United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2007 Decided October 23, 2007
No. 05-3171
UNITED STATES OF AMERICA,
APPELLEE
v.
RONNELL D. HOLMES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00094-01)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and
Elizabeth Gabriel, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,
Circuit Judges.
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Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Appellant Ronnell Holmes was
found guilty at a jury trial in the U.S. District Court for the
District of Columbia for possession of a firearm and ammunition
by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Holmes appeals his conviction contending that the district court
erroneously denied his motion to suppress evidence of the
firearm and ammunition. He argues that police officers
discovered the evidence as a result of an illegal seizure of his car
keys during a Terry stop. We agree. For the reasons set forth
below, we reverse the judgment of conviction.
I. BACKGROUND
At approximately 3:40 a.m. on February 13, 2005,
Metropolitan Police Department officers John Delaroderie and
Steven Greene observed Holmes standing “very close” to a
woman in an alley in an area known for drug dealing and
prostitution. Upon seeing the police vehicle and Officer
Delaroderie observing them from inside the cruiser, Holmes and
the unidentified woman immediately ran away in different
directions. Given the couple’s suspicious behavior, combined
with the early hour and the location, Delaroderie exited his
vehicle and chased Holmes, who hurdled several residential
fences in his attempt to elude the pursuing officer.
When Delaroderie finally caught Holmes, he told him to
turn around and put his hands on a fence. At that point, Officer
Greene arrived in the police cruiser and proceeded to pat
Holmes down “to make sure there w[ere] no knives or guns on
him for [the officers’] own safety.” During the patdown, Greene
noticed a package of cigarette rolling papers protruding from
Holmes’s front pants pocket, and felt a set of keys and a wallet
in Holmes’s pockets. Officer Greene removed the keys and
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wallet and decided to handcuff Holmes due to the flight risk he
posed.
The officers began questioning Holmes about why he had
fled when he saw the police cruiser, and Holmes responded that
it was because he had been soliciting oral sex in the alley.
Officer Delaroderie then began filling out a police contact form,
which required Holmes’s general information, including his
name and address. Since the officers had already removed
Holmes’s wallet, Delaroderie used Holmes’s Maryland driver’s
license to fill out the form. After learning Holmes’s identity, the
officers called in Holmes’s information for a warrant check.
The check returned negative for outstanding warrants but
revealed that Holmes was on parole. On further questioning
about his parole status, Holmes revealed to the officers that he
had an earlier conviction for a drug offense.
When questioned about how he happened to be in the
District that night given his Maryland residence, Holmes first
told the officers that he had taken a Metro train into town.
Disbelieving his answer due to the time of night, the officers
again posed the same question, at which point Holmes stated
that a friend had dropped him off. Officer Greene then asked
Holmes why he had car keys with him, at which point Holmes
admitted he had driven himself into the District that night. The
officers asked him where his car was parked, and after first
telling them it was parked a few blocks away, he admitted that
it was parked just around the corner.
With Holmes’s car keys in hand, Officer Greene walked to
the street and used the remote opener on the keychain to identify
Holmes’s Acura, which lit up when Greene pressed the unlock
button within transmitter range. Officer Greene returned to
where Holmes and Officer Delaroderie were standing and
reported that he had found the car. The officers then asked
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Holmes, still handcuffed, if he would sign a consent-to-search
form to allow them to search his car. Officer Greene told
Holmes they wanted to search his car because they were
concerned that he had drugs inside. The officers also
commented to Holmes that they felt they already had authority
to arrest him for possessing the cigarette rolling papers.
The officers explained to Holmes that his decision to
consent to the search was entirely voluntary and that he could
refuse; Officer Greene actually read the consent form to Holmes,
who agreed to sign it. The officers had to release one of
Holmes’s hands from the cuffs so he could sign the consent
form. Holmes was present at the vehicle when Officer Greene
searched it, and specifically requested that Greene not touch the
driver’s seat’s electrical controls, explaining that they were set
for his wife. When Greene bent down to look under that seat, he
discovered a 9mm Ruger P89 pistol. The officers then placed
Holmes under arrest for carrying a pistol without a license and
for possession of drug paraphernalia. Holmes was ultimately
indicted only for unlawful possession of a firearm and
ammunition by a felon.
