United States v. Paradis

United States Court of Appeals
For the First Circuit

No. 03-1643

UNITED STATES OF AMERICA,

Appellant,

v.

ZACHARY PARADIS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]

Before

Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for
appellant.
William Maselli for appellee.

November 18, 2003
 LYNCH, Circuit Judge. The government brings this

interlocutory appeal, 18 U.S.C. § 3731, from the allowance of a

motion to suppress, on Fourth Amendment grounds, a firearm (a .25

caliber Rigarmi semi-automatic pistol), a box of .25 caliber

ammunition, a bag of .22 caliber ammunition, and statements made by

the defendant, Zachary ("Pee Wee") Paradis, after he was arrested

and had received Miranda warnings. See United States v. Paradis,

No. CRIM. 02-78-P-C, 2003 WL 1960594 (D. Me. Apr. 25, 2003)

(adopting the recommended decision of the magistrate judge reported

at 2002 WL 31989385 (D. Me. Feb. 10, 2002)).

The case raises issues about the defendant's ability to

establish a Fourth Amendment interest in seized weapons, the limits

on the government's ability to rely on the "protective sweep"

doctrine, and the reach of the attenuation doctrine under the

Fourth Amendment. We affirm the suppression of the firearm on the

grounds reached by the district court, remand on the unreached

ground, and reverse the suppression of the two groups of ammunition

and the statements.

In brief, police officers armed with a warrant entered

the apartment of Danyelle Bell in Auburn, Maine on June 24, 2002 in

search of her former boyfriend, Paradis, who was wanted on state

arrest warrants. After the defendant had been arrested and removed

from the apartment, an officer moved the mattress of a child's bed,

causing a pile of clothes and toys to fall and uncovering a pistol,

-2-
which he then seized. On June 30, five days after the arrest, an

officer interviewed Bell in response to her report that Paradis,

who had been released on bail, had stolen her car. During that

interview and a later one, Bell was asked if she knew anything

about the seized pistol. She linked Paradis to the pistol and to

some ammunition in her apartment and on a back porch of the

building. The defendant was arrested again under state law and was

ultimately charged with the federal crimes of being a felon in

possession of a firearm and ammunition, 18 U.S.C. §§ 922(g)(1) and

924(a)(2), and with possessing a firearm with an altered serial

number, 18 U.S.C. §§ 922(k) and 924(a)(1)(b). Paradis then made

statements to the police regarding the pistol and the ammunition.

I.

We describe briefly the facts as found by the magistrate

judge and adopted by the district court judge, and supplemented

from the record. We review the findings of fact for clear error

and the ultimate Fourth Amendment conclusions de novo. Ornelas v.

United States, 517 U.S. 690, 699 (1996).

As of June 24, 2002, three active state arrest warrants

for the defendant were outstanding, one arising from his domestic

assault of Danyelle Bell and the other two from his failure to

appear on two different charges -- operating a vehicle after

license suspension and failing to stop for a police officer. At

about 11:15 p.m. on that date, Auburn police officers Prince and

-3-
Harrington went to an apartment known to be the apartment of the

defendant's girlfriend, Danyelle Bell. The apartment was on the

second floor, and there were only two apartments on that floor.

The officers heard the voices of several men through the door of

the apartment. They knocked. A female voice asked who was there.

Harrington announced that it was the police department. The

officers could hear rustling in the back of the apartment. Bell

came to the door and opened it only far enough for the officers to

see her. They asked if Paradis was there; she said that he was

not, but she appeared nervous. She said that she had last seen him

about a month earlier, which the officers knew to be untrue because

she had twice called the police in June with complaints about him.

Bell stated that her new boyfriend was there; Harrington asked to

have him come to the door. Bell called to the back room for "Josh"

to get dressed and come to the door.

Joshua Benning appeared and said that he did not know the

defendant. Harrington asked Bell if he could go into the apartment

to look for Paradis in light of her prior repeated calls to the

police and her relationship with Paradis.1 Then Malon Bean came to

the door and told Harrington that Bell was "his girl" now, that

Paradis was not there, and that the officers would not be allowed

1
On June 6, 2002, Bell had called the police and reported
that Paradis was "flipping out" at her apartment. On March 30 and
June 3, 2002, Paradis had assaulted Bell. Bell again called the
police approximately two weeks after the June 3 assault and
reported that Paradis had taken her car.

