United States v. Williams

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0234p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

UNITED STATES OF AMERICA,

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No. 08-4630

v.

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Defendant-Appellee. -

THOMAS W. WILLIAMS,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 08-00062-001—John D. Holschuh, District Judge.

Argued: April 30, 2010

Decided and Filed: August 6, 2010

*

Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.

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COUNSEL

ARGUED: Michael J. Hunter, ASSISTANT UNITED STATES ATTORNEY,

Columbus, Ohio, for Appellant. Kevin Michael Schad, FEDERAL PUBLIC

DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael J.

Hunter, Kevin W. Kelley, ASSISTANT UNITED STATES ATTORNEYS, Columbus,

Ohio, for Appellant. Laura E. Byrum, FEDERAL PUBLIC DEFENDER’S OFFICE,

Columbus, Ohio, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. On October 12, 2004, Columbus

police officers Robert Vass and T. Pappas pulled up in a police cruiser to a group of

*

The Honorable Thomas B. Russell, Chief United States District Judge for the Western District

of Kentucky, sitting by designation.

1

No. 08-4630 United States v. Williams Page 2

people standing outside an affordable-housing complex owned by Community Properties

of Ohio (“CPO”). Upon exiting the vehicle and moving toward the group, Vass

recognized one of its members, Thomas W. Williams, who was standing on the sidewalk

and leaning against a car. Vass immediately told Williams that he was “again

trespassing on CPO property.” In the ensuing interaction, Williams acknowledged in

response to questions that there might be a warrant out for his arrest and that he was

carrying a gun. The officers arrested Williams, who was later charged with being a felon

in possession of a firearm and ammunition.

On Williams’s motion, the district court ruled that Williams had been illegally

seized, and the court suppressed the physical evidence and Williams’s statements during

the encounter. The government now appeals, making three arguments: (1) Williams

was not seized within the meaning of the Fourth Amendment when Vass first spoke to

him; (2) if Williams was seized, Vass had reasonable suspicion to detain him; and (3)

even if Vass lacked reasonable suspicion to detain Williams, the emergence of

information that Williams was wanted on an arrest warrant constituted an intervening

circumstance that attenuated the taint of the unlawful seizure.

After careful review, we AFFIRM. Williams was seized: a reasonable person

would not have felt free to leave upon being approached by two uniformed officers in

a marked car, singled out of a group, and immediately accused of a crime. The seizure

was unlawful: Williams was not trespassing or committing any other crime when the

officers approached, and the fact that others in his group were drinking publicly and

might have been trespassing did not constitute reasonable suspicion that Williams

himself had recently committed a crime or was about to commit one. Finally, there was

no attenuation: Williams’s statement about the outstanding warrant, made in response

to a question posed by Vass at the outset of the seizure, was not “the product of a free

will.” Brown v. Illinois, 422 U.S. 590, 603 (1975). Thus, the incriminating evidence

was “come at by exploitation of th[e] illegality” of the seizure, not “by means

sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United

States, 371 U.S. 471, 488 (1963).

No. 08-4630 United States v. Williams Page 3

I. BACKGROUND

We accept the district court’s factual findings unless clearly erroneous. United

States v. Martin, 289 F.3d 392, 396 (6th Cir. 2002). The district court found the

following facts, which the parties do not dispute on appeal:

Community Properties of Ohio (“CPO”) is a subsidized property

management company that provides affordable housing to low-income

individuals throughout Columbus. (Test. of Joshua Martin, Suppression

Hr’g. Tr. p. 6-7 (“Martin Test.”).) Because a large number of CPO’s

properties are in high crime areas, CPO has instituted several security

programs, one of which is to hire Columbus Police Department officers

to patrol CPO properties as special duty officers. (Id. p. 7.) These

special duty officers, who work in full Columbus Police Department

uniforms and drive marked Columbus Police Department cruisers, patrol

CPO properties and strictly enforce criminal laws and CPO regulations

prohibiting, among other things, trespassing and loitering in an attempt

to “eliminate the elements” of crime. (Test. of Robert Vass, Suppression

Hr’g. Tr. p. 34 (“Vass Test.”).)

Signs that prohibit trespassing and state that trespassers will be

prosecuted are posted on all CPO properties (Def. Supp. Mem. ex.2, doc.