Prior to trial, Holmes moved to suppress evidence of the
pistol seized from his car. While Holmes conceded that the
Terry stop and frisk were proper under the circumstances, he
challenged, among other things, Officer Greene’s removal of his
keys and wallet during the Terry patdown and argued that his
eventual consent to the search of his vehicle was involuntary.
When the district court considered Holmes’s argument that
the police had seized his car keys illegally and that this seizure
had led directly to the discovery of incriminating evidence in his
vehicle, the court reasoned that whether Officer Greene had felt
the keys while they remained in Holmes’s pocket or taken them
out was immaterial to Greene’s line of questioning about how
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Holmes had come to the area. The court reasoned that the
officers’ feeling Holmes’s keys in his pocket during the patdown
—not the seizure of Holmes’s keys—had led to discovery of the
vehicle, so the officers’ seizure of Holmes’s keys did not lead to
the discovery of the pistol inside.
Holmes also argued that his consent to search the vehicle
was not obtained freely since he was still in handcuffs and was
obviously not free to leave when the officers obtained his
written consent to search. Based on the signed consent form and
the police officers’ credible testimony that they did not use
force, coercion or threats during Holmes’s apprehension and
detention, the district court reasoned that Holmes’s consent to
search was voluntary.
The district court denied each of Holmes’s grounds for
suppression and ruled the weapon admissible into evidence. A
jury found Holmes guilty of one count of possession of a firearm
and ammunition by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). On September 23, 2005, the district court
sentenced Holmes to 102 months in prison, followed by three
years of supervised release. Holmes now appeals the district
court’s denial of his suppression motion.
II. ANALYSIS
We consider a district court’s legal rulings on a suppression
motion de novo and review its factual findings for clear error
giving “due weight to inferences drawn from those facts” and its
determination of witness credibility. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Brown, 334 F.3d
1161, 1164 (D.C. Cir. 2003).
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To prevail on a motion to suppress evidence as the fruit of
a Fourth Amendment violation, a defendant must first establish
that the search or seizure was illegal. See Alderman v. United
States, 394 U.S. 165, 183 (1969); United States v. Nava-
Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). That is not at
issue in this case. The government now concedes, as Holmes
had argued at the suppression hearing, that the police officers
exceeded the permissible scope of a protective frisk authorized
by Terry v. Ohio, 392 U.S. 1 (1968), by seizing appellant’s keys
from inside his pocket. We agree that police seizure of items
that are neither weapons nor apparent contraband during a Terry
patdown exceeds that doctrine’s limited exception to the Fourth
Amendment’s prohibition on warrantless searches and seizures.
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme
Court explained that for a Terry patdown to survive
constitutional scrutiny, it must be “strictly ‘limited to that which
is necessary for the discovery of weapons which might be used
to harm the officer or others nearby.’” Id. at 373 (quoting Terry,
392 U.S. at 26). It is true that an officer conducting a legitimate
Terry stop who “discover[s] contraband other than weapons . . .
cannot be required to ignore the contraband, and the Fourth
Amendment does not require its suppression.” Michigan v.
Long, 463 U.S. 1032, 1050 (1983). But there is no claim here
that the keys constituted contraband, and the officer had no right
to take them from Holmes’s pocket during the patdown.
Next, the defendant must make a prima facie showing of a
causal nexus between the Fourth Amendment violation and the
evidence he seeks to suppress. See United States v. Crews, 445
U.S. 463, 471 (1980). In this case, Holmes has met his burden
of showing that, but for the illegal seizure of the keys, the
officers likely would not have discovered the gun and
ammunition in his car. If they had not removed Holmes’s keys
during the patdown, the officers would not have been able to
visibly inspect them to determine whether Holmes possessed a
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car key. Visual confirmation that Holmes was carrying car keys
gave the officers reason to continue their line of questioning
about how Holmes came to the area that night. Additionally,
Officer Greene testified that he used the remote opener on the
keychain to both locate and unlock Holmes’s vehicle on the
adjacent street. Each of these factors contributed to the pistol’s
discovery, and we are satisfied Holmes met his burden of
showing a prima facie causal nexus between the illegal seizure
and the challenged evidence.
After the defendant has met his burden, the evidence must
be suppressed unless the government proves, by a
preponderance of evidence, that the evidence would have been
discovered inevitably, was discovered through independent
means, or that its discovery was so attenuated from the illegal
search or seizure that the taint of the unlawful government
conduct was dissipated. See Alderman, 394 U.S. at 183; United
States v. Kornegay, 410 F.3d 89, 93-94 (1st Cir. 2005).