-4-
to enter. While Bell, Benning, and Bean were at the door, the

officers could still hear rustling in the back room of the

apartment. At some point, Bell told the officers that her four-

year-old child was not at home.

Lieutenant Roth arrived and told Bell that if Paradis

were found in her apartment, she could be charged with harboring a

fugitive. Bell appeared to grow more nervous. The lieutenant

asked Bell to go into the apartment and ask Paradis to come out.

Bell went inside. About five minutes later, Benning left the

apartment; he was followed a few minutes later by Bell and Bean.

Bell locked the door behind her. Harrington told Bell that the

police would seek a search warrant.

The police could still hear rustling sounds from the back

room of the apartment. The police were not aware of any pets, and

they knew that the three people had left and the child was not

there. One officer remained at the apartment with a clear view of

its doors while others went to get a warrant. No one entered or

left the apartment until the police came back after midnight with

the warrant. The warrant authorized a search only for Paradis'

person.

The police knocked and announced, warrant in hand, but no

one answered. The police then forced entry into the apartment.

The officers moved through the rooms searching for the defendant in

roughly the following order: living room, small kitchen, back

-5-
through the living room, small bedroom, small bathroom, then back

into the bedroom. The officers found no one, and there were no

other rooms in the apartment. Officer Roth had noticed ammunition

on the entertainment center in the living room and had commented on

it to the other officers. In the bedroom for the second time, the

officers looked around and moved things. They lifted up the

mattress and box spring "because that would have been the only

logical place someone would have been able to hide," and found the

defendant lying beneath it. They arrested and removed him.

After Paradis was found, Officer Roth remained in the

bedroom and gave instructions to do a quick sweep of the "area

where the defendant had been removed from." Paradis was handcuffed

either then or on the way out. The officers did a "small sweep,"

moved some things around, and moved the bed to see if the defendant

had hidden anything while underneath it. They found nothing on

this sweep.

As the defendant was in custody and leaving the

apartment, Officer Prince, who had been waiting outside during the

initial search for Paradis, came upstairs to the apartment, passing

Paradis at the apartment door, and entered the living room. Prince

did not hear Roth's instructions to perform a sweep, which may have

been given before Prince arrived. Officer Prince went to the

bedroom and saw Officer Bouchard in the far corner of the room

looking around and trying to make his way out. He walked into the

-6-
room and was told by Officer Bouchard that the defendant had been

found under the bed. Officer Prince then slid the mattress of a

child's bed back onto its frame. He said he did so because

otherwise there would not have been enough room to pass.2 When he

slid the mattress, a pile of clothing fell to the ground and he saw

the handle of a pistol underneath "Tigger," a child's stuffed

animal. Officer Prince seized the gun. He estimated that he found

the gun about a minute and a half after he heard the radio report

that Paradis had been arrested. There was no evidence regarding

how long after the Paradis arrest that radio report was made.

On the night of June 30, 2002, Officer Hatfield, who had

been informed of, but was not involved in, the defendant's arrest,

responded to a report by Bell that her car had been stolen. Bell

told Hatfield that Paradis, who was out on bail, had stolen the

car. During their conversation, Hatfield asked Bell if she knew

anything about the firearm found on June 25. Bell said that the

gun belonged to the defendant, who had brought it into her

apartment. Officer Hatfield did not know that ammunition had been

observed in the apartment on June 25. Bell then gave him a yellow

box of .25 caliber ammunition which she said belonged to Paradis.

She stated that there was also a bag of ammunition belonging to

2
The defendant contested this explanation, claiming that
the mattress would have to be lifted out of the frame of a child's
bed with side rails (like a crib) and could only have been done
deliberately as part of a search. The magistrate judge did not
resolve this dispute.

-7-
Paradis on the back porch of the first floor level of the apartment

house. She pointed out the bag to Hatfield, who picked it up. It

contained .22 caliber ammunition. On July 1, 2002, Officer

Hatfield again interviewed Bell, this time at the police station,

and they discussed the gun and ammunition further. Among other

things, Bell recounted how she had purchased the wrong caliber

ammunition, the .22 caliber, for Paradis, and how Nicole Boutot, a

neighbor, had told her that Paradis had brought the .22 caliber

ammunition to Boutot's apartment, promising to come back to get it

but never doing so. Boutot later put the ammunition on the

downstairs porch of Bell's apartment building.

