IN THE UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_________________________
No. 94-10117
_________________________
UNITED STATES OF AMERICA,
Petitioner-Appellee,
versus
PATRICK WILSON,
Respondent-Appellee.
____________________________________________________
Appeal from United States District Court
for the Northern District of Texas
__________________________________________________
(October 21, 1994)
Before REAVLEY, DeMOSS and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Patrick Wilson was indicted for possession of stolen
mail, to-wit: a personal check which had been mailed to Brant or
Tricia Whetstone in a letter or parcel, in violation of 18 U.S.C.
§ 1708 and 2. Wilson filed a motion to suppress the checkbook and
to suppress the statement which he made at the postal inspection
office. The district court overruled the motion to suppress.
Wilson entered a conditional plea of guilty to possession of a
check stolen from the mail, but reserved his right to appeal the
adverse ruling on his motion to suppress. Wilson was sentenced to
ten months imprisonment, to be followed by three years of
supervised release. He appeals the district court's denial of his
motion to suppress evidence and a statement. We reverse.
HEARING ON THE MOTION TO SUPPRESS
At the hearing on the motion to suppress, the parties
adduced the following evidence:
David McDermott, a U. S. Postal Inspector, was contacted
by a confidential informant who reported that Wilson was in room
129 in a hotel in Arlington, Texas. Based on conversations with
other individuals, Inspector McDermott believed that there was a
good chance that Wilson was involved in the possession of stolen
United States mail. Inspector McDermott called Sergeant Robert
Cowcert, an officer with the Arlington Police Department, and asked
Sgt. Cowcert to accompany him to the hotel room to check for a
possibly wanted person. The hotel was frequented by drug users and
Inspector McDermott would not have gone alone to the area.
Inspector McDermott had previously arrested Wilson and at that time
Wilson had been armed.
On or about March 30, 1993 or April 2, 1993, Inspector
McDermott and Sgt. Cowcert went to the hotel and determined that
room 129 was registered to James Stiles. The officers knocked on
the door of the room and, without hesitation, Stiles invited them
into the room. When they first entered the room, Stiles'
girlfriend was in the room and Wilson was in the bathroom.
Inspector McDermott introduced himself to Stiles. At that time,
the inspector did not have probable cause to arrest Wilson.
James Stiles had resided in the hotel room for three
years. Wilson had slept in Stiles' hotel room the previous night
with Stiles' permission. Stiles told the officers that Wilson was
in the bathroom and Wilson came out of the bathroom after the
officer told him to do so. Sgt. Cowcert made a "protective sweep"
of the hotel room, including the bathroom, to insure that there was
no one else in the room and no weapons. Sgt. Cowcert stepped into
the darkened bathroom with his flashlight on and observed a
checkbook in a small trash can. The checkbook was in a colored
checkbook cover. The officers then asked Wilson about the checks
which were discovered in the bathroom. Wilson and the other two
occupants of the room denied any knowledge of the checkbook.
Sgt. Cowcert returned to his car to check the computer
for Wilson's name, but found no warrant outstanding for Wilson's
arrest. After the checks were discovered, the officers asked
Stiles' permission to do a complete search of the room. Stiles
gave his written consent to search the room because he had nothing
in there to hide.
Inspector McDermott called the person whose name was on
the checks and found out that she had been expecting the checks in
the mail. Inspector McDermott then requested that Wilson provide
him with samples of his handwriting. Wilson agreed to do so and
began writing. However, when Inspector McDermott looked at the
writing and told Wilson that it appeared that Wilson had written
the checks, Wilson refused to return the writing. Inspector
McDermott forcefully told Wilson that he could not keep the writing
3
because it was government property, and Wilson ultimately gave the
writing to the inspector.
Inspector McDermott indicated to Wilson that he had
obtained sufficient evidence to have Wilson jailed and told Wilson
that he would call the police or the U.S. Attorney's office about
Wilson, or Wilson could accompany him to the postal inspection
office. Wilson decided to accompany Inspector McDermott and
followed him to the office. According to Inspector McDermott,
Wilson was not under arrest at that time and was free to proceed in
another direction.
