United States v. Fofana

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0018p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

UNITED STATES OF AMERICA,

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No. 09-4397

v.

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Defendant-Appellee. -

FODE AMADOU FOFANA,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 09-00049—Algenon L. Marbley, District Judge.

Argued: October 11, 2011

Decided and Filed: January 24, 2012

Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge.*

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COUNSEL

ARGUED: Christopher K. Barnes, ASSISTANT UNITED STATES ATTORNEY,

Cincinnati, Ohio, for Appellant. Brian C. DiFranco, DiFRANCO LAW OFFICE,

Columbus, Ohio, for Appellee. ON BRIEF: Christopher K. Barnes, ASSISTANT

UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellant. Brian C. DiFranco,

DiFRANCO LAW OFFICE, Columbus, Ohio, for Appellee.

ROGERS, J., delivered the opinion of the court, in which HOOD, D. J., joined.

MOORE, J. (pp. 11–19), delivered a separate dissenting opinion.

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 09-4397 United States v. Fofana Page 2

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OPINION

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ROGERS, Circuit Judge. As a result of a presumably illegal airport search, the

Government learned that Fode Fofana used “Ousmane Diallo” as an alias. Identification

bearing Diallo’s name was previously used to open two bank accounts, through which

Fofana allegedly committed bank fraud. In Fofana’s federal bank fraud case, the district

court suppressed any evidence bearing Diallo’s name, and the Government appeals that

order. Although the actual documentation seized during the search must be suppressed,

evidence obtained legally and independently of the search is not suppressible, even if the

Government cannot show that it would have discovered its significance without the

illegal search. Under the facts of this case, the minimal deterrent effect of suppression

is far outweighed by the sweeping burden on the truth-seeking function of the courts.

I.

On November 29, 2007, two U.S. Bank checking accounts were opened in

Cincinnati, Ohio, in the name of Ousmane Diallo. The man produced a passport from

Guinea bearing the name Ousmane Diallo for the purpose of opening the accounts, and

a photocopy of the passport was added to the record. On February 15, 2008, the IRS

directly deposited $3,787 into one of the checking accounts. Diallo withdrew $2,500

from that account before U.S. Bank discovered that the money was a tax return

belonging to an individual named Allison Miller. The account was blocked, a police

report filed, and U.S. Bank notified the IRS. On December 12, 2008, the IRS made two

direct deposits to one of the checking accounts. Those deposits were tax returns

belonging to an individual named Christopher Marks. Diallo attempted to make a large

cash withdrawal from one of the checking accounts on January 31, 2009, but the

transaction was not processed due to the block. The Government alleges that at this

point, the Secret Service had already begun an investigation of the accounts.

No. 09-4397 United States v. Fofana Page 3

Later in the day on January 31, 2009, Fofana arrived at the Port Columbus

International Airport. His boarding pass was flagged to identify him as a “Selectee” for

additional screening. After Fofana presented a valid state driver’s license in the name

of Fode Fofana at the security checkpoint, the screening agent informed Fofana that he

would need to undergo additional screening. During the search of Fofana’s personal

items, a TSA agent found various envelopes containing large amounts of cash. The TSA

agent then found two unsealed envelopes that “contained something hard and

unbendable,” but unidentifiable. The TSA agent opened the envelopes and found three

passports bearing Fofana’s picture but different names. One of the passports contained

Fofana’s picture and the name Ousmane Diallo.

Upon discovering the passports, the TSA agent contacted law enforcement

officers, who subsequently arrested Fofana. The information found pursuant to the

search was conveyed to U.S. Bank, and U.S. Bank filed a Suspicious Activity Report

(SAR) on February 18, 2009. The bank concluded in the SAR that “the Guinea Passport

belonging to Ousmane Diallo was fraudulent” and the actual individual was Fofana.

Fofana was indicted on three counts of possession of a false passport in violation

of 18 U.S.C. § 1546(a) as well as two counts of bank fraud in violation of 18 U.S.C.

§§ 1344 and 1028A(a)(1). Fofana filed a motion to suppress “all evidence obtained as

the result of the unlawful search and seizure of his persons and belongings” at the

airport. The district court granted Fofana’s motion, finding that the Government failed

to meet its burden of establishing that the search was constitutional. The district court

concluded that “the extent of the search went beyond the permissible purpose of

detecting weapons and explosives and was instead motivated by a desire to uncover

contraband evidencing ordinary criminal wrongdoing.” The district court stated that

“[a]ny evidence that was seized or subsequently obtained as a result of Fofana’s

unlawful search, including the three passports, will be suppressed.” The Government

consequently moved to voluntarily dismiss the three counts relating to possession of a

false passport.

