United States v. Gross

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0157a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 08-4051

v.

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Defendant-Appellant. -

DEMETRION GROSS,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 08-00048-001—John R. Adams, District Judge.

Decided and Filed: June 15, 2011

Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.*

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COUNSEL

ON BRIEF: Nathan A. Ray, BURDON & MERLITTI, Akron, Ohio, for Appellant.

Daniel R. Ranke, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for

Appellee.

MARBLEY, D. J., delivered the opinion of the court, in which MARTIN, J.,

joined. GIBBONS, J. (pp. 21–30), delivered a separate opinion concurring in part and

dissenting in part.

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AMENDED OPINION

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ALGENON L. MARBLEY, District Judge. Defendant-appellant Demetrion

Gross appeals the criminal judgment and 180-month sentence issued by the district court

upon his guilty plea to being a felon in possession of a firearm. Gross challenges the

*

The Honorable Algenon L. Marbley, United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 08-4051 United States v. Gross Page 2

district court’s denial of a motion to suppress evidence based on an alleged unlawful

seizure. He also disputes the determination that he was an armed career criminal under

18 U.S.C. § 924(e), arguing that a prior conviction for escape was not necessarily a

“violent felony” under the Armed Career Criminal Act (“ACCA”).

For the following reasons, we affirm the district court’s denial of Gross’s motion

to suppress as to the DNA swab and confession, reverse the district court’s denial of

Gross’s motion to suppress as to the firearm, vacate the sentence imposed, and remand

to the district court for further proceedings.

I.

In the early morning hours of November 15, 2007, Cuyahoga Metropolitan

Housing Authority Police Officer Eric Williams was on general patrol of high-crime

areas of high- and low-rise public housing. While passing through the parking lot of one

of the housing complexes, Williams encountered a legally parked Oldsmobile

automobile with the engine running but no apparent driver. Williams, however, noticed

a barely-visible passenger who was slumped down in the front-passenger seat of the

vehicle. He checked the vehicle’s license plates against an electronic database and

discovered that there were no outstanding warrants or issues related to the owner of the

car. Williams then parked his police vehicle directly behind the Oldsmobile and turned

on his vehicle spotlights. He observed the passenger react to the spotlights by sitting up

abruptly and then slumping down further in his seat. Williams then exited his police

vehicle and approached the passenger side of the Oldsmobile by foot.

Williams encountered Gross sitting in the passenger seat and introduced himself

by speaking through the closed passenger window. Gross then cracked the door to speak

to Williams. Williams asked what he was doing in the area, and Gross replied that he

was “over [at] his girlfriend’s house.” During the course of the conversation, Williams

noticed a partially consumed bottle of Remy Martin cognac located on the passenger side

of the center console. When Williams asked for identification, Gross said that he did not

have any identification on him but he could get it if he could go into the house. Williams

advised that it would not be necessary to do so if Gross would provide his name, date of

No. 08-4051 United States v. Gross Page 3

birth, and social security number. After Williams asked for them several times, Gross

verbally gave Williams his identifying details.

Williams ran a warrant check, which revealed that Gross had an outstanding

felony warrant for carrying a concealed weapon. He then advised Gross that he was

under arrest, asked him to step from the vehicle, and took Gross into custody by

handcuffing him. Williams briefly patted down Gross but did not conduct a search

incident to arrest at the scene. Williams then transported Gross to the sheriff’s

department.

When Williams and Gross arrived at the sally port of the sheriff’s department,

Gross was searched again and passed through a metal detector. The metal detector went

off, but, despite repeated attempts to locate the metal object triggering the detector and

repeated passes through the machine, the officers were unable to locate the source of the

problem. Gross was then escorted into the police bullpen, where he immediately asked

to use the restroom. Gross entered a restroom pod that obscured Williams’s view of

Gross from the shoulder down.

A short time later, officers discovered a .380 caliber firearm near the toilet that

Gross had used. An investigation into how the firearm entered the jail revealed that

Gross was the only inmate from the street to have access that day to the pod where the

gun was located. On November 19, 2007, four days after Gross’s arrest, and while Gross

was still detained, officers advised Gross of their investigation of the firearm and

informed him of his Miranda rights. Gross then waived his Miranda rights, said that he

knew who brought the weapon into the jail, but denied that it was his. The officers

requested that Gross consent to a DNA test, but Gross refused. The following day, a

search warrant was obtained to take an oral swab for the collection of DNA evidence.

After taking the swab, DNA analysis revealed that genetic material taken from the

firearm and its ammunition matched Gross’s DNA.

On January 17, 2008, approximately two months after his arrest and while still

detained, Gross, of his own accord, contacted Bureau of Alcohol, Tobacco, and Firearms

No. 08-4051 United States v. Gross Page 4

Agent (ATF) Kimani Howell, to whom he had been previously introduced, and

requested a meeting. On January 18, 2008, Agent Howell met with Gross and again

advised him of his Miranda rights. Gross again waived his Miranda rights and gave a

statement admitting to bringing the firearm into the police bullpen.

Gross was charged with one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Gross initially entered a plea of not guilty. He then

filed a motion to suppress “all evidence obtained after the initial stop of the Defendant

. . . that the government intends to introduce at trial.” Gross’s suppression motion was

denied by the district court.

Gross thereafter pled guilty pursuant to a written plea agreement with the

government. In the plea agreement, Gross reserved the right to appeal the district court’s

denial of his motion to suppress. The plea agreement also noted that one of the bases for

his eligibility for a 15-year minimum sentence under the Armed Career Criminal Act

might be impacted by a legal question then pending before the Supreme Court. That

question dealt with whether an escape conviction based on a failure to report qualified

as a violent felony under the Act. See Chambers v. United States, 129 S. Ct. 687 (2009).

The plea agreement therefore provided:

If the presentence report determines that the defendant’s escape

convictions, which are referenced in the Indictment, rest solely on his

failure to report to a penal institution or halfway house and the Supreme

Court determines that an escape conviction based solely on the failure to

report does not qualify as a violent felony, then the defendant

understands that he will not be an Armed Career Criminal, as that term

is defined in 924(e)(1). In that case, the defendant agrees that his base

offense level will be 24 pursuant to [United States Sentencing Guidelines

(“U.S.S.G.”)] Section 2K2.1.

The district court concluded that Gross was an armed career criminal under

18 U.S.C. § 924(e) and, pursuant to U.S.S.G. § 4B1.4, sentenced Gross to 180 months

imprisonment concurrent with a state sentence then being served. Gross timely filed a

notice of appeal.

No. 08-4051 United States v. Gross Page 5

II.

When reviewing the denial of a motion to suppress, we review the district court’s

findings of fact for clear error and its conclusions of law de novo. United States v.

Gross, 550 F.3d 578, 582 (6th Cir. 2008) (citing United States v. Simpson, 520 F.3d 531,

534 (6th Cir. 2008)). We further review de novo “the district court’s determination as

to whether certain facts establish a seizure or detention in violation of the Fourth

Amendment.” United States v. Waldon, 206 F.3d 597, 602 (6th Cir. 2000); see also

Ornelas v. United States, 517 U.S. 690, 699 (1996) (“[A]s a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”). “When a district court has denied the motion to suppress, we must

‘consider the evidence in the light most favorable to the government.’” United States

v. Pearce, 531 F.3d 374, 379 (6th Cir. 2008) (quoting United States v. Carter, 378 F.3d

584, 587 (6th Cir. 2004) (en banc)).

A.