At the postal inspection office, Wilson and Inspector
McDermott were "buzzed" into the office. Wilson believed that he
was in custody at that time. Inspector McDermott advised Wilson of
his Miranda1 rights. Wilson waived these rights, gave an oral and
written confession to having possession of the stolen mail, and
provided a handwriting exemplar. He was photographed and finger
printed at the end of the meeting and was then told that he was
free to leave the office.
According to Inspector McDermott, Wilson was free to
leave the postal inspection office at any time. However, according
to Wilson, Inspector McDermott had said that if he did not come to
the postal inspection office, the police would arrest him to obtain
the exemplar and would hold him for two days; Wilson did not
believe that he was free to go after that discussion. Inspector
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 16 L. Ed 2nd
694 (1966).
4
McDermott did not recall what he had said to Wilson about the
choice between calling the police and going to the postal
inspection office.
Wilson testified that the checks were his and/or he had
a possessory interest in the checks. At the conclusion of the
hearing, the district court found that Wilson had no standing to
contest the search because he had no expectation of privacy in
Stiles' hotel apartment. The district court also determined that
Sgt. Cowcert went into the bathroom and, by using the flashlight,
saw something in the trash can; upon closer inspection, Sgt.
Cowcert found that it was the checks. The district court
determined that, because Stiles subsequently consented to the
search, it was clear that the checkbook would ultimately have been
discovered. The district court concluded that the seizure was
justified because (1) Wilson has no standing to complain and (2)
the checkbook was in plain view. With regard to Wilson's
confession, the district court determined that Wilson voluntarily
followed Inspector McDermott to the postal inspection office and
that he voluntarily gave the challenged statement.
Wilson pled guilty to possession of stolen mail, but
reserved his right to appeal the ruling on the motion to suppress.
The district court sentenced Wilson to ten months of imprisonment
followed by three years of supervised release. Wilson appeals the
denial of his motion to suppress asserting, inter alia, that he
does have standing to challenge the search and seizure of the
checks, that the warrantless seizure was unreasonable and therefore
5
prohibited by the Fourth Amendment, and that his confession was
tainted by the illegal seizure. Because we agree with these
contentions, we do not reach either his remaining arguments or the
government's response thereto.
DISCUSSION
I. Standing
The government asserts, and the district court found,
that Wilson has no standing to contest the search or seizure of the
checkbook because he had no expectation of privacy in Stiles' hotel
apartment.
Wilson has the burden of showing that he has standing.
Once the defendant produces evidence that the search and seizure
were warrantless, the burden shifts to the government to justify
the warrantless search and seizure. United States v. De La Fuente,
548 F.2d 528, 533 (5th Cir.), cert. denied sub non, Stewart v. US,
431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977).
In general, a person who is aggrieved by an illegal
search and seizure only through the introduction of damaging
evidence secured by a search of a third person's premises or
property has not had any of his Fourth Amendment rights infringed.
Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387
(1978), citing Alderman v. United States, 394 U.S. 165, 174, 89
S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). In order to have Fourth
Amendment standing, a defendant must show 1) an actual, subjective
expectation of privacy with respect to the place being searched or
items being seized, and 2) that the expectation is one that society
6
would recognize as reasonable. United States v. Doe, 801 F.Supp.
1562, 1572 (E.D. Tex. 1992), citing United States v. Lee, 898 F.2d
1034, 1037-1038 (5th Cir. 1990).
Wilson asserts that, under Minnesota v. Olson, 495 U.S.