No. 09-4397 United States v. Fofana Page 4

Fofana then filed a motion in limine “to bar introduction of U.S. Bank account

records in the name of Ousmane Diallo, U.S. Bank surveillance videos, and photos of

Ousmane Diallo and IRS payment records for Ousmane Diallo’s U.S. Bank accounts as

fruits of the unlawful search.” The district court granted Fofana’s motion, concluding

that “the Government has not alleged sufficient facts to meet [the] burden of proof to

show that the connection of Fofana to his alias would have been made through an

independent source or through inevitable discovery.” The district court further

concluded that the identity exception to the exclusionary rule did not apply because

“Fofana is not challenging the presence of his body or identity, but rather evidence of

an alias.” It is this grant of the motion in limine that the Government timely appeals.

II.

There is a difference between evidence that the Government obtains because of

knowledge illegally acquired, and evidence properly in the Government’s possession

that it learns the relevance of because of knowledge illegally acquired. It may be that

the latter must be suppressed in some cases. But in the context of the present case, bank

records and other evidence that the Government obtained independently of the airport

search do not have to be suppressed on account of the unconstitutionality of that search,

merely because the relevance or usefulness of that evidence became apparent because

of the search.

The reasoning behind this conclusion is strongly supported by case law, although

the precise combination of circumstances appears to be unprecedented. First, the actual

documents whose suppression is at issue—the bank records reflecting the fraud—were

in the possession of the Government entirely free of illegal means. Secondly, the illegal

search was not directed to the crime, or even the type of crime, for which the discovered

information turned out to be useful, thereby eliminating much of the deterrent effect of

suppression in this case. Third, an alternate, more direct deterrent to such searches is

clearly present, in the form of excluding the passports from evidence. Fourth, exclusion

of the bank records in this case unduly burdens the truth-seeking function of courts by

effectively precluding relevant and legitimately obtained evidence from ever being used.

No. 09-4397 United States v. Fofana Page 5

First, the bank records at issue were in the Government’s possession entirely free

of illegal taint. Indeed, they were largely if not entirely in the Government’s possession

before the illegal search, and included at least one photograph of Fofana that could link

him to the U.S. Bank account once his identity was known. “[T]he government cannot

be made worse off because of misconduct than it would have been if the misconduct had

not occurred.” United States v. Alexander, 540 F.3d 494, 503 (6th Cir. 2008) (citing Nix

v. Williams, 467 U.S. 431, 443-44 (1984)). To the extent that any of the records at issue

were obtained by the Government after the airport search, our analysis extends only to

those records clearly related to the crime regardless of the Government’s knowledge of

Diallo’s identity. Our holding does not extend beyond such records and those in the

Government’s possession prior to the search.

The importance of the fact that the evidence was properly in the Government’s

possession is supported by the holdings of the Supreme Court that voluntary testimony

of witnesses is admissible even though information from an illegal search led to the

witness’s testimony. In United States v. Crews, 445 U.S. 463 (1980), the Supreme Court

upheld the admissibility of a victim’s in-court identification of the defendant even

though a photo of the defendant used in a preliminary photo lineup had been

unconstitutionally obtained. As the plurality reasoned, “the Fourth Amendment

violation . . . yielded nothing of evidentiary value that the police did not already have in

their grasp.” Id. at 475. Similarly, in United States v. Ceccolini, 435 U.S. 268 (1978),

the Supreme Court upheld the admission of a flower shop employee’s testimony

impeaching that of a gambling scheme operator accused of perjury where the police

learned of the flower shop employee’s knowledge as a result of an inquiry following an

illegal search of an open drawer in the shop. The Supreme Court emphasized the degree

to which the flower shop employee was willing to testify freely, because “[t]he greater

the willingness of the witness to freely testify, the greater the likelihood that he or she

will be discovered by legal means and, concomitantly, the smaller the incentive to

conduct an illegal search to discover the witness.” Id. at 276. The Court reasoned that

“the illegality which led to the discovery of the witness very often will not play any

meaningful part in the witness’ willingness to testify.” Id. at 277. The underlying idea

No. 09-4397 United States v. Fofana Page 6

is that a voluntary witness’s testimony is independent because it is freely available to be

found and used without the necessity of the illegal search.