On July 3, 2002, the defendant, who had been released on

bail after the June 25 arrest, was again arrested pursuant to a

state arrest warrant. Paradis was advised of his Miranda rights,

and, after being reminded that he did not have to speak to the

police, agreed to answer questions. During the ensuing police

interview, he told police that he had lived with Bell at the

apartment since his release from prison approximately seven months

earlier. Paradis stated that he had bought the .25 caliber pistol

for Bell about a month earlier and that the gun was delivered to

the apartment by the seller. He said that a neighbor, Jody Green,

bought ammunition for the gun about two weeks after its purchase,

and he stated that the gun was working because someone had fired it

in his presence. When asked whether his fingerprints would be

-8-
found on the gun, Paradis said that they might, because he had

shown Bell how to load it.3

II.

A. The Suppression of the Gun

On appeal, the government argues that the gun should not

have been suppressed because the defendant had no Fourth Amendment

interest in the apartment or the gun, and alternatively, because

the gun was seized in plain view during a valid protective sweep of

Bell's apartment that was conducted shortly after the defendant was

found.4

1. Paradis' Protectible Fourth Amendment Interest

The district court held that Paradis had a reasonable

expectation of privacy in the apartment and could assert a claim of

violation of Fourth Amendment rights in the seizure of the gun.

The government argues that this holding was error.5

3
The serial numbers on the gun were scratched, and a stamp
on the gun read "Made in Italy."
4
On appeal, the government has abandoned the argument it
made to the district court that the seizure of the gun could be
justified under the search incident to arrest doctrine. The
government was correct to abandon the argument. There is no
evidence that the gun was close at hand to the defendant. Indeed,
the police searched under the bed where Paradis had been hiding and
found no weapon.
5
The government's argument on this issue is far from clear
and comprises just one sentence: "First, as even the Magistrate
Judge acknowledged, it was by no means clear that Paradis had a
Fourth Amendment interest in the gun or the bed where it was
seized."

-9-
 The Supreme Court has suggested moving away from

analyzing a defendant's Fourth Amendment interest as a separate

issue of "standing." As the Supreme Court explained in Minnesota

v. Carter, 525 U.S. 83 (1998), "the definition of [Fourth

Amendment] rights is more properly placed within the purview of

substantive Fourth Amendment law than within that of standing."

Id. at 88 (citing Rakas v. Illinois, 439 U.S. 128, 140 (1978)).

Whatever the label for the analysis, we agree with the district

court's conclusion that Paradis sufficiently asserted a Fourth

Amendment interest in the apartment and in the gun.

The record shows that Paradis had lived with Bell in the

apartment since April 2002, at least when they were not fighting,

and that he kept his possessions there. As such, he had a

reasonable expectation of privacy in the apartment and could object

to the continuing search of his residence, even if it was also

Bell's primary residence. See Bumper v. North Carolina, 391 U.S.

543, 548 n.11 (1968). The apartment was his home at the time of

the search, and he was entitled to Fourth Amendment protection of

his home.

If an initial entry is unlawful, then a "defendant [with

an established Fourth Amendment interest in the premises searched]

need not also show an interest in the particular item seized."

Alderman v. United States, 394 U.S. 165 (1969); 5 W. LaFave, Search

and Seizure § 11.3(a) (3d ed. 1996). Here, though, the initial

-10-
entry was lawful, so Paradis has the burden of showing that he had

a protectible Fourth Amendment interest in the gun. See LaFave,

supra, § 11.2(b) (explaining that federal courts follow the rule

that "if the search or seizure was pursuant to a warrant, the

defendant has the burden of proof").

The district court correctly determined that Paradis has

established a Fourth Amendment interest in the gun. He purchased

the gun, directed the purchase of ammunition for it, test fired the

gun, and kept it in his home. The district court appropriately

characterized the defendant's testimony regarding his ownership of

the gun as "less than uniform." 2002 WL 31989385, at *9. But the

defendant did not disavow any ownership or control of the gun, and

his testimony was certainly sufficient to allow him to assert a

protectible interest in it. The mere fact that he claimed to have

bought the gun as a gift for Bell does not, by itself, work to

extinguish his Fourth Amendment interest.

