United States v. Lopez-Arias

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Lopez-Arias et al. No. 02-5154

ELECTRONIC CITATION: 2003 FED App. 0336P (6th Cir.)

File Name: 03a0336p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Nina Goodman, UNITED STATES

FOR THE SIXTH CIRCUIT DEPARTMENT OF JUSTICE, Washington, D.C., for

_________________ Appellant. Patrick J. Bouldin, WESTERN KENTUCKY

FEDERAL COMMUNITY DEFENDER, INC., Louisville,

UNITED STATES OF AMERICA , X Kentucky, Martin N. Kute, Louisville, Kentucky, for

Plaintiff-Appellant, - Appellees. ON BRIEF: Nina Goodman, UNITED STATES

- DEPARTMENT OF JUSTICE, Washington, D.C., Terry M.

- No. 02-5154 Cushing, ASSISTANT UNITED STATES ATTORNEY,

v. - Louisville, Kentucky, for Appellant. Patrick J. Bouldin,

> WESTERN KENTUCKY FEDERAL COMMUNITY

, DEFENDER, INC., Louisville, Kentucky, Martin N. Kute,

DAVID LOPEZ-ARIAS and -

ANTONIO EGUES, Louisville, Kentucky, for Appellees.

-

Defendants-Appellees. - _________________

-

N OPINION

Appeal from the United States District Court _________________

for the Western District of Kentucky at Louisville.

No. 00-00094—Thomas B. Russell, District Judge. JULIA SMITH GIBBONS, Circuit Judge. Federal drug

enforcement agents arrested defendants-appellees David

Argued: May 2, 2003 Lopez-Arias and Antonio Egues for trafficking in cocaine.

After a federal grand jury indicted them, defendants moved to

Decided and Filed: September 19, 2003 suppress certain evidence, alleging that it was obtained as a

result of an unlawful arrest. The district court granted

Before: CLAY and GIBBONS, Circuit Judges; defendants’ motion to suppress, and the government appeals

CLELAND, District Judge.* from that ruling. For the following reasons, we affirm the

district court’s decision to suppress the evidence.

I.

On or shortly before July 26, 2000, law enforcement

officials in Louisville, Kentucky, received a tip from a

confidential informant, whose reliability had not yet been

tested, that two Hispanic men from Las Vegas were traveling

*

The Ho norable Robert H. Cleland, United States District Judge for to Louisville to distribute cocaine. The informant told the

the Eastern District of Michigan, sitting by designation.

1

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police that the two men intended to stay at the Collier Motel agents following defendants to stop the Crown Victoria. Four

in Louisville and that a man named Jose intended to deliver DEA agents in four unmarked DEA vehicles activated their

the proceeds of a drug sale to these two men at the motel. sirens and emergency lights and stopped the Crown Victoria.

According to the informant, Jose would be driving a white The four DEA agents, with weapons drawn, ordered

Toyota with a certain license plate number. A search of state defendants to exit the Crown Victoria. The DEA agents then

motor vehicle records revealed that the license plate number handcuffed defendants and placed them into separate DEA

identified by the informant was registered to Jose Barrera vehicles. The DEA agents drove the defendants from the

Santiesteban, 104 E. Kingston, Apt. 1, Louisville, Kentucky. scene of the stop on the street to an adjacent convenience

store parking lot, where they were removed from the DEA

The federal Drug Enforcement Administration (DEA) vehicles, read their Miranda rights, and questioned separately.

began surveillance of the Collier Motel on the afternoon of

July 26, 2000. During their surveillance, DEA agents The DEA agent questioning Egues conducted a pat-down

discovered that a 1992 blue Ford Crown Victoria, which was search of him and found the motel key in his pocket. Egues

parked in front of Room 17 of the motel, was registered to stated that the motel room was registered in his name. The

David Lopez-Arias, whose address matched Santiesteban’s DEA agent asked Egues for consent to search the motel room

except for the apartment number. At around 4:00 p.m. on and presented him with a written consent form, which Egues

July 26, defendants Lopez-Arias and Egues exited Room 17 signed within ten to fifteen minutes from the time the DEA

and departed in the Crown Victoria. The undercover DEA agents stopped the Crown Victoria. A little more than twenty

agents followed defendants as they visited several locations, minutes from the time the DEA agents stopped the Crown

including an office supply store, where they purchased a set Victoria, Lopez-Arias gave the DEA agent questioning him

of digital scales of the type often used to weigh drugs. verbal consent to search the motel room.

