Case: 11-40201 Document: 00511751885 Page: 1 Date Filed: 02/08/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2012
No. 11-40201 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MELINDA HERNANDEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, WIENER, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Melinda Hernandez pleaded guilty to one count of harboring an
undocumented alien for financial gain. Prior to entering her guilty plea,
Hernandez filed a motion to suppress any “admissions [and] written or oral
statements” that she made following a warrantless search of her residence, as
well as any statements made by her boyfriend and an undocumented alien who
was found in her home. The district court denied the motion. Hernandez argues
that the district court erred in denying her motion to suppress because the post-
Miranda1 statements that she, her boyfriend, and the illegal alien made
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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constituted fruits of the poisonous tree. We agree; consequently, we REVERSE
the denial of Hernandez’s suppression motion, VACATE the conviction and
sentence, which was based on a conditional guilty plea, and REMAND for
proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The facts of this case are fully set forth in United States v. Hernandez, 392
F. App’x 350 (5th Cir. 2010) (unpublished), but we recount them briefly here.
Law enforcement officers received an anonymous tip that ten to fifteen illegal
aliens were being held against their will in Hernandez’s trailer. The officers,
including Immigration and Customs Enforcement (“ICE”) agents, went to
Hernandez’s trailer around midnight to investigate. The Government concedes
that it did not have probable cause to arrest Hernandez or search her residence
at this time. After announcing themselves and receiving no response, the
officers banged on the doors and windows, shouting that they were police and
that the occupants should open the door. The officers then heard movement
within the trailer. They tried to open the front door, but the outer screen door
was locked. After one of the officers broke the glass pane of the screen door with
a baton, Hernandez screamed that she was coming to open the door. When
Hernandez opened the door, she noticed that the officers had their weapons
drawn. Although there was a dispute about exactly what transpired after
Hernandez opened the door, the record reflects that Agent Garza told Hernandez
about the anonymous tip and, in response, Hernandez told Agent Garza “that no
one was being held against his will but also admitted—whether before or after
officers entered the home is uncertain—that at least one illegal alien, a friend,
was present.” Id. at 351.
The officers searched the trailer and found two illegal aliens, Luis Alberto
Andrade-Quesada and his nephew, Jose Moises Regalado-Soto, in the trailer.
Hernandez, Andrade-Quesada, Regalado-Soto, and Hernandez’s boyfriend,
Sergio Guadalupe Ayala, who was also in the trailer at the time, were taken to
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the ICE office for questioning. Hernandez and Ayala waived their Miranda
rights and admitted that Andrade-Quesada and Regalado-Soto stayed in the
trailer and that they knew that the two men were illegal aliens.
Andrade-Quesada also made a statement indicating that he had agreed to pay
Hernandez $150 per month so that he and his nephew could stay with her.
Hernandez was charged with harboring an illegal alien for financial gain.
She pleaded guilty, but on appeal, we held that the officers’ conduct was
egregious, that the search of Hernandez’s residence violated the Fourth
Amendment, and that Hernandez’s “motion to suppress should have been
granted with respect to any evidence discovered on site at the trailer.” Id. at
352-53. We reversed the order denying Hernandez’s motion to suppress, vacated
Hernandez’s conviction and sentence, and remanded the matter to the district
court to consider whether the post-Miranda statements made by Hernandez and
Ayala at the ICE office were admissible and whether the statement made by
Andrade-Quesada was also admissible. Id.
On remand, the Government argued that, under New York v. Harris, 495
U.S. 14 (1990), the post-Miranda statements were admissible because law
enforcement officers had probable cause to arrest Hernandez at the time the
statements were made based on Hernandez’s prior admission at her doorway.
The Government asserted that the constitutional violation, i.e., the illegal
search, “had nothing whatsoever” to do with Hernandez’s admission to the
officer. Instead, the Government claimed that Hernandez’s admission was the
result of the officer’s statement that he had received a tip that there were illegal
aliens being held against their will in Hernandez’s trailer.
Hernandez argued that the post-Miranda statements that she, Ayala, and
the illegal alien made at the ICE office constituted fruits of the poisonous tree
and should be excluded. She also argued that her doorstep admission that she
had at least one illegal alien in her home, which the Government asserts gave
authorities probable cause to arrest her, was obtained by exploiting the illegal
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entry into her home.
