United States v. Eligio Mendez

Case: 16-41057 Document: 00514400036 Page: 1 Date Filed: 03/23/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-41057

Fifth Circuit

FILED

March 23, 2018

UNITED STATES OF AMERICA, Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

ELIGIO SAN MIGUEL MENDEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before KING, DENNIS, and COSTA, Circuit Judges. ∗

KING, Circuit Judge:

Eligio San Miguel Mendez was one of the targets of a gang and narcotics

investigation. Officers secured a search warrant for his residence but were

unable to arrange for a SWAT team to assist them. As a result, they decided to

wait for him to leave the residence before moving in for the search. Once he

left, the officer leading the search directed nearby officers to stop his vehicle

and detain him while the search was underway. The Government does not

contest on appeal that the stop was in violation of Bailey v. United States, 568

U.S. 186 (2013). After the officers detained Mendez, they found a revolver in

his car. The search team later discovered ammunition and an empty Glock

∗

Judge Dennis concurs in the judgment.

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pistol case in the residence. Mendez was then arrested for being a felon in

possession of a firearm and interrogated at a police station. He told officers

where they could find the pistol, and he confessed to ownership of the firearms

and ammunition. Before trial, Mendez moved to suppress all of the

Government’s evidence, except for the ammunition found during the execution

of the search warrant. The district court suppressed the revolver, but admitted

the pistol and Mendez’s statements. Mendez was convicted following a jury

trial of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). He now appeals the admission of the statements, arguing that they

were tainted by the unlawful stop and search of his vehicle. We conclude that

the connection between the unlawful stop and search and Mendez’s subsequent

statements was sufficiently attenuated and AFFIRM Mendez’s conviction and

sentence.

I.

In January 2015, Special Agent Richard Russell of the Texas

Department of Public Safety (“DPS”) started investigating the Tango Corpitos

gang in Corpus Christi. The investigation quickly led Russell to Eligio San

Miguel Mendez. Russell discovered that Mendez had, in his words, “quite an

extensive criminal history.” During the investigation, Russell, working

undercover, and a confidential source allegedly bought narcotics from Mendez

on several occasions. Russell testified at the suppression hearing that Mendez

sold narcotics from a property that was partially a mechanic shop and partially

a residence. Mendez lived there with his father, girlfriend, and child.

Russell secured a search warrant for Mendez’s residence on February 18,

2015, which he planned to execute two days later. Russell had obtained a no-

knock warrant based on information that Mendez was dangerous and “very

unstable.” Mendez was a suspect in a drive-by shooting, and Russell saw bullet

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holes in vehicles around his residence. Russell was also aware of Mendez’s

extensive criminal history and believed that Mendez had firearms at the

residence. At the suppression hearing, Russell testified that he tried to find a

SWAT team to assist in the search. His efforts were ultimately unsuccessful.

The DPS SWAT team was unavailable. Although the Corpus Christi Police

Department’s SWAT team initially agreed to help, two of its members were

shot the day before the search while executing a narcotics search warrant at

another residence nearby.

Unable to secure a SWAT team, Russell instead decided to surveil

Mendez’s residence and execute the warrant only once he had left. And so

Russell parked his unmarked car across the street from Mendez’s residence at

8:30 in the morning on February 20. An entry team and two marked Corpus

Christi police cars were stationed a short distance away, out of sight of the

residence. Russell waited an hour and a half for Mendez to leave. During that

time, he saw Mendez engage in what he believed, based on his training and

experience, to be hand-to-hand drug transactions.

Mendez finally left the residence with his girlfriend around 10:00 a.m.

As soon as Mendez left the residence, Russell told the entry team to move in

and start the search. Russell then contacted the marked units and told them

to stop Mendez. Russell immediately began to follow Mendez, who, according

to Russell, “was moving pretty quick.” Once the marked units caught up,

Russell pulled over to the side and let them pass him. The marked units

ultimately stopped Mendez less than one minute after he left his residence,

roughly a half-mile away. Russell returned to the residence after he saw the

marked units stop Mendez.