2. The Protective Sweep

We review de novo the legal question whether the seizure

of the gun violated the Fourth Amendment. United States v.

Charles, 213 F.3d 10, 18 (1st Cir. 2000).

The defendant contends that the government's protective

sweep argument should be deemed waived because it was not raised in

the district court. The defendant correctly observes that the

government never argued the protective sweep doctrine to the

-11-
district court and instead urged that the search of the apartment

be analyzed under the plain view and search incident to arrest

doctrines. The changing of grounds twixt trial court and appeals

court is a risky tactic by any litigant, including the government.6

What saves the issue for the government is that the

magistrate judge, following up on the government's citations to In

re Sealed Case, 153 F.3d 759 (D.C. Cir. 1998), made in support of

the government's search incident to arrest argument, discussed both

the search incident to arrest and protective sweep holdings of that

case. 2002 WL 31989385, at *7. More significantly, the magistrate

judge applied the protective sweep doctrine to the facts here:

The court [in In re Sealed Case] . . . held that the
search of the first bedroom was incident to arrest
because the area searched was reasonably accessible to
the defendant at the time of the search. It upheld the
search of the second bedroom as a protective sweep

6
When questioned by this court about its failure to raise
the argument below, government counsel pointed to its citations to
In re Sealed Case, 153 F.3d 759 (D.C. Cir. 1998), in its three
district court briefs. However, In re Sealed Case is not just a
protective sweep case; one search at issue in the case was upheld
as a proper search incident to arrest and another search was upheld
as a proper protective sweep. 153 F.3d at 767-70. All of the
government's citations to In re Sealed Case were contained in its
discussions of the search incident to arrest doctrine and were
accompanied by a jumpcite to a single page in In re Sealed Case
that discusses only the search incident to arrest doctrine.
Without more, we would find the protective sweep argument waived.
Rocafort v. IBM Corp., 334 F.3d 115, 121 (1st Cir. 2003) ("[A]
litigant's failure to explicitly raise an issue before the district
court forecloses that party from raising the issue for the first
time on appeal," and "[p]assing reference to legal phrases and case
citation without developed argument is not sufficient to defeat
waiver.") (internal quotation marks omitted).

-12-
 because it was an area immediately adjoining the place of
arrest from which an attack could immediately be
launched. In [Paradis], the bedroom was not reasonably
accessible to the defendant at the time of the search and
there is no evidence that could possibly support a
conclusion that an attack against the officers could
immediately be launched from that room.

Id. Because the magistrate judge ruled on the protective sweep

doctrine despite the government's failure to expressly make the

argument, and the district court adopted the rulings of the

magistrate judge, we reach the protective sweep issue.

We agree with the district court's conclusion that the

search that uncovered the gun was not part of a valid protective

sweep. In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court

held that "[a] 'protective sweep' is a quick and limited search of

premises, incident to an arrest and conducted to protect the safety

of police officers or others." Id. at 327. A protective sweep

must be "narrowly confined to a cursory visual inspection of those

places in which a person might be hiding," id., and can last "no

longer than is necessary to dispel the reasonable suspicion of

danger and in any event no longer than it takes to complete the

arrest and depart the premises," id. at 335-36. A protective sweep

is justified "if the searching officer possessed a reasonable

belief based on specific and articulable facts which, taken

together with the rational inferences from those facts, reasonably

warranted the officer in believing that the area swept harbored an

individual posing a danger to the officer or others." Id. at 327

-13-
(internal quotations and citations omitted); Crooker v. Metallo, 5

F.3d 583, 584 (1st Cir. 1993).

The government's protective sweep argument fails because

the officers had no reason to believe that there might be an

individual posing a danger to the officers or others; to the

contrary, they had searched the apartment and had only found

Paradis, who was already in custody at the time of the search at

issue.7 Cf. United States v. Irizarry, 673 F.2d 554, 559 n* (1st

Cir. 1982) (suggesting, before Maryland v. Buie, that a search for

weapons would not be justified where all persons in a hotel room

were under police control and the police knew that no other person

would be in the room). The police knew that Bell, Benning, and

Bean were not in the apartment because they had seen them leave and

had an officer posted at the door at all relevant times. They also

knew that Bean's child was not present. No one answered the door

when they returned with a warrant.