“This Court has explained that there are three types of permissible encounters

between the police and citizens: ‘(1) the consensual encounter, which may be initiated

without any objective level of suspicion; (2) the investigative detention, which, if non-

consensual, must be supported by a reasonable, articulable suspicion of criminal activity;

and (3) the arrest, valid only if supported by probable cause.’” Waldon, 206 F.3d at 602

(quoting United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997)).

Although “[l]aw enforcement officers do not violate the Fourth Amendment’s

prohibition of unreasonable seizures” by approaching individuals in public places and

asking questions, United States v. Drayton, 536 U.S. 194, 200 (2002), a consensual

encounter becomes a seizure when “in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave.” United

States v. Mendenhall, 446 U.S. 544, 554 (1980); see also Florida v. Bostick, 501 U.S.

429, 434–35 (1991) (“[E]ven when officers have no basis for suspecting a particular

individual, they may generally ask questions of that individual; ask to examine the

No. 08-4051 United States v. Gross Page 6

individual’s identification; and request consent to search his or her luggage—as long as

the police do not convey a message that compliance with their request is required.”

(citations omitted)); United States v. Peters, 194 F.3d 692, 698 (6th Cir. 1999) (“Absent

coercive or intimidating behavior which negates the reasonable belief that compliance

is not compelled, the [officer’s] request for additional identification and voluntarily

given information from the defendant does not constitute a seizure under the Fourth

Amendment.”). Factors that, if present, indicate that a seizure occurred include “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.” Mendenhall,

446 U.S. at 554.

To justify a brief, investigative stop under Terry v. Ohio, 392 U.S. 1 (1968), an

officer must point to specific, articulable facts that gave rise to a “reasonable suspicion”

that the suspect was engaged in criminal activity. Id. at 21. “A reasonable suspicion

exists when, based on the totality of the circumstances, a police officer has ‘a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.’” United States v. Baldwin, 114 F. App’x 675, 679 (6th Cir. 2004)

(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). The officer “must be

able to articulate something more than an inchoate and unparticularized suspicion or

hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (citations and internal quotation

marks omitted).

Gross argues that it was improper for Williams to approach the parked vehicle

in which Gross was sitting without some reasonable suspicion. According to Gross,

Williams’s act of parking his marked police car directly behind the Oldsmobile, thereby

blocking the car in the parking space, would cause a reasonable person not to feel free

to leave the area and therefore constituted a Terry stop. He also contends that, at the

time Williams parked his police car behind the vehicle in which he was sitting, Williams

had already observed that the vehicle was legally parked and, based upon the check of

an electronic database, knew that there were no outstanding warrants or issues related

No. 08-4051 United States v. Gross Page 7

to the owner of the car. Gross asserts, therefore, that there was no reasonable suspicion

to approach the vehicle.

Gross is correct that when Officer Williams blocked the car in, he began an

investigatory Terry stop. We recently held that a similar act by this same Officer

Williams was a warrantless Terry seizure requiring reasonable suspicion. See United

States v. See, 574 F.3d 309, 313 (6th Cir. 2009). In See, Officer Williams was on patrol

in a public-housing parking lot when he noticed a car that was backed into a parking

space in a dimly lit area farther from the building than other vacant spots. Id. at 311.

Williams then pulled his patrol car in front of See’s car and parked so that See could not

move his vehicle. Id. at 312. We held that “the blocking of See’s car to determine the

identity of the occupants and maintain the status quo while obtaining this information

was a warrantless Terry seizure . . . [because] a reasonable person in See’s position

would not have felt free to leave.” Id. at 313 (citations and internal quotation marks

omitted). Because Williams’s actions here were markedly similar to his actions in See,

he initiated a Terry stop requiring reasonable suspicion.1

It is readily apparent that, under the circumstances, Williams did not have a

particularized and objective basis for suspecting Gross of criminal activity at the time

of the stop. Indeed, Williams admitted at the suppression hearing that “at the time [he]

exited the car, it [was] safe to say that [he was not] aware that there was any crime being

committed.” The government does not argue that Williams had a reasonable suspicion

to block or to approach the car. Rather, the government asserts that, in light of the fact

that Williams observed a vehicle parked in a public parking lot with the engine running

and no driver behind the wheel in the early hours of the morning with a passenger

“slumped down ” in the front passenger seat, Williams’s “community-caretaking”

function required him to investigate the facts further. See United States v. Koger, 152

1

That Gross was a passenger in the car rather than the driver is of no moment, as a passenger in

a seized vehicle is also made to feel that he is not free to leave. See Brendlin v. California, 551 U.S. 249,

255 (2007) (holding that automobile passengers are seized during traffic stops even though the police

command to stop is directed to the driver because a reasonable person in the passenger seat would not feel

free to leave once the police have stopped the vehicle); United States v. Jones, 562 F.3d 768, 772–73 (6th

Cir. 2009); United States v. Campbell, 549 F.3d 364, 371 (6th Cir. 2008).

No. 08-4051 United States v. Gross Page 8

F. App’x 429, 430–31 (6th Cir. 2005); United States v. Williams, 354 F.3d 497, 508 (6th

Cir. 2003) (“As the Supreme Court has explained, the community caretaking function

of the police applies only to actions that are ‘totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.’”

(quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973))); Taylor v. Mich. Dep’t of

Natural Res., 502 F.3d 452, 462 (6th Cir. 2007) (“Case law indicates that the community

caretaking function articulated in Cady has been principally applied to warrantless

searches of automobiles.”).

The government relies on Koger for the proposition that a community-caretaking

purpose justified a Terry stop in this case. This reliance, however, is misplaced. In

Koger, the arresting officer approached a running vehicle that was illegally stopped and

partially blocking a local highway. 152 F. App’x at 430. The officers observed Koger

asleep or unconscious in the driver’s seat and knocked on the driver’s window. When

Koger rolled down his window, the officers noticed the strong odor of marijuana, asked

Koger for his license, and a computer check revealed that his license was suspended.

A subsequent consensual search of the vehicle uncovered drugs and a firearm. We

upheld the district court’s denial of Koger’s suppression motion, and, in doing so, we

mentioned the magistrate judge’s alternative rationale for denial based on the officer’s

“community caretaker” function. Id. It is important to note, however, that the

magistrate judge concluded that the “initial approach to the car was lawful . . . [because]

the deputies had probable cause to approach the vehicle and investigate the situation in

that the vehicle [illegally] obstructed traffic.” Id. The readily apparent illegality that

was present in Koger, therefore, distinguishes that case from the non-threatening and

lawful circumstance presented here of a passenger seated in a parked car waiting outside

a housing complex. Furthermore, any purported community-caretaking function in this

instance could have been accomplished through a consensual encounter rather than an

investigative stop. See See, 574 F.3d at 315 (Gilman, J., concurring) (“Officer Williams

had every right to investigate further, but he should have simply parked his patrol car

alongside See’s vehicle to carry out the investigation in a consensual manner. Instead,

No. 08-4051 United States v. Gross Page 9

he parked his patrol car in such a way so as to block in See’s vehicle, thus transforming

the encounter into a Terry stop.”).

Accordingly, because Officer Williams was unable to articulate a reasonable

suspicion for the investigative stop, it constituted an unlawful seizure of Gross.

B.

The illegality of the stop, however, does not end the suppression analysis. We

must consider whether the evidence to have been introduced against Gross, including the

firearm, the DNA test, and Gross’s confession, must be suppressed under the

exclusionary rule.