# 32), and special duty officers patrolling CPO properties will engage

nonresidents in conversation to determine if they are trespassing. If the

nonresident can provide some information indicating that they are a

resident’s guest, such as a resident’s name, or a valid reason for being on

the property, then the special duty officer will do nothing other than warn

the nonresident that trespassing is prohibited. (Vass Test. p. 38, 52.) If

the nonresident cannot provide information indicating that they are a

resident’s guest, or if a special duty officer has to talk to a nonresident

about trespassing a second time, the nonresident’s name and picture or

other identifying information will be entered into the CPO’s trespass

logbook, a record of all individuals who have been given trespass

warnings. (Martin Test. p. 11; Vass Test. p. 37.) If a nonresident

trespasses on CPO property after having his or her name entered in the

logbook, the nonresident is arrested for criminal trespass and taken to

jail. (Vass Test. p. 37.) The special duty officers, however, have

discretion to address situations on a case-by-case basis, and do not have

to go through the process of issuing warnings before arresting an

individual for criminal trespass. (Id. p. 38-39.)

At approximately 9:00 p.m. on October 12, 2004, Columbus

Police Department Officers Robert Vass (“Vass”) and T. Pappas

(“Pappas”) were working special duty patrol for CPO. (Id. p. 38-39.)

No. 08-4630 United States v. Williams Page 4

Vass and Pappas were in their cruiser heading southbound on Wilson

Avenue to inspect a CPO property located at 1084 East Whittier Street.

(Id. p. 39.) As they turned onto East Whittier from Wilson Avenue, Vass

and Pappas observed a group of four to five individuals standing at

various locations in front of 1084 East Whittier. Vass and Pappas parked

their cruiser in front of the building and approached the group, and as

they did Vass recognized Defendant, who was standing on the sidewalk

in front of 1084 East Whittier and was leaning against a car parked in the

street. (Id. p. 68; Map of 1084 East Whittier Street, Suppression Hr’g.

Def. Ex. 1.) Vass recognized Defendant from a prior unrelated instance

in which he had arrested Defendant in June 2004. Additionally, Vass

testified that he had also given Defendant a verbal trespass warning after

seeing him at 1084 East Whittier at some time after June 2004 and before

October 2004. (Vass Test. p. 42-44.) Defendant’s name had not been

entered into the logbook as a result of this warning because he had

indicated he was a resident’s guest, but Vass had warned him not to

trespass on CPO property. (Id.)

As he and Pappas approached Defendant, Vass told Defendant

that “he was again trespassing on CPO property.” (Arrest Information

Report, Suppression Hr’g. Gov’t. Ex. 3.) Vass then asked Defendant if

there were any outstanding warrants for his arrest, and Defendant replied

that he thought there might be one related to his June 2004 arrest. Vass

told Defendant he would run a warrant check, and then asked Defendant

if he was armed. (Vass Test. p. 46.) Defendant replied that he “had to

protect himself,” which Vass took to mean that Defendant was in fact

armed. Vass told Defendant he was going to do a pat-down search, to

which Defendant replied that he was carrying a gun, and when Vass

conducted the pat-down search he discovered a firearm concealed under

Defendant’s shirt in the back waistband of his pants. Defendant was then

handcuffed and arrested. (Id.; p. 70-71.)

United States v. Williams, No. 2:08-cr-62, 2008 WL 4758683, at *1–2 (S.D. Ohio Oct.

27, 2008) (unpublished opinion) (footnote omitted).

A grand jury indicted Williams on one count of being a felon in possession of a

firearm and one count of being a felon in possession of ammunition. Williams filed a

motion to suppress the physical evidence and statements he made during the encounter,

which the government opposed. Following an evidentiary hearing on June 25, 2008 and

supplemental briefing, the district court issued a written opinion granting the motion on

October 27, 2008. The government timely appealed, and the district court stayed the

case pending appeal.

No. 08-4630 United States v. Williams Page 5

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s legal conclusions in granting a motion to

suppress. United States v. Cohen, 481 F.3d 896, 898 (6th Cir. 2007). “Where the district

court grants a motion to suppress, we view the evidence in the light most favorable to

the defendant.” United States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002).