91, 110 S.Ct. 1684, __ L.Ed.2d ____ (1990), he has standing. We
agree. Although the facts in Olson are dissimilar,2 its language
is broad: Olson states that ". . . status as an overnight guest is
alone enough to show that he had an expectation of privacy in the
home that society is prepared to recognize as reasonable." Olson,
405 U.S. at 96-97, 110 S.Ct. at 1688. In the instant case, Stiles
lived in a hotel room and had lived there for approximately three
years. Wilson was an overnight guest in Stiles' "home". Thus,
Wilson had an Olson expectation of privacy and he may challenge the
district court's ruling on his motion to suppress. Accordingly, we
find that the district court erred in its determination that Wilson
had no expectation of privacy in Stiles' hotel-residence. Due to
his Olson expectation of privacy, Wilson has discharged his burden
to show that he has standing to challenge the search and seizure of
the checkbook. The burden thus shifts to the government to justify
the warrantless search and seizure of the checkbook.
Relying on United States v. Alvarez, 6 F.3d 287, 289 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1384, 128 L.Ed.2d 59 (1994),
the Government argues that Wilson has no standing because he
2
"Olson dealt with a warrantless arrest of a person, not the
seizure of an object which the suspect had denied owning."
Alvarez, 6 F.3d 287, 290, cert. denied, ___ U.S.___, 114 S.Ct.1384,
128 L.Ed.2d 59 (1994).
7
abandoned the checks. In Alvarez, the officers saw Alvarez in the
door of his hotel room, approached him with a valid arrest warrant,
and lawfully arrested him. By contrast, the instant law
enforcement officers had no warrant and no probable cause to arrest
Wilson. 6 F.3d at 290. The officers arrested Alvarez and he then
voluntarily abandoned any interest in a garment bag that was
hanging in the hotel room closet. Id. at 289. The police
discovered a pistol in the bag. Id. Alvarez continued to deny an
interest in the bag throughout the proceedings and testified that
it belonged to his girlfriend. The Court noted that the voluntary
abandonment of the bag was "not influenced by any improper police
conduct." Id.
We distinguish Alvarez because Sgt. Cowcert seized the
instant checkbook prior to Wilson's initial denial of interest in
the checks. Shortly after his initial denial, Wilson confessed at
the postal inspection office and admitted he had possessed the
checkbook. At the motion to suppress, Wilson testified that he had
a possessory interest in the checks. The government has cited, and
we have found, no authority which states that under these
circumstances the presence of the checkbook in a trash can inside
Stiles' residence constitutes abandonment.
II. Suppression of the Checkbook
Because the district court found that Wilson had no
standing to challenge the search and seizure of the checks, it did
not squarely address the question of whether the government carried
its burden to justify the warrantless seizure of the checks.
8
However, the district court did find that the checks were in plain
view, that Stiles voluntarily consented to the search, and that due
to Stiles' subsequent written consent the checks ultimately would
have been discovered.
Standard of Review
A district court's ruling on a motion to suppress based
upon live testimony at a suppression hearing is accepted unless
clearly erroneous or influenced by an incorrect view of the law.
United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994); United
States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993). Furthermore,
the evidence must be viewed in the light most favorable to the
party that prevailed below. Laury, id. (citations omitted).
Questions of law are reviewed de novo, United States v. Muniz-
Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S.
923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (quoting United States
v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984), as are the
district court's ultimate conclusions of Fourth Amendment
reasonableness. United States v. Colin, 928 F.2d 676, 678 (5th
Cir. 1991).
Inevitable Discovery Due to Stiles' Consent?
The district court determined that the seizure of the
check was lawful because Stiles subsequently gave his consent to
search the premises and the checkbook would have been ultimately
discovered. This finding raises two questions: (1) whether the
seizure was justified by Stiles' consent and (2) whether the
9
"inevitable discovery" doctrine would have rendered the seized
checks admissible.
Warrantless searches and seizures inside someone's home
are presumptively unreasonable unless the occupants consent or
exigent circumstances exist to justify the intrusion. United
States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993). The instant
facts present no exigent circumstances. Accordingly, we examine
whether the district court erred in finding that Stiles' consent
justified the warrantless search. The standard of review is
whether the district court's determination is clearly erroneous.