Because the district court did not hold that the key seizure
violated Holmes’s Fourth Amendment rights, it failed to shift
the burden at this point. The district court should have placed
on the government the burden of proving that the gun would
have been discovered inevitably even without the illegal seizure
or, alternatively, that Holmes’s consent to search his vehicle
attenuated the taint, the two arguments it now advances.
Though the government argues that the district court made
findings favorable to the government on both issues which
should now be accepted by this Court, to the extent that this is
true, the district court arrived at those conclusions after
incorrectly assigning the burden of proof. Thus, while we
review the district court’s factual findings under a clearly
erroneous standard, where conclusions are based on the
application of the incorrect legal standard to those facts, we
review those conclusions de novo. Using that standard, we now
8
consider the government’s two arguments that the challenged
evidence should have been admitted notwithstanding the illegal
seizure.
1. Inevitable Discovery
The government argues that, even without the illegal seizure
of Holmes’s car keys during the Terry patdown, Officers Greene
and Delaroderie would have eventually discovered Holmes’s
car. It argues that, based on their lawfully gained knowledge
that Holmes possessed keys in his pocket, which Officer Greene
obtained from patting down Holmes’s clothing, and Holmes’s
evasive responses to their questions, they would have continued
questioning him until they had persuaded him to lead them to his
car. This argument is too speculative to carry the government’s
burden.
To prevail on an inevitable discovery theory, the
government must prove by a preponderance of the evidence that,
even without the unlawful seizure, the evidence it seeks to admit
would have been discovered anyway. Nix v. Williams, 467 U.S.
431, 444 n.5 (1984). Further, “inevitable discovery involves no
speculative elements but focuses on demonstrated historical
facts capable of ready verification or impeachment and does not
require a departure from the usual burden of proof at
suppression hearings.” Id.
The government points to no evidence in the record with
which it can attempt to meet its burden to prove that Holmes’s
car, and ultimately the pistol therein, would inevitably have been
discovered absent the unlawful seizure of Holmes’s keys. While
the government argues that “nothing suggests that, had Officer
Greene not seized the keys, he would not have asked appellant
about them,” this argument only serves to expose the weakness
of its evidentiary position. The only part of the record the
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government points to in support of its inevitable discovery
argument is a colloquy between the district court and defense
counsel at the suppression hearing. During that discussion, in
which the district court was testing the defense’s arguments, the
court speculated that the officer could have interrogated Holmes
about the car keys “even if they were still in the pocket.” While
it is certainly true that when the officer felt something that could
have been keys, he might have asked Holmes if they were in fact
keys. And it is possible that Holmes might have answered
truthfully. It is further possible that the officer might then have
asked him if one of them was a car key. It is further possible
that Holmes again might have been truthful. It is then possible
that the colloquy envisioned by the government would have
occurred. However, all of this is nothing more than possibility.
As evidence of inevitable discovery (and whether it was actually
a finding of the court is dubious), this fails under Nix. It is, at
best, speculative rather than based on “demonstrated historical
facts capable of ready verification.” Id. We therefore reject this
theory and move on to the government’s alternative argument.
2. Attenuation of Taint
The government argues that, even if the government would
not have inevitably discovered Holmes’s car without the illegal
seizure of his car keys, his consent to the officers’ search of his
car purged the taint of the prior illegal seizure. We disagree.
Evidence obtained following an unlawful seizure may be
admissible if the government can demonstrate that there was an
act prior to discovery of the challenged evidence sufficient “to
purge the primary taint” and break the causal chain between the
illegal government conduct and the evidence’s ultimate
discovery. See Brown v. Illinois, 422 U.S. 590, 602 (1975);
United States v. Wood, 981 F.2d 536, 541 (D.C. Cir. 1992)
(“Once an illegal seizure is established, the Government has the
10
burden of proving that the causal chain was sufficiently
attenuated by an independent act to dissipate the taint of the
illegality.”).