B. Whether Williams Was Seized

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. This protection,

however, applies only if a person is “seized” within the meaning of the Fourth

Amendment. Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir. 2005). The

government contends that Officers Vass and Pappas never seized Williams.

“Only when the officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has

occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “[I]n order to determine whether

a particular encounter constitutes a seizure, a court must consider all the circumstances

surrounding the encounter to determine whether the police conduct would have

communicated to a reasonable person that the person was not free to decline the officers’

requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 438

(1991); see also Michigan v. Chesternut, 486 U.S. 567, 573–74 (1988) (stating that an

individual is seized if “a reasonable person would have believed that he was not free to

leave” and noting that the test is an objective one (internal quotation marks omitted)).

In addition, an individual must actually submit to the show of authority to be seized

within the Fourth Amendment. California v. Hodari D., 499 U.S. 621, 626 (1991);

United States v. Jones, 562 F.3d 768, 774–75 (6th Cir. 2009).1 For this reason, “a

1

The record makes clear that Williams in fact submitted, and the government does not argue

otherwise.

No. 08-4630 United States v. Williams Page 6

consensual encounter does not amount to a seizure.” United States v. Campbell, 486

F.3d 949, 954 (6th Cir. 2007).

Officers do not seize people “merely by approaching individuals on the street or

in other public places and putting questions to them.” United States v. Drayton, 536

U.S. 194, 200 (2002). That said, “words alone may be enough to make a reasonable

person feel that he would not be free to leave.” United States v. Richardson, 385 F.3d

625, 629 (6th Cir. 2004). We consider the following factors as evidence of a seizure:

“‘the threatening presence of several officers, the display of a weapon by an officer,

some physical touching of the person of the citizen, or the use of language or tone of

voice indicating that compliance with the officer’s request might be compelled.’”

Campbell, 486 F.3d at 954 (quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980) (opinion of Stewart, J.)).

The district court held that Williams was seized as of the officers’ initial contact:

Vass and Pappas arrived on the scene in a marked Columbus Police

Department cruiser and exited in full uniform. Once they did, they

immediately singled Defendant out of a larger group and approached

him. . . . Additionally, as he approached, the first thing that Vass did was

accuse Defendant of breaking the law by trespassing. . . . [U]pon being

accused of breaking the law by a uniformed police officer, a reasonable

person would not feel free to leave.

Williams, 2008 WL 4758683, at *4.

We agree with the district court’s analysis. Vass and Papas did not draw their

weapons or touch Williams. But the fact that there were two officers, that they were in

uniform and arrived in a marked police car, and that they immediately focused their

attention on one person, Williams, in a group of four or five contributed to their show

of authority. And although those facts alone would not reasonably make Williams feel

that he could not leave, as the officers could have engaged him in a consensual

encounter, the encounter differed markedly from those that we have deemed consensual.

It did not involve a nonthreatening question, see United States v. Waldon, 206 F.3d 597,

603 (6th Cir. 2000) (defendant not seized when officer merely “asked . . . what he was

No. 08-4630 United States v. Williams Page 7

doing in the area”), a request for identification that did not imply that compliance was

mandatory, see Campbell, 486 F.3d at 956 (defendant not seized when officer stated

“that he would like to see [his] ID”), or a mere request to speak together, see United

States v. Peters, 194 F.3d 692, 694, 698 (6th Cir. 1999) (defendant not seized when

officer approached and asked whether he could speak with him); United States v.

Frazier, 936 F.2d 262, 265 (6th Cir. 1991) (defendant not seized when two agents

approached and inquired whether they could ask him some questions); United States v.

Moore, 675 F.2d 802, 808 (6th Cir. 1982) (DEA agent did not seize defendant when he

approached him and inquired “Can I ask you a few questions” in nonthreatening

manner). Here, instead, Vass immediately accused Williams of a crime. A reasonable

person would not have felt free to walk away under such circumstances.