United States v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993).
One of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search that
is conducted pursuant to consent. Schneckloth v. Bustamonte, 412
U.S. 218, 83 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (19 *); see also,
Richard, 994 F.2d at 250. Police may rely on the voluntary consent
of a person holding common authority over the place to be searched.
Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111
L.Ed.2d 148 (1990). The government must prove by a preponderance
of the evidence that the consent was voluntary and, if it is
preceded by a Fourth Amendment violation, the burden of proof is
heavier. Id. When the justification for a search is based on
consent, the government has the burden of proving that the search
was conducted within the scope of the consent received. United
States v. Ibarra, 965 F.2d 1354, n.2 at 1356 (5th Cir. 1992) (en
banc) (equally divided court).
10
In order for the "inevitable discovery" rule to apply the
government must demonstrate, by a preponderance of the evidence,
both (1) that there is a reasonable probability that the contested
evidence would have been discovered by lawful means in the absence
of police misconduct and (2) that the government was actively
pursuing a substantial alternate line of investigation at the time
of the constitutional violation. United States v. Lamas, 930 F.2d
1099, 1102 (5th Cir. 1991); United States v. Cherry, 759 F.2d 1196,
1205-1206 (1985), cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93
L.Ed.2d 983 (1987).
In determining whether the officers would have ultimately
lawfully seized the evidence, consideration should be given to
whether Stiles' consent was voluntarily given. The only evidence
presented with respect to the voluntariness of Stiles's consent was
his testimony that he had no problem with consenting to the search
of his hotel room because he had nothing to hide. We find no clear
error in the district court's determination that Stiles's consent
was voluntary. However, the government must show that the officers
acted within the scope of the consent given.
The search and seizure of the checks was conducted prior
to, not pursuant to Stiles' written consent. The government has
cited, and we have found, no authority which renders the subsequent
written consent a dispositive factor in determining whether the
search and seizure was within the scope of Stiles' pre-seizure
consent. The government presented no evidence which indicated
that, prior to the seizure, Stiles consented to more than a
11
cursory, visual inspection.3 There being no evidence that at the
time of the seizure the officers acted within the scope of Stiles'
consent, we conclude that the government did not demonstrate that
the seizure was justified by Stiles' pre-seizure consent.
It can be argued that Stiles' cooperativeness indicates
that the checks would have eventually been discovered by lawful
means. However, application of the "inevitable discovery" rule
also requires a showing that the government was actively pursuing
a substantial alternate line of investigation at the time of the
constitutional violation. Cherry, 759 F.2d 1196, 1206. Inevitable
discovery cannot rest upon speculation; it must be supported by
historical facts that can be verified or impeached. Lamas, 930
F.2d at 1102.
For example, Cherry held that evidence seized as a result
of a warrantless search was not admissible under the "inevitable
discovery" doctrine although there was enough probable cause to
obtain a warrant because the officer had taken no steps to obtain
a warrant at the time of the illegal search. Cherry, 759 F.2d at
1206. By contrast, the evidence obtained in Lamas was admissible
under the doctrine because the officers entered the house to secure
the premises only, there was probable cause to obtain a search
warrant, and an officer had left the premises to obtain the warrant
at the time of the seizure. 930 F.2d at 1103.
3
See the discussion, infra, regarding the "protective sweep"
exception to the warrant requirement.
12
In the instant case, the only evidence regarding the
basis for suspecting Wilson was Inspector McDermott's testimony as
follows:
On April 2nd I was contacted by a confidential
informant and the informant told me that Mr.
Wilson was at room 129 of the Abrams Inn in
Arlington, Texas. I had known from speaking
the past -- on prior occasions speaking to
other individuals that there was a pretty good
chance that Mr. Wilson was also involved in at
least the possession of stolen United States
mail.
