be more than just negligent. See id.
We begin with the stop and find that the officers’ actions do not rise above
the level of negligence. They had initially planned to enter the residence with
a SWAT team while Mendez was still there. When that plan fell through, they
instead decided that it would be safest to wait for him to leave. They knew that
Mendez was armed, dangerous, and unstable. They knew that he was a suspect
in a drive-by shooting. They knew that there were bullet-riddled vehicles
sitting in his front yard. While waiting to call in the entry team, Russell
witnessed Mendez engage in what appeared to be hand-to-hand drug
transactions and testified that he believed there was probable cause to stop
Mendez even before the search. Although Thurman stopped Mendez only
because Russell told him to, he still knew that DPS believed that Mendez was
armed and dangerous. Moreover, it is clear that officers attempted to stop
Mendez as soon as they could, but the need to conceal their presence from
Mendez limited how quickly they could apprehend him once he left the
residence. There is no evidence that this was part of a pattern of “systemic or
recurrent police misconduct,” id., or that the officers were engaged in a fishing
expedition just to see what “might turn up,” Brown, 422 U.S. at 605; cf. Kaupp,
538 U.S. at 628, 633 (holding that misconduct was purposeful and flagrant
where police tried and failed to obtain warrant but detained suspect
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nonetheless). Indeed, because the officers could have detained Mendez and
tried to talk to him at the residence by executing the warrant earlier that
morning, they had no reason to believe that there was an investigative
advantage to be gained by waiting to do so until he was half a mile away.
Rather, the officers (as they testified) were motivated by genuine, serious, and
objectively reasonable safety concerns.
Mendez argues that the misconduct here was purposeful and flagrant.
He notes that the Supreme Court had decided Bailey two years before he was
stopped. He contends that, in light of Bailey, this was at the very least reckless
or grossly negligent. But this is just another way of saying that the officers
violated Bailey. It “conflates the standard for an illegal stop with the standard
for flagrancy.” Strieff, 136 S. Ct. at 2064. Misconduct is not “flagrant” just
because officers violated the Fourth Amendment. Rather, “[f]or the violation to
be flagrant, more severe police misconduct is required than the mere absence
of proper cause for the seizure.” Id. What Mendez identifies is simply the
primary misconduct, not some aggravating factor that makes that misconduct
“flagrant.” He also argues that the misconduct was purposeful because the
officers planned in advance to stop Mendez after he left the residence. What
Brown requires, however, is improper purpose or conscious wrongdoing, not
merely advance planning. 4 See Brown, 422 U.S. at 605; Rawlings, 448 U.S. at
110.
We reach the same conclusion with respect to the subsequent search,
though our review of this claim is for plain error only. Thurman testified that
he did “a quick security sweep of the vehicle.” He also testified that he merely
4 Accepting Mendez’s definition of “purpose” would render almost all police conduct
purposeful. Only truly spur-of-the-moment conduct would seem to escape Mendez’s
definition.
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No. 16-41057
reached inside the purse and felt the bandana and revolver, but did not unwrap
the bandana or remove the revolver from the purse. Mendez did not challenge
that testimony or seek to undermine it on cross examination. Thurman’s
conduct was not purposeful or flagrant under the circumstances. At the time
of the search, Thurman (mistakenly) believed that he had lawfully detained
Mendez. He had reason to believe that Mendez was armed, and, upon finding
no weapon on Mendez, he could have reasonably believed that there was a
weapon in the car. The search was not merely some fishing expedition intended
to unearth evidence to use against Mendez later. Rather, it was carefully
limited to address Thurman’s safety concerns, as indicated by his testimony
that he did not remove the revolver from the purse. Even though that conduct
was unlawful, it was not “flagrant.”
Nor does Mendez’s speculation regarding the interrogation change the
result. Of course, the use of illegally obtained evidence to pressure a suspect to
confess will normally weigh heavily against a finding of attenuation. See
Shetler, 665 F.3d at 1158; see also 6 LaFave, supra, § 11.4(c) (“This is because
‘the realization that the “cat is out of the bag” plays a significant role in
encouraging the suspect to speak.’” (quoting Robert M. Pitler, “The Fruit of the
Poisonous Tree” Revisited and Shepardized, 56 Cal. L. Rev. 579, 607 (1968))).