The same can perforce be said in the present case because the records were not

only freely available, but actually were in the possession of the Government independent

of the illegal search. It is only incidental that an illegal search speeded the recognition

of the usefulness of the available evidence, or in other words narrowed the investigation.

That aspect of Ceccolini is just like this case. Ceccolini is not distinguishable because

of the Supreme Court’s focus on the voluntariness of the testimony. The voluntariness

of the testimony shows the free availability of the evidence; such a showing is entirely

unnecessary where the evidence is not only available but independently possessed. In

Crews, the Supreme Court explained that “the victim’s capacity to identify her assailant

in court neither resulted from nor was biased by the unlawful police conduct committed

long after she had developed that capacity.” Crews, 445 U.S. at 473. In this case, if the

evidence in the Government’s possession obtained before or independently of the search

has the capacity to identify Fofana as Diallo, that capacity is wholly separate from the

unlawful conduct that first made the police aware of the potential link.

Second, the focus of the airport search was in no way related to the usefulness

to the bank fraud prosecution of the information obtained. The deterrent effect of

excluding the evidence is therefore minimal. The Supreme Court so reasoned in

Ceccolini. In that case, there was

not the slightest evidence to suggest that [the policeman] entered the shop

or picked up the envelope with the intent of finding tangible evidence

bearing on an illicit gambling operation, much less any suggestion that

he entered the shop and searched with the intent of finding a willing and

knowledgeable witness to testify against respondent. Application of the

exclusionary rule in this situation could not have the slightest deterrent

effect on the behavior of an officer such as [this policeman].

Id. at 279-80. In United States v. Akridge, 346 F.3d 618, 628 (6th Cir. 2003), we noted

that the fact that the officer in Ceccolini was “not specifically in search of the particular

evidence sought to be suppressed” weighed against suppression when considering the

purpose of the misconduct at issue. In this case, the TSA agent admitted to looking for

No. 09-4397 United States v. Fofana Page 7

contraband. The passports found may be considered such contraband, but what Fofana

is moving to suppress is not the passports, but rather the link between him and his alias.

That evidence is quite remote from what could reasonably have been expected to result

from the search. Suppressing it would have a minimal deterrent effect in the future.

Third, and relatedly, there is a far more direct and effective way to deter illegal

searches like the one in this case. The tangible evidence actually found cannot be

admitted. In this case the Government was not permitted to use the passports as

evidence, and the Government does not challenge this on appeal. Similarly, in Crews

the Government could not use the photo lineup as evidence against the defendant, and

in Ceccolini the Government could not use the gambling slips that the policeman

wrongly examined. The deterrent effect that results from these suppressions renders

minor any additional deterrence from suppression of the testimony, or, in this case, the

link between Fofana and Diallo. The deterrent effect of the exclusion of the passports

here is particularly powerful since it effectively eliminates the possibility of convicting

Fofana of the first three counts of his indictment. Other circuits have held that the

exclusionary rule did not apply when a second, more remote set of charges was brought

on the same evidence illegally obtained, since the deterrent effect was achieved by

suppressing the evidence on the initial charges. See United States v. Awadallah, 349

F.3d 42 (2d Cir. 2003); United States v. Varela, 968 F.2d 259 (2d Cir. 1992); United

States v. Paepke, 550 F.2d 385 (7th Cir. 1977). The Supreme Court has held that “the

benefits of deterrence must outweigh the costs. We have never suggested that the

exclusionary rule must apply in every circumstance in which it might provide marginal

deterrence.” Herring v. United States, 555 U.S. 135, 141 (2009) (internal citations and

quotation marks omitted). The suppression of the passports achieves a significant

deterrent effect; any marginally increased effect from further suppression cannot be

justified when one considers the substantial costs of such an action.

Fourth, exclusion of the bank records in this case would burden the truth-seeking

function of the courts in a way closely analogous to the concern expressed by the

Supreme Court in Ceccolini. See 435 U.S. at 277-78. Once the Government learns who

No. 09-4397 United States v. Fofana Page 8

Diallo really is, how is the Government to identify him free of the taint of the underlying

knowledge? No matter how investigators finally identify Diallo, the Government will

be accused of having used its ill-gotten knowledge in narrowing the investigation. And

requiring the police to follow a lot of known false leads appears an undue cost of the

exclusionary rule. A more reasonable cost is that the police must find new or different

untainted evidence, as they have in this case.