The government concedes that there was no probable cause prior to
the instant search and seizure. The only evidence of an alternate
line of investigation is Inspector McDermott's testimony that he
believed the Dallas police inevitably would have discovered that
Mr. Wilson had possessed stolen checks. The inspector testified as
follows regarding the basis for his belief:
There was an incident at a supermarket in
Dallas, Texas where one of the Whetstone
checks, an individual attempted to cash and
forge it at a grocery store. The clerk wrote
down a license plate number that came back to
a man. And I subsequently followed the chain
of events of this. And the individual gave me
the name of a woman, I think it was his ex-
wife or common-law wife that had access to the
car. I contacted her. She told me that Mr.
-- she took Mr. Wilson to the grocery store.
She didn't know why at the time but remembers
taking him to the grocery store to cash a
check, get some money.
Inspector McDermott then stated that either he or the Dallas police
"would have run the lead down." However, there was no evidence
about whether there had been such follow up and, if so, whether
there was any corroborating or superseding evidence which linked
Wilson to these checks.
13
The inspector testified that he had no probable cause to
arrest Wilson when he entered the hotel room. His testimony about
what he believed either he or the Dallas police would find upon
further investigation does not rise to the level of "historical
facts which can be verified or impeached."4 Because there has been
an insufficient showing that the government was actively pursuing
a substantial alternate line of investigation at the time of this
warrantless search and seizure, the checkbook was not admissible
under the "inevitable discovery" doctrine.
Protective Sweep?
The government argues that the seizure of the checkbook
was lawful because it was discovered during a protective sweep of
the hotel room. A "protective sweep" is a quick and limited search
of a premises, incident to an arrest and conducted to protect the
safety of police officers or others. It is narrowly confined to a
cursory visual inspection of those places in which a person might
be hiding. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093,
108 L.Ed.2d 276 (1990). The instant search of the hotel room was
not made as an incident to an arrest and, therefore, it does fit
within the "protective sweep" exception to the warrant requirement.
4
The presentence report contains references to this grocery
store incident, as well as to an April 14, 1993 photo
identification of Wilson by a grocery store employee. The report
notes that "This information was obtained from the investigative
notes of Postal Inspector Dave McDermott." Although the hearing on
Wilson's motion to suppress was held on November 18, 1993, seven
months after this photo identification, the record contains no such
evidence.
14
Moreover, under the instant circumstances, the seizure of the
checkbook from the wastebasket was not within the narrow ambit of
a "cursory visual inspection" of a place where a person could be
hiding. See Buie, 494 U.S. at 327.
Plain View?
The district court found that the seizure of the checks
was lawful because "they were in view so that they were seen by the
officer." A plain view seizure requires that (1) the police's
initial intrusion be supported by a warrant or recognized exception
to the warrant requirement, and (2) the incriminating character of
the object seized be immediately apparent. United States v.
Coleman, 969 F.2d 126, 131 (5th Cir. 1992) (footnotes omitted).
The instant seizure satisfies neither of these requirements.
None of the exceptions to the warrant requirement apply
to these facts. The checkbook was not in plain view in the
bathroom. Even if it could readily be observed during a cursory
visual inspection of the bathroom, the checks themselves were not
visible because of the cover. Taking it one step further, even if
the checks were not inside a cover, and the names were visible when
Sgt. Cowcert looked in the bathroom, the incriminating character of
the checks did not become apparent until their stolen nature was
verified by the telephone call. The incriminating character of the
evidence was not immediately apparent. The checkbook was not
admissible under the plain view doctrine.
For the foregoing reasons, we find that the district
court erred in finding this seizure to be reasonable and in denying
15
Wilson's motion to suppress the checkbook. Sgt. Cowcert's seizure
of the checks was unreasonable and was therefore prohibited by the
Fourth Amendment. We turn next to examine whether Wilson's
confession was the product of this unreasonable seizure.