There was no reason to think that there was another

person besides Paradis in the small apartment. At the time the gun

was found, the police had already been through the entire

7
Thus, this case is unlike a situation in which the
defendant has not yet been found and also unlike a situation in
which the police believe that a specific individual other than the
arrestee is present and dangerous. See Crooker v. Metallo, 5 F.3d
583, 584-85 (1st Cir. 1993). In either of those different
situations, the police would be justified in searching for weapons
within the easy reach of a hidden individual whom they have
reasonably concluded is present and dangerous. See id.

-14-
apartment. They had been through the living room at least twice

(and one or two officers remained there doing paperwork). And they

had been through the only bedroom of the unit twice, finding

Paradis on the second hunt and conducting a sweep of the room

immediately thereafter. It was on the third police entry into the

bedroom, by Officer Prince, that the gun was found. Furthermore,

by their own testimony the police established that the only logical

place someone could hide in the bedroom was under the bed, where

they found Paradis.

The government argues on appeal that "at the time the

officers found the gun, they had not determined with certainty that

Paradis was the only person within the apartment." That assertion

is unsupported by the record and is also contrary to the magistrate

judge's determination that "there is no evidence that could

possibly support a conclusion that an attack against the officers

could immediately be launched from [the bedroom]."8 2002 WL

31989385, at *7.

It is important that the government did not have a search

warrant for anything other than Paradis' person; once it was clear

that Paradis had been removed and there was no threat to the

8
There is no indication that the magistrate judge analyzed
the protective sweep doctrine as being confined to the room in
which a defendant is found; the doctrine is plainly not so limited.
The magistrate judge's specific reference to the bedroom in the
quoted language was a comment on the evidence of record.

-15-
officers or others,9 there was no justification under the

protective sweep doctrine to continue the search.10

The government implicitly argues that this court should

expand the protective sweep doctrine, go beyond Maryland v. Buie,

and countenance the continuation of searches in situations such as

this one, where there is no reasonable basis to conclude that there

was a risk to officers or others. The government refers to a Ninth

Circuit case, United States v. Hudson, 100 F.3d 1409 (9th Cir.

1996), and its progeny. There is language in Hudson that could be

read to support the government's proposed expansion of the

protective sweep doctrine. But it is questionable whether the

9
The government does not even argue that there was a
possible threat to others that justified Officer Prince's search
under the protective sweep doctrine or under another doctrine, cf.
New York v. Quarles, 467 U.S. 649, 655-56 (1984) (holding that
"there is a 'public safety' exception to the requirement that
Miranda warnings be given before a suspect's answers may be
admitted into evidence").
10
The government also wisely does not argue that the
presence of ammunition in the living room warranted the protective
sweep. The apartment belonged to Bell, the ammunition was not
hidden, and ownership of ammunition is not illegal except for a
convicted felon.

-16-
Ninth Circuit meant to support such an expansion.11 In any event,

we reject the government's argument.

This leaves one loose end. The magistrate judge did not

determine a material factual dispute. It is still possible that if

Officer Prince was legitimately in the bedroom and did move the

small mattress only because he needed to do so in order to pass,

then the disclosure and seizure of the weapon did not violate the

Fourth Amendment. On this record there is reason to doubt that

explanation. But no findings were made. On remand the government

is free to raise this issue again, should it choose to do so.

3. Plain View

The government's argument that the gun was in plain view

also fails. See Irizarry, 673 F.2d at 559 (rejecting the

government's plain view argument as to evidence seized by an agent

when he climbed up onto a toilet to look inside a displaced ceiling

panel); United States v. Rutkowski, 877 F.2d 139, 142 (1st Cir.

1989) (rejecting a plain view argument where the incriminating

nature of a seized metal was not immediately apparent). If, after

11
In Hudson, the defendant had been removed from the house
when one of the police agents returned to the defendant's bedroom
and searched a rifle case that had been seen at the defendant's
feet during the arrest. 100 F.3d at 1413. The Ninth Circuit panel
upheld this search as a valid search incident to arrest, not as a
valid protective sweep. Id. at 1418-20. The Hudson court noted
that the officers had "quickly completed their [security] sweep of
the house" after the defendant had been removed, and the court did
not include the subsequent search of the rifle case as part of the
security sweep. Id. at 1420.