The district court denied Hernandez’s motion to suppress, agreeing with
the Government that the statements made by Hernandez, Ayala, and Andrade-
Quesada at the ICE office were admissible. Relying on Harris, the district court
concluded that “while the search of [Hernandez’s] home may have been in
violation of law, [Hernandez’s] admission before the search occurred gave the
officers probable cause to arrest her. Therefore, any statements made at the ICE
office after being Mirandized are admissible.”2
Hernandez once again entered a conditional guilty plea, reserving the
right to appeal the district court’s denial of her motion to suppress the
statements made at the ICE office. She was sentenced to time served and to two
years and 73 days of supervised release.3 She filed a timely notice of appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review Hernandez’s conviction pursuant to 28
U.S.C. § 1291. We review the denial of a motion to suppress in the light most
favorable to the prevailing party. United States v. Garcia, 604 F.3d 186, 189 (5th
Cir.), cert. denied, 131 S. Ct. 291 (2010). The district court’s factual findings are
reviewed for clear error, and its legal conclusions are reviewed de novo. Id. at
190. A finding of fact is clearly erroneous if we are “left with a definite and firm
conviction that a mistake has been committed.” United States v. Scroggins, 599
F.3d 433, 440 (5th Cir.), cert. denied, 131 S. Ct. 158 (2010).
2
The Government notes that in the 2009 suppression hearing, the district court found
that there was probable cause after Hernandez admitted to having an illegal alien present in
her home, and argues that Hernandez waived her right to appeal this finding by failing to
raise it in her initial appeal. We disagree. The district court’s statement regarding “probable
cause” in the 2009 suppression hearing did not specify whether it referenced probable cause
to arrest or to search. Thus, it is unclear whether the district court actually determined that
the officers had probable cause to arrest Hernandez prior to issuing its order now under
appeal. We conclude that there has been no waiver.
3
Although Hernandez was sentenced to time served, her appeal of her conviction is not
moot. See United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006) (per curiam) (“To
the extent a defendant appeals his conviction, his appeal is not moot simply because his term
of imprisonment has expired.” (citation omitted)).
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III. DISCUSSION
Hernandez argues that her statement, as well as Ayala’s and Andrade-
Quesada’s statements, must be suppressed as fruits of the officers’ unlawful
conduct. We address the admissibility of Hernandez’s statement first, and then
consider whether Ayala’s and Andrade-Quesada’s statements are admissible
against Hernandez.
A. Is Hernandez’s post-arrest statement admissible?
Generally, “the exclusionary rule prohibits the introduction at trial of all
evidence that is derivative of an illegal search, or evidence known as the ‘fruit
of the poisonous tree.’” United States v. Singh, 261 F.3d 530, 535 (5th Cir. 2001).
However, evidence should not be excluded merely because it would not have
been discovered “but-for” a constitutional violation. Wong Sun v. United States,
371 U.S. 471, 487-88 (1963). “Rather, the more apt question in such a case is
whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint.”
Id. at 488 (internal quotation marks and citation omitted).
Verbal statements, in addition to physical evidence, are subject to the
exclusionary rule. Id. at 485-86. “[V]erbal evidence which derives so
immediately from an unlawful entry and an unauthorized arrest . . . is no less
the ‘fruit’ of official illegality than the more common tangible fruits of the
unwarranted intrusion.” Id. at 485. However, “since the cost of excluding live-
witness testimony will often be greater, a closer, more direct link between the
illegality and that kind of testimony is required.” United States v. Ceccolini, 435
U.S. 268, 277 (1978).
When deciding whether testimony is admissible, the Supreme Court
considers the degree of free will exercised by the defendant or a third party and
balances the cost of “exclusion [that] would perpetually disable a witness from
testifying about the relevant and material facts” against the need to deter
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unconstitutional conduct in the future. Id. at 276-78. Although Miranda
warnings are an important factor to consider in determining whether a
statement is voluntary, they are not the only factor. Brown v. Illinois, 422 U.S.
590, 603 (1975). If the testimony is a confession, relevant factors for deciding
whether the confession is a product of free will include: “[t]he temporal proximity
of the arrest and the confession, the presence of intervening circumstances . . .
and, particularly, the purpose and flagrancy of the official misconduct . . . .” Id.
at 603-04 (citations omitted).
In this case, the district court did not consider any of these factors.
Rather, the district court relied on New York v. Harris in concluding that the
confession was admissible. In Harris, the Supreme Court addressed whether a
written statement made by Harris at the police station should have been
suppressed as the fruit of the poisonous tree because immediately prior to the
statement, the police entered Harris’s home without a warrant and without
Harris’s consent and arrested him, in violation of Payton v. New York, 445 U.S.