As an example, suppose a girl’s body, hidden in a house by a depraved

kidnapper, is noticed by an officer conducting an unconstitutional narcotics search. Let

us say the officer is relying on a warrant based on a barebones affidavit. How can the

police proceed without risking immunizing the kidnapper from prosecution? Do they

have to ignore the information by assigning the kidnapping investigation to officers who

are unaware of the discovery, thereby continuing an expensive city-wide manhunt? Or

by focusing their investigation on the house in question, do they risk the exclusion of any

evidence they find as a result of such a focused but otherwise constitutionally conducted

investigation? The exclusionary rule cannot force such a Hobson’s choice. Instead, the

police must proceed by constitutional means to get admissible evidence, but without

putting valuable information out of their heads. This approach more properly balances

the deterrent rationale of the exclusionary rule with the truth-seeking function of the

courts.

In Ceccolini, the Supreme Court relied on a similar concern, reasoning that

exclusion of live testimony of witnesses “would perpetually disable a witness from

testifying about relevant and material facts, regardless of how unrelated such testimony

might be to the purpose of the originally illegal search or the evidence discovered

thereby.” 435 U.S. at 277. In this case, upholding suppression would just as perpetually

keep the very evidence of the bank fraud—the bank records of the fraud—from being

presented to the criminal fact finder. The Supreme Court has repeated that “when

balancing the interests involved, we must weigh the strong interest under any system of

justice of making available to the trier of fact all concededly relevant and trustworthy

evidence which either party seeks to adduce.” Id. at 278 (quoting Michigan v. Tucker,

No. 09-4397 United States v. Fofana Page 9

417 U.S. 433, 450 (1974)). Balancing this interest against the comparatively weak

Fourth Amendment interests in this case compels the conclusion that the bank records

be admitted.

The Eight Circuit reasoned similarly when it encountered a situation similar to

the one before us. In United States v. Watson, 950 F.2d 505 (8th Cir. 1991), police wrote

down banking information during a search for marijuana and illegal weapons, and

subsequently began to investigate Watson’s financial activities. The only information

used from the search was Watson’s alias and the names of some banks. The court

presumed that the records search was illegal, but nevertheless held that the evidence

subsequently obtained was sufficiently attenuated to purge it of possible taint. “The

mere fact that information gained during at illegal search gives rise to a subsequent,

separate investigation of an individual does not necessarily taint the later

investigation. . . . Furthermore, if the information merely facilitates or shortens the

subsequent investigation, it does not taint the investigation’s results.” Id. at 507-08. To

find otherwise “would amount to granting the suspect ‘life-long immunity from

investigation and prosecution.’ In such situations, the societal cost of imposing the

exclusionary rule outweighs any deterrent effect.” Id. at 508 (quoting United States v.

Friedland, 441 F.2d 855, 861 (2d Cir. 1971)).

Finally, our holding is consistent with our decision in United States v. Leake,

95 F.3d 409 (6th Cir. 1996). In that case, police learned as a result of an illegal search

that Leake went by the alias John Sandusky and that he was involved in a marijuana

trafficking conspiracy. Prior to the search, the police had acquired no evidence linking

even Sandusky, Leake’s alias, to the conspiracy. Further, at the suppression hearing, the

Government did not produce any evidence linking Leake to Sandusky not the result of

the search. We refused to give the Government a second chance, two years later, to

provide such evidence, in a case “brimming with loose ends.” Id. at 418 n.18.

No. 09-4397 United States v. Fofana Page 10

III.

We reverse the judgment of the district court and remand for proceedings

consistent with this opinion.

No. 09-4397 United States v. Fofana Page 11

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DISSENT

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KAREN NELSON MOORE, Circuit Judge, dissenting. The majority’s decision

today avoids exclusion of the evidence at issue by patching together elements of various

established exceptions to the exclusionary rule and discounting the deterrent value of the

rule’s application in this instance. The result is troubling and inconsistent with our prior

Fourth Amendment jurisprudence. Because none of the established exceptions to the

exclusionary rule apply and because there is meaningful and important deterrence to be

gained by the evidence’s exclusion, I respectfully dissent.