-17-
the removal of Paradis, the officers had seen the gun in plain view

while wrapping up the matter in the apartment, the analysis would

be different.12 But here, the gun was not seen during any of the

prior searches of the bedroom, two of which were visual searches

and at least one of which was a physical search. Rather, it was

hidden under a twelve-to sixteen-inch pile of clothing and stuffed

animals. There is no plausible contention that a mere observer,

standing in the bedroom or at the bedroom door, in the living room,

or elsewhere, would have seen the weapon.

B. The Suppression of the Ammunition

Because the seizure of the gun was unlawful, the

defendant argues that the ammunition obtained by the police was

properly suppressed under the "fruit of the poisonous tree"

doctrine. The government argues that even if the seizure of the

gun was unlawful, the attenuation doctrine should apply here and

require reversal of the suppression of the ammunition.

At issue are two groups of ammunition: a box of .25

caliber bullets left in Bell's apartment and a bag of .22 caliber

bullets left on the back porch of the first floor of the apartment

building. Both sets of ammunition were suppressed under the "fruit

12
We have recently said that a "plain view" seizure is
lawful if (1) the seizing officer lawfully reached the position
from which he could see the item in plain view; (2) the seizure
satisfied the probable cause standard; and (3) the seizing officer
had a "lawful right of access to the object itself." United States
v. Jones, 187 F.3d 210, 219-21 (1st Cir. 1999) (quoting Horton v.
California, 496 U.S. 128, 138 (1990)).

-18-
of the poisonous tree" doctrine. There is a preliminary question

whether Paradis is in a position to assert a Fourth Amendment

violation as to each set of ammunition.

1. The .22 Caliber Ammunition

Paradis had no protectible privacy interest under the

Fourth Amendment in the bag of .22 caliber ammunition left on the

back porch of the building because he had no expectation of privacy

in the common areas of a multi-family building.13 See United States

v. Brown, 169 F.3d 89, 92 (1st Cir. 1999); United States v.

Hawkins, 139 F.3d 29, 32-33 (1st Cir. 1998). He also abandoned the

box of ammunition found on the back porch by giving it to his

neighbor, Nicole Boutot, who did not want it and who placed it on

the porch. Cf. California v. Greenwood, 486 U.S. 35, 39 (1988)

("having deposited their garbage . . . for the express purpose of

having strangers take it, respondents could have had no reasonable

expectation of privacy in the inculpatory items that they

discarded") (internal citation and quotation marks omitted); United

States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000) ("no person

can have a reasonable expectation of privacy in an item that he has

abandoned"); United States v. Lewis, 40 F.3d 1325, 1334 (1st Cir.

1994). Paradis had no reasonable expectation of privacy in the box

13
Moreover, as a tenant of the building, Bell could and did
consent to the police entrance into a common area. United States
v. Hyson, 721 F.2d 856, 859 n.7 (1st Cir. 1983); United States v.
Marshall, No. 03-1189, 2003 WL 22445609, at *4 (1st Cir. Oct. 29,
2003).

-19-
of ammunition both because he had given the ammunition to another

person, who was free to do with it what she wanted, and because it

was seized from a place in which he had no privacy interest.

Paradis objects to this analysis on a temporal basis,

arguing that the police did not know that Paradis had abandoned the

ammunition when they seized it on the porch. This objection mixes

up two issues: the issue whether Paradis had a protectible interest

to assert and the issue whether the police had probable cause or

were otherwise justified in the seizure. The analysis of the

latter issue looks to what the police knew and what the

circumstances were at the time of the seizure. The "standing"

issue, by contrast, is not limited to that time frame. Paradis has

the burden of establishing his protectible interest, see Rawlings

v. Kentucky, 448 U.S. 98, 104 (1980); Rakas, 439 U.S. at 132 n.1,

and that interest does not depend on the state of mind of the

police at the time of the seizure. When abandonment is argued to

show lack of a Fourth Amendment interest, a court inquires into all

facts, including those not known to the police at the time of their

search. LaFave, supra, § 11.3(a). After all, the question is not

what the police knew but whether the defendant had a reasonable

expectation of privacy in the seized object. That is why the fruit

of the poisonous tree analysis proceeds only after a Fourth

Amendment interest has been established. If there is no privacy

interest to be protected under the Fourth Amendment, there is no

-20-
occasion to apply the fruits doctrine. LaFave, supra, § 11.4 ("a

defendant . . . can prevail on a 'fruit of the poisonous tree'

claim only if he has standing regarding the violation which

constitutes the poisonous tree"); cf. Rakas, 439 U.S. at 134.