Although Brown involved a confession following an illegal
arrest, its analysis applies equally to consent given after an
illegal search or seizure. See United States v. Snype, 441 F.3d
119, 134 (2d Cir. 2006); United States v. Jordan, 951 F.2d 1278,
1283 n.3 (D.C. Cir. 1991). Consent to a search will purge the
taint of an unlawful seizure only if that consent is not merely
voluntary but “sufficiently an act of free will” that it was not a
result of the exploitation of the unlawful seizure. Brown, 422
U.S. at 599-604. Although the question whether a voluntary
consent is a sufficiently free act to purge the taint “must be
answered on the facts of each case [and] [n]o single fact is
dispositive,” Brown outlined four non-exclusive factors to
consider: (1) whether Miranda warnings were given; (2) the
temporal proximity of the arrest and the consent; (3) the
presence of intervening circumstances; and (4) the purpose and
flagrancy of the official misconduct. Id. at 603-04.
While the government argues that the Brown factors weigh
in its favor and that it has met its burden of proving that
Holmes’s consent was an act of free will sufficient to purge the
earlier taint, we disagree. Though we accept the district court’s
factual finding that the officers properly informed Holmes of his
right to refuse consent and that he signed the form, we cannot
conclude that this consent purged the taint, as there are simply
too many factors weighing against such a conclusion. Since the
facts necessary for each analysis are the same, we consider the
question of voluntariness as we consider the Brown factors.
First, the officers did not give Holmes the Miranda
warnings prior to eliciting his consent. The government
contends that the officers were not required to do so because
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Holmes was not then in “custody.” We need not decide whether
Holmes was entitled to Miranda warnings because the other
circumstances show that his consent was not sufficiently free to
purge the taint.
On the issue of temporal proximity, here there was virtually
no temporal gap between the seizure and the consent. The entire
encounter between Holmes and the police lasted just a few
minutes between the illegal seizure and when the officers
secured his signature on the consent form. This issue weighs
heavily against a finding that Holmes’s consent was an act of
free will sufficient to purge the taint of the earlier illegal police
conduct. See United States v. Washington, 387 F.3d 1060, 1073
(9th Cir. 2004) (holding 15 minutes insufficient); United States
v. Maez, 872 F.2d 1444, 1456 (10th Cir. 1989) (holding 45
minutes insufficient).
Further, any “intervening circumstances” are of little help
to the government, either. The entire incident occurred in the
middle of the night on an empty street. Holmes’s first
interaction with the officers was a seemingly unprovoked flight
from their presence, which, after they had caught and detained
him, led them to place him in handcuffs for the remainder of the
incident. After a patdown turned up only cigarette rolling
papers, the officers informed him that this gave them authority
to arrest him for possession of drug paraphernalia. The officers
may also have implied that they had probable cause to get a
warrant to search the vehicle for drugs based on Holmes’s
possession of the rolling papers. See Washington, 387 F.3d at
1076 (“[R]epeated reminders to [defendant] that the officers
could arrest him at any time, in our view, appear to have been
given as a tactic to coerce [him] into consenting to the search of
his room.”). By the time the officers sought Holmes’s consent
to search his car, the officers had already located his car and
opened it with his car’s remote door lock control as a direct
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result of the illegal seizure. At the very least, it appears that
Holmes faced a coercive situation at the time he gave consent
since the implication was that his only prayer of avoiding arrest
that night was to consent to the search and simply hope that the
officers would not discover the hidden handgun. The
intervening circumstances, therefore, strongly weigh against a
finding that Holmes’s consent was sufficient to purge the taint
of the unlawful seizure.
Finally, while the government puts much weight on the lack
of flagrant police misconduct, such as, for example, a threat of
violence, and we accept the district court’s credit of the officers’
testimony to this effect, we cannot find that the absence of this
factor compensated for the strongly coercive circumstances
otherwise surrounding Holmes’s grant of consent to search. We
conclude that the government has not met its burden of proof to
show that Holmes’s consent constituted an intervening act of
free will that broke the causal link between the unlawful seizure
of Holmes’s keys and discovery of the gun in his car.
Accordingly, the government’s attentuation of taint theory fails.
Since the government failed to meet its burden of proof to
show that the officers’ discovery of Holmes’s firearm and
ammunition was either inevitable in the absence of the unlawful
key seizure or that the illegality of the seizure was cured by his
subsequent consent to the search of his vehicle, we find that the
district court erred in denying Holmes’s motion to suppress
evidence found in his vehicle.
III. CONCLUSION
As this incorrectly admitted evidence formed the only
factual basis supporting Holmes’s conviction under 18 U.S.C. §
922(g)(1), we conclude that his conviction must be reversed.