573 (1980).4 Harris, 495 U.S. at 16. The Court found that arresting Harris
without an arrest warrant violated the Fourth Amendment but found it
unnecessary to determine whether Harris’s statement was caused by
exploitation of Harris’s Fourth Amendment rights or whether the taint of the
constitutional violation was sufficiently attenuated to permit the introduction
of Harris’s subsequent statement. Id. at 17, 19. The Court concluded that
because the police had probable cause to arrest Harris before the illegal arrest,
“his subsequent statement was not an exploitation of the illegal entry into
Harris’ home.” Id. at 19. Harris therefore turned on the fact that the
defendant’s detention was lawful because the police had probable cause to arrest
4
Payton v. New York held that the Fourth Amendment prohibits the police from
entering a suspect’s home without consent or a warrant in order to make a routine felony
arrest. 445 U.S. at 589-90. Even though the police in Harris did have probable cause to arrest
the defendant for committing a felony, they entered the defendant’s home without consent or
a warrant and made the arrest.
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him before the unconstitutional conduct occurred.
If, as the district court suggests, Hernandez’s doorstep admission gave
police probable cause to arrest her, and if this admission was untainted by a
constitutional violation, Harris would apply; however, we cannot agree with the
district court’s implicit conclusion that Hernandez’s admission was untainted by
the Fourth Amendment violation. In our prior opinion in this case, we held that
“[t]he officers’ conduct during their knock-and-talk—banging on doors and
windows while demanding entry, attempting a forced entry by breaking the
glass on Hernandez’s door, then relying on her admission that an illegal alien
was present as probable cause to enter—violated the Fourth Amendment.”
Hernandez, 392 F. App’x at 353 (emphasis added). We agree with Hernandez
that just as the officers could not have relied on Hernandez’s admission as
probable cause to enter her home, they also could not have relied on the
admission as probable cause to arrest her, because the officers’ Fourth
Amendment violation had already occurred, tainting Hernandez’s admission.
While it is disputed whether the officers had actually entered the house
at the time of Hernandez’s statement, id. at 351, it is clear that a Fourth
Amendment violation—“banging on doors and windows while demanding entry
[and] attempting a forced entry by breaking the glass on Hernandez’s door,” id.
at 353—had already occurred at the time of Hernandez’s admission.
Indeed, instead of being factually similar to Harris, this case is
remarkably similar to Dunaway v. New York, 442 U.S. 200 (1979), in which the
Supreme Court excluded a post-Miranda confession because the police illegally
seized the defendant without probable cause almost immediately before the
statement was made. Id. at 202-07. The Court determined that seizing
Dunaway and taking him to the police station for questioning without probable
cause was a Fourth Amendment violation, and deemed it necessary to determine
whether the connection between the constitutional violation and the
incriminating statement was sufficiently attenuated to warrant its admission.
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Id. at 216. Based on the fact that Dunaway “was . . . admittedly seized without
probable cause in the hope that something might turn up, and confessed without
any intervening event of significance,” the Court determined that the confession
must be excluded. Id. at 218-19.
In this case, we have already determined that the conduct of the police
officers and ICE agents at the Hernandez home, which included trying to open
the door and then breaking a glass pane on the door, was egregious. Hernandez,
392 F. App’x at 352. Once Hernandez opened the door, the record indicates that
several officers had their guns drawn. These facts—the attempt to gain entry
into the residence through the use of force in the middle of the night, the
presence of several officers, and the fact that the officers had their weapons
drawn—would have caused a reasonable person to believe that he was not free
to leave or to decline the officers’ request. See Michigan v. Chesternut, 486 U.S.
567, 573 (1988) (noting that “the police can be said to have seized an individual
only if, in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave” (internal quotation
marks omitted)); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(“Examples of circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.”).
Just as in Dunaway, Hernandez was illegally “seized” without probable
cause. Chesternut, 486 U.S. at 573; Mendenhall, 446 U.S. at 554. Additionally,
like in Dunaway, Hernandez’s initial inculpatory statement at her doorway
occurred “without any intervening event of significance.” 442 U.S. at 218.
“Intervening events of significance” include, for example, an appearance before
a magistrate or consultation with an attorney. Johnson v. Louisiana, 406 U.S.
356, 365 (1972) (holding that the “taint” of an allegedly illegal arrest was purged
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when defendant was represented by counsel and brought before a magistrate
before the incriminating lineup occurred). Merely questioning a suspect is
insufficient to constitute an “intervening event of significance.” See Brown, 422
U.S. at 602-05 (no intervening circumstances where police illegally arrested
defendant and then gave Miranda warnings and questioned him before
defendant confessed); Dunaway, 442 U.S. at 218-19 (no intervening
circumstances where defendant was illegally arrested, given Miranda warnings,
and questioned before making incriminating statements). Here, the fact that the
officer informed Hernandez about the anonymous tip after or during the course
of the Fourth Amendment violation is not an “intervening event of significance.”
It is not at all similar to consulting with an attorney or being brought before a
judge or magistrate. Therefore, we conclude that Hernandez’s doorstep
admission cannot form the basis of probable cause to arrest her. Because there
was no probable cause to arrest Hernandez prior to her statements at the ICE
office, we find Harris inapplicable.