2. The .25 Caliber Ammunition

The question whether Paradis has a protectible interest

in the .25 caliber ammunition in Bell's apartment is much closer,

and we assume arguendo that he may assert Fourth Amendment

interests in that ammunition. We also assume arguendo that the

rule of Coolidge v. New Hampshire, 403 U.S. 443 (1971), does not

require denial of the suppression motion.

"Under Supreme Court precedent, the weakness of the

causal connection, delay in discovery, and lack of flagrancy in the

violation and like considerations may persuade a court that -- even

though some causal link may exist -- a remote 'fruit' should not be

suppressed." United States v. Hughes, 279 F.3d 86, 89 (1st Cir.

2002) (citing United States v. Crews, 445 U.S. 463, 471 (1980) and

Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). In determining

the outcome under the attenuation doctrine, the court of appeals

does not defer to the district court. Id.

In addressing whether the connection between a prior

illegality and challenged evidence has "become so attenuated as to

dissipate the taint," Nardone v. United States, 308 U.S. 338, 341

(1939), we take into account "considerations relating to the

-21-
exclusionary rule and the constitutional principles which it is

designed to protect," United States v. Ceccolini, 435 U.S. 268, 279

(1978). There is no litmus-paper test for attenuation, see LaFave,

supra, § 11.4; Brown, 422 U.S. at 603 (the question of attenuation

"must be answered on the facts of each case"), and the Supreme

Court has rejected requests to create per se rules to govern

attenuation, see Brown, 422 U.S. at 603; Ceccolini, 435 U.S. at

274-75. We conclude that the attenuation doctrine requires

reversal of the suppression of the .25 caliber ammunition.

The defendant implicitly argues that, had the gun not

been illegally seized, Officer Hatfield would not have asked

Danyelle Bell about the gun and she, in turn, would not have

produced the .25 caliber ammunition. This argument ignores the

realities of Officer Hatfield's investigation. First, it was Bell,

not the police, who initiated the investigation on June 30, 2002.

Bell called the police and reported that Paradis had stolen her

car. Second, Officer Hatfield's discussion with Bell took place

five days after Paradis' arrest. Third, notwithstanding his

knowledge that a firearm had been seized from Bell's apartment when

Paradis was arrested, Officer Hatfield would have been aware that

Paradis was a convicted felon when he responded to Bell's call for

help.14 Indeed, in his investigation report he stated that he was

14
Paradis had been convicted of Aggravated Assault, a Class
B felony, in the Maine Superior Court for Androscoggin County on
May 7, 2001.

-22-
aware that Paradis was a convicted felon before he went to Bell's

apartment. Given his knowledge of that fact, and given his

observation of bruises on Bell's arms, one would have expected him

to inquire about the defendant's possession of any weapons even had

he not known about the previously seized gun.

Furthermore, Bell volunteered the ammunition even though

Hatfield did not ask about it. Bell's impetus for volunteering the

ammunition and the information about Paradis was likely a concern

for her own safety. On June 24, 2002, Bell had told Paradis that

if he drove her car, she would turn him in to the police. Paradis

responded by throwing her to the ground, kicking her, throwing her

into the hallway, and then forcing her to drive the car. After

Paradis was arrested on June 25, he called Bell and told her that

if he ended up in prison he would kill her and her family. In

light of the defendant's statements and actions, Bell had every

incentive to rid her apartment of weapons and to seek the

protection of the police.

Hatfield himself was not aware that ammunition had been

previously seen in the apartment. That other police officers did

see the ammunition in plain view on June 25, though, is another

factor pointing against suppression. If Hatfield had known about

the ammunition seen on the night of Paradis' arrest, he certainly

could have and would have asked Bell about it.

