United States v. George L. Carson

LOGAN, Circuit Judge,

concurring:

I agree with the result in the majority decision. But parts III and IV state a broader rule than I am willing to accept.

First, I do not read Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), as setting out two tests under which evidence, the knowledge of which was obtained as a result of prior illegal police action, may be admissible. Wong Sun does reject a “but for” test. The rule it adopts, however, is that such evidence is admissible if “instead” of exploiting the illegality, the evidence was obtained by means “sufficiently distinguishable to be purged of the primary taint.” Id. at 488, 83 S.Ct. at 417. In other words, the majority’s two independent tests are really different sides of the same coin.

Further, I do not read Wong Sun as holding that the circumstances surrounding the government’s illegal acts are irrelevant whenever consent has been given freely. Wong Sun refused to permit defendant Toy’s statements into evidence, although allegedly voluntarily given, because of the particular circumstance of that case. The officers had broken down his door, followed him into a bedroom, handcuffed, and arrested him; his consent in those circumstances did not purge the taint of the initial unlawful invasion. Id. at 486, 83 S.Ct. at 416. On the other hand, defendant Wong Sun’s statement was admissible because he gave it several days after his release on his own recognizance and after he had voluntarily returned to the police. In such circumstances the Court found that the taint had been dissipated.

Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), which also involved the admissibility of a confession following an illegal arrest, clarified the holding of Wong Sun. In Brown a confession had been obtained after a Miranda warning; the Court held it was not automatically admissible even if it was voluntary. Rather, it stated that a court must view the illegal arrest under the Fourth Amendment and determine whether the confession was obtained by exploitation of the illegal arrest. In making that determination the “temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” Id. at 603-04, 95 S.Ct. at 2261-62 (footnotes and citations omitted). Courts since Brown have applied this analysis to consents to search following illegal detention. See United States v. Wellins, 654 F.2d 550, 552-53 (9th Cir.1981); United States v. Taheri, 648 F.2d 598, 601 (9th Cir.1981); United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1099-1100 (7th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 (1980); United States v. PerezEsparza, 609 F.2d 1284, 1289 (9th Cir. 1979); United States v. Jones, 608 F.2d 386, 391-92 (9th Cir.1979); United States v. Wilson, 569 F.2d 392, 396 (5th Cir.1978).

By analyzing the instant case solely in terms of whether the consent was volun*1159tary, the majority weight on the Brown factors. For example, the majority in effect states that because defendant Carson was unaware of the previous search, it could not affect the validity of the consent. At 1155 (citing Moran v. Burbine, — U.S.-,-, 106 S.Ct. 1135, 1141-42, 89 L.Ed.2d 410 (1986)). Thus, under the majority’s analysis, the flagrancy of the prior police misconduct is irrelevant unless the defendant is aware of the previous search, in direct contrast to what Brown and the circuit cases that have interpreted Brown say. The majority opinion in the instant case appears to adopt a per se attenuation rule: If the consent was freely given, whatever illegalities have gone before are irrelevant. I do not think we can say that in view of Wong Sun and Brown. Instead we must consider the time span between the two searches, the purpose and flagrancy of the initial police misconduct, and whatever other factors seem relevant in the circumstances of the case before we decide whether exclusion is necessary to deter unconstitutional police conduct and to preserve judicial integrity. places insufficient

If the initial illegal search in the instant case had been particularly egregious, or if the police had engaged in coercive conduct, I would read Brown to require exclusion despite Carson’s voluntary consent to the second search. See Perez-Esparza, 609 F.2d at 1289. But I would permit the admission of the evidence here. Although an officer first obtained knowledge of the doves by lifting a vest covering a five-gallon pail illegally, this was not an illegal search as flagrant as, for example, breaking into a home or unlawfully tapping a telephone, thus not implicating the deterrence consideration of the exclusionary rule. Cf. United States v. Leon, 468 U.S. 897, -, 104 S.Ct. 3405, 3412-15, 82 L.Ed.2d 677 (1984) (exclusionary rule should only be applied when “its remedial objectives are thought most efficaciously served”). Further, there was no hint of coercion. I believe Carson had been an employee of the Fish and Game Commission and apparently knew the officers. The consent to search was freely given. Carson must have known the doves would be found; apparently he was confident that his possession was legal, or that the officers would be unable to prove that the doves were shot that day. In these circumstances I do not believe the second search arose through “exploitation” of the first search within the meaning of Wong Sun and Brown, despite the short time span between the illegal search and Carson’s consent. See United States v. Wellins, 654 F.2d at 555 (“lack of a significant intervening period of time does not, in itself, require that the evidence be suppressed for want of sufficient attenuation.”).

Accordingly, I agree that the evidence discovered in the consensual search need not be suppressed.