The animating purpose underlying the exclusionary rule is the deterrence of

unlawful government behavior. Elkins v. United States, 364 U.S. 206, 217 (1960)

(exclusionary rule’s “purpose is to deter – to compel respect for the constitutional

guaranty in the only effectively available way – by removing the incentive to disregard

it.”). The Supreme Court has “declined to adopt a ‘per se’, or ‘but for,’ rule that would

make inadmissible any evidence, whether tangible or live-witness testimony, which

somehow came to light through a chain of causation that began with an illegal arrest.”

United States v. Ceccolini, 435 U.S. 268, 276 (1978) (citing to Brown v. Illinois, 422

U.S. 590, 603 (1975)). Rather, “the indirect fruits of an illegal search or arrest should

be suppressed when they bear a sufficiently close relationship to the underlying

illegality.” New York v. Harris, 495 U.S. 14, 19 (1990). Where, as here, the three pieces

of evidence were obtained after Gross was arrested and detained pursuant to an

outstanding arrest warrant, the relevant question is whether each piece of evidence was

obtained “by means sufficiently distinguishable to be purged of the primary taint.”

Wong Sun v. United States, 371 U.S. 471, 488 (1963); see also United States v. Hudson,

405 F.3d 425, 440 (6th Cir. 2005) (quoting Wong Sun); United States v. Castillo, 238

F.3d 424 (Table), 2000 WL 1800481, at *5–6 (6th Cir. Nov. 28, 2000) (concluding that

a suspect’s fleeing an unlawful detention dissipated the taint that might have resulted

from his detention, rendering admissible the drug evidence found incident to his arrest

No. 08-4051 United States v. Gross Page 10

for flight). Accordingly, we must consider whether “the unlawful conduct has become

so attenuated or has been interrupted by some intervening circumstances so as to remove

the ‘taint’ imposed upon the evidence by the original illegality.” United States v. Crews,

445 U.S. 463, 471 (1980). In doing so, we consider all relevant factors “such as the

length of time between the illegal seizure and the [discovery of evidence or the

confession], the presence of intervening circumstances, the purpose and flagrancy of the

official misconduct, and whether the officers read the suspect his Miranda rights before

he [confessed].” United States v. Lopez-Arias, 344 F.3d 623, 630 (6th Cir. 2003) (citing

Kaupp v. Texas, 538 U.S. 626, 632–33 (2003), and Brown, 422 U.S. at 603–04). No

single factor in this analysis, however, is dispositive of attenuation. Brown, 422 U.S.

603.

In view of the time that elapsed between the unlawful seizure of Gross in the

parked car and Gross’s subsequent voluntary confession, the first factor weighs

significantly toward attenuation.2 Gross’s voluntary confession occurred approximately

two months later, on January 18, 2008. Having already been advised of his Miranda

rights and having signed a written waiver of those rights, Gross notified ATF agents that

he wished to speak with them regarding how the firearm made its way into the jail.

Agent Howell advised Gross a second time of his Miranda rights, Gross signed another

written waiver of those rights, and only then did Gross admit to bringing the firearm into

the jail. The significant length of time between the unlawful seizure of Gross and his

voluntary confession while in lawful police custody on an outstanding arrest warrant

counsels a finding of attenuation in this case as to the confession. See United States v.

Akridge, 346 F.3d 618, 628 (6th Cir. 2003) (finding “most dispositive,” in a suppression

2

While time also elapsed between the unlawful stop and the DNA swab – which was taken from

Gross on November 20, 2007, five days after Gross was arrested and only upon police obtaining a warrant

for the search – this factor is most appropriate in determining whether a confession has been purged of

taint. See Wong Sun, 371 U.S. at 491 (fact that Wong Sun was released and voluntarily returned several

days later to make statement dissipated the taint); Brown, 422 U.S. at 603 (noting that one factor to

consider for attenuation is the “temporal proximity of the arrest and the confession”); United States v.

Williams, – F.3d –, 2010 WL 306136, at *8 (6th Cir. Aug. 6, 2010); United States v. Jackson, 172 F.3d

874, 874 (6th Cir. 1998) (discussing time as a factor in determining whether a confession is purged of

taint); see also United States v. Najjar, 300 F.3d 466, 478 (4th Cir. 2002) (noting that in Brown, the

Supreme Court emphasized that the temporal factors aids in a determination of whether the confession was

an act of free will, and that “the mere passage of time cannot serve to make tainted physical evidence

admissible.”).

No. 08-4051 United States v. Gross Page 11

analysis, “the degree of free will exercised” by defendants in giving incriminating

statements following an illegal search of their home and “the temporal attenuation”

created by a one-month gap between the search and questioning); Brown, 422 U.S. at

602 (requiring that a statement made following an illegal arrest be both voluntary and

“sufficiently an act of free will to purge the primary taint” to be admissible); Harris, 495

U.S. at 20 (“We do hold that the station house statement in this case was admissible

because Harris was in legal custody . . . and because the statement, while the product of

an arrest and being in custody, was not the fruit of the fact that the arrest was made in

the house rather than someplace else.”). The district court did not err in denying Gross’s

motion to suppress the confession as it was sufficiently attenuated from the initial illegal

seizure because of its voluntary nature made clear by the amount of time that passed and

Gross’s initiation of the meeting with ATF agents.

As to the second factor – the presence of intervening circumstances – there were

intervening circumstances that served to sever the chain linking the unlawful detention

and the DNA swab, further dissipating any taint. The DNA swab was only taken after

a valid search warrant was obtained in order to swab Gross. The remaining piece of

evidence is the firearm. Central to the determination of whether the firearm was purged

of the taint of the illegal stop is whether the discovery of the warrant constituted an

intervening circumstance. We hold that it did not.

We have not previously considered whether the discovery of a valid arrest

warrant may serve to dissipate the taint of an unlawful detention. United States v.

Williams, – F.3d –, 2010 WL 3061336, at *9 (6th Cir. Aug. 6, 2010) (“[W]e have never

adopted its [the Seventh Circuit’s treatment of a warrant as an intervening circumstance]

approach as the law of this circuit.”).3 The case closest to the issue in our Circuit is

3

We have held that if a suspect’s response to an illegal stop is a new and distinct crime, such as

flight, any evidence recovered incident to the arrest for that crime is not tainted by the unlawfulness of the

initial detention. Castillo, 2000 WL 1800481, at *5–6 (high-speed flight from officers constituted an

intervening act of purge taint of unlawful detention); United States v. Jefferson, 182 F.3d 919 (Table), 1999

WL 519298, at * 4 (6th Cir. July 15, 1999) (defendant’s flight from scene and use of force against officers

constituted intervening circumstance that purged taint). Unlike in Castillo and Jefferson, however, Gross

did not engage in any unlawful behavior after Williams illegally seized him. Gross did not respond to

Williams’s illegal stop with a new and distinct crime, such as flight or violence, that would serve to purge

the taint of the unlawful detention.

No. 08-4051 United States v. Gross Page 12

United States v. Hudson, 405 F.3d 425 (6th Cir. 2005), in which we considered the issue

of whether suppression was appropriate where police officers stopped a car without

reasonable suspicion because they were in search of an individual with an outstanding

arrest warrant and believed him to be a passenger in the car. In Hudson, police officers

stopped a car in order to look for Hudson, whom they knew to have an outstanding arrest

warrant, even though the officers did not have reasonable suspicion to believe that

Hudson would be in the car. 405 F.3d at 429-33. After stopping the car, the police

removed all three occupants from the car, patted them down, and placed them in

handcuffs. Id. at 429. Only after patting down the occupants of the car and handcuffing

them did the police identify Hudson as one of the passengers. Id. During the patdown

of Hudson, one of the officers felt an object in Hudson’s pocket, determined that it was

cocaine in plastic baggies, and confirmed with Hudson that he had crack cocaine. Id.

