United States v. Reed, Mark A.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2378

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK A. REED,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CR 562-2—Rebecca R. Pallmeyer, Judge.

____________

ARGUED JANUARY 14, 2003—DECIDED NOVEMBER 13, 2003

____________

Before EASTERBROOK, RIPPLE, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Mark Reed entered a conditional

guilty plea to a charge of conspiracy to distribute in excess

of 50 kilograms of marijuana, 21 U.S.C. §§ 846, 841(a)(1),

preserving his right to appeal the denial of his motion to

suppress confessions he made five or six hours after what

he contends was an illegal arrest. Although the government

argued that Reed was not arrested until well after he

confessed, the district court, working under the assumption

that Reed had been arrested illegally before he made his

confessions, concluded that his confessions were admissible

because they were sufficiently attenuated from the pur-

2 No. 02-2378

ported illegal arrest and thus were acts of Reed’s own free

will. We vacate that decision and remand for further

consideration.

Around 2:30 p.m. on July 17, 2000, Reed was traveling

south on Interstate 57 near Peotone, Illinois, in a pickup

truck bearing Texas license plates and pulling a horse

trailer. The truck’s owner, Thomas Martin, was also in the

truck, although a third man, Alfonso Garnica, was driving.

In fact, Garnica was driving at a healthy clip. Illinois State

Trooper C.G. Fifield, who at the time was conducting drug

interdiction surveillance, clocked Garnica traveling at 63

m.p.h. Because Illinois restricts vehicles pulling trailers to

55 m.p.h., Fifield initiated a traffic stop. After checking

Garnica’s background on the computer terminal in his

police cruiser, Fifield learned that Garnica’s driving privi-

leges had been suspended. Fifield placed Garnica under

arrest for driving on a suspended license, but Garnica

posted bond on the spot and was immediately released.

Fifield then checked Reed’s and Martin’s backgrounds to

determine whether either was permitted to drive. Fifield

learned that both men had valid licenses, but he also

learned that both had been arrested previously for drug-

related crimes.

Upon learning this information, Fifield asked the three

men what they were doing in Illinois. Reed explained that

Martin had come to Illinois to finalize his divorce, and that

he was assisting Martin because Martin was in poor health.

Fifield asked Reed whether he was into horses, but Reed

replied that he was not. Reed recollected that Martin then

told Fifield essentially the same story but added that he

also had come to Illinois to buy horses. Fifield on the other

hand recalled that Martin told him only that they had come

to buy horses. Fifield then became suspicious when neither

Martin nor Garnica could explain where or from whom they

had purchased the horses. And Fifield became even more

No. 02-2378 3

suspicious when he examined the exterior of the trailer and

observed that its three entrances were padlocked, and that

the rear ramp door was secured with three separate locks.

By this point, Martin had slid behind the wheel of the

truck and was ready to drive away. Fifield claimed he told

the three that they were free to leave, although Reed did

not recall hearing him say this. Before they left, however,

Fifield asked Martin whether there were any guns, drugs,

or large quantities of cash in the vehicle. Martin said there

was not, but Fifield asked for permission to search the truck

and trailer. Martin consented. Fifield then directed Martin

to drive to a nearby weigh station, where additional police

awaited to assist in the search. The officers placed Reed,

Martin, and Garnica in the weigh station building. At about

4:00 p.m., the officers discovered two pink cellophane-

wrapped bundles containing $93,981 in United States

currency hidden under some hay and plywood in the

“gooseneck” of the horse trailer (the projecting front end of

the trailer overlapping the truck bed). The officers then

confronted Reed, Martin, and Garnica with the money and

asked where it came from. Martin offered the curious

explanation that the cash was the proceeds of an inheri-

tance.

What transpired after this is significantly disputed.

According to Reed, the police advised him that he was

under arrest, placed him in handcuffs, transported him to

State Police Headquarters, and read him Miranda warn-

ings, which he acknowledged understanding by signing a

form. The form indicates that Reed waived his rights at

4:19 p.m. Reed’s claim that he was arrested around 4:00

p.m. was bolstered by an investigative report prepared by

Special Agent Robert Babcock of the U.S. Customs Service.

Babcock’s report states that Reed, Martin, and Garnica

were arrested immediately after the money was discovered

in the trailer, and notes the time of Reed’s arrest as 1600

hours.