III. Suppression of the Statement
Wilson contends that the statement he made at the postal
inspection office should have been suppressed because it was fruit
of the unreasonable search and seizure of the checkbook. He also
argues that his statement was the fruit of an illegal arrest. By
contrast, the government contends Wilson's statement is admissible
because (1) the search and seizure of the checkbook was lawful and
(2) Inspector McDermott had just seen Wilson with stolen mail and
therefore had probable cause to arrest him but chose not to. The
government further argues that, even assuming that Wilson was
under arrest, he was properly placed under arrest and properly
Mirandized, therefore, the confession was legally obtained. Having
already determined that the checkbook was unlawfully seized, we do
not address the government's argument that Wilson's confession is
admissible because the seizure was lawful.
In addition to evidence obtained directly from a
violation of the Fourth Amendment, the "fruit" of such illegal
conduct must be excluded. See Wong Sun v. United States, 371 U.S.
471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the test is not
a "but for" inquiry of causation. Rather, the inquiry is whether
the challenged evidence was obtained by exploitation of that
illegality or instead by a means sufficiently distinguishable to be
16
purged of the primary taint. See Wong Sun, 371 U.S. at 488, 83
S.Ct. at 417.
In order for the causal chain between the illegal seizure
of the checkbook and Wilson's statement to Inspector McDermott to
be broken, the statement must have been voluntary, and
"sufficiently an act of the free will to purge the primary taint."
United States v. Parker, 722 F.2d 179, 186 (5th Cir. 1983),
overruled on other grounds, United States v. Hurtado, 905 F.2d 74
(5th Cir. 1990), citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct.
2254, 2261, 45 L.Ed.2d 416 (1975) and United States v. Miller, 608
F.2d 1089, 1102 (5th Cir. 1979), cert. denied, 447 U.S. 926, 100
S.Ct. 3020, 65 L.Ed.2d 1119 (1980).
In Dunaway v. New York, 442 U.S.# 200, 99 S.Ct. # 2248,
60 L.Ed.2d 824 (1979), the United States Supreme Court addressed
the issue of whether a confession, obtained after illegal seizure
of the defendant, was sufficiently attenuated to permit its use at
trial. The Court stated the following, 99 S.Ct. at 2259 (citation
and footnote omitted):
[A]lthough a confession after proper Miranda
warnings may be found "voluntary" for purposes
of the Fifth Amendment, this type of
"voluntariness" is merely a "threshold
requirement" for Fourth Amendment analysis.
Indeed, if the Fifth Amendment has been
violated, the Fourth Amendment issue would not
have to be reached.
Thus, the fact that the defendant was given Miranda warnings,
standing alone, will not prove that the statement was sufficiently
an act of free will. Brown v. Illinois, 95 S.Ct. at 2254; Dunaway
v. New York, 99 S.Ct. 2259.
17
Whether a confession was enough of a
product of free will to break the chain will
depend on the facts of each case. United
States v. Miller, 608 F.2d at 1102. "Factors
to be considered, in addition to warnings, are
the temporal proximity of the illegality and
the confession, the presence of intervening
circumstances, and, particularly, the purpose
and flagrance of the official misconduct."
Id.
Parker, 722 F.2d at 186. These factors aid in the determination of
whether the government has shown that the primary taint has
dissipated. See Richard, 994 F.2d at 252.
When Sgt. Cowcert seized the checkbook, Wilson and the
other two occupants of the room denied any interest in the
checkbook. At that point, Inspector McDermott still had no
probable cause to arrest Wilson, and had no articulated reason to
believe that Wilson, rather than Stiles or his girlfriend, was
associated with the seized checks. Inspector McDermott then
requested that Wilson provide him with a handwriting exemplar, and
Wilson volunteered to do so. Inspector McDermott told Wilson that
it appeared to him that Wilson had written the checks. Wilson then
refused to return the exemplar, and Inspector McDermott told him
that he was not entitled to keep the writing because it was
government property.