I. INEVITABLE DISCOVERY, INDEPENDENT

SOURCE, AND ATTENUATION

In support of its decision, the majority asserts that “the bank records at issue were

in the Government’s possession entirely free of illegal taint.” Maj. Op. at 5. In making

this argument, the majority blurs elements of three exceptions to the fruit-of-the-

poisonous-tree doctrine: (1) inevitable discovery; (2) independent source; and

(3) attenuation. None of these exceptions apply.

Citing United States v. Alexander, 540 F.3d 494 (6th Cir. 2008), the majority

invokes the inevitable-discovery doctrine and accompanying principle that the

exclusionary rule cannot be applied so as to make the government worse off than if the

illegal search or seizure had not occurred. As recognized by the Supreme Court in Nix

v. Williams, 467 U.S. 431, 443-44 (1984), the inevitable-discovery doctrine provides “an

exception to the exclusionary rule for evidence . . . that inevitably would have been

discovered by lawful means,” United States v. Keszthelyi, 308 F.3d 557, 573-74 (6th Cir.

2002). However, by the government’s own admission, there is no indication that the

connection between Fofana and Ousmane Diallo would have inevitably been made. See

R. 55 (Pretrial Tr. at 6) (government acknowledging that, because of the passport, “law

enforcement was able to put [] together” the fact that Fofana was the person who opened

the accounts under the alias Ousmane Diallo and that it was “pure speculation” whether

No. 09-4397 United States v. Fofana Page 12

such connection would have been made otherwise). In fact, the government did not even

raise the application of the inevitable-discovery doctrine on appeal. Without evidence

that the connection between Fofana and Ousmane Diallo would have inevitably been

made regardless of the illegal search, I cannot perceive how the majority concludes that

exclusion of the bank records places the government in a worse position. To the

contrary, exclusion in this instance returns the parties to the status quo prior to the illegal

search.

The majority also alludes to the independent-source doctrine, emphasizing that

the bank records were lawfully in the government’s possession prior to the illegal

search. While the independent-source doctrine does provide that evidence need not be

excluded “where a proper, independent search led to the evidence in question,” it is

inapplicable here. United States v. Baldwin, 114 F. App’x 675, 681 (6th Cir. 2004)

(unpublished opinion) (quoting United States v. Dice, 200 F.3d 978, 984 (6th Cir. 2000))

(internal quotation marks omitted). The majority’s argument misses the proper focus of

the analysis. The bank records, which bore the alias Ousmane Diallo, were meaningless

as against Fofana until the discovery of the passports in Fofana’s possession established

the connection between Fofana and the alias Ousmane Diallo. Thus, it matters not that

the government had the bank records prior to the illegal search because the government

would never have known to use those bank records in prosecuting Fofana if not for the

illegal search. It is the establishment of the connection between Fofana and the alias

Ousmane Diallo that is important for our analysis—not the prior legal possession of the

bank records themselves. To make out an independent-source exception the government

needed to demonstrate that it had knowledge of the connection between Fofana and

Ousmane Diallo via an independent source.1 The district court was correct in

concluding that the government failed to carry its burden in this respect.

Finally, the government invokes the attenuation doctrine citing United States v.

Crews, 445 U.S. 463 (1980), and United States v. Ceccolini, 435 U.S. 268 (1978). The

1

As with inevitable discovery, the government bears the burden of proving that such evidence

was in fact available via an independent, untainted source. United States v. Leake, 95 F.3d 409, 412 (6th

Cir. 1996).

No. 09-4397 United States v. Fofana Page 13

Supreme Court has explained the attenuation doctrine as follows: “We need not hold

that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come

to light but for the illegal actions of the police. Rather, the more apt question in such a

case is ‘whether, granting establishment of the primary illegality, the evidence to which

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

means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun v.

United States, 371 U.S. 471, 487-88 (1963). The Supreme Court has suggested three

factors to guide the attenuation analysis: “the temporal proximity of the [illegality] and

the emergence of the incriminating evidence at issue, the presence of intervening

circumstances, and, particularly, the purpose and flagrancy of the official misconduct.”

United States v. Williams, 615 F.3d 657, 669 (6th Cir. 2010) (alterations in original

omitted) (quoting Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).