4 No. 02-2378

In contrast to Reed’s claims, Fifield asserted that Reed

was neither arrested nor placed in handcuffs. Although he

acknowledges that he gave Reed Miranda warnings, Fifield

claimed that Reed accompanied him to police headquarters

only “as a passenger.” In support of Fifield’s version of

events, the government introduced Fifield’s own police

report, which contains no information indicating that Reed

was arrested, but at the same time indicates that Garnica

had been placed under arrest for driving on a suspended

license. Fifield’s testimony was also supported, somewhat

surprisingly, by Babcock, who discredited his own report by

claiming that he had no personal knowledge of what time

Reed was arrested. Babcock claimed that he included the

information about Reed’s purported 4:00 p.m. arrest only

because other police officers told him that Reed had been

arrested at 4:00 p.m., and that he did not bother to check

whether that information was accurate. Babcock blamed his

failure to check the information in his report on time

pressures and laziness.

After arriving at police headquarters sometime after 4:00

p.m., Reed recounted that his handcuffs (which Fifield

insists he was not wearing) were removed, that he was

placed in a conference room, and that he was not told that

he was free to leave. At about 5:30 p.m., Officer Brian

Hafner of the Bollingbrook, Illinois, Police Department, who

was participating in the investigation as part of a multi-

jurisdictional task force, entered the room and administered

a second set of Miranda warnings. Reed again waived his

rights. Reed and Hafner agree that at that point Hafner

informed Reed that he was not under arrest, although Reed

asserted that Hafner did not inform him that he was free to

leave (Hafner does not remember). Reed then agreed to

make a statement. Hafner, along with two other police

officers and another Special Agent with the U.S. Customs

Service interviewed Reed for approximately an hour, but

Reed denied having any knowledge of the money found in

No. 02-2378 5

the trailer or any involvement in criminal activity. The

officers then left Reed alone in the room. Hafner said he

believed the conference room was unlocked at all times.

Reed asserted that he does not know if this was true

because he never attempted to leave. Reed claimed that he

did not try to open the door because he believed he was

under arrest, so that attempting to leave would have been

interpreted by the police as an escape.

After Reed sat alone in the conference room for approxi-

mately 45 minutes, several officers returned and initiated

further questioning. Reed continued to deny involvement in

any criminal activity, but this time he spoke more freely

about his companions, admitting that several weeks earlier

he had seen Martin with a large amount of cash and that he

had previously suspected that Martin was involved in some

sort of criminal activity. The officers then left again, this

time leaving Reed alone in the room until about 8:35 p.m.,

when additional officers arrived to take his fingerprints.

Hafner claimed that at this point he told Reed he was free

to go. Reed claimed he did not recall Hafner telling him

this. Reed claimed, however, that at this point he had a

change of heart brought about by his hours of “solitary

down time” in the conference room reflecting on the kind of

trouble he might be in. His solitary reflection led him to

consider cooperating with the police in order to limit his

criminal exposure (at the time, Illinois was prosecuting

Reed for a controlled substance violation) and, so he

thought, receive a reward for providing information about

drug traffickers. Reed announced to Hafner that he had

decided to cooperate fully, and offered to show him a ranch

near Joliet, Illinois, where Reed claimed that he, Martin,

and Garnica had delivered a shipment of marijuana earlier

in the day.

At about 9:00 p.m., Reed left for Joliet with Hafner and

several other police officers. Reed claimed he was hand-

cuffed; Hafner claimed that Reed was not restrained. Dur-

6 No. 02-2378

ing the drive, Reed further admitted that he was aware that

Martin and Garnica had obtained 100 kilograms of mari-

juana in Mexico and smuggled it into Texas. Reed said he

had met up with Martin and Garnica in Texas, and that the

three had driven the drugs to the ranch using the trailer.

After Reed showed the police the ranch, Hafner returned

him to police headquarters around 10:00 p.m., and he made

additional incriminating statements. Hafner insists that it

was only after this that Reed was formally placed under

arrest.

Claiming that he had been unlawfully arrested shortly

after 4:00 p.m. when the police discovered the money in the

trailer, Reed moved to suppress his confessions as fruit of

the poisonous tree. The district court denied his motion,

however, concluding that under Brown v. Illinois, 422 U.S.