Officer Adam Thurman—one of the officers who stopped Mendez—

testified at the suppression hearing. He explained that he stopped Mendez

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solely because Russell asked him to. He had not seen Mendez commit any

traffic violations and had no reason to believe that he was carrying contraband.

Nor was there any indication that Mendez was returning to the residence.

Thurman knew, however, that DPS believed that Mendez was armed and

dangerous, and he attended Russell’s pre-search briefing. After he stopped

Mendez, Thurman frisked him and detained him in the back of Thurman’s

vehicle. The officers detained Mendez’s girlfriend in a separate vehicle.

Thurman then did a “security sweep” of Mendez’s vehicle. He opened a purse

that he found on the floorboard in front of the passenger seat. Inside, he found

an object wrapped tightly in a blue bandana. The object felt like a pistol or

revolver, but Thurman did not unwrap the bandana or inspect the object. That

object turned out to be a revolver, fully loaded with five rounds. During this

time, Thurman asked Mendez for identifying information but did not question

him about anything else.

Thurman drove Mendez back to the residence once it had been secured.

During the search, officers discovered loose ammunition and an empty Glock

pistol case. 1 After officers completed the search, they transported Mendez to

the DPS office, where they placed him under arrest and interrogated him.

Juan Hernandez, an agent of the U.S. Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”), interrogated Mendez along with DPS agent

David Poland and testified at the suppression hearing. The agents advised

Mendez of his Miranda rights, which he agreed to waive. Hernandez testified

that Mendez told officers that the revolver found in the vehicle belonged to

him. Hernandez told Mendez that he had not been able to search the residence

1A confidential source had informed DPS that Mendez owned a Glock pistol. When

Russell heard that Thurman found a gun in Mendez’s vehicle, he initially assumed that it

was the Glock. Only when he saw the revolver at the DPS office did he realize that the search

team had not recovered Mendez’s Glock pistol.

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thoroughly and asked Mendez to tell him what the search team had found.

According to Hernandez, Mendez told him that the search team should have

found some ammunition and a Glock pistol. Based on Mendez’s statements,

Russell and Hernandez returned to the residence to search for the pistol.

Mendez’s father, who lived at the residence, consented in writing to the search.

Russell and Hernandez quickly found the pistol, as well as additional rounds

of ammunition, in the place Mendez told them it would be.

A grand jury returned a one-count indictment charging Mendez with

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

On June 10, 2015, the district court entered a scheduling order requiring all

discovery to be completed within 20 days. Mendez filed his motion to suppress

on September 1, 2015. He requested that the district court suppress any and

all evidence and statements acquired during and as a result of the stop,

including Mendez’s statements to Hernandez and Poland. He argued that the

revolver, statements, and evidence found during the second search were all

“fruit” of the unlawful stop and should be suppressed unless the Government

could demonstrate attenuation. The district court held a suppression hearing

during which the Government called three witnesses: Thurman, Russell, and

Hernandez. Mendez called no witnesses. His counsel cross examined Thurman

and Russell, but declined to cross examine Hernandez. The court took the

matter under advisement and invited Mendez to submit supplemental

briefing, which he did.

The court subsequently granted the motion in part and denied it in part.

Specifically, the court held that the stop of Mendez nearly a half-mile from his

home was unlawful under Bailey v. United States, 568 U.S. 186, 199–200

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(2013). 2 Accordingly, it suppressed the revolver and the ammunition found

therein. The district court reached a different conclusion regarding Mendez’s

statements and the evidence from the second search. It held that the

Government had demonstrated attenuation because Mendez’s lawful arrest for

being a felon in possession of ammunition was a “break in the chain of events

from his detention incident to the search warrant.” Thus, the district court did

not exclude Mendez’s statements or the evidence found during the second

search.

Mendez was convicted following a jury trial during which excerpts from

his custodial interview were played. The district court sentenced him to 84

months of incarceration and three years of supervised release. Mendez now

appeals the ruling on the motion to suppress. He argues that the district court

erred by basing its finding of attenuation solely on his intervening arrest.