After we determined that the stop of the car was illegal, we suppressed the drugs found

on Hudson because “when the police make an illegal stop for the very purpose of

arresting the person stopped, they are thereby exploiting the illegal stop in a manner

prohibited by the Fourth Amendment and the evidence obtained in a pat-down of the

arrested suspect or in a search incident to the arrest must be suppressed.” Id. at 440.

In our analysis, we considered two cases from the Seventh Circuit, United States

v. Green, 111 F.3d 515, 520-23 (7th Cir. 1997), and United States v. Johnson, 383 F.3d

538, 546 (7th Cir. 2004). Although both Green and Johnson are cases in which the

Seventh Circuit held that the discovery of a warrant during an illegal stop constituted an

intervening circumstance,4 in Hudson, we relied on Green only to emphasize that the

purpose of an illegal stop or search is determinative of whether the fruits of the search

will be suppressed. Hudson, 405 F.3d at 440; Williams, 2010 WL 3061336 at *9 (noting

4

In Green, the officers illegally stopped the occupants of a car, for whom they had no reasonable

suspicion, in order to gather information about a unrelated third party. In the course of that stop, the

officers discovered an outstanding warrant for one of the men. Green, 111 F.3d at 517. The Seventh

Circuit held that the discovery of the warrant constituted an intervening circumstance. In Johnson, an

officer effectuated an illegal Terry stop on the defendant, but upon reaching the car the defendant was

driving, recognized him as someone the officer knew to have an outstanding warrant. Johnson, 383 F.3d

at 545. The court cited to Green to support its finding of an intervening circumstance, and went on to hold

that after the officer’s identification of the defendant, the officer had probable cause to arrest him. Id. at

544-45.

No. 08-4051 United States v. Gross Page 13

that Hudson relied on the Seventh Circuit cases “for the separate proposition that

evidence obtained pursuant to an illegal seizure must be suppressed when the police

target the defendant.”). Hudson derives its holding that purpose matters from Green’s

discussion of the attenuation doctrine factor as to “the purpose and flagrancy of the

official misconduct.” Hudson, 405 F.3d at 440; Green, 111 F.3d at 523. Under Hudson,

therefore, where the purpose of an illegal stop is to arrest a suspect with an outstanding

warrant, the evidentiary fruits of that stop must be suppressed; and, just as it was prior

to Hudson in previous cases applying the attenuation doctrine, purpose is a factor in

determining whether evidence should be purged of its primary taint. Lopez-Arias, 344

F.3d at 630.

Despite Hudson’s reliance on Green solely for the purpose prong, and our recent

and express pronouncement in Williams that we have not adopted the Seventh Circuit

cases, the dissent argues that Hudson stands for the proposition that, so long as the

purpose of a stop was not to arrest a suspect with an outstanding warrant, the incidental

discovery of a warrant during the course of the illegal stop is an intervening

circumstances.5 Although the dissent is in accord with the Seventh Circuit, other circuits

have applied the exclusionary rule despite the discovery of an outstanding arrest warrant

during the course of an illegal search. In United States v. Lopez, 443 F.3d 1280 (10th

Cir. 2006), the Tenth Circuit held that, where there was no reasonable suspicion or

probable cause to detain a defendant who was standing next to a legally parked car that

had not been reported stolen, the detention of the defendant while an officer ran a

warrants check constituted an unlawful seizure that violated the defendant’s Fourth

Amendment rights. Id. at 1286. Notwithstanding the officer’s discovery of an

outstanding warrant during the check, the Tenth Circuit suppressed the drugs that were

found pursuant to the defendant’s arrest because of the unlawful detention. Id.

Similarly, in United States v. Luckett, 484 F.2d 89, 90-91 (9th Cir. 1973), the Ninth

5

The use of “incidental” lends itself to an interpretation that Officer Williams discovered the

outstanding warrant by happenstance. In fact, the discovery of the warrant was only because of active

steps that Officer Williams took. Gross’s arrest was not based on any action initiated by Gross himself,

but rather it required the affirmative act by Officer Williams of illegally seizing Gross and running the

warrant check.

No. 08-4051 United States v. Gross Page 14

Circuit held that, where a jaywalker had produced sufficient identification and the officer

had already executed a traffic citation, “[b]ecause they [the officers] had no reasonable

grounds to be suspicious that there might be a warrant outstanding against [the

defendant], this continued detention was unreasonable, and its fruits, therefore, were

properly suppressed by the district court.” We agree with the outcomes of these cases

that, where there is a stop with no legal purpose, the discovery of a warrant during that

stop may be a relevant factor in the intervening circumstance analysis, but it is not by

itself dispositive.

To hold otherwise would create a rule that potentially allows for a new form of

police investigation, whereby an officer patrolling a high crime area may, without

consequence, illegally stop a group of residents where he has a “police hunch” that the

residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does

not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a

well-established constitutional requirement, the officer may then seize those individuals,

ask for their identifying information (which the individuals will feel coerced into giving

as they will have been seized and will not feel free to leave or end the encounter), run

their names through a warrant database, and then proceed to arrest and search those

individuals for whom a warrant appears. Under this scenario, an officer need no longer

have reasonable suspicion on probable cause, the very crux of our Fourth Amendment

jurisprudence. Terry, 392 U.S. at 27–29; Williams, 2010 WL 3061336 at *9, n.6

(“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.”).

Furthermore, holding that the discovery of a warrant after an illegal stop is

always a taint-removing intervening circumstance so long as the purpose of the stop is

not because the officer believes the suspect has an outstanding warrant would create

perverse incentives. We do not wish to create a system of post-hoc rationalization

through which the Fourth Amendment's prohibition against illegal searches and seizures

No. 08-4051 United States v. Gross Page 15

can be nullified. Accordingly, while the discovery of the outstanding arrest warrant in

this instance may be a factor in the attenuation analysis, it does not establish attenuation.

In this case, Williams had no particularized and objective basis for suspecting Gross of

criminal activity at the time of the stop, and no reasonable grounds to suspect that there

might be an outstanding warrant arose during the duration of the seizure. Gross

answered Williams’s questions, provided identification information, and did nothing to

arouse particular suspicions. Nevertheless, Williams continued to detain him in order

to run a warrant check. There was no rationale for this action.

The dissent insists that we can find attenuation in this case because the

outstanding warrant was discovered after Williams observed that Gross may have been

in violation of the open-container law. But the open container itself was a fruit of the

illegal stop, and not sufficiently attenuated to constitute an intervening circumstance.

In the cases the dissent cites, the defendants responded to the illegal stop with a new and

distinct crime that gave officers probable cause to make an arrest. See supra note 3.

These cases are inapposite to the present case. Unlike “flight from unlawful detention,”

the open container violation was not a “crime completely unrelated to the illegal stop,”

as the dissent claims, just like drugs found during an illegal search would not constitute

a new crime that could dissipate the taint of the initial illegality. Gross’s detention while

Williams ran the warrant check was not rationalized by the citation, but actually a

continuation of the illegal seizure. The open container violation is not a “new, distinct

crime,” Castillo, 2000 WL 1800481, at *6, and does not establish attenuation in this

case.

In sum, the discovery of the outstanding warrant resulted from means that are

indistinguishable from the illegal stop, and thus the warrant does not dissipate the taint

of the unlawful detention in this case.