590, 602 (1975), his statements were admissible because

they were sufficiently attenuated from any police miscon-

duct so as to be considered a product of free will. In so

ruling, the district court did not determine whether Reed

had been arrested after the discovery of the money around

4:00 p.m., as he claimed, or after he finished making his

confessions around 10:00 p.m., as the government claimed.

The district court neither attempted to resolve the compet-

ing stories, nor assessed the credibility of Reed or the police

officers. We review the district court’s legal conclusions de

novo, and its findings of fact for clear error. United States

v. Yang, 286 F.3d 940, 944 (7th Cir. 2002).

The initial questions presented to the district court were

whether the arrest occurred at 4 p.m. or at 10 p.m., and

whether the arrest was illegal because it was not based on

probable cause. Courts recognize that police officers need

not be legal scholars, and therefore “the arresting officer’s

knowledge of the facts sufficient to support probable cause

is more important to the evaluation of the propriety of an

arrest than the officer’s understanding of the legal basis for

the arrest.” (citations omitted) Williams v. Jaglowski, 269

No. 02-2378 7

F.3d 778, 783 (7th Cir. 2001). Accordingly, an arrest may

satisfy the Fourth Amendment if there was probable cause

to arrest the suspect for the precise offense the officer cited

or, lacking that, for a “closely related charge.” Id.; Driebel

v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir. 2002). In

order to rely on a closely-related charge,

the officers must show that the charge can reasonably

be based on the same set of facts that gave rise to the

arrest and that the charge offered as justification is one

that “would [have recommended] itself to a reasonable

police officer acting in good faith” at the time the arrest

was made. [Richardson v. Bonds, 860 F.2d 1427, 1431

(7th Cir. 1988).] The justification for the arrest cannot

be an “ex post facto extrapolation [ ] of all crimes that

might have been charged on a given set of facts.” Id.

Williams, 269 F.3d at 783. The district court did not make

the probable cause determination in this case, finding only

that the officers claim of probable cause was “not frivolous.”

Moreover, the government does not argue that we should

find probable cause as a matter of law based on the fact

findings before us, as the dissent suggests. Instead, the

government contends that we should remand the case for a

determination of probable cause if we cannot resolve it on

the other issue in the case. We agree that the issue cannot

be determined as a matter of law in this appeal, and

therefore turn to the issue argued in the briefs, which is

whether the confession was an unconstitutional by-product

of the (presumably) illegal arrest.

A confession obtained through custodial interrogation

after an illegal arrest must be excluded from evidence

unless the confession is attenuated enough from the illegal

arrest that the confession is “sufficiently an act of free will

to purge the primary taint.” Brown v. Illinois, supra, 422

U.S. at 602 (quoting Wong Sun v. United States, 371 U.S.

8 No. 02-2378

471, 486 (1963)); United States v. Fazio, 914 F.2d 950, 957

(7th Cir. 1990). Under Brown, the threshold requirement

for admission is that the confession must have been volun-

tary for purposes of the Fifth Amendment. If so, we must

then consider the temporal proximity of the illegal conduct

to the statements, the presence of any intervening circum-

stances, and, most importantly, the purpose and flagrancy

of the police misconduct. Brown, 422 U.S. at 603-04;

Dunaway v. New York, 442 U.S. 200, 218 (1979); Rawlings

v. Kentucky, 448 U.S. 98, 106-07 (1980); Taylor v. Alabama,

457 U.S. 687, 690 (1982). The burden of proving attenuation

rests with the prosecution. Brown, 422 U.S. at 603-04.

We have little difficulty agreeing with the district court

that Reed’s confessions were voluntary. He twice received

Miranda warnings and each time acknowledged and waived

his rights, and he testified at the suppression hearing that

the impetus for his decision to cooperate was his own self-

interest, namely the possibility of resolving his pending

state criminal charges and receiving a reward. But although

voluntariness is an important factor in the attenuation

analysis, it is not dispositive. Brown, 422 U.S. at 603-04;

Taylor, 457 U.S. at 690.