-23-
 Taken together, the above factors suggest an even more

compelling reason to deny suppression: namely, that there would be

little deterrence added and a substantial cost to law enforcement

in suppressing the ammunition. If Bell had not called the police,

Officer Hatfield would never have been in a position to find out

about the ammunition. He most likely would have asked about

Paradis' possession of weapons even had he not known about the

seized gun. And it was entirely fortuitous that Hatfield, and not

one of the officers who had seen the ammunition in plain view,

responded to Bell's call.

C. The Suppression of the Statements By Paradis

Paradis similarly argues that the statements he made to

police following his arrest on July 3, 2002 were the fruits of the

prior illegal search that produced the gun. The government again

points to the attenuation doctrine. We hold that the degree of

attenuation was sufficient to dissipate the connection between the

illegal seizure of the gun and Paradis' statements.15

First, accepting that the illegally seized gun may have

played a role in the statements elicited from the defendant, that

15
The facts of this case do not place it squarely within
the analysis suggested by Brown v. Illinois and its progeny,
because unlike those cases, this case does not involve an
allegation that the defendant's statements are the fruit of an
illegal arrest. Paradis did not challenge the legality of his
arrest on July 3, 2002. Rather, the claim is that the defendant's
statements were elicited as a result of the illegal search that
uncovered the gun.

-24-
role is truncated by the role played by the legally seized

ammunition. Not only was ammunition seen in plain view during the

initial, legal search for the defendant, but the two sets of

ammunition were legally obtained, as were Bell's statements about

the ammunition and the gun. Even absent the seizure of the gun,

there is every reason to think that the ammunition alone would have

led the police to interview Paradis about his potential ownership

and use of an associated firearm. See Hughes, 279 F.3d at 88-89

(finding that attenuation applied where an unlawfully used address

book could have contributed to the discovery of certain witnesses,

but where, among other things, the government could trace paths to

those witnesses that did not go through the address book).

Second, independent of both the illegally seized gun and

the legally obtained ammunition, the police had good reason to

inquire into Paradis' firearm possession because he was a convicted

felon and prohibited under 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

from possessing firearms or ammunition and because Paradis had a

history of domestic assault that was well-known to the Auburn

police department.

Third, not only were the defendant's statements made

seven days after the seizure of the gun, but they were also made

after he was warned of his Miranda rights. Although giving a

defendant Miranda warnings is insufficient alone to break the

causal chain between an illegal search and a subsequent confession,

-25-
cf. Brown, 422 U.S. at 602-03 (where the primary illegality was an

illegal arrest), the Miranda warnings are an important factor in

this type of attenuation analysis, cf. id. at 603. Paradis did not

dispute the voluntariness of his statements,16 and when challenged

statements are made by a defendant after arrest, "the degree of

free will exercised by the defendant is not irrelevant in

determining the extent to which the basic purpose of the

exclusionary rule will be advanced by its application." Ceccolini,

435 U.S. at 276 (citing Wong Sun v. United States, 371 U.S. 471,

491 (1963)). After receipt of the Miranda warnings, a defendant's

"choice whether to exercise his privilege to remain silent should

ordinarily be viewed as an act of free will." United States v.

Esquilin, 208 F.3d 315, 319 (1st Cir. 2000) (quoting Oregon v.

Elstad, 470 U.S. 298, 310-11 (1985) (internal quotations omitted)).

Finally, as in our attenuation analysis of the .25

caliber ammunition, there is little added deterrence value from the

suppression of the statements. Even without the illegally seized

gun, it is likely that the police would have obtained the

ammunition from Bell along with her statements linking Paradis to

the ammunition and to a gun. That evidence would have provided

sufficient basis to arrest Paradis on felon-in-possession charges

and would also have provided sufficient basis to question Paradis

16
In addition, there is no indication in the record that
Paradis was confronted with the gun itself during the police
interview.

-26-
about the ammunition and associated firearm. And significantly,

when the police gave Paradis the Miranda warnings, he chose to

speak to them.

III.

The decision of the district court to suppress the gun is

affirmed only as to the basis of the findings made but remanded as

to further findings described above, should the government request

the issue be addressed. The suppressions of the .22 caliber

ammunition, the .25 caliber ammunition, and the statements made by

the defendant are reversed. The case is remanded for further

proceedings. So ordered.

-27-