Finally, we consider the purpose and flagrancy of the official misconduct. As to

flagrancy, while it is disheartening that Williams had once before blocked in a car in a

similar manner, it was not until our recent decision in See, decided after the events in this

case, that it would have been clear to Williams that his methods were decidedly an

No. 08-4051 United States v. Gross Page 16

investigatory stop and not a consensual encounter. As to purpose, Williams did not have

a lawful purpose for his stop, nor was he, as the officers were in Green, seeking evidence

against a third-party. He also did not, as in Williams, “immediately [ask] several

questions related to criminal activity other than trespassing.” Williams, 2010 WL

3061336, at *9. While Williams’s actions could be interpreted to have been “in the hope

that something might turn up,” United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006),

unlike in Shaw or Brown, there is not sufficient evidence in the record to show that

Officer Williams “knew [he] did not have probable cause.” Id. at 631. Accordingly, the

purpose and flagrancy of Williams’s actions do not weigh heavily in the attenuation

determination.

In weighing the three factors – time, intervening circumstances, and

purpose/flagrancy – we cannot conclude that the DNA swab and confession against

Gross retain any taint from the initial unlawful seizure. The DNA evidence was obtained

several days after arrest and only upon the issuance of a search warrant, and Gross’s

confession occurred only after he voluntarily sought to give an incriminating statement

to agents two months after arrest and after a second waiver of his Miranda rights. The

firearm, however, was found just a short time after Gross entered the jail bullpen, the

purpose of Williams's actions is a wash, and the discovery of the outstanding arrest

warrant, in this instance, does not suffice to break the chain of causation.

Based on the foregoing analysis, we conclude the DNA swab and confession

evidence obtained against Gross is sufficiently attenuated from the prior unlawful

seizure such that any taint has dissipated, but that the possession of the firearm was not

sufficiently attenuated and must be suppressed as fruit of the poisonous tree. We

therefore affirm the district court’s denial of Gross’s suppression motion as to the DNA

swab and confession, but reverse as to the firearm, and remand for further proceedings.

No. 08-4051 United States v. Gross Page 17

III.

This Court reviews de novo the district court’s legal conclusion that a crime

constitutes a “violent felony” under the ACCA. United States v. Hargrove, 416 F.3d

486, 494 (6th Cir. 2005) (citing United States v. Martin, 378 F.3d 578, 580 (6th Cir.

2004), and United States v. Cooper, 302 F.3d 592, 594 (6th Cir. 2002)).

Both Gross and the government urge the Court to remand the case to the district

court for consideration of whether Gross’s prior escape conviction is a crime of violence

under the ACCA. At sentencing, the district court concluded that Gross was an armed

career criminal under 18 U.S.C. § 924(e) based on three prior felony convictions in the

Ohio state courts: (1) felonious assault with firearm specification; (2) attempted

felonious assault; and (3) escape. In Gross’s plea agreement and at Gross’s plea hearing,

however, the parties anticipated that the district court’s ACCA analysis with respect to

the escape conviction might be implicated by Chambers v. United States, 129 S. Ct. 687

(2009), which was then pending before the Supreme Court. The parties and the district

court therefore agreed that Gross had raised and preserved the issue for appeal in the

event that Chambers impacted his eligibility under the ACCA. The district court then

sentenced Gross to the statutory minimum 180 months under the ACCA.

The Supreme Court subsequently decided Chambers on January 13, 2009. The

Court held that at least one type of escape conviction under Illinois law—“failure to

report for penal confinement”—is not a “violent felony” under the ACCA. 129 S. Ct.

at 689. Shortly thereafter, this Court decided in United States v. Ford that Chambers

abrogated the Circuit’s prior view that “all escape offenses—from a failure to report at

one end of the spectrum to a breakout at the other—constitute crimes of violence.” 560

F.3d 420, 423 (6th Cir. 2009) (citing cases).6

In order to determine whether Gross was convicted of a violent felony under

Chambers and Ford, we must now examine the nature of the Ohio escape statute under

6

In this context, the court treats a “crime of violence” under U.S.S.G. § 4B1.1(a) the same as a

“violent felony” under the ACCA. See Ford, 560 F.3d at 421.

No. 08-4051 United States v. Gross Page 18

which Gross was convicted. The Presentence Investigation Report (“PSR”) indicates

only that Gross was convicted of a third-degree escape penalty under Ohio Rev. Code

Ann. § 2921.34.7 That statute provides:

No person, knowing the person is under detention or being reckless in

that regard, shall purposely break or attempt to break the detention, or

purposely fail to return to detention, either following temporary leave

granted for a specific purpose or limited period, or at the time required

when serving a sentence in intermittent confinement.

Ohio Rev. Code Ann. § 2921.34(A)(1).

“[I]n determining the nature of a defendant’s prior conviction, we apply a

‘categorical’ approach, meaning that we look at the statutory definition of the crime of

conviction, not the facts underlying that conviction, to determine the nature of the

crime.” Ford, 560 F.3d at 421–22 (quoting Taylor v. United States, 495 U.S. 575, 602

(1990)). The relevant first inquiry under Chambers and Ford, then, is to determine and

distinguish the ways in which the statute characterizes an escape conviction. See

Chambers, 129 S. Ct. at 691; Ford, 560 F.3d at 423–24 (concluding that the Kentucky

escape statutes, Ky. Rev. Stat. Ann. §§520.010–.040, characterize an escape conviction

in four ways: (1) leaving custody with the use or threat of force; (2) leaving custody in

a secured setting; (3) leaving custody in a non-secured setting by “walking away”; and

(4) failure to report).

At first glance, it appears that the Ohio statute divides the escape conviction into

two distinct categories. First, the statute proscribes a purposeful break or attempt to

break from a detention8 that the defendant knew or should have known had already

7

The PSR does not provide a factual description of the prior escape conviction. In any event, a

factual description of a prior conviction contained in a PSR may not be used to determine whether that

conviction is a crime of violence. United States v. Wynn, 579 F.3d 567, 575–76 (6th Cir. 2009).

8

“Detention” is broadly defined as:

arrest; confinement in any vehicle subsequent to an arrest; confinement in any public

or private facility for custody of persons charged with or convicted of crime in this state

or another state or under the laws of the United States or alleged or found to be a

delinquent child or unruly child in this state or another state or under the laws of the

United States; hospitalization, institutionalization, or confinement in any public or

private facility that is ordered pursuant to [state law]; confinement in any vehicle for

No. 08-4051 United States v. Gross Page 19

commenced. Ohio Rev. Code Ann. § 2921.34(A)(1). Second, the statute proscribes a

purposeful failure to return to detention, either following temporary leave or when

serving a sentence of intermittent confinement. Ohio Rev. Code Ann. § 2921.34(A)(1).

It is not entirely clear that these two distinct categories demarcate the categorical line

between violent and non-violent felonies. Although the second category includes

precisely the type of “failure to report” violation that the Supreme Court found to be

non-violent in Chambers, the first category appears to include all other manners of

escape, including escape from arrest, escape from custodial confinement in a variety of

circumstances, and escape from a jail-program work detail. This category might include,

for example, the type of walkaway escape found not to be a crime of violence in Ford.

560 F.3d at 424–26; see also United States v. Mansur, No. 08-3872, 2010 WL 1140996,

at *4 n.8 (6th Cir. Mar. 25, 2010). The categorization analysis, therefore, may not be

such a straightforward endeavor.