Next, we consider the temporal proximity of the state-

ments to the illegal arrest. The parties agree that Reed

made his statements five to six hours after being taken into

custody. The district court concluded that this length of

time favored suppression, “but only slightly.” Although this

case involves more time than in Brown, 422 U.S. at 604-05

(two hours), it involves about the same amount of time as

in Taylor, 457 U.S. at 691 (six hours), where, like Brown,

the statements were excluded. Nevertheless, there is no

“bright-line” test for temporal proximity. See Taylor, 457

U.S. at 691; Fazio, 914 F.2d at 958 & n.11; see also

Dunaway, 442 U.S. at 220 (Stevens, J., concurring) (“the

temporal relationship between the arrest and the confession

No. 02-2378 9

may be an ambiguous factor”); Taylor, 457 U.S. at 700 n.6

(O’Connor, J., dissenting) (illegal arrest can be exploited by

a lengthy detention as easily as a brief detention). Indeed,

in Rawlings, the Court held that a confession made only 45

minutes after an illegal arrest was admissible. 448 U.S. at

107-08. Accordingly, to draw any conclusions from timing of

Reed’s confessions, we must consider the temporal proxim-

ity factor in conjunction with the presence of intervening

circumstances. See Fazio, 914 F.2d at 958.

The district court found no significant intervening cir-

cumstances present in this case which would purge the

taint of the allegedly illegal arrest. The government urges

us to focus on Reed’s concessions that he twice received

Miranda warnings and that he made his choice to cut his

losses and look out for his self-interest after a period of

“solitary down time” and reflection. But the Supreme Court

rejected this argument in both Brown, 422 U.S. at 605,and

Taylor, 457 U.S. at 690, stating that Miranda warnings by

themselves do not suffice to purge the taint of an illegal

arrest. That is because the question is not simply whether

Reed’s confessions should have been excluded as involun-

tary under the Fifth Amendment (where Miranda warnings

are relevant). Rather, the question is whether the confes-

sions should have been excluded under the Fourth Amend-

ment as the product of an illegal arrest. The exclusionary

rule, when used to effectuate the Fourth Amendment,

serves interests and policies distinct from those it serves

under the Fifth Amendment. See Taylor, 457 U.S. at 690-91.

The government also directs our attention to the lack of

evidence of any attempts by the police to exploit the illegal

arrest, noting that Reed’s interrogation was conducted in a

non-confrontational manner. We are not persuaded. The

type of intervening events that serve to attenuate official

misconduct are those that sever the causal connection

between the illegal arrest and the discovery of the evidence.

10 No. 02-2378

See Wong Sun, 371 U.S. at 491 (confession was made

several days after illegal arrest and was preceded by

arraignment and release from custody); Rawlings, 448 U.S.

at 108-09 (discovery of other incriminating evidence

implicating the defendant and causing the defendant to

confess spontaneously); Fazio, 914 F.2d at 958 & n.12

(defendant freely agreed to speak to police at site away from

scene of illegal arrest and drove his own vehicle to the

meeting); United States v. Green, 111 F.3d 515, 521 (7th

Cir. 1997) (proper arrest on unrelated charges following

initial illegal arrest); United States v. Delgadillo-Velasquez,

856 F.2d 1292, 1300 (9th Cir. 1988) (defendant’s subsequent

release from custody, appearance before magistrate judge,

discussions with counsel, or subsequent convictions on

unrelated charges). Under the circumstances of this case,

the non-confrontational interviews between Reed and the

police and Reed’s periods of solitary reflection did not

constitute significant intervening events suggesting that his

subsequent confession was attenuated from his unlawful

arrest. The district court properly concluded that there were

no intervening circumstances sufficient to purge the taint

of the allegedly illegal arrest.

The final factor in the Brown analysis—the purpose and

flagrancy of the official misconduct—is considered the most

important because it is tied directly to the rationale under-

lying the exclusionary rule, deterrence of police misconduct.

Brown, 422 U.S. at 600; United States v. Ienco, 182 F.3d

517, 526 (7th Cir. 1999); Fazio, 914 F.2d at 958. The district

court found no evidence that the police improperly exploited

any illegal arrest or acted in “bad faith.” In so holding,

however, the district court appears to apply an unduly

narrow interpretation of this factor. In determining the

purpose and flagrancy of the official misconduct, the district

court held that the factor weighed against suppression

because Reed’s interrogation was conducted congenially and

No. 02-2378 11

the police judiciously administered Miranda warnings,

suggesting that the manner of the illegal arrest and

subsequent interrogation was not “calculated to cause

surprise, fright, or confusion.” E.g., Brown, 422 U.S. at 605.