In Florida v. Royer, 460 U.S. 491 (1983), the Supreme Court cited a criminal

accusation by law enforcement as a factor indicating that an individual is seized. See id.

at 501 (holding that detectives seized the defendant “when the officers identified

themselves as narcotics agents, told [him] that he was suspected of transporting

narcotics, and asked him to accompany them to the police room”). We have recognized

the impact of such an accusation, as well. In United States v. Tolbert, 692 F.2d 1041

(6th Cir. 1982), we held that DEA agents seized the defendant when they “approached

[her] as she was attempting to enter a taxi, again requested her ticket and identification,

informed her that they suspected she was a narcotics courier and . . . asked her to

accompany them.” Id. at 1046. Under those circumstances, we held, “a reasonable

person would not have felt free to ignore the agents and depart.” Id.2 In United States

v. Saperstein, 723 F.2d 1221 (6th Cir. 1983), another drug-courier case, we found that

a DEA agent had seized the defendant in part because that agent “informed the

[defendant] . . . that he specifically had information concerning the [defendant’s]

2

We also held that the defendant had not been seized when a different agent stopped her in a

different airport earlier that day. In that interaction, the agent “stated that he was attempting to determine

if she was transporting drugs and requested her consent to search her purse and luggage.” Tolbert, 692

F.2d at 1043. (She refused and went on her way unimpeded.) The earlier agent’s words were clearly less

accusatory than the later agents’ statement “that they suspected she was a narcotics courier.” Id. at 1046.

No. 08-4630 United States v. Williams Page 8

possible involvement in drug transportation.” Id. at 1223, 1226 & n.7.3 And relatedly,

in United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995), we held that the defendants

were seized in part because “[t]he very act of bringing [a police canine] out to sniff the

vehicles tells a reasonable person ‘we are investigating you for drugs and you may not

move these vehicles until we are through.’” Id. at 1225. Other circuits likewise have

held that individuals were seized based in part on being accused of a crime. See United

States v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008) (holding that defendant with open beer

bottle in hand was seized by officers who “told him he was violating the law”); United

States v. Smith, 423 F.3d 25, 30 (1st Cir. 2005) (citing, in support of holding that

defendant was not seized during encounter, the fact that officers “did not accuse him of

any crime”); Jordan v. City of Eugene, 299 F. App’x 707, 708 (9th Cir. 2008)

(unpublished opinion) (holding that encounter “became a non-consensual seizure when

the officer told the plaintiff he needed to speak with him because the officer believed the

plaintiff was carrying a gun”).

The government contends that a reasonable person would have felt free to leave

because Vass’s words “were not an unequivocal command or request to stop.”

Appellant Br. at 15. Although an explicit directive may be sufficient to render an

individual seized, see Richardson, 385 F.3d at 630 (officer’s statement to driver of

vehicle, “Okay, just hang out right here for me, okay?” resulted in seizure), it is not

essential. The test is not whether police expressly instruct a person not to leave, but

whether the totality of the circumstances would convey to a reasonable person that she

is not free to leave. Drayton, 536 U.S. at 201; Bostick, 501 U.S. at 439.

At oral argument, the government suggested that whether a reasonable person

would feel free to leave when accused of committing a crime depends on the seriousness

of the offense. The government suggested that although a person would not feel free to

leave the scene upon being accused of armed robbery, he or she would see departure as

an option when the charge is trespassing. We do not find this argument to be persuasive.

3

We recognize that Royer, Tolbert, and Saperstein also involved requests to accompany agents

to a separate location for further questioning. Still, in each case we clearly relied on the fact of a criminal

accusation in concluding that the defendant was seized, and we consider that fact here.

No. 08-4630 United States v. Williams Page 9

No reasonable person would feel entitled to ignore an officer, turn, and walk away upon

being accused of trespassing under the circumstances in the present case.

Finally, the government argues that a reasonable person may have interpreted

Vass’s statement that Williams was “again trespassing on CPO property” as an

instruction to depart the area or as an inquiry into whether Williams was in fact

trespassing. Neither interpretation is plausible. Vass made the statement while

advancing toward Williams after pulling up in a marked cruiser; Vass’s objective

conduct suggested an intent to engage Williams, not send him away. Thus, this case is

not like United States v. Brown, 310 F. App’x 776 (6th Cir. 2009) (unpublished opinion),

cited by the government, in which an officer approached two men while still in her

vehicle and expressly “instructed the men to take their activities elsewhere.” Id. at 777.

And Vass’s statement plainly was an assertion of fact—in other words, an

accusation—not a question inviting Williams to clarify whether he was or was not

trespassing.