Defendants then returned to the motel.

After receiving consent from both defendants, DEA agents

At around 8:15 that evening, Santiesteban arrived at the searched Room 17 of the Collier Motel and found a yellow

motel driving the white Toyota described by the informant. plastic bag containing twenty-five individually wrapped

After speaking with Lopez-Arias, who was outside working packages of cocaine, a black notebook containing $4,100 in

on the Crown Victoria, Santiesteban went into Room 17 with cash, clear plastic wrappers containing cocaine residue, and

Lopez-Arias. DEA agents observed Santiesteban carrying a two sets of digital scales. DEA agents then formally arrested

yellow plastic bag into Room 17. Santiesteban stayed in defendants and reread them their Miranda rights.

Room 17 for about forty-five minutes before leaving in his

white Toyota. DEA agents followed Santiesteban out of the The federal grand jury charged defendants with possessing

vicinity of the motel and then stopped him. A drug-sniffing more than 500 grams of cocaine with the intent to distribute.

dog alerted on the Toyota, but the DEA agents did not find Before trial, defendants moved to suppress all the evidence

any drugs in the Toyota. that the DEA agents found in the motel room. Defendants

argued that they were arrested without probable cause and

Defendants departed from the motel in the Crown Victoria that they did not voluntarily grant consent to search the motel

shortly after Santiesteban and were followed by DEA agents. room. The district court referred defendants’ motion to a

Once the drug-sniffing dog alerted on Santiesteban’s Toyota, magistrate judge, who conducted an evidentiary hearing. The

a DEA agent on the scene with Santiesteban ordered the DEA magistrate judge issued proposed findings of fact and

No. 02-5154 United States v. Lopez-Arias et al. 5 6 United States v. Lopez-Arias et al. No. 02-5154

conclusions of law and recommended that the motion to A. The Seizure

suppress be denied. The magistrate judge found that

defendants voluntarily gave their consent to search the motel The government does not argue that the DEA agents had

room during a permissible investigatory detention that had not probable cause to arrest defendants at the time defendants

yet risen to the level of an arrest. granted their consent to search the motel room. The

government instead argues that defendants gave their consent

Defendants objected, and the district court rejected the to search the motel room during a permissible investigatory

magistrate judge’s recommendation and granted defendants’ detention that had not yet risen to the level of an arrest.

motion to suppress. The district court found that the stop had

risen to the level of an arrest by the time defendants gave their Since the Supreme Court decided Terry v. Ohio, 392 U.S. 1

consent to search the motel room, that no probable cause (1968), courts have recognized that a law enforcement officer

existed to support the arrest, and that the consent was who lacks probable cause to justify an arrest may nevertheless

therefore tainted by the illegal arrest. Because the district briefly detain an individual without violating the Fourth

court found that the consent was tainted by the illegal arrest, Amendment if the officer possesses a reasonable and

the district court did not decide whether the consent was articulable suspicion that the individual has committed a

otherwise voluntary. The government appeals the district crime. United States v. Heath, 259 F.3d 522, 528 (6th Cir.

court’s ruling to suppress the evidence found in the motel 2001). The scope of this brief investigative detention,

room. however, must be limited to “the least intrusive means

reasonably available to verify or dispel the officer’s suspicion

II. in a short period of time.” Florida v. Royer, 460 U.S. 491,

500 (1983). Although “[t]he scope of the intrusion permitted

“This Court reviews the district court’s factual findings in will vary to some extent with the particular facts and

a suppression hearing for clear error and reviews the district circumstances of each case,” in no event may law

court’s conclusions of law de novo.” United States v. enforcement officers “seek to verify their suspicions by

