United States v. Gaines

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 11-4032

TRAVIS GAINES,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:10-cr-00398-RDB-1)

Argued: December 7, 2011

Decided: January 27, 2012

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the major-

ity opinion, in which Judge Wynn joined. Judge Niemeyer

wrote a dissenting opinion.

COUNSEL

ARGUED: Rod J. Rosenstein, United States Attorney, Balti-

more, Maryland, for Appellant. Sapna Mirchandani, OFFICE

OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Mary-

land, for Appellee. ON BRIEF: Jonathan Biran, Appellate

2 UNITED STATES v. GAINES

Chief, Ayn B. Ducao, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Balti-

more, Maryland, for Appellant. James Wyda, Federal Public

Defender, Baltimore, Maryland, for Appellee.

OPINION

AGEE, Circuit Judge:

The Government appeals from the district court’s order

granting Travis Gaines’ motion to suppress a firearm seized

by police following an unlawful stop of a vehicle in which he

was a passenger. The district court suppressed the gun on the

basis that it was "fruit of the poisonous tree," while the Gov-

ernment maintains that intervening events, i.e., acts of assault

and resisting arrest committed by Gaines, purged the illegality

of the stop and rendered the firearm admissible. For the fol-

lowing reasons, we affirm the district court’s order granting

the motion to suppress.

I.

On the afternoon of January 26, 2010, Baltimore City

police officers Jimmy Shetterly, Frank Schneider, and Manuel

Moro were in a marked police vehicle on patrol in the vicinity

of Mosher Street and Pennsylvania Avenue, in Baltimore. The

officers observed a white Ford Crown Victoria approaching

Mosher Street on Pennsylvania Avenue from the opposite

direction. Officer Moro, who was seated in the rear compart-

ment of the police vehicle, later testified that as the Crown

Victoria neared the Mosher Street intersection, he observed

(from the other side of the intersection) a crack in the Crown

Victoria’s windshield and informed the other officers.

Officers Schneider and Shetterly testified that after the

Crown Victoria turned right onto Mosher Street, they fol-

UNITED STATES v. GAINES 3

lowed in the police vehicle and also observed the crack in the

windshield. The police activated their vehicle’s emergency

lights and pulled over the Crown Victoria. In the course of the

ensuing vehicle stop, Officer Shetterly observed Gaines (who

was a passenger in the rear of the Crown Victoria) moving

around in his seat and trying to climb over the front seats,

despite commands to stop. Officer Shetterly then ordered

Gaines to exit the vehicle and immediately began to pat him

down.

As Officer Shetterly began to pat down Gaines in the area

of Gaines’ waistband, the officer testified that "[a]s I was

reaching with my right hand, I could feel the trigger guard and

the handle of a firearm. At that time, I yelled ‘gun’ very

loudly to alert the officers of the other present danger." (J.A.

39.) Gaines then assaulted Shetterly, striking him in the face

with his elbow. As Gaines turned to flee, Officer Shetterly

clearly observed a silver firearm with a black handle in

Gaines’ waistband. Gaines then punched Officer Schneider

before he was subdued by the officers.

Officers Schneider and Shetterly pushed Gaines into the

open trunk of the Crown Victoria as he continued to struggle.

When the officers were eventually able to handcuff Gaines

and pull him from the trunk, Officer Shetterly observed the

firearm fall from Gaines’ waistband into the trunk. The police

placed Gaines under arrest and seized the firearm, a .380

semi-automatic pistol.1

A federal grand jury in United States District Court for The

District of Maryland indicted Gaines on one count of posses-

sion of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1). Prior to trial, Gaines moved to suppress

the firearm on the grounds that the stop and subsequent search

of his person violated the Fourth Amendment.

1

In addition to the charges that form the basis for this appeal, Gaines

was prosecuted in state court in Maryland for second degree assault of the

police officers.