Although we conclude that the district court likely erred by considering only

Mendez’s intervening arrest, we nonetheless conclude that the Government

sufficiently demonstrated attenuation.

II.

The parties disagree about the standard of review. On review of a motion

to suppress, we typically review the district court’s factual findings for clear

error and its legal conclusions de novo. See, e.g., United States v. Hernandez,

670 F.3d 616, 620 (5th Cir. 2012). A factual finding “is clearly erroneous if we

are ‘left with a definite and firm conviction that a mistake has been

committed.’” Id. (quoting United States v. Scroggins, 599 F.3d 433, 440 (5th

Cir. 2010)). Where, as here, the district court heard live testimony, our review

is particularly deferential. See, e.g., United States v. Tovar, 719 F.3d 376, 384

2 The Government is not appealing the suppression of the revolver, nor does it

challenge the district court’s conclusion that the stop was unlawful.

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(5th Cir. 2013). “In addition to deferring to [] the district court’s factual

findings, the court must view the evidence ‘most favorably to the party

prevailing below, except where such a view is inconsistent with the trial court’s

findings or is clearly erroneous considering the evidence as a whole.’”

Scroggins, 599 F.3d at 440 (quoting United States v. Shabazz, 993 F.2d 431,

434 (5th Cir. 1993)). Thus, the district court’s ruling “should be upheld ‘if there

is any reasonable view of the evidence to support it.’” United States v. Gonzalez,

190 F.3d 668, 671 (5th Cir. 1999) (quoting United States v. Tellez, 11 F.3d 530,

532 (5th Cir. 1993)).

The Government concedes that this standard should apply to Mendez’s

argument that the district court erred by concluding that the intervening

lawful arrest, standing alone, established attenuation. However, the

Government argues that plain error review should apply to Mendez’s

argument that the district court was required to examine other factors relevant

to the attenuation analysis. According to the Government, Mendez should have

objected below and given the district court the opportunity to correct these

alleged errors.

The Government is only half right. An error not brought to the district

court’s attention is, as the Government notes, subject to plain error review. See

Fed. R. Crim. P. 52(b). But taking an exception to an adverse ruling is

unnecessary. See Fed. R. Crim. P. 51(a); United States v. Delgado, 672 F.3d

320, 348 (5th Cir. 2012). Here, the Government bore the burden of

demonstrating attenuation, as Mendez argued in his briefing in the district

court. As far as the stop is concerned, Mendez “plainly asserted his view that”

his confession was the fruit of an unlawful stop and that the Government could

not prove any of the factors demonstrating attenuation, even if he “did not

make the best case to the district judge” for why attenuation was lacking.

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United States v. Martinez, 486 F.3d 855, 860–61 (5th Cir. 2007). Mendez put

the Government and district court on notice of the relevant legal standard,

allowing “the trial court to take testimony, receive argument, or otherwise

explore the issue raised.” Id. at 860 (quoting United States v. Burton, 126 F.3d

666, 673 (5th Cir. 1997)). Accordingly, insofar as Mendez argues that his

statements were “fruit” of the unlawful stop, we apply the usual standard of

review, rather than plain error. See id. at 860–61.

But Mendez also argues on appeal that the unlawful search of his vehicle

tainted his subsequent statements. This presents a related but different issue.

As we explain later, the attenuation analysis differs slightly when the official

misconduct is a search rather than a seizure. Mendez’s failure to identify the

search as a source of his statements, independent of his arrest, deprived the

Government of the opportunity to meet its burden to show attenuation in the

district court. Although the Government called Hernandez to testify, Mendez

did not cross examine him or present any other evidence that Hernandez used

the revolver to pressure Mendez into confessing to ownership of the

ammunition and pistol. As a result, we review this separate claim only for plain

error. Mendez must demonstrate a plain error that affected his substantial

rights. See United States v. Olano, 507 U.S. 725, 732 (1993). In order to be

“plain,” the error must be obvious and beyond reasonable dispute. See Puckett

v. United States, 556 U.S. 129, 135 (2009). Even if he does demonstrate plain

error, we retain discretion over whether to correct the error. See Olano, 507

U.S. at 732. The Supreme Court has admonished us to exercise that discretion

only if the error “seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. (alteration in original) (quoting United States v.