But that inquiry, although relevant, is not complete,

because “purposeful and flagrant” misconduct is not limited

to situations where the police act in an outright threatening

or coercive manner similar to what occurred in Brown. See

Dunaway, 442 U.S. at 218-19 (rejecting attempt to distin-

guish Brown on the grounds that the police did not threaten

or abuse the defendant, and were highly protective of the

defendant’s Fifth and Sixth Amendment rights). In both

Dunaway and Taylor the police interrogated the defendants

without incident, and yet the Court held that the actions of

the police still had the sort of “quality of purposefulness”

condemned in Brown. See, e.g., Dunaway, 442 U.S. at 218.

Although Rawlings emphasized the congenial atmosphere

surrounding the defendant’s interrogation, that case

contained a significant intervening circumstance severing

the casual connection between the illegal arrest and the

confession that this case lacks. Conducting a custodial

interrogation after an illegal arrest in a congenial and non-

threatening manner does not in and of itself disprove that

the police acted in bad faith. Unwarranted detentions

following illegal seizures may demonstrate the type of

purposeful and flagrant conduct the exclusionary rule was

designed to prevent, especially if the police lack an arguable

basis for the detention. See Ienco, 182 F.3d at 528; United

States v. Butler, 223 F.3d 368, 376 (6th Cir. 2000); United

States v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000);

United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998);

United States v. Thompson, 712 F.2d 1356, 1362 (5th Cir.

1983); see also Brown, 422 U.S. at 603 (intervening discov-

ery of probable cause cannot assure in every case that the

Fourth Amendment violation has not been unduly ex-

ploited). Without probable cause to believe that a crime has

12 No. 02-2378

been committed, the police may not simply seize a person

and hope that over time and after “reflection” the person

decides to cooperate. Dunaway, 442 U.S. at 218 (quoting

Brown, 422 U.S. at 605) (“arrest without probable cause had

a ‘quality of purposefulness’ in that it was an ‘expedition for

evidence’ admittedly undertaken in the hope that some-

thing might turn up”). This was the essential point of

Brown, Dunaway, and Taylor. In fact, the Brown Court

recognized that “the quality of purposefulness” can be

demonstrated when the arrest, in design and execution, is

investigatory in nature.

Therefore, in addition to examining whether the officer’s

actions were coercive or calculated to cause surprise, fright

or confusion, the district court also must examine whether

the actions were undertaken in an effort to advance the

investigation or to embark on a fishing expedition in the

hopes that it would lead to a confession or other useful evi-

dence. Such actions would undermine the purpose of the

Fourth Amendment, and therefore are relevant to this

analysis that ultimately examines whether suppression is

necessary for purposes of deterrence or judicial integrity.

Because that determination involves issues of fact as well

as law, they are more properly addressed by the district

court in the first instance.

The dissent opines that Reed would have confessed even

if he had been allowed to go home rather than being held

for hours, because his confession stemmed from a desire to

win favor and reward and was not a consequence of the

illegality. We cannot make that determination as a matter

of law, and the government has the burden to prove that his

confession was attributable to a factor other than the

prolonged detention following the allegedly illegal arrest.

That Reed determined it was in his best interest to coop-

erate does not somehow divorce his decision from the

unlawful detention. A person who believes that he has been

arrested and who experiences a prolonged detention may

No. 02-2378 13

well have a different view of what is in his “best interest”

than someone allowed to leave who is making that decision

in his own home. We cannot hold as a matter of law that

the confession in the former circumstance is attenuated

enough from the illegal arrest that the confession is

“sufficiently an act of free will to purge the primary taint.”

Brown v. Illinois, supra, 422 U.S. at 602 (quoting Wong Sun

v. United States, 371 U.S. 471, 486 (1963)); United States v.

Fazio, 914 F.2d 950, 957 (7th Cir. 1990). That determina-

tion turns ultimately on the district court’s resolution of the

factors set forth above, considered in light of our analysis

here.

As was mentioned, all of this presupposes that Reed in

fact was arrested without probable cause around 4:00 p.m.,

just after the police discovered the money in the trailer, as

he contended and the district court assumed. A separate

issue is whether Reed accompanied the police to headquar-

ters voluntarily and was arrested only after he decided to

cooperate and made his confession, as the government ar-

gued in the district court. Although the parties litigated

these questions, the district court made no findings as to

when the police arrested Reed. The judgment of the district

court is VACATED, and the case is REMANDED for further

proceedings consistent with this opinion.