In any event, there is a missing fact that is crucial to guide and limit our analysis:

we do not know for what type of escape Gross was convicted. Where “it is possible to

violate a criminal law in a way that amounts to a crime of violence and a way that does

not,” we may “look at the indictment, guilty plea and similar documents to see if they

‘necessarily’ establish the nature of the prior offense.” Ford, 560 F.3d at 422 (citing

Shepard v. United States, 544 U.S. 13, 26 (2005)). Because the record before us does

not contain these documents, we remand to the district court. On remand, the district

court should attempt to clarify the nature of the prior escape conviction so that it may be

analyzed under the principles discussed in Chambers, Ford, Taylor, and Shepard. The

“district court should consider ‘the terms of the charging document, the terms of a plea

transportation to or from any facility of any of those natures; detention for extradition

or deportation; except as provided in this division, supervision by any employee of any

facility of any of those natures that is incidental to hospitalization, institutionalization,

or confinement in the facility but that occurs outside the facility; supervision by an

employee of the department of rehabilitation and correction of a person on any type of

release from a state correctional institution; or confinement in any vehicle, airplane, or

place while being returned from outside of this state into this state by a private person

or entity pursuant to [state law]. For a person confined in a county jail who participates

in a county jail industry program . . . “detention” includes time spent at an assigned

work site and going to and from the work site.

Ohio Rev. Code Ann. § 2921.01(E).

No. 08-4051 United States v. Gross Page 20

agreement or transcript of colloquy between judge and defendant in which the factual

basis for the plea was confirmed by the defendant, or . . . some comparable judicial

record of this information.’” United States v. Anglin, No. 08-5018, 2010 WL 1330106,

at *6 (6th Cir. Apr. 7, 2010) (quoting Shepard, 544 U.S. at 26 (alteration in original)).

Because “the government bears the burden of proving that [Gross’s] escape conviction

was a crime of violence[,] . . . [i]f the government does not meet its burden, the district

court may not use [the] escape conviction to resentence him as a career offender.” Id.

(citing United States v. Baker, 559 F.3d 443, 455 n.10 (6th Cir. 2009)).

IV.

For the foregoing reasons, we affirm in part and reverse in part the district court’s

denial of the motion to suppress, vacate Gross’s sentence, and remand to the district

court for further proceedings.

No. 08-4051 United States v. Gross Page 21

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

___________________________________________________

JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in

part. I agree with the majority that a remand is necessary to determine whether Gross’s

prior escape conviction is a crime of violence under the Armed Career Criminal Act. I

also agree with the majority that both Gross’s confession and the DNA evidence linking

him to the firearm are sufficiently attenuated from his unlawful seizure by Officer

Williams to dissipate any taint from that police action. I disagree, however, with the

majority’s reversal of the district court’s denial of the suppression of the firearm and

therefore respectfully dissent.

The majority apparently concedes that the unexpected discovery of an

outstanding arrest warrant can be considered in the analysis of “whether the chain of

causation proceeding from the unlawful conduct has become so attenuated or has been

interrupted by some intervening circumstance so as to remove the ‘taint’ imposed upon

that evidence by the original illegality.” United States v. Crews, 445 U.S. 463, 471

(1980). But, in concluding that the discovery of the firearm here was not sufficiently

attenuated from the initial stop to remove its taint, it misreads precedent and applies

reasoning inapplicable to the instant facts.

The material circumstances of this case do indeed demonstrate such attenuation.

Although the officer stopped Gross without reasonable suspicion, he discovered Gross’s

arrest warrant only after he observed Gross in violation of state open-container laws.

Gross was then arrested, processed at the jail, and, after four hours, a weapon was found

in the jail cell that was later linked to Gross by DNA evidence. Under these

circumstances, the evidence of the gun was sufficiently attenuated from the original stop

to be admissible against Gross.

No. 08-4051 United States v. Gross Page 22

I.

Although the underlying rationale of the exclusionary rule is the deterrence of

unlawful government behavior, the Supreme Court has explained that “‘[w]hether the

exclusionary sanction is appropriately imposed in a particular case . . . is an issue

separate from the question whether the Fourth Amendment rights of the party seeking

to invoke the rule were violated by police conduct.’” Hudson v. Michigan, 547 U.S. 586,

591–92 (2006) (quoting United States v. Leon, 468 U.S. 897, 906 (1984)) (internal

quotation marks omitted). The Supreme Court has therefore “declined to adopt a ‘per

se’ or ‘but for’ rule that would make inadmissible any evidence, whether tangible or

live-witness testimony, which somehow came to light through a chain of causation that

began with an illegal arrest.” United States v. Ceccolini, 435 U.S. 268, 276 (1978)

(citing Brown v. Illinois, 422 U.S. 590, 603 (1975)). “Rather, the more apt question in

such a case is whether, granting establishment of the primary illegality, the evidence to

which instant objection is made has been come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the primary taint.” Wong

Sun v. United States, 371 U.S. 471, 488 (1963) (quotation marks and citation omitted).

Accordingly, we must determine whether “the unlawful conduct has become so

attenuated or has been interrupted by some intervening circumstance so as to remove the

‘taint’ imposed upon the evidence by the original illegality.” Crews, 445 U.S. at 471.

In doing so, we must consider all circumstances relevant to attenuation, including “the

length of time between the illegal seizure and the [confession], the presence of

intervening circumstances, the purpose and flagrancy of the official misconduct, and

whether the officers read the suspect his Miranda rights before he [confessed].” United

States v. Lopez-Arias, 344 F.3d 623, 630 (6th Cir. 2003) (citing Kaupp v. Texas, 538

U.S. 626, 632–33 (2003), and Brown v. Illinois, 422 U.S. 590, 603–04 (1975)). No

single fact in this analysis, however, is dispositive of attenuation. Brown, 422 U.S. at

603.

No. 08-4051 United States v. Gross Page 23

A.

While we have not previously considered whether the unexpected discovery of

a valid arrest warrant may serve to dissipate the taint of an unlawful detention, we have

considered closely analogous circumstances. First, we have held that if a suspect’s

response to an illegal stop is a new and distinct crime, such as flight, any evidence

recovered incident to the arrest for that crime is not tainted by the unlawfulness of the

initial detention. United States v. Castillo, 238 F.3d 424, 2000 WL 1800481, at *5–6

(6th Cir. Nov. 28, 2000) (unpublished table opinion); United States v. Jefferson, 182

F.3d 919, 1999 WL 519298, at *4 (6th Cir. July 15, 1999) (unpublished table opinion).

In both Castillo and Jefferson, we concluded that where officers have probable cause to

arrest a suspect on a new and independent basis, the lawful arrest authorized the officers

to search the defendant, and the evidence seized as a result was admissible. Castillo,

2000 WL 1800481, at *5–6; Jefferson, 1999 WL 519298, at *4.

Second, in United States v. Hudson, 405 F.3d 425, 438 (6th Cir. 2005), we

confronted the circumstance in which the police were looking for a particular suspect

with a known and outstanding arrest warrant. They observed a car driven by the

suspect’s girlfriend with two passengers inside who loosely matched a race-based profile

of the suspect. Id. The police effectuated a Terry stop, discovered Hudson and removed

him from the car, and a search of his person revealed illegal drugs. Id. at 429. His

identity as the suspect with the outstanding arrest warrant was then confirmed. Id. After

we determined that the stop was unlawful because there was no reasonable suspicion to

believe Hudson was in the car, we suppressed the drugs found on Hudson. We noted

that “when the police make an illegal stop for the very purpose of arresting the person

stopped, they are thereby exploiting the illegal stop in a manner prohibited by the Fourth

Amendment and the evidence obtained in a pat-down of the arrested suspect or in a

search incident to the arrest must be suppressed.” Id. at 440. In our analysis, we looked

to a line of Seventh Circuit cases involving the very issue before us here. Id. (discussing

United States v. Green, 111 F.3d 515, 520–23 (7th Cir. 1997), and United States v.

Johnson, 383 F.3d 538, 546 (7th Cir. 2004)).