The cases that the majority cites in support of its attenuation argument are not

analogous. The Supreme Court in Crews based its finding of attenuation on the fact that

“the police’s knowledge of respondent’s identity and the victim’s independent

recollections of him both antedated the unlawful arrest and were thus untainted by the

constitutional violation.” 445 U.S. at 477. In other words, the Supreme Court found that

the identifying link connecting the defendant to the crime, i.e., the witness’s independent

knowledge, existed prior to and independent of the illegality. Although the police had

knowledge of the bank records’ existence prior to the illegality, as the police in Crews

had knowledge of the “respondent’s identity,” the police did not have knowledge of the

link between Fofana and the alias. The link between Fofana and the alias is the

identifying link crucial to the Crews holding: “the victim’s independent recollections”

connecting the respondent to the crime. As a result, the illegal search at issue here, as

opposed to that in Crews, did provide something “of evidentiary value that the police did

not already have in their grasp” by “link[ing] together two extant ingredients in [the]

identification”—Fofana and the alias Ousmane Diallo. Id. at 475.

In Ceccolini, the Supreme Court concluded that witness testimony given as “an

act of . . . free will” after “[s]ubstantial periods of time elapsed between the time of the

No. 09-4397 United States v. Fofana Page 14

illegal search and the initial contact with the witness . . . and the testimony at trial” was

sufficiently attenuated. 453 U.S. at 279. The present case involves physical evidence

rather than witness testimony and, therefore, excludes the possibility that free will could

remove the taint. See United States v. Akridge, 346 F.3d 618, 633-34 (6th Cir. 2003)

(Moore, J., dissenting) (listing five considerations informing the Supreme Court’s

inquiry in Ceccolini and identifying the element of free will as the most important). The

bank records in question, unlike the testifying witness in Ceccolini, have no independent

identifying ability and, therefore, are unable to bridge the connection between Fofana

and Ousmane Diallo apart from the taint of the illegal search. In addition, there was not

a significant lapse in time between the illegal search and use of information gained by

the illegal search. The illegal search occurred in November 2007 and U.S. Bank filed

the Suspicious Activity Report implicating Fofana less than three months later. R. 46

(Suspicious Activity Report at 4).2 In short, there is no attenuation to purge the taint

between the illegal search and the identification of Fofana as synonymous with Ousmane

Diallo. It is clear that the illegal search has been exploited in order to marshal the bank

records in the government’s possession against Fofana.

II. DETERRENCE AND SOCIAL COSTS

The majority’s final three arguments relate to deterrence and the attendant social

costs of exclusion. Specifically, the majority argues that: (1) exclusion would serve

only minimal deterrent value because the illegal search was not conducted for the

purpose of uncovering the evidence at issue; (2) exclusion of the bank records provides

only minimal incremental deterrence because the passports have already been excluded;

and (3) exclusion would burden the truth-seeking function of the courts. I disagree.

First, the majority states that the evidence should not be excluded because “the

focus of the airport search was in no way related to the usefulness of the information

obtained to the bank fraud prosecution” and, therefore, the “deterrent effect of excluding

2

Moreover, the majority’s statement that “[i]t is only incidental that an illegal search speeded the

recognition of the usefulness of the available evidence” confuses attenuation with inevitable discovery.

Maj. Op. at 6.

No. 09-4397 United States v. Fofana Page 15

the evidence is . . . minimal.” This statement is simply inaccurate. Maj. Op. at 6. By

the Transportation Security Administration (“TSA”) agent’s own admission, the purpose

of the illegal search was to uncover contraband. R. 26 (Suppression Hr’g Tr. at 97).

Thus, while we do not know precisely what the agent expected (or hoped) to find, we do

know that the agent’s searching activities were aimed at implicating Fofana in criminal

wrongdoing. By finding the passports connecting Fofana to Ousmane Diallo, the agent

succeeded in this aim regardless of whether the agent specifically foresaw and intended

this exact result.3 Allowing successful prosecution based on the fruits of this search

creates incentives for agents to engage in similar conduct in the future.

Moreover, the circumstances of this search are sufficiently distinguishable from

those in Ceccolini. In Ceccolini, the officer observed an envelope with incriminating

evidence while in a flower shop “spending his short break engaged in conversation with

his friend Lois Hennessey.” 435 U.S. at 270. Given the incidental, casual encounter in

Ceccolini between the officer and his friend, the flower shop employee, it is easy to see

how the Court was confident that there was no future misconduct to deter. In contrast,

the search in question occurred in conjunction with an administrative TSA search, to

which TSA reports approximately two million travelers are subjected each day.4 Given

the broad discretion already granted to TSA agents to search the traveling public, it is

important to deter unconstitutional conduct and to ensure that TSA’s broad powers are

not improperly exploited for law-enforcement purposes. Suppressing the bank records

serves this precise deterrent purpose.