EASTERBROOK, Circuit Judge, dissenting. Police stopped,

for speeding, a pickup truck pulling a horse trailer. They

discovered that Alfonso Garnica, the driver, did not have a

valid license. Before allowing the truck and its occupants to

14 No. 02-2378

proceed, the police needed to find out whether one of the

passengers (Thomas Martin and Mark Reed) was legally

entitled to drive. A computer check revealed that they

were—and that both also have criminal records as drug

dealers. None of the trio could explain where the horses in

the trailer had come from or what they were planning to do

with the animals. Martin said that he had purchased them

but couldn’t remember where or from whom. Horse trailers

are a popular way to move marijuana, because they have

room to hide that bulky substance and the horses’ odor

masks its smell. See United States v. Torres, 32 F.3d 225

(7th Cir. 1994); see also United States v. Portales, No.

01-4001 (7th Cir. Nov. 22, 2002) (unpublished order).

Suspicions aroused, the officers asked Martin, who owned

the truck, to permit a search; he agreed. Officers found two

bundles hidden under the floor of the trailer and covered by

bales of hay. The bundles contained about $94,000 in

currency wrapped in pink cellophane. Martin called this a

recent inheritance from his mother’s estate. At the

stationhouse, Reed concluded that he was in hot water and

that his best hope of extrication lay in switching sides. He

then revealed the trio’s drug dealings. When he learned

that assistance did not fully exonerate him, Reed moved to

suppress his statement and all evidence based on it.

In the district court, the parties debated three questions:

first, when was Reed arrested (before the trip to the

stationhouse, as he insists, or only after his confession, as

the prosecutor contends)?; second, if the arrest preceded the

confession, was it supported by probable cause?; third, if the

arrest was not supported by probable cause, is the con-

fession admissible as “an act of free will [sufficient] to purge

the primary taint of the unlawful invasion”? Wong Sun v.

United States, 371 U.S. 471, 486 (1963). See also Kaupp v.

Texas, 123 S. Ct. 1843, 1847 (2003); Brown v. Illinois, 422

U.S. 590 (1975). Pretermitting the first two, the district

No. 02-2378 15

judge concluded that Reed’s statement, made about six

hours after he arrived at the stationhouse, stemmed from

a desire to win favor and reward and was not a consequence

of any illegality. This implies that Reed would have reached

the same conclusion, and given the same information

eventually, if he had been allowed to go home right after

the officers seized the cash; Reed still would have known

that the police were onto him and still would have wanted

to reduce his criminal exposure. Most of Reed’s time had

been spent in an empty and unlocked room, the judge

found; there is no doubt that his statement was the result

of free will. Moreover, the judge concluded— and this is a

finding of fact—that the police had acted in good faith and

had not sought to round up the occupants without probable

cause in the hope that, if held long enough, they would

inculpate themselves. This led the district judge to deem

the statements admissible.

Multi-factor-balancing tests of the sort Brown created

pose tough issues for district judges. The appellate role,

by contrast, is limited to determining whether a clear er-

ror has been committed. Brown said as much. Immediately

after listing the principal considerations that should inform

the analysis, the Court added: “Our approach relies heavily,

but not excessively, on the ‘learning, good sense, fairness

and courage of federal trial judges.’ Nardone v. United

States, 308 U.S. 338, 342 (1939).” 422 U.S. at 604 n.10. This

means that we must review the district court’s resolution

deferentially and must remand (if the district judge left

some stones unturned) rather than make our own findings;

otherwise the Court would have said that it was relying on

the learning, etc., of appellate judges.

I do not think that the district judge made any clearly

erroneous finding or abused her discretion in balancing

the factors. Brown said, and my colleagues reiterate, that

the most important consideration is whether the police have

acted in bad faith by reeling in suspects without colorable

16 No. 02-2378

justification. At 5:30 p.m., well before Reed confessed, the

police told him point blank that he was not under arrest;

this is not the behavior of officers determined to hold

someone until he cracks. What is more, in both Brown and

Kaupp the police lacked any cause to arrest, let alone do so

at a person’s home: both Brown and Kaupp were snatched

in handcuffs from their residences. Here the intrusion is

smaller and the justification greater. At a minimum, the

police had probable cause to believe they had probable

cause. Cf. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (right

question for qualified immunity from damages is whether

“a reasonable officer could have believed that probable

cause existed”). Perhaps the district judge failed to spell out

the thinking behind some of her conclusions (such as the

proposition that Reed would have confessed eventually even

if not in custody), but I think the judge’s assessment

sufficiently straightforward that remand is unnecessary.

