United States v. Holmes

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.

2

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

3

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

4

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

5

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).

6

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

7

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

9

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

11

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

12

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.