In sum, viewing the situation in its entirety, we agree with the district court that

Williams was seized when Officer Vass accused him of “again trespassing on CPO

property.” A reasonable person would not have felt free to leave upon being approached

by two uniformed officers in a marked car, singled out of a group, and immediately

accused of a crime.

C. Reasonable Suspicion

Because Williams was seized, the Fourth Amendment’s protections apply. At

the initial point of seizure, the encounter was not a full-blown arrest, but an investigatory

detention under Terry v. Ohio, 392 U.S. 1 (1968). We therefore analyze it under the line

of cases from the Supreme Court and this circuit applying Terry.

“An officer can stop and briefly detain a person when the officer has reasonable,

articulable suspicion that a person has been, is, or is about to be engaged in criminal

activity.” United States v. Smith, 594 F.3d 530, 536 (6th Cir. 2010) (internal quotation

marks, alteration, and emphasis omitted). That suspicion “must be based on specific,

No. 08-4630 United States v. Williams Page 10

objective facts,” Brown v. Texas, 443 U.S. 47, 51 (1979); an “inchoate and

unparticularized suspicion or ‘hunch’” will not suffice, Terry, 392 U.S. at 27. In

evaluating whether an officer had reasonable suspicion, we must consider the totality of

the circumstances rather than analyze each fact in isolation. United States v. Arvizu, 534

U.S. 266, 274 (2002); Martin, 289 F.3d at 398.

In this case, the district court held that Vass lacked reasonable suspicion to detain

Williams:

Vass did not have reasonable suspicion to believe that Defendant was

trespassing on CPO property. Defendant was standing on a public

sidewalk when Vass approached and stated that Defendant was

trespassing, not on CPO property as the Government argues, and Ohio

law clearly states that actual entry onto the premises of another is

required to commit trespass. Ohio Rev. Code Ann. § 2911.21 . . . . The

fact that Vass observed Defendant standing on a public sidewalk in front

of CPO property would not support a reasonable belief on Vass’ part that

Defendant was actually trespassing on CPO property . . . . Suspecting

that others were violating loitering or open container laws says

absolutely nothing about whether Vass had reasonable suspicion to seize

and detain Defendant to investigate whether Defendant was trespassing.

Williams, 2008 WL 4758683, at *5–6. On appeal, the government argues that the

district court failed to take an objective view of the facts and to consider the totality of

the circumstances.

Conceding that Williams was not trespassing, loitering, or drinking in public

when the officers arrived, the government argues that the officers nonetheless had

reasonable suspicion that Williams had recently violated the law or was about to do so.

It points to nine facts: (1) there had been complaints of drinking and loitering in the

area; (2) Williams was standing immediately next to CPO property; (3) others in his

group were standing on CPO property; (4) Vass had previously encountered Williams

trespassing on CPO property; (5) the group was loitering outside CPO property; (6)

some in his group were drinking from open containers; (7) Vass suspected that Williams

might have an outstanding warrant; (8) Vass had previously arrested Williams and found

him to be armed; and (9) the group was blocking the sidewalk.

No. 08-4630 United States v. Williams Page 11

These facts do not support an objective finding of reasonable suspicion. Several

of these facts must be set aside as simply not probative of potential criminal activity.

First, there is no evidence that Williams was in fact trespassing when Vass previously

encountered him on CPO property.4 In fact, at that time, Williams “did identify that he

knew somebody at CPO at that property,” Vass accepted his explanation for his presence

there, and Vass did not write him up for trespassing. Joint Appendix (“J.A.”) at 42–43,

53. Second, any loitering is immaterial because loitering is not a crime under state or

local law. Third, there is no evidence that Williams and his mates were blocking the

sidewalk. This accusation is an attempt to shoehorn Williams into the state’s disorderly-

conduct provision, which prohibits “[h]indering or preventing the movement of persons

. . . upon public . . . property . . . by any act that serves no lawful and reasonable

purpose.” Ohio Rev. Code § 2917.11 (cited in Reply Br. at 7).5 Fourth, Vass’s

subjective suspicion that Williams might be wanted on a warrant was a mere hunch. The

fact that a person has previously been arrested cannot provide objective reasonable

suspicion that he missed a court appearance; otherwise, officers could detain anyone

they know to have pending criminal charges. Fifth, Vass’s prior discovery of a gun on

Williams’s person is not enough for reasonable suspicion that Williams was guilty of

being a felon in possession of a firearm on the night in question—otherwise, Vass could

stop Williams any time, any place, forevermore—and it is totally irrelevant to whether

he was committing any of the criminal violations of which Vass actually suspected him.