Indeed, the whole “fruits” inquiry is unnecessary, for the

police had probable cause. Although application of the

Brown factors is reviewed deferentially on appeal, probable

cause is assessed independently. See Ornelas v. United

States, 517 U.S. 690 (1996). All findings of historical fact

that influence the probable-cause decision have been made;

what purpose could be served by a remand, when Ornelas

requires us to disregard the district judge’s disposition? And

if I’m wrong about the existence of probable cause, it

remains hard to see how police could be blamed for thinking

that they had enough to act; resolution of a close question

ought not imply that the losing side acted in wilful disre-

gard of the law.

Before taking Reed to the stationhouse, officers knew that

Reed and Martin had a history of drug dealing; that the trio

had a conveyance that can be used to hide both the bulk

and the odor of marijuana; that a hidden compartment in

the trailer contained almost $100,000; and that Martin’s

No. 02-2378 17

explanations for the money and the horses were not only

implausible but also so lacking in detail (how could Martin

not know where “his” horses had come from and where they

were going?) that the most likely explanation was that

someone else had furnished the trailer to conceal drugs and

their purchase money. The police found proceeds rather

than drugs. If this was not adequate to arrest the trio for

distributing drugs (the crime to which Reed eventually

confessed, telling the police that the trailer had been used

to transport marijuana north and now was taking the

receipts back south), it was more than enough to arrest

them for money laundering. The local police may not have

been able to name the federal crimes involved, but this is

not necessary. See Wayne R. LaFave, 2 Search & Seizure:

A Treatise on the Fourth Amendment §3.2(e) at 72 (3d ed.

1996) (collecting authority). Probable cause is determined

objectively, based on all facts in the collective possession of

the police. See, e.g., Whren v. United States, 517 U.S. 806

(1996). It is accordingly irrelevant what crime particular

officers thought they were arresting for, or indeed whether

they thought they were making an arrest at all. (Officers

who don’t believe that they are making an arrest may not

have any offense in mind, but this too is beside the point

when the inquiry is objective.) Nor should it matter how one

offense is “related” to another. Drug transactions doubtless

are related closely to money laundering. Most traffickers

commit both, and it may be happenstance whether the

police find the drugs before the sale, or the payment

afterward. Still, opinions making something turn on

relations among offenses are hard to reconcile with the

Supreme Court’s objective approach, so I’m loathe to pursue

the link between drug and currency offenses.

Any currency transaction using the proceeds of a crime,

and structured so as to avoid financial reporting require-

ments, constitutes money laundering under 18 U.S.C.

18 No. 02-2378

§1956(a)(1)(B)(ii), (a)(3)(C). The horse trailer contained

more than nine times the trigger for reporting cash trans-

actions. Conviction under §1956 would require proof of an

illegal origin or use of the money, but the officers had rea-

son to suspect this and probable cause is something well

short of evidence required for conviction. See Illinois v.

Gates, 462 U.S. 213, 235 (1983); Beck v. Ohio, 379 U.S. 89,

96 (1964). Reed was then awaiting trial on another drug

charge; none of the occupants could explain where the

horses had come from; and the explanation (“an inheri-

tance”) for the cash was risible. Executors of decedents’

estates do not distribute bequests in pink cellophane. Likely

the police had probable cause to arrest for any of a large

number of offenses that people commit using packets of

currency. The financial-structuring guideline, U.S.S.G.

§2S1.3, offers a list. Some statutes make it a crime to

structure any transaction to avoid reporting the transfer of

more than $10,000 in cash. These have lower penalties than

§1956 but also omit any need to show that the funds have

an illegal genesis. So there was probable cause to arrest

Reed as soon as the money came to light. Further proceed-

ings in the district court would be bootless. And whether or

not this analysis of probable cause is conclusive, it shows

that the district court did not commit a clear error in

finding that the officers acted in good faith.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-13-03