Young, 470 U.S. 1, 15 (1985)). This is a “stringent and difficult” standard.

United States v. Escalante-Reyes, 689 F.3d 415, 422 (5th Cir. 2012) (en banc).

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III.

The Fourth Amendment commands that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” The exclusionary rule provides

the typical remedy for Fourth Amendment violations: suppression of the

evidence at trial. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016); Mapp v.

Ohio, 367 U.S. 643, 648 (1961). The exclusionary rule reaches not only the

evidence uncovered as a direct result of the violation, but also evidence

indirectly derived from it—so-called “fruit of the poisonous tree.” Strieff, 136

S. Ct. at 2061 (quoting Segura v. United States, 468 U.S. 796, 804 (1984)); see

Nardone v. United States, 308 U.S. 338, 341 (1939). In this context, the

exclusionary rule is subject to three safety-valve doctrines: independent

source, inevitable discovery, and attenuation. See Strieff, 136 S. Ct. at 2061

(first citing Murray v. United States, 487 U.S. 533, 537 (1988); then citing Nix

v. Williams, 467 U.S. 431, 443–44 (1984); and then citing Hudson v. Michigan,

547 U.S. 586, 593 (2006)). The last is at issue here.

The attenuation doctrine “evaluates the causal link between the

government’s unlawful act and the discovery of evidence.” Id. Evidence may be

sufficiently attenuated from the Fourth Amendment violation even where the

violation is a but-for cause of the discovery of the evidence. See Hudson, 547

U.S. at 592; Wong Sun v. United States, 371 U.S. 471, 487 (1963). The key

question is whether the evidence “has been come at by exploitation of that

illegality or instead by means sufficiently distinguishable to be purged of the

primary taint.” Brown v. Illinois, 422 U.S. 590, 599 (1975). The relevant factors

to determine attenuation will depend on the type of evidence challenged and

official misconduct alleged. In Brown, the Court laid out the factors to be

considered when, as here, challenged custodial statements are the “fruit” of an

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unlawful arrest: (1) the provision of Miranda warnings; (2) the temporal

proximity between the unlawful arrest and the challenged statements; (3)

intervening circumstances; and (4) the purpose and flagrancy of the official

misconduct. See Kaupp v. Texas, 538 U.S. 626, 633 (2003) (per curiam) (quoting

Brown, 422 U.S. at 603–04); Hernandez, 670 F.3d at 621. Of these factors, the

Supreme Court has emphasized that the fourth—purpose and flagrancy—is

particularly important. See Strieff, 136 S. Ct. at 2062. If the unlawful conduct

at issue is a search, the court should also consider whether the officers

exploited any illegally obtained evidence to secure the defendant’s statement.

See United States v. Shetler, 665 F.3d 1150, 1158 (9th Cir. 2011); 6 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(c)

(5th ed. 2012). The court cannot apply the attenuation analysis, however,

unless it first determines that the challenged statements were voluntary. See,

e.g., United States v. Martin, 431 F.3d 846, 849 (5th Cir. 2005) (quoting Brown,

422 U.S. at 604).

A.

The district court correctly recited the relevant attenuation factors in its

order but provided no analysis of temporal proximity or flagrancy. Rather, it

determined that Mendez’s lawful arrest for being a felon in possession of

ammunition “was sufficient to constitute a break in the chain of events.” As we

have already made clear, however, the intervening development of probable

cause to justify a previously unlawful arrest is an “important attenuating

factor” but is not by itself sufficient to establish attenuation. See United States

v. Cherry (Cherry II), 759 F.2d 1196, 1211–12 (5th Cir. 1985). A district court

must consider each factor and determine the cumulative effect of all factors in

each case. See United States v. Cherry (Cherry III), 794 F.2d 201, 206 (5th Cir.