Second, the majority states that because the passports have been suppressed,

suppression of the bank records will achieve only minimal incremental deterrence. I

disagree. Although suppression of the passports has some deterrent effect, it is not

3

In this sense, this case is distinguishable from United States v. Akridge, 346 F.3d 618, 628 (6th

Cir. 2003). In that case, the “officers were responding to a complaint about drug trafficking from

Akridge’s apartment” and “not specifically in search of the particular evidence sought to be suppressed

in this case, i.e., witness testimony.” Id. Moreover, in Akridge, this Circuit recognized that “a clear intent

to uncover illegality through illegal means would seem to weigh in favor of suppression.” Id.

4

Transportation Security Administration, TSA Myth or Fact: Leaked Images,

Handcuffed Hosts, Religious Garb, and More!, THE TSA BLOG (Nov. 18, 2010),

http://blog.tsa.gov/2010/11/tsa-myth-or-fact-leaked-images.html (last visited Jan. 18, 2012).

No. 09-4397 United States v. Fofana Page 16

enough given the significant benefit in using the information obtained from the passports

to pursue the bank-fraud prosecution. In fact, in light of the usefulness of the

information obtained from the illegal search, the government may view the suppression

of the passports as a worthwhile sacrifice. Particularly in the context of airport

administrative searches, it is important to maintain an incentive structure that does not

encourage illegal behavior by ultimately permitting law enforcement to utilize evidence

obtained as a result of misconduct in aid of significant prosecutions.5 Suppressing the

bank records achieves precisely this deterrent effect.

Third, the majority argues that the bank records should not be excluded because

doing so “would burden the truth-seeking function of the courts.” Maj. Op. at 8. In

support, the majority presents a kidnaping hypothetical and admonishes the use of the

exclusionary rule to “force . . . a Hobson’s choice.” Id. This argument overlooks a

crucial reality of this case: The government was in no way forced into a Hobson’s

choice. The government could have structured its investigation to insulate the

admissibility of the bank records as against Fofana via the various established exceptions

to the fruit-of-the-poisonous-tree doctrine. After learning of the connection between

Fofana and Ousmane Diallo, the government could have pursued an independent

investigation to procure this connection via an independent source. See Wong Sun, 371

U.S. at 487. This is in fact more or less what occurred in United States v. Watson, 950

F.2d 505 (8th Cir. 1991), which the majority cites favorably in support of its position.6

5

Moreover, the cases the majority cites as supporting its position are distinguishable. Each case

involved the use of evidence obtained via illegal means in support of charges lodged in response to

criminal activity undertaken after the illegal search or seizure took place—not in support of charges lodged

as a result of knowledge obtained pursuant to the illegal search or seizure about previous criminal

wrongdoing. See United States v. Awadallah, 349 F.3d 42, 73-75 (2d Cir. 2003) (admitting false

statements to grand jury obtained in conjunction with an illegal detention in aid of perjury charges lodged

after the false grand jury testimony because “it is untenable to say that the FBI agents . . . sought to elicit

perjury rather than truthful information”); United States v. Varela, 968 F.2d 259, 260, 262 (2d Cir. 1992)

(holding that the exclusionary rule does not bar “the use of unlawfully obtained post-arrest statements . . .

to prove that [a defendant] subsequently committed” perjury where the perjury occurred after the “unlawful

arrest or seizure . . . instead of preceding it”). United States v. Paepke, 550 F.2d 385, 389-91 (7th Cir.

1977) (upholding the use of evidence previously deemed inadmissible in a narcotics prosecution where

it was relevant to a tax-fraud charge arising from conduct occurring after the narcotics charges were

dismissed).