Thus, the case for reasonable suspicion boils down to the following two-part

thesis: (a) because Williams was standing near CPO property and others in his group

were standing on CPO property, where people have been known to trespass, he might

have been trespassing just before Vass and Pappas arrived or been getting ready to do

so; and (b) because others in his group had open containers, Williams might recently

have held or been about to hold one when the officers arrived.

4

In this way, the instant case is distinguishable from United States v. Reed, 220 F.3d 476, 477 (6th

Cir. 2000) (officer had probable cause to arrest defendant for trespassing on housing development’s

property based on previous trespass).

5

In any event, standing on a sidewalk and leaning against a car while spending time with friends

is not an “act that serves no lawful and reasonable purpose.” Ohio Rev. Code § 2917.11.

No. 08-4630 United States v. Williams Page 12

Such speculation is insufficient under the Fourth Amendment. That Williams

stood on a public sidewalk next to property on which trespassing is a problem is

minimally probative of his recent or imminent trespassing. If anything, remaining on

public property while others tread on the grass suggests an effort not to trespass.

Moreover, the argument for reasonable suspicion based on others’ drinking and presence

on CPO property is weak in light of the Supreme Court’s emphasis on “individualized

suspicion of wrongdoing.” Chandler v. Miller, 520 U.S. 305, 313 (1997); see also

United States v. Cortez, 449 U.S. 411, 418 (1981); United States v. Patterson, 340 F.3d

368, 372 (6th Cir. 2003) (holding that the fact that police observed one man in

defendant’s group throw something toward the bushes when they approached “lends

little more to the totality of the circumstances” suggesting the defendant’s involvement

in drug activity). In fact, the argument for trespassing is even more attenuated than that.

There is no evidence that all of the other people in Williams’s group were nonresidents

of the CPO complex. Had at least one been a resident, the others would have been

lawful guests. Thus, the government’s argument is really that Williams might have been

trespassing because he was with other people who might have been trespassing. This

sort of guesswork is not remotely enough for reasonable suspicion.

Considering the totality of the circumstances, then, we agree with the district

court that the seizure was unconstitutional.

D. Attenuation of the Taint

Finally, the government argues that even if the officers seized Williams without

reasonable suspicion, the district court should not have suppressed the physical evidence

recovered and the inculpatory statements Williams made during the unconstitutional

detention. The government insists that this evidence is admissible because Vass’s

suspicion that Williams had an outstanding warrant, and Williams’s admission of the

same, were intervening events that attenuated the taint of the unlawful seizure. The

government did not make this argument at the district court, and its contention

notwithstanding that fact that “attenuation was at issue below, because the district court

applied fruits principles” is a stretch. Reply Br. at 8. “[A]s an appellate court, we do not

No. 08-4630 United States v. Williams Page 13

ordinarily consider issues that are not raised in the district court.” United States v.

Archibald, 589 F.3d 289, 295 (6th Cir. 2009) (holding that the government waived

argument that search occurred incident to arrest by failing to present it to the district

court); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . .

that a federal appellate court does not consider an issue not passed upon below.”);

Giordenello v. United States, 357 U.S. 480, 488 (1958) (declining “[t]o permit the

Government to inject its new theory into the case at this stage” in a Fourth Amendment

case). Nonetheless, we will exercise our discretion to resolve the issue because “the

issue is presented with sufficient clarity and completeness.” See Pinney Dock & Transp.

Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988).

“In order to deter law enforcement officials from violating the Fourth

Amendment by stopping persons without reasonable suspicion or by arresting them

without probable cause, the Supreme Court has directed that ‘all evidence obtained by

an unconstitutional search and seizure [is] inadmissible in federal court regardless of its

source.’” United States v. Pearce, 531 F.3d 374, 381 (6th Cir. 2008) (quoting Mapp v.