1986) (“The totality of their effect must be evaluated in relation to the

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particular facts of each case.”); see also Brown, 422 U.S. at 603 (“No single fact

is dispositive.”). Thus, it was error for the district court to base its attenuation

analysis on a single factor.

The parties disagree about the import of this error on appeal. Mendez

asks that we vacate his conviction and remand to the district court to make the

appropriate findings. The Government, by contrast, urges us to review the

record independently and make the attenuation determination ourselves. The

Government has the stronger argument in this particular case. Even where

the district court has not made any factual findings, we have “independently

review[ed] the record to determine whether the district court’s decision is

supported by ‘any reasonable review of the evidence.’” United States v.

Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (quoting United States v. Yeagin,

927 F.2d 798, 800 (5th Cir. 1991)); see United States v. Jarman, 847 F.3d 259,

266 (5th Cir. 2017). But in cases where the district court failed to “ask[] the

right legal questions” and expressly declined to make factual findings

necessary to resolve those questions, we have declined to resolve those factual

disputes in the first instance. See United States v. Guzman, 739 F.3d 241, 247–

49 (5th Cir. 2014). Here, the district court made detailed factual findings

following a suppression hearing during which it heard live testimony from

three witnesses. The district court invoked the correct legal standard, even

though the court applied that standard incorrectly. Moreover, the resolution of

this case turns on the significance of largely undisputed facts. 3 This is prime

appellate territory. No remand is necessary here.

3 Mendez does argue on appeal that a remand is warranted to further explore whether

the police used the revolver found during the illegal search to secure Mendez’s confession. As

we explain later, however, this single factual dispute does not warrant remand to the district

court, nor does it change the result on appeal.

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B.

At the outset, we must determine whether Mendez’s statements were

voluntary before proceeding, if they were, to the attenuation analysis. See

Brown, 422 U.S. at 603; Martin, 431 F.3d at 849. When a defendant challenges

the voluntariness of a statement, the Government bears the burden of proving

voluntariness by a preponderance of the evidence. United States v. Reynolds,

367 F.3d 294, 297–98 (5th Cir. 2004) (per curiam). A statement is voluntary if,

“under the totality of the circumstances, the statement is ‘the product of the

accused’s free and rational choice.’” Id. at 298 (quoting United States v. Garcia

Abrego, 141 F.3d 142, 170 (5th Cir. 1998)). A statement cannot be involuntary

in the absence of coercive police activity. See Garcia Abrego, 141 F.3d at 170

(quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

Under the circumstances, Mendez’s statements were voluntary. Poland

advised Mendez of his Miranda rights, which Mendez (twice) confirmed he

understood and voluntarily waived. Cf. Cherry III, 794 F.2d at 206 (concluding

that defendant’s statement was voluntary where he was twice advised of and

voluntarily waived his Miranda rights). There is also no evidence of physical

coercion: Hernandez testified that during the 90-minute interview, Mendez

was handcuffed from the front rather than from behind, was allowed to take

breaks, and was offered water. The officers also did not threaten Mendez.

Mendez argues in his brief that a transcript of excerpts from his

interrogation shows that Hernandez threatened to charge Mendez’s girlfriend

with possession of the revolver discovered during the illegal search. Mendez

does not actually argue, however, that this alleged threat rendered his

statement involuntary, merely that it demonstrates that the officers exploited

the illegal search to obtain a confession. Moreover, by that point in the

interview, Mendez had already told Hernandez that he had ammunition in the

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residence, that he owned the pistol, described where the pistol was, and

admitted that he bought the pistol for “two bills” (i.e., $200). Those statements

all concerned evidence found legally at the residence, not evidence obtained

from the illegal stop and search. They demonstrate that Mendez was already

talking freely and voluntarily by the time Hernandez brought up Mendez’s

girlfriend. Accordingly, it is clear that Mendez “spoke as a result of his free and

rational choice, with an awareness of his abandonment of the right to remain

silent and of the consequences of that decision.” United States v. Rico, 51 F.3d

495, 507 (5th Cir. 1995).