Waldon, 206 F.3d 597, 602 (6th Cir. 2000). “A factual means that approach the conditions of arrest.” Id. at 500, 409.

finding will only be clearly erroneous when, although there

may be evidence to support it, the reviewing court on the To determine whether an investigative detention has

entire evidence is left with the definite and firm conviction crossed the line and become an arrest, this court considers

that a mistake has been committed. The evidence is reviewed factors such as “the transportation of the detainee to another

in the light most likely to support the district court’s location, significant restraints on the detainee’s freedom of

decision.” United States v. Navarro-Camacho, 186 F.3d 701, movement involving physical confinement or other coercion

705 (6th Cir. 1999) (internal citations and quotation omitted). preventing the detainee from leaving police custody, and the

However, “this Court reviews de novo the district court’s use of weapons or bodily force.” United States v. Richardson,

determination as to whether certain facts establish a seizure or 949 F.2d 851, 857 (6th Cir. 1991). In Richardson, this court

detention in violation of the Fourth Amendment.” Waldon, concluded that law enforcement officers had crossed the line

206 F.3d at 602. from an investigative detention into an arrest when they

placed the defendant in the back of a police car. Id. at 857;

see also United States v. Butler, 223 F.3d 368, 375 (6th Cir.

2000) (“We have long recognized that officers cross the line

No. 02-5154 United States v. Lopez-Arias et al. 7 8 United States v. Lopez-Arias et al. No. 02-5154

from an investigatory stop into an arrest when they place a Moreover, in this case, defendants were not suspected of

suspect in a police vehicle for questioning.”). anything so dangerous as shooting a police officer, as was the

case in Houston. In this case, defendants were suspected of

But there is no bright line that distinguishes an investigative possessing illegal drugs, just as were the defendants in Heath,

detention from an arrest. Royer, 460 U.S. at 506 (stating that Butler, and Richardson. The seizure in this case was at least

there is no “litmus-paper test” for distinguishing when a as intrusive as the seizures that this court determined were

seizure exceeds the bounds of an investigative stop). In arrests in Heath, Butler, and Richardson. Heath, 259 F.3d at

Houston v. Clark County Sheriff Deputy John Does 1-5, 174 530-31 (recognizing that drug crimes are inherently

F.3d 809, 814-15 (6th Cir. 1999), a case relied upon heavily dangerous but finding that the transport of the suspect

by the government, this court went so far as to decide that an constituted an arrest); Butler, 223 F.3d at 375 (finding that

arrest had not occurred when multiple police officers stopped placing the drug-crime suspect in a police vehicle constituted

two suspects at gunpoint, handcuffed them, and forcibly an arrest); Richardson, 949 F.2d at 857 (same). We therefore

placed them into police vehicles. This court found that these agree with the district court that the DEA agents had arrested

protective measures were reasonably necessary because in defendants by the time defendants consented to the search of

Houston the officers, although lacking probable cause, the motel room. Because the DEA agents lacked probable

reasonably believed that the suspects had just shot another cause, the arrest was unlawful.

police officer. Id.

B. The Consent

In the present case, the district court did not clearly err in

finding that before defendants gave their consent to search the The government argues that, even if defendants’ consent to

motel room, they were (1) stopped by four DEA agents search the motel room was granted during an unlawful arrest,

brandishing firearms, (2) handcuffed, (3) placed into the the district court nevertheless erred in suppressing the

backseats of separate DEA vehicles, (4) transported from the evidence found in the motel room because defendants’

scene of the stop, (5) read their Miranda rights, and consent to search, according to the government, was

(6) questioned. The government, relying on Houston, argues voluntary. For this argument, the government primarily relies

that all these measures were reasonably necessary for the upon United States v. Guimond, 116 F.3d 166 (6th Cir. 1997),

protection of the DEA agents. The seizure in the present case, where this court instructed that even if a consent to search

however, was more like an arrest than the seizure this court was granted during an illegal seizure, the consent is valid if it

considered in Houston. In addition to taking the same was voluntary, i.e., not the result of coercion. Id. at 170-71

protective measures as did the police officers in Houston, the (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)).