No. 08-4051 United States v. Gross Page 24

In Green, the Seventh Circuit upheld the admission of evidence obtained during

the search of a car incident to an arrest on an outstanding, previously-unknown arrest

warrant discovered during a warrant check following an illegal seizure. 111 F.3d at

520–23. The court reasoned that the officers’ incidental discovery of the outstanding

warrant “constituted an intervening circumstance sufficient to dissipate any taint caused

by the illegal automobile stop.” Id. at 521. This was because, in the Seventh Circuit’s

view:

It would be startling to suggest that because the police illegally stopped

an automobile, they cannot arrest an occupant who is found to be wanted

on a warrant—in a sense requiring an official call of “Olly, Olly, Oxen

Free.” Because the arrest is lawful, a search incident to the arrest is also

lawful.

Id.1 The Seventh Circuit subsequently reaffirmed this analysis in Johnson. 383 F.3d

538, 546 (7th Cir. 2004).

In Hudson, we approved of this analysis and “agree[d] with the Seventh Circuit

that the admissibility of evidence obtained in an illegal stop depends on the purpose of

the stop.” 405 F.3d at 440. We concluded that where the purpose of the illegal stop was

from its very inception to arrest a suspect with an outstanding warrant, the evidence

obtained pursuant to an immediate search incident to that arrest must be suppressed. Id.

at 440–41. Essential to this conclusion, and evident from our discussion of Green and

Johnson, of course, is the notion that where the arrest warrant is previously known to

police and serves as the express basis for an unlawful stop, the warrant is not an

intervening cause for the discovery of evidence. Rather, it is the primary cause and is

fully intertwined with the primary taint. See Hudson, 405 F.3d at 440 (“[T]he officers’

purpose in this case was clear: to arrest Hudson. This they achieved, but only by

exploiting a stop unsupported by reasonable suspicion.”).

1

The Seventh Circuit found confirmation of this view in case law from the Fifth, Eighth, and

Eleventh Circuits. See United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir. 1971); United States v.

Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995); United States v. Bailey, 691 F.2d 1009, 1018–19 (11th Cir.

1982).

No. 08-4051 United States v. Gross Page 25

The majority’s statement that “[a]lthough both Green and Johnson are cases in

which the Seventh Circuit held that the discovery of a warrant during an illegal stop

constituted an intervening circumstance, in Hudson, we relied on Green only to

emphasize that the purpose of an illegal stop or search is determinative of whether the

fruits of the search will be suppressed,” is nothing short of baffling. (Maj. Op. at 12–13.)

Our discussion of Green and Johnson most certainly considered the question of whether

an arrest warrant could serve as an intervening circumstance; we sought to distinguish

Green and Johnson on the very basis that the Hudson’s arrest warrant was known prior

to the illegal stop. Hudson itself makes this point unmistakably:

The [Green] court reasoned that the officers’ incidental discovery of the

outstanding warrant “constituted an intervening circumstance sufficient

to dissipate any taint caused by the illegal automobile stop.” [111 F.3d]

at 521. The court explained why the search incident to the valid arrest

was sufficiently purged of the primary taint, i.e., the illegal stop:

In this case, while the police inappropriately stopped the

Greens, the purpose of the stop was not to seek evidence

against the Greens, but to obtain evidence against Mark

Williams [the fugitive] . . . . Nor did the police exploit

the stop in order to search the automobile. Rather the

search came only after they learned that Avery was

wanted on a warrant and arrested him . . . . Our

conclusion that the evidence is admissible in this case

also will not lessen the deterrent effect of the

exclusionary rule on unconstitutional automobile stops

because the general rule of exclusion is unchanged. It is

only in the unusual case where the police, after a

questionable stop, discover that an occupant is wanted on

an arrest warrant that the intervening circumstances

exception will apply.

Id. at 523 (emphases added). A more recent pronouncement from the

Seventh Circuit reaffirms this analysis. See United States v. Johnson,

383 F.3d 538, 546 (7th Cir. 2004) (holding that because the officers

discovered valid warrants only after they illegally stopped the defendant,

the search and arrest of the defendant could not be deemed the purpose

of the stop). As these decisions indicate, when the police make an illegal

stop for the very purpose of arresting the person stopped, they are

thereby exploiting the illegal stop in a manner prohibited by the Fourth

Amendment and the evidence obtained in a pat-down of the arrested

suspect or in a search incident to the arrest must be suppressed.

No. 08-4051 United States v. Gross Page 26

405 F.3d at 440. Thus, Hudson expressly recognized that an incidentally discovered

arrest warrant could attenuate the taint from an unlawful stop.2 We ultimately held that

where the purpose of the stop was, from its very inception, to arrest a suspect with a

known warrant, the evidence obtained incident to that arrest must be suppressed.

It therefore follows that, where the purpose of the illegal stop is entirely unrelated

to the arrest of a particular individual—here, the purpose was the investigation of an

unusual circumstance encountered on patrol—a lawful arrest upon the subsequent

incidental or unexpected discovery of an outstanding warrant is an intervening

circumstance that weighs strongly toward attenuation. See Johnson, 383 F.3d at 546

(holding that because the officers discovered valid warrants only after they illegally

stopped the defendant, the search and the arrest of the defendant could not be deemed

the purpose of the stop); United States v. Simpson, 439 F.3d 490, 495–96 (8th Cir. 2006)

(concluding that an “outstanding arrest warrant constitutes an extraordinary intervening

circumstances that purges much of the taint associated with” an illegal seizure).

There is even more reason to find attenuation in this case: the outstanding arrest

warrant was discovered only after Gross was observed in violation of the open-container

law. Just as a suspect’s flight from unlawful detention provides probable cause for

police to arrest and search the suspect, so too does the discovery of an outstanding arrest

warrant which follows from the observation of a crime completely unrelated to the

illegal stop. The combination of these intervening circumstances—Williams viewing

2

The dicta from United States v. Williams, 615 F.3d 657, 670 (6th Cir. 2010), cited by the

majority does not change this fact. In Williams, special-duty police officers approached a small group of

individuals standing in front of an affordable-housing complex. Id. at 662. One of the officers recognized

Williams as a non-resident and told him that he was again trespassing on the housing-complex property.

Id. He then asked Williams if there were any outstanding warrants for his arrest, and Williams responded

that he thought there might be one outstanding. Id. The officer asked if Williams was armed, and the

response lead the officer to believe he was in fact armed. Id. The officer then performed a pat-down

search, discovered a concealed firearm, and arrested Williams. Id.

We affirmed the suppression of the firearm because “the information obtained [through the

officer’s questioning] was not ‘the product of free will under Wong Sun.’” Id. at 670 (quoting Brown, 422

U.S. at 603). Though our discussion of the case included consideration of Green, Johnson, and Hudson,

and though we indeed commented that “we have never adopted the [the Seventh Circuit’s] approach as the

law of this circuit,” our holding rested solely the fact that the officer “obtained his information by asking

Williams a question during an illegal encounter in which a person would not feel free to leave or to refuse

to answer questions.” Id. The facts in Williams—the officer recognized Williams, asked about warrants

and weapons, and discovered the weapon immediately after Williams indicated that he may have a

weapon—readily distinguish it from Hudson or the case at bar.

No. 08-4051 United States v. Gross Page 27

the open-container violation and then running a positive warrant check—transformed

what had been an unlawful encounter with police into a lawful arrest and detention on

an unrelated charge.3 And, “[p]ursuant to this lawful arrest, the officers were authorized

to search [Gross], and the evidence seized as a result of the search is admissible.”