C.

Having determined that Mendez spoke voluntarily, we move on to the

attenuation analysis. Although, as noted previously, the stop and search are

analytically distinct in some respects, they were roughly contemporaneous and

led to a single challenged confession. Thus, our analyses of the first three

Brown factors for the stop and search largely overlap. To the extent that these

analyses overlap, we apply the more generous standard of review applicable to

our analysis of the stop. Once the analyses begin to part ways, however, a plain

error standard will apply to our attenuation analysis of the search.

As noted previously, the officers read the Miranda warnings to Mendez,

confirmed that he understood them, and secured a knowing waiver of his

rights. This weighs in favor of attenuation.

However, the temporal proximity factor favors Mendez. There are no

precise time limits for temporal proximity. See United States v. Montgomery,

777 F.3d 269, 273–74 (5th Cir. 2015). But where relatively little time has

elapsed, the determination generally turns on the conditions of custody. See 6

LaFave, supra, § 11.4(b) (“[A] shorter lapse of time will be tolerated when the

circumstances of the detention are less severe.”); compare Taylor v. Alabama,

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457 U.S. 687, 691 (1982) (holding that six-hour interval did not favor

Government where defendant was “in police custody, unrepresented by

counsel, and he was questioned on several occasions”), with Rawlings v.

Kentucky, 448 U.S. 98, 107–08 (1980) (holding that 45-minute interval favored

Government where defendant was allowed to move around house freely and

atmosphere was congenial). The parties agree that only a few hours elapsed

between the stop and Mendez’s statements. Indeed, the Government estimates

that less than two hours may have elapsed between the stop and the custodial

statements. Cf. Brown, 422 U.S. at 604 (“Brown’s first statement was

separated from his illegal arrest by less than two hours . . . .”). Moreover,

Mendez was continuously in custody—at first in the back of Thurman’s vehicle

and then at the DPS office. Consequently, the temporal proximity factor weighs

against attenuation. Even so, “temporal proximity is not dispositive,”

Montgomery, 777 F.3d at 274, and is typically the “least determinative factor

involved,” LaFave, supra, § 11.4(b).

The intervening circumstances, by contrast, favor the Government. In

Cherry III, evidence independent from the illegal arrest established probable

cause to arrest the defendant. See 794 F.2d at 206. The court concluded that

the intervening circumstances favored the Government because “[t]he

development of independently procured probable cause following an illegal

arrest is a critical factor attenuating the taint of the initial illegal arrest.” Id.;

cf. Strieff, 136 S. Ct. at 2062–63 (holding that intervening discovery of valid

arrest warrant following unlawful stop “strongly favor[ed] the State”). Shortly

after the illegal arrest, the Government discovered ammunition in Mendez’s

residence pursuant to the search warrant. Mendez does not dispute that the

search warrant was valid—indeed, he conceded during the suppression

hearing that it was. Nor does he dispute that officers had probable cause to

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arrest him after discovering the ammunition. As such, the intervening

circumstance of Mendez’s lawful arrest strongly favors the Government.

Finally, the purpose and flagrancy factor favors the Government with

respect to both the stop and subsequent search. Suppression of inculpatory

evidence is an extraordinary remedy. See Hudson, 547 U.S. at 591. This factor

ensures that it is applied only where it serves its purpose of deterring police

misconduct. Strieff, 136 S. Ct. at 2063. In order for a violation to be “purposeful

or flagrant,” it must be more than just negligent. See id.