DEA agents in the present case transported defendants from

the scene of the stop and read them their Miranda rights. It is without a doubt true that “[t]he Fourth Amendment test

Each of these additional measures made the seizure more like for a valid consent to search is that the consent be voluntary.”

an arrest. See Heath, 259 F.3d at 531 (holding that “an Robinette, 519 U.S. at 40. But the Supreme Court has made

investigative stop must be confined to the site of the initial perfectly clear that the exclusionary rule may operate to

inquiry”); United States v. Obasa, 15 F.3d 603, 608 (6th Cir. exclude evidence obtained as the result of a valid, voluntary

1994) (holding that the reading of Miranda rights during a consent to search. In order to deter unlawful seizures, the

seizure is not dispositive but is evidence that the seizure has Supreme Court has mandated that courts must generally

crossed the line into an arrest). suppress otherwise admissible evidence obtained as a result

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of an illegal seizure. Brown v. Illinois, 422 U.S. 590, 602 676 (11th Cir. 2000) (holding that “a voluntary consent to

(1975). Thus, the Court has held that “statements given search does not remove the taint of an illegal seizure”).1

during a period of illegal detention are inadmissible even

though voluntarily given if they are the product of the illegal To determine whether a consent to search was sufficiently

detention and not the result of an independent act of free attenuated from an illegal seizure such that the causal chain

will.” Florida v. Royer, 460 U.S. 491, 501 (1983) (emphasis was broken, courts must consider factors such as the length of

added); see also Kaupp v. Texas, – U.S. –, 123 S. Ct. 1843, time between the illegal seizure and the consent, the presence

1847 (2003) (per curiam) (reconfirming “well-established of intervening circumstances, the purpose and flagrancy of the

precedent” that requires suppression of a statement given official misconduct, and whether the officers read the suspect

during a period of illegal seizure unless the statement was an his Miranda rights before he consented. Kaupp, 123 S.Ct. at

act of free will sufficient to purge the primary taint of the 1847; Brown, 422 U.S. at 603-04 (finding that no single

unlawful seizure). The Court has applied this analysis to factor is dispositive); Richardson, 949 F.2d at 858. The

exclude evidence obtained pursuant to a consent to search that burden of persuasion regarding this issue is on the

was granted during an illegal seizure. Royer, 460 U.S. at 507- government. Kaupp, 123 S.Ct. at 1847. In the present case,

08. the district court appropriately considered these factors and

did not err in finding no intervening act of free will on the

Therefore, following Supreme Court precedent, we have part of defendants between their illegal arrest and their

repeatedly held that if a consent to search is given after an consent to search the motel room. Defendants granted their

illegal seizure, evidence obtained pursuant to the consent to consent to search within half an hour from the initial stop and

search must be suppressed, unless the consent is sufficiently

attenuated from the illegal seizure such that the consent is the

product of an intervening act of free will. United States v. 1

In Guimond, a panel of this court seemingly held that if the consent

Caicedo, 85 F.3d 1184, 1190 (6th Cir. 1996); Richardson, to search was voluntary, it does not matter that the consent occurred

949 F.2d at 858; United States v. Buchanan, 904 F.2d 349, during an illegal seizure. 116 F .3d at 170 -71. The panel in Guimond did