Jefferson, 1999 WL 519298, at *4. The evidence obtained here—a firearm discovered

on the jail-cell floor following Gross’s removal to jail—would likewise be admissible.

The majority also relies on two cases from our sister circuits to support its view

and implies that the views of other circuits differ from that of the Seventh Circuit on this

point. Neither, however, can be read to support the result in this case or the notion that

other circuits apply a different rule. In United States v. Lopez, 443 F.3d 1280 (10th Cir.

2006), police officers approached two men standing in the street in the early morning,

asked for identification, and then took the identification to the patrol car where a warrant

check revealed that Lopez had an outstanding warrant for harboring a minor. Id. at

1282. Lopez was subsequently arrested, and a search incident to his arrest uncovered

drugs and a firearm. Id. The Tenth Circuit, affirming the suppression of the evidence,

held that because the officer “did not have probable cause or reasonable articulable

suspicion to detain Lopez until the warrants check was completed, . . . the seizure

violated the Fourth Amendment.” Id. at 1286. The court concluded that while the initial

request for identification was consensual, the prolonged detention for the purpose of

executing a warrant check was unreasonable. Id. at 1285–86. These circumstances are

quite different than those in the case before us. Rather than unexpectedly discovering

3

The majority asserts that “Gross’s arrest was not based on any action initiated by Gross himself.”

(Maj. Op at 13 n.5.) Williams’s observation that Gross was in violation of the open-container law belies

this contention.

The majority also argues that because the open container violation would have resulted only in

the issuance of a citation, Williams was not justified in conducting a warrant check. To the contrary, the

traffic violation, even if only meriting issuance of a citation, did provide a basis for further inquiry about

warrants. See United States v. Smith, 601 F.3d 530, 542 (6th Cir. 2010) (finding that pursuant to a valid

traffic stop it was not “inappropriate for [the officer] to check both whether [the defendants] had valid

identification and whether they had outstanding warrants” even though an officer may detain a motorist

no “longer than is reasonably necessary to issue a traffic citation” (internal quotation marks omitted));

United States v. Garrido-Santana, 360 F.3d 565, 573 (6th Cir. 2004) (finding that “under the totality of

the circumstances, it was objectively reasonable and within the bounds of the traffic stop for [the officer]

to have requested a computer check” on the ownership of a vehicle); see also United States v. Black, 240

F. App’x 95, 101 (6th Cir. 2007) (“[R]outine driver’s license checks have been upheld by this court as

within the scope of a lawful traffic stop.” (citing United States v. Hill, 195 F.3d 258, 269 (6th Cir. 1999),

and Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177, 186 (2004))).

No. 08-4051 United States v. Gross Page 28

an outstanding arrest warrant following a stop unrelated to the warrant, the police seized

Lopez for the very purpose of running a warrant check. There is no evidence in the

record here, however, that Williams intended to run a warrant check on Gross before he

discovered Gross in violation of the open-container law.

United States v. Luckett, 484 F.2d 89 (9th Cir. 1973) (per curiam), is similarly

distinguishable. There, a jaywalker was asked to produce identification so that officers

could execute a traffic citation. Id. at 90. Following the citation, however, the police

detained Luckett, ran a warrant check, and discovered an outstanding traffic warrant.

Id. A subsequent search incident to Luckett’s arrest on that warrant revealed a package

of counterfeit money orders. Id. The Ninth Circuit affirmed the suppression of the

evidence, holding that “because [the officers] had no reasonable grounds to be suspicious

that there might be a warrant outstanding against [Luckett], this continued detention was

unreasonable, and its fruits . . . were properly suppressed by the district court.” Id. at 91.

It concluded that because the prolonged detention “was done for the sole reason that

[Luckett] lacked a driver’s license” and occurred after the citation was issued for the

observed infraction, the length and scope of detention was no longer “strictly tied to and

justified by the circumstances which rendered its initiation permissible.” Id. at 90–91

(quoting Terry v. Ohio, 392 U.S. 1, 16 (1968)) (internal quotation marks omitted). In

the case before us, however, Officer Williams ran a warrant check immediately upon

observing Gross in violation of the open-container law. And although we have

concluded that the placement of Williams’s car rendered the initial investigation of

Gross unreasonable under the circumstances, United States v. See, 574 F.3d 309, 313

(6th Cir. 2009), Williams’s decision to run a warrant check upon viewing the open-

container violation was not itself an unreasonable police act. The brief detention, which

occurred for purposes of running the warrant check, was therefore both tied to and

justified by the observed infraction.

A finding of attenuation is also supported by the majority’s conclusion that “the

purpose and flagrancy of Williams’s actions do not weigh heavily in the attenuation

determination.” (Maj. Op. at 16.) With respect to purpose, it is clear that Officer

No. 08-4051 United States v. Gross Page 29

Williams sought to investigate an unusual situation that he encountered late at night: a

running car in a parking lot with no driver and a passenger slumped down in the front

seat. But a police officer’s desire to investigate unusual circumstances encountered

while on patrol is not necessarily a suspect purpose. See See, 574 F.3d at 315 (Gilman,

J., concurring) (“Officer Williams had every right to investigate further, but he should

have simply parked his patrol car alongside See’s vehicle to carry out the investigation

in a consensual manner.”). Indeed, the majority concedes, as it must, that “there is not

sufficient evidence in the record to show that Officer Williams ‘knew [he] did not have

probable cause.’” (Maj. Op. at 16 (quoting United States v. Shaw, 464 F.3d 615, 630

(6th Cir. 2006)).) Nor did the officer stop Gross “in the hope that something might turn

up.” Brown, 422 U.S. at 605. And when Williams encountered the violation of the

open-container law, it was perfectly reasonable to expect that he would investigate

further and check if the suspect had any outstanding warrants. Nothing about that act

indicates that Williams specifically targeted Gross for further investigation for anything

other than an observed infraction.

Furthermore, Williams’s unlawful stop in this case was not the type of flagrant

act that can overcome the significant attenuation created by the timing and intervening

circumstances discussed above. While it is true that Williams had once before blocked

in a car in a similar manner, it was not until our recent decision in See, filed after the

events in this case, that it would have been clear to Williams that his methods were

decidedly an investigatory stop and not a consensual encounter. See, 574 F.3d at 313.

Nothing in the record demonstrates that Williams’s actions had the “quality of

purposefulness,” Shaw, 464 F.3d at 631, to specifically investigate Gross in the hope that

something would turn up. Rather, it appears that Williams investigated an unusual

situation on patrol, executed an unsupported Terry stop, and only upon discovering an

ongoing violation of law ran a warrant check on the detained suspect. It is also

important to reiterate that the unlawful police action in this case was Williams’s

blocking Gross’s car rather than engaging in a consensual encounter, and not his act of

running a warrant check upon observing a violation of an open-container law. The act

of blocking the car to investigate the appearance of unusual circumstances, without

No. 08-4051 United States v. Gross Page 30

more, is not the type of flagrant conduct that might serve to taint evidence discovered

under such attenuated circumstances as we have before us.

Given those circumstances, there is sufficient attenuation between the initial

unlawful seizure of Gross and the discovery of a firearm on the jail-cell floor. The

presence of intervening circumstances in the form of an open-container violation and the

subsequent discovery of an outstanding arrest warrant, the lack of evidence of unlawful

purpose or flagrant conduct, and the circumstances by which the evidence was

discovered well after arrest all favor application of the attenuation doctrine in this case.

II.

For the foregoing reasons, I would conclude that the evidence against Gross is

sufficiently attenuated from the initial illegality such that exclusion is unwarranted.

Accordingly, I would affirm the district court’s denial of Gross’s motion to suppress.