We begin with the stop and find that the officers’ actions do not rise above

the level of negligence. They had initially planned to enter the residence with

a SWAT team while Mendez was still there. When that plan fell through, they

instead decided that it would be safest to wait for him to leave. They knew that

Mendez was armed, dangerous, and unstable. They knew that he was a suspect

in a drive-by shooting. They knew that there were bullet-riddled vehicles

sitting in his front yard. While waiting to call in the entry team, Russell

witnessed Mendez engage in what appeared to be hand-to-hand drug

transactions and testified that he believed there was probable cause to stop

Mendez even before the search. Although Thurman stopped Mendez only

because Russell told him to, he still knew that DPS believed that Mendez was

armed and dangerous. Moreover, it is clear that officers attempted to stop

Mendez as soon as they could, but the need to conceal their presence from

Mendez limited how quickly they could apprehend him once he left the

residence. There is no evidence that this was part of a pattern of “systemic or

recurrent police misconduct,” id., or that the officers were engaged in a fishing

expedition just to see what “might turn up,” Brown, 422 U.S. at 605; cf. Kaupp,

538 U.S. at 628, 633 (holding that misconduct was purposeful and flagrant

where police tried and failed to obtain warrant but detained suspect

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nonetheless). Indeed, because the officers could have detained Mendez and

tried to talk to him at the residence by executing the warrant earlier that

morning, they had no reason to believe that there was an investigative

advantage to be gained by waiting to do so until he was half a mile away.

Rather, the officers (as they testified) were motivated by genuine, serious, and

objectively reasonable safety concerns.

Mendez argues that the misconduct here was purposeful and flagrant.

He notes that the Supreme Court had decided Bailey two years before he was

stopped. He contends that, in light of Bailey, this was at the very least reckless

or grossly negligent. But this is just another way of saying that the officers

violated Bailey. It “conflates the standard for an illegal stop with the standard

for flagrancy.” Strieff, 136 S. Ct. at 2064. Misconduct is not “flagrant” just

because officers violated the Fourth Amendment. Rather, “[f]or the violation to

be flagrant, more severe police misconduct is required than the mere absence

of proper cause for the seizure.” Id. What Mendez identifies is simply the

primary misconduct, not some aggravating factor that makes that misconduct

“flagrant.” He also argues that the misconduct was purposeful because the

officers planned in advance to stop Mendez after he left the residence. What

Brown requires, however, is improper purpose or conscious wrongdoing, not

merely advance planning. 4 See Brown, 422 U.S. at 605; Rawlings, 448 U.S. at

110.

We reach the same conclusion with respect to the subsequent search,

though our review of this claim is for plain error only. Thurman testified that

he did “a quick security sweep of the vehicle.” He also testified that he merely

4 Accepting Mendez’s definition of “purpose” would render almost all police conduct

purposeful. Only truly spur-of-the-moment conduct would seem to escape Mendez’s

definition.

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No. 16-41057

reached inside the purse and felt the bandana and revolver, but did not unwrap

the bandana or remove the revolver from the purse. Mendez did not challenge

that testimony or seek to undermine it on cross examination. Thurman’s

conduct was not purposeful or flagrant under the circumstances. At the time

of the search, Thurman (mistakenly) believed that he had lawfully detained

Mendez. He had reason to believe that Mendez was armed, and, upon finding

no weapon on Mendez, he could have reasonably believed that there was a

weapon in the car. The search was not merely some fishing expedition intended

to unearth evidence to use against Mendez later. Rather, it was carefully

limited to address Thurman’s safety concerns, as indicated by his testimony

that he did not remove the revolver from the purse. Even though that conduct

was unlawful, it was not “flagrant.”

Nor does Mendez’s speculation regarding the interrogation change the

result. Of course, the use of illegally obtained evidence to pressure a suspect to

confess will normally weigh heavily against a finding of attenuation. See

Shetler, 665 F.3d at 1158; see also 6 LaFave, supra, § 11.4(c) (“This is because

‘the realization that the “cat is out of the bag” plays a significant role in

encouraging the suspect to speak.’” (quoting Robert M. Pitler, “The Fruit of the

Poisonous Tree” Revisited and Shepardized, 56 Cal. L. Rev. 579, 607 (1968))).