6

In this regard Watson is distinguishable from the present case. In Watson, the key factor to the

Eighth Circuit’s holding was that a “subsequent, separate investigation” initiated after acquisition of the

evidence rendered said evidence “sufficiently attenuated from the presumably illegal search so as to purge

No. 09-4397 United States v. Fofana Page 17

In the alternative, had the government wished to avoid exerting investigatory resources,

under established Sixth Circuit precedent, it could have simply asserted its typical

processes for investigating bank fraud to demonstrate that it would have inevitably

discovered the connection between Fofana and Ousmane Diallo. See Keszthelyi, 308

F.3d at 574 (“The government can satisfy its burden by showing that routine procedures

that police would have used regardless of the illegal search would have resulted in the

discovery of the disputed evidence.”) (internal quotation marks omitted).7 The

government, however, did not make either effort and instead asks this court to sanction

its inaction by allowing it to rely on the illegality for the evidence’s admission. The

Fourth Amendment requires more. With an array of established exceptions providing

the government with safety valves to the exclusionary rule’s application, it is not only

unnecessary but also improper to indulge the government’s request.

The conclusion that the majority reaches today is inconsistent with our prior

decision in United States v. Leake, 95 F.3d 409, 417-418 (6th Cir. 1996), in which this

Circuit suppressed evidence discovered pursuant to an illegal search that provided the

necessary connection between the defendant and an alias. In Leake, an independent

investigation by the Drug Enforcement Agency (“DEA”) had been initiated prior to an

illegal search of Leake’s home by Kentucky police officers. As a result of the illegal

search, the police officers were able to contact Leake’s girlfriend, who provided a list

of information, which included the fact that Leake’s alias was “John Sandusky.” Id.

Subsequent investigation by the DEA utilizing information resulting from the illegal

search led to utility and vehicle registration records in the name of John Sandusky that

linked Leake to the conspiracy previously under investigation. Id. at 414. Although the

government admitted that the list provided by the girlfriend that contained the alias was

the evidence of any possible taint.” 950 F.2d at 507. The government has presented no evidence of a

similar subsequent and separate investigation in this case.

7

Such an approach would work equally well in the government’s depraved-kidnapper scenario

because the government need not continue the expensive city-wide manhunt so long as it could

demonstrate that its investigatory procedures would have eventually procured the same result. See Nix,

467 U.S. at 449-50. In the alternative, were the kidnaping victim still alive, the victim’s ability to testify

by virtue of his or her own free will as to the kidnapper’s identity would seem sufficient to attenuate the

taint of the initial illegality per Ceccolini.

No. 09-4397 United States v. Fofana Page 18

inadmissible, id. at 415 n.9, it argued that other evidence thereby derived was admissible

pursuant to the inevitable-discovery or independent-source doctrines, id. at 417. The

court held that all evidence “connecting Leake to the alias ‘John Sandusky’” must be

suppressed, id. at 421, noting that “[w]hile it is conceivable that investigators might have

worked their way” to the evidence relating to the alias John Sandusky, “the government

has failed to carry its burden of proof” in this regard, id. at 418 (citing Nix, 467 U.S. at

444-45). I find it is difficult to square the careful exclusion of the alias evidence and the

various connections it facilitated to other incriminating evidence in Leake with the

majority’s holding today. There was no evidence linking Fofana to Ousmane Diallo

prior to the illegal search, and the government made no effort to demonstrate its ability

to establish this link independent of the illegality. Just like Leake, this is a case

“brimming with lose ends.” Id. at 418 n.18.

Had the government taken simple, independent investigatory steps to solidify its

case against Fofana we would be deciding a very different case today. In fact, we would

very likely have a case in which we could unanimously agree that at least one of the

established exceptions to the fruit-of-the-poisonous-tree doctrine applied. However,

such is not the case before us. As Justice Stevens so aptly stated in Nix v. Williams:

“The majority refers to the ‘societal cost’ of excluding probative

evidence. In my view, the more relevant cost is that imposed on society

by police officers who decide to take procedural shortcuts instead of

complying with the law.”

Nix, 467 U.S. at 457 (Stevens, J., concurring) (citation omitted). While it is often the

unhappy result of the exclusionary rule that those who are culpable go free, this is the

cost of ensuring meaningful protection of important constitutional rights. See Mapp v.

Ohio, 81 U.S. 643, 659 (1961) (“The criminal goes free, if he must, but it is the law that

sets him free. Nothing can destroy a government more quickly than its failure to observe

its own laws, or worse, its disregard of the character of its own existence.”). I cannot

condone the government’s brazen disregard of the Fourth Amendment in this instance.

Doing so is inconsistent with prior precedent and diminishes the importance of

constitutional liberties. Accordingly, I respectfully dissent.