But our review here is for plain error only, and we find none. Mendez claims
that the following exchange (drawn from a transcript of redacted excerpts of
the interview) demonstrates that Hernandez used the unlawfully obtained
revolver to pressure Mendez to confess to ownership of the pistol:
Q. I—we want to make sure we don’t charge anybody else
with that gun. If that gun’s not your girl’s and it’s yours, it’s yours.
You’re manning up to it.
A. It’s mine, bro.
Q. And the Glock pistol that was in your bedroom, in the
back bedroom, that’s yours, too?
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A. Yes.
According to Mendez, this excerpt warrants remand for examination of the full
90-minute audio recording. Viewed in context, it is far from clear or obvious
that Mendez admitted to ownership of the Glock solely because the
Government confronted him with the revolver. By that point in the interview,
Mendez had already told Hernandez that there was ammunition in the
residence, that the ammunition was his, that there was a Glock pistol in the
back room of the residence, and that he bought the Glock pistol for $200.
Mendez’s admission that he bought the pistol was sufficient to establish
possession or receipt of the firearm under 18 U.S.C. § 922(g). The Government
is not required to prove ownership to sustain a conviction. See, e.g., United
States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998) (per curiam). Moreover,
Mendez at that point believed that the search team had found both the
ammunition and the pistol. Thus, he was already under the impression that
there was a significant amount of legally obtained evidence against him. 5
Mendez speculates that elsewhere in the interview, Hernandez may
have exploited the revolver to pressure Mendez into confessing. He faults the
Government for not introducing the entire interview at the suppression
hearing. But the Government put Hernandez on the stand to testify about the
5 Cf. United States v. Green, 523 F.2d 968, 972 (9th Cir. 1975) (“We reject [defendant’s]
naive contention that his confession of illegal drug trafficking would probably have been valid
if he had been confronted with only [] 880 pounds of marijuana . . . , but when the illegally
seized amphetamines and 400 pounds of marijuana were added to the pot, his confession
became the ‘fruit of the poisoned tree’ and ‘the product’ of the illegally seized contraband.”);
cf. also United States v. Riesselman, 646 F.3d 1072, 1079–80 (8th Cir. 2011) (holding that
defendant’s statements were sufficiently attenuated where Government did not question
defendant solely about unlawfully obtained evidence but also confronted him with a
confidential informant’s statements and weapons found at his residence); United States v.
Patino, 862 F.2d 128, 133–34 (7th Cir. 1988) (holding that defendant’s second confession was
not the product of her unlawfully obtained first confession where “she previously had been
told that her involvement in the robberies could be proved without the confession”).
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interview. Hernandez testified that he asked Mendez to tell him what the
search team had found, rather than confronting him with the evidence they
did find. According to Hernandez, Mendez “was taking ownership pretty much
of everything.” The Government was not required to put in every possible piece
of evidence to rebut any assertion of exploitation that Mendez might
conceivably make in the future. Mendez had the opportunity to cross examine
Hernandez but declined to do so. He can hardly say he was unaware of what
happened during the interview—he was a party to it. And Mendez’s
speculation that there might perhaps be further evidence of exploitation
somewhere in the remainder of the transcript is hardly sufficient to meet his
burden of demonstrating a “clear” or “obvious” error. See Olano, 507 U.S. at
734.
In sum, only the temporal proximity factor favors Mendez. With respect
to both the stop and the subsequent search, the remaining Brown factors weigh
heavily in favor of attenuation. Mendez was informed of, understood, and
waived his Miranda rights. Mendez’s lawful arrest for being a felon in
possession of ammunition was a critical intervening circumstance. And,
perhaps most importantly, the misconduct at issue was not purposeful and
flagrant, but instead motivated by legitimate safety concerns. Finally,
Mendez’s speculation as to how the officers may have exploited the unlawfully
obtained revolver to secure his statements is simply too little, too late. The
district court properly admitted the statements.
IV.
For the foregoing reasons, we AFFIRM Mendez’s judgment of conviction
and sentence.
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