But our review here is for plain error only, and we find none. Mendez claims

that the following exchange (drawn from a transcript of redacted excerpts of

the interview) demonstrates that Hernandez used the unlawfully obtained

revolver to pressure Mendez to confess to ownership of the pistol:

Q. I—we want to make sure we don’t charge anybody else

with that gun. If that gun’s not your girl’s and it’s yours, it’s yours.

You’re manning up to it.

A. It’s mine, bro.

Q. And the Glock pistol that was in your bedroom, in the

back bedroom, that’s yours, too?

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A. Yes.

According to Mendez, this excerpt warrants remand for examination of the full

90-minute audio recording. Viewed in context, it is far from clear or obvious

that Mendez admitted to ownership of the Glock solely because the

Government confronted him with the revolver. By that point in the interview,

Mendez had already told Hernandez that there was ammunition in the

residence, that the ammunition was his, that there was a Glock pistol in the

back room of the residence, and that he bought the Glock pistol for $200.

Mendez’s admission that he bought the pistol was sufficient to establish

possession or receipt of the firearm under 18 U.S.C. § 922(g). The Government

is not required to prove ownership to sustain a conviction. See, e.g., United

States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998) (per curiam). Moreover,

Mendez at that point believed that the search team had found both the

ammunition and the pistol. Thus, he was already under the impression that

there was a significant amount of legally obtained evidence against him. 5

Mendez speculates that elsewhere in the interview, Hernandez may

have exploited the revolver to pressure Mendez into confessing. He faults the

Government for not introducing the entire interview at the suppression

hearing. But the Government put Hernandez on the stand to testify about the

5 Cf. United States v. Green, 523 F.2d 968, 972 (9th Cir. 1975) (“We reject [defendant’s]

naive contention that his confession of illegal drug trafficking would probably have been valid

if he had been confronted with only [] 880 pounds of marijuana . . . , but when the illegally

seized amphetamines and 400 pounds of marijuana were added to the pot, his confession

became the ‘fruit of the poisoned tree’ and ‘the product’ of the illegally seized contraband.”);

cf. also United States v. Riesselman, 646 F.3d 1072, 1079–80 (8th Cir. 2011) (holding that

defendant’s statements were sufficiently attenuated where Government did not question

defendant solely about unlawfully obtained evidence but also confronted him with a

confidential informant’s statements and weapons found at his residence); United States v.

Patino, 862 F.2d 128, 133–34 (7th Cir. 1988) (holding that defendant’s second confession was

not the product of her unlawfully obtained first confession where “she previously had been

told that her involvement in the robberies could be proved without the confession”).

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interview. Hernandez testified that he asked Mendez to tell him what the

search team had found, rather than confronting him with the evidence they

did find. According to Hernandez, Mendez “was taking ownership pretty much

of everything.” The Government was not required to put in every possible piece

of evidence to rebut any assertion of exploitation that Mendez might

conceivably make in the future. Mendez had the opportunity to cross examine

Hernandez but declined to do so. He can hardly say he was unaware of what

happened during the interview—he was a party to it. And Mendez’s

speculation that there might perhaps be further evidence of exploitation

somewhere in the remainder of the transcript is hardly sufficient to meet his

burden of demonstrating a “clear” or “obvious” error. See Olano, 507 U.S. at

734.

In sum, only the temporal proximity factor favors Mendez. With respect

to both the stop and the subsequent search, the remaining Brown factors weigh

heavily in favor of attenuation. Mendez was informed of, understood, and

waived his Miranda rights. Mendez’s lawful arrest for being a felon in

possession of ammunition was a critical intervening circumstance. And,

perhaps most importantly, the misconduct at issue was not purposeful and

flagrant, but instead motivated by legitimate safety concerns. Finally,

Mendez’s speculation as to how the officers may have exploited the unlawfully

obtained revolver to secure his statements is simply too little, too late. The

district court properly admitted the statements.

IV.

For the foregoing reasons, we AFFIRM Mendez’s judgment of conviction

and sentence.

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