Ohio, 367 U.S. 643, 654 (1961)). “This exclusionary rule is supplemented by the ‘fruit

of the poisonous tree’ doctrine, which bars the admissibility of evidence which police

derivatively obtain from an unconstitutional search or seizure.” Id. The Supreme Court

has explained, however, that not all evidence must be suppressed “simply because it

would not have come to light but for the illegal actions of the police.” Wong Sun v.

United States, 371 U.S. 471, 487–88 (1963). Rather, these doctrines will not apply when

“the connection between the [detention] and the [evidence] had become so attenuated

as to dissipate the taint.” Id. at 491 (internal quotation marks omitted).

The test for attenuation is whether the evidence sought to be introduced—here,

the gun, the ammunition, and Williams’s inculpatory statements—“has been come at by

exploitation of that illegality or instead by means sufficiently distinguishable to be

purged of the primary taint.” Id. at 488 (internal quotation marks omitted). The

Supreme Court has set forth three factors to guide this inquiry: “[t]he temporal

proximity of the [unlawful detention] and the [emergence of the incriminating evidence

No. 08-4630 United States v. Williams Page 14

at issue], the presence of intervening circumstances, and, particularly, the purpose and

flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603–04 (1975).

Applying the Wong Sun/Brown test, we reject the government’s attenuation

argument. First, Williams’s incriminating statements about the outstanding warrant and

his firearm possession came immediately after Vass accused him of trespass and

unlawfully detained him, and Vass recovered the gun and ammunition moments later.

J.A. at 70. That only seconds had passed between the start of the seizure and the

emergence of the evidence indicates that the taint of the illegality had not dissipated. See

Brown, 422 U.S. at 604 & n.11 (holding that fact that less than two hours passed

between unlawful arrest and post-Miranda confession weighed against dissipation, and

emphasizing that Wong Sun involved an attenuation period of several days); United

States v. Baldwin, 114 F. App’x 675, 683–84 (6th Cir. 2004) (unpublished opinion)

(holding that passage of two months was insufficient to free confession of taint of illegal

search).

Second, there were no intervening circumstances of any consequence between

the unlawful detention and the discovery of the incriminating evidence. The government

suggests two possibilities. It contends that Vass’s belief that Williams had an

outstanding warrant constituted an intervening circumstance. The objective

circumstances of the encounter make clear that Vass’s own intuition, however, did not

amount to reasonable suspicion. It was based only on the fact that Williams previously

had been charged with a crime. The government next claims that Williams’s statement

“I think I got one” constitutes an intervening circumstance that purged Williams’s

subsequent adverse statements and the physical evidence recovered from his person of

the unlawful seizure’s taint. But this statement—made in response to a question posed

by Vass—is not the kind of “intervening spontaneous action” that typically supports

attenuation. Certainly, it is a far cry from the circumstances held adequate to purge the

taint by the Supreme Court and this court. See United States v. Ceccolini, 435 U.S. 268,

279 (1978) (holding witness’s testimony admissible because it derived from a police

interview of her and was in no way connected to an illegal search of defendant’s

No. 08-4630 United States v. Williams Page 15

business four months earlier); Wong Sun, 371 U.S. at 491 (holding defendant’s

confession admissible, despite the fact that his arrest had been unlawful, because he

made the statement upon voluntarily returning to the narcotics bureau several days after

being lawfully arraigned and released on personal recognizance); Pearce, 531 F.3d at

382 n.2 (holding that even if officer’s stop of defendant, who was on foot, was unlawful,

search of parked car was justified by different officer observing a gun magazine in plain

view in the car); cf. United States v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990)

(suggesting consultation with an attorney as an important intervening event). In fact,

this case looks more like those in which the government has been unable to prove

attenuation. See Buchanan, 904 F.2d at 355–56 (no intervening circumstances between

officers’ illegal entry into defendant’s home and his consent to a search one hour later;

no suggestion that his consent was itself an intervening event); see also Brown, 422 U.S.

at 604–05 (holding defendant’s confession at station-house inadmissible because

Miranda warning did not attenuate taint of arrest made in violation of probable-cause

and warrant requirements and there were no other intervening circumstances); United

States v. Shaw, 464 F.3d 615, 629 (6th Cir. 2006) (holding that “post-arrest discovery

of new evidence” through interviews conducted with witnesses while defendant was

being interrogated did not constitute intervening circumstance).