Having concluded that Harris does not support the denial of the motion to
suppress, we must consider the factors set out by the Supreme Court for
determining whether Hernandez’s statement at the ICE office is admissible.
The factors weigh heavily in Hernandez’s favor. First, there is no indication that
more than a few hours passed between the Fourth Amendment violation and the
statements made at the ICE office. Second, the record does not reveal, and the
Government does not raise, any intervening circumstances that would have
broken the causal chain. Finally, as this court previously noted, the officers’
conduct was egregious. See Hernandez, 392 F. App’x at 352.
Were we to admit the confession, the purposes of the exclusionary rule
would not be served. Cf. Brown, 422 U.S. at 602. For these reasons, we hold
that Hernandez’s post-arrest confession should have been suppressed.
B. Are Ayala’s and Andrade-Quesada’s statements admissible?
Having concluded that Hernandez’s post-arrest confession must be
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suppressed, we must now address whether Ayala’s and Andrade-Quesada’s
statements are admissible against Hernandez. The Government argues that the
witnesses’ statements are admissible because there was a reasonable probability
that the officers would have lawfully encountered Ayala and Andrade-Quesada
and obtained their cooperation. We have recognized that evidence that “would
inevitably have been discovered without the aid of the illegally obtained
evidence” need not be excluded as the fruit of the poisonous tree. Singh, 261
F.3d at 535 (citation omitted). However, “[t]o satisfy the inevitable discovery
exception to suppression, there must have been a reasonable probability that the
evidence would have been discovered from an untainted source.” Id. The
Government has the burden of proving “by a preponderance of the evidence that
the information ultimately or inevitably would have been discovered by lawful
means . . . .” Nix v. Williams, 467 U.S. 431, 444 (1984).
Additionally, under our precedent, the Government must also show that
it “was actively pursuing a substantial alternate line of investigation at the time
of the constitutional violation.” United States v. Zavala, 541 F.3d 562, 579 (5th
Cir. 2008). Indeed, “[f]or the inevitable discovery exception to apply, ‘the
alternate means of obtaining the evidence must at least be in existence and, at
least to some degree, imminent, if yet unrealized.’” Id. at 580 (quoting United
States v. Cherry, 759 F.3d 1196, 1205 n.10 (5th Cir. 1985)).
Here, the Government has offered nothing more than pure speculation
that Ayala’s and Andrade-Quesada’s statements would have been inevitably
obtained. The Government first argues that “[o]nce Hernandez admitted her
criminal conduct—that she was harboring at least one alien—ICE had probable
cause to arrest her,” and there is “at least a reasonable probability that they
would have lawfully encountered the other occupants . . . .” However, we have
already rejected the argument based upon Hernandez’s statement at the house.
The Government cites to no evidence, either in the form of testimony or
otherwise, to sustain its burden on this issue; therefore, we conclude that it has
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not met the test for the inevitable discovery exception.
Additionally, applying the factors set out above, we conclude that Ayala’s
and Andrade-Quesada’s statements were not sufficiently attenuated from the
Fourth Amendment violation to render them admissible. First, the record
indicates that the witnesses made their statements almost immediately after the
illegal search, and the Government offered no evidence of any intervening
circumstances that might have dissipated the taint of the constitutional
violation. These facts weigh in favor of exclusion. See United States v. Miller,
146 F.3d 274, 280 (5th Cir. 1998).
Further, during the illegal search, the officers discovered incriminating
evidence. This discovery likely “vitiated any incentive on [Ayala and Andrade-
Quesada’s] part to avoid self-incrimination,” Brown, 422 U.S. at 605 n.12, which
weighs in favor of finding that the witnesses did not make the statements of
their own free will. Although they were Mirandized, this fact is insufficient to
justify admission. Cf. id. at 603.
Finally, we must consider whether the purposes of the exclusionary rule
would be served by excluding the evidence. Ceccolini, 435 U.S. at 277-78. If we
were to rule the statements admissible, police officers would be encouraged to
perform illegal searches in hopes of finding incriminating evidence against
witnesses who would, in turn, have a reduced incentive to avoid confessing. Cf.
Brown, 422 U.S. at 605 n.12. We therefore find no break in the causal chain
between the statements and the constitutional violation sufficient to warrant
admission of the evidence. Because neither the attenuation nor the inevitable
discovery exceptions to the exclusionary rule apply, we hold that the district
court erred in not excluding the testimony of Ayala and Andrade-Quesada.
IV. CONCLUSION
We REVERSE the denial of Hernandez’s suppression motion, VACATE the
conviction and sentence, and REMAND for proceedings consistent with this
opinion.