355-56 (6th Cir. 1990). In other words, not only must the not address the implications of the exclusionary rule nor did it distinguish

consent be valid, i.e., voluntary, as required by Robinette, but the Supreme Court’s holdings in Royer, Dunaway, and Brown or this

the causal chain between the illegal seizure and the consent court’s holdings in Caicedo, Richardson, and Buchanan. The Guimond

must be broken to avoid the consequences of the exclusionary panel relied upon the Supreme Court’s 1996 d ecision in Robinette, but

Robinette did not overrule Royer, Dunaway, Brown, Caicedo, Richardson,

rule. Dunaway v. New York, 442 U.S. 200, 217-19 (1979) and Bucha nan . The Robinette Court did not address the issue of an illegal

(holding that a voluntary statement must be suppressed under seizure. Robinette, 519 U.S. at 35 (“W e are here presented with the

the exclusionary rule if it was causally connected to an illegal question whether the Fourth Amendment requires that a lawfully seized

seizure); Brown, 422 U.S. at 602-04 (holding that defendant must be advised that he is ‘free to go ’ before his consent to

voluntariness is only a threshold requirement); Buchanan, 904 search will be recognized as voluntary.” (emphasis added)). To the extent

that Guimond conflicts with Royer, Dunaway, Brown, Caicedo,

F.2d at 355-56 (suppressing evidence obtained pursuant to a Richardson, and Buchanan, we follow the ea rlier autho rities. Darrah v.

consent to search given during an illegal seizure even though City of Oak Park, 255 F.3d 30 1, 310 (6th Cir. 2001) (holding that “when

the district court found that the consent was given “freely and a later decision of this court conflicts with one of our prior published

voluntarily”); see also United States v. Santa, 236 F.3d 662, decisions, we are still bound by the holding of the earlier case.”); see also

Kaupp, 123 S.Ct. at 1844 (reconfirming the holding in Brown that a

statement obtained by exploitation of an illegal arrest may not be used

against a criminal defendant).

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during the illegal arrest. There was no intervening time or discovered in the motel room pursuant to the exclusionary

event between the illegal arrest and defendants’ consent. See rule.

Buchanan, 904 F.2d at 356 (“Dissipation of the taint resulting

from an illegal entry ordinarily involves showing that there III.

was some significant intervening time, space, or event.”

(internal quotation and citation omitted)). Furthermore, as the For all the foregoing reasons, we affirm the district court’s

district court found, the illegality of the arrest was blatant. ruling to suppress the evidence discovered in the motel room.

See Richardson, 949 F.2d at 859 (finding that placing a

suspect into the back of a police car for twenty minutes

without probable cause constituted a blatant constitutional

violation). Although the DEA agents read defendants their

Miranda rights, this alone was insufficient to break the causal

chain between the illegal arrest and defendants’ consent.

Kaupp, 123 S.Ct. at 1847 (holding that the giving of Miranda

warnings alone was insufficient to purge the primary taint of

the unlawful seizure).

In Brown, the Supreme Court held that a separation of less

than two hours between an illegal arrest and a voluntary

statement was insufficient to break the causal chain between

the two when no intervening event of significance had

occurred. 422 U.S. at 604. The Court found that under such

circumstances, Miranda warnings by themselves were

insufficient to purge the taint of the illegal arrest. Id. at 602.

Therefore, the Court ruled that the statement was inadmissible

regardless of its voluntariness. Id. at 604-05. In Richardson,

this court held that evidence discovered pursuant to a consent

to search was inadmissible because the consent to search was

given twenty minutes into a blatantly illegal arrest. 949 F.2d

at 859 (“We do not believe that the taint had dissipated after

merely twenty (20) minutes of continued improper conduct.”).

In Buchanan, we held that the taint of the illegal seizure was

not purged when only approximately one hour passed

between the illegal entry and the consent to search. 904 F.2d

at 356. As in Brown, Richardson, and Buchanan, in the

present case, there was no intervening act of free will

sufficient to break the causal chain between defendants’

illegal arrest and their consent to search the motel room.

Therefore, the district court properly suppressed the evidence