Nor do the Seventh Circuit cases that the government cites establish the existence

of any relevant intervening circumstance here. In each of those cases, police detained

the defendant illegally, learned of a warrant for his arrest during the illegal detention,

and then arrested the defendant and searched him incident to the arrest. See United

States v. Johnson, 383 F.3d 538, 540 (7th Cir. 2004) (after unlawfully stopping a car and

walking up to it, officer “immediately recognized the driver as . . . a man whom he had

known for some ten years . . . and whom [the officer] knew to be wanted on an

outstanding arrest warrant”); United States v. Green, 111 F.3d 515, 517, 521 (7th Cir.

1997) (officers stopped vehicle expecting to find suspect inside, instead found two other

men, ran their names, and discovered an outstanding warrant for one of them). Although

we have observed that the Seventh Circuit treats the discovery of a warrant as an

intervening circumstance sufficient to render incriminating evidence admissible, we have

No. 08-4630 United States v. Williams Page 16

never adopted its approach as the law of this circuit. See United States v. Hudson, 405

F.3d 425, 440–41 (6th Cir. 2005) (noting the holdings of Green and Johnson, but relying

on them for the separate proposition that evidence obtained pursuant to an illegal seizure

must be suppressed when the police target the defendant). Other circuits, meanwhile,

have applied the exclusionary rule despite the emergence of a valid arrest warrant during

the course of an illegal encounter. See, e.g., United States v. Lopez, 443 F.3d 1280, 1286

(10th Cir. 2006); United States v. Luckett, 484 F.2d 89, 90–91 (9th Cir. 1973).

Ultimately, the facts of this particular case guide us. Vass obtained his information by

asking Williams a question during an illegal encounter in which a reasonable person

would not feel free to leave or to refuse to answer questions. Thus, the information

obtained was not “the product of a free will under Wong Sun.” Brown, 422 U.S. at 603.

Instead, the statement was itself “primary evidence obtained as a direct result of an

illegal . . . seizure” that should be suppressed under the exclusionary rule. Segura v.

United States, 468 U.S. 796, 804 (1984).6

Finally, although Vass’s misconduct was not flagrant, his purpose weighs against

attenuation. The Supreme Court has explained that the purposefulness factor is met

when the unlawful action is investigatory, that is, when officers unlawfully seize a

defendant “in the hope that something might turn up.” Brown, 422 U.S. at 605; Shaw,

464 F.3d at 630–31. The purpose of stopping Williams was to seek evidence against

him, and toward that end Vass immediately asked several questions related to criminal

activity other than trespassing. See Hudson, 405 F.3d at 440–41 (distinguishing Green,

111 F.3d 515, by reference to the Seventh Circuit’s statement that “the purpose of the

stop was not to seek evidence against the [defendants]”). Indeed, the warrant and

firearm evidence came out only because Vass asked about it. Cf. United States v.

Akridge, 346 F.3d 618, 628 (6th Cir. 2003) (finding attenuation where “police were not

specifically in search of the particular evidence sought to be suppressed in this case”).

6

Moreover, allowing information obtained from a suspect about an outstanding warrant to purge

the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage

officers to seize individuals without reasonable suspicion—not merely engage them in consensual

encounters—and ask them about outstanding warrants.

No. 08-4630 United States v. Williams Page 17

The totality of the circumstances, analyzed through the Brown factors, makes

clear that there was no attenuation of the connection between Vass’s unconstitutional

seizure of Williams and the incriminating evidence. Rather, this case calls for a

straightforward application of the exclusionary rule and the related fruit-of-the-

poisonous-tree doctrine. Because the incriminating evidence was “come at by

exploitation of th[e] illegality” of the seizure, not “by means sufficiently distinguishable

to be purged of the primary taint,” Wong Sun, 371 U.S. at 488, the district court correctly

suppressed it.

III. CONCLUSION

For the foregoing reasons, we conclude that the district court correctly

determined that Officers Vass and Pappas seized Williams without reasonable suspicion

of criminal activity. Neither Vass’s hunch that Williams might have an outstanding

warrant nor Williams’s statement “I think I got one” purged the incriminating evidence

of the taint of the unlawful seizure. We therefore AFFIRM the district court’s order

granting Williams’s motion to suppress and REMAND the case to the district court for

further proceedings.