After the checkbook was seized, after the officers
contacted the person to whom the checks belonged, and after
Inspector McDermott exerted his authority to compel Wilson to hand
over the requested writings, Inspector McDermott informed Wilson
that he could either come to the postal inspection office or the
18
local police would be called. Inspector McDermott used the checks
and the information obtained by examining the checks to persuade
Wilson to provide the handwriting samples. He also used
information arising directly from the unlawful seizure to persuade
Wilson to accompany him to the postal inspection office. Under
these circumstances, the drive to Inspector McDermott's office is,
in and of itself, insufficient to constitute an attenuation of the
primary taint.5
Wilson gave his confession shortly after the inspector's
show of authority. Inspector McDermott's behavior was the chain
which linked the illegal seizure with Wilson's confession. This
chain, i.e., Inspector McDermott's use of his authority, to
"encourage" Wilson to provide handwriting samples and to accompany
him to the postal inspection office was not broken by any
independent or voluntary act on Wilson's part. See and compare,
United States v. Webster, 750 F.2d 307, 324-325 (5th Cir. 1984),
cert. denied, 471 U.S. 1106, 1055 C. 2340, 83 L.Ed.2d 855 (1985),
(factors which include a lapse of 12 hours, car trip with officers
away from the crime scene, and additional Miranda warnings, found
insufficient to demonstrate that a statement was an act of free
will, purged of the taint of an illegal arrest); United States v.
Doby, 598 F.2d 1137 (8th Cir. 1979) (confession not the fruit of an
5
Although we do not reach this issue, we note that a
reasonable person in Wilson's position at the time the inspector
"invited" Wilson to the postal inspection office would have
believed that his "choice" was the police department or the postal
inspection office. Under these circumstances, Wilson's decision to
go to the postal inspection office appears to be a result of the
inspector's earlier show of authority.
19
illegal search because the illegally obtained evidence did not
materially affect the decision to confess); United States v.
Patino, 830 F.2d 1413 (7th Cir. 1987), (taint not purged where
Patino left her home twice: she remained in the presence of
government agents and consequently there was no significant break
from the initial unlawful entry and search).
We find that Wilson's confession resulted from an
exploitation of the illegally seized checks. The questioning that
ultimately elicited Wilson's confession occurred with no
intervening "act of free will to purge the primary taint" of the
unlawfully seized checkbook.6 Accordingly, we find that Wilson's
confession resulted from the illegal seizure and was the "fruit of
the poisoned tree". See and compare, Amador-Gonzalez v. United
States, 391 F.2d 308, 318 (5th Cir. 1968), overruled on other
grounds, United States v. Causey, 834 F.2d 1179 (5th Cir. 1987).
Thus the admissibility of the confession falls with that of the
checkbook.
CONCLUSION
For the foregoing reasons, the district court's ruling on
the motion to suppress is REVERSED and Wilson's conviction is
VACATED.
REAVLEY, Circuit Judge, dissenting:
6
Quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.
407, 9 L.Ed.2d 441 (1963).
20
Two officers were invited into the motel room. They
identified themselves and looked around. One of them saw a
checkbook in the wastebasket; he picked it up and handed it to the
other officer. The other officer then obtained a written consent
to search the room. The trial judge found no constitutional
violation in the initial retrieval of the checkbook from the
wastebasket. I agree.
The officers did not at the outset speak of a "search,"
but they looked around at the contents of the room and encountered
no objection. A reasonable officer would have concluded that the
invitation from the occupants and the acceptance of their conduct
allowed their movement and survey. Cf. U.S. v. Rich, 992 F.2d 502,
505 (5th Cir. 1993). The retrieval of the checkbook from the trash
was not an abuse of the manifested consent of the occupants. The
reasonableness of that view of the scope of the permission allowed
the officers was confirmed by the prompt affirmative response to
their inquiry about a "search."
If the conduct of the officers was reasonable to that
point, all of the other arguments and questions fall away. I would
affirm.
21
United States v. Wilson
Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-10-24
Citations: 36 F.3d 1298
Copy CitationsCombined Opinion