4 UNITED STATES v. GAINES

At a hearing on the motion to suppress, the district court

heard testimony from Officers Shetterly, Schneider, and Moro

who testified as to their observation of the cracked windshield

and the traffic stop. Officer Shetterly testified that after he

observed Gaines making furtive movements in the back seat

of the Crown Victoria, he ordered Gaines out of the car and

conducted a pat down. He testified that as he reached the

waistband he "could feel the trigger guard and the handle of

a firearm," and "yelled ‘gun.’" (J.A. 39.)

After extensive argument by both parties, the district court

granted Gaines’ motion to suppress. The court initially con-

cluded that the traffic stop was not supported by reasonable

suspicion and was accordingly unlawful. The court found "as

a factual matter that the officers could not have seen the very

slight crack in the lower right portion of the Crown Victoria’s

windshield." (J.A. 279.) Important to the court’s decision was

its belief that Officer Moro could not see the crack from the

rear seat of the police vehicle, past the two officers in the

front seat, across an intersection, through the tinted rear win-

dow of the Crown Victoria as the Crown Victoria turned

right, away from the officer. For the same reasons, the court

declined to credit the testimony of Officers Shetterly and

Schneider that they also saw the crack in the Crown Victoria’s

windshield. Thus, the court determined, the Government

failed to establish that the traffic stop was based on reasonable

and articulable suspicion of unlawful conduct. On appeal, the

Government concedes the traffic stop and consequent pat

down of Gaines were unlawful.

The district court then held that Gaines’ assault of Officers

Shetterly and Schneider did not purge the taint of the unlawful

stop in a manner sufficient to allow the gun to be admitted

into evidence against Gaines. Critical to the court’s analysis

was the "clear and undisputed" sequence of events that led to

the seizure of the firearm: Gaines was ordered out of the vehi-

cle and patted down, the gun was discovered, and only then

UNITED STATES v. GAINES 5

did Gaines attack the officers.2 (J.A. 282.) The court found

dispositive the fact that the firearm was discovered by Officer

Shetterly as a direct result of the illegal stop, and not as a

result of Gaines’ subsequent illegal behavior assaulting the

officers. The district court accordingly granted Gaines’

motion to suppress.

The Government moved for reconsideration, which the dis-

trict court denied. The Government noted a timely interlocu-

tory appeal of the district court’s orders granting the motion

to suppress and denying reconsideration. We have jurisdiction

over this appeal pursuant to 18 U.S.C. § 3731 para. 2 (extend-

ing jurisdiction to the courts of appeals over interlocutory

appeals filed by the United States "from a decision or order

of a district court suppressing or excluding evidence").3

II.

On appeal, the Government argues that the taint of the

unlawful stop was purged when Gaines assaulted Officers

Shetterly and Schneider. Because the Government does not

challenge the district court’s conclusion that the initial stop

and patdown was unlawful, we assume that it was. Neverthe-

less, the Government, relying heavily on United States v.

Sprinkle, 106 F.3d 613 (4th Cir. 1997), claims that the firearm

is admissible notwithstanding the illegality of the traffic stop.

2

The Government admitted to this course of events during the hearing

on Gaines’ motion to suppress.

THE COURT: . . . But here it’s undisputed that Officer Shetterly

found the gun and yelled ‘gun’ before the defendant, Mr. Gaines,

did anything.

[AUSA]: Yes. I agree, Your Honor.

(J.A. 248.)

3

Pursuant to § 3731 para. 2, the Government has certified that this "ap-

peal is not taken for the purpose of delay and that the [suppressed] evi-

dence is a substantial proof of a fact material in the proceeding." (J.A.

315.)

6 UNITED STATES v. GAINES

The thrust of the Government’s argument is that the assault

broke the chain of causation resulting from the illegal stop. As

a result, the Government contends that because the firearm

had not been physically seized when the assault took place, it

could later be lawfully seized pursuant to a valid arrest for the

assault upon the police officers and introduced as evidence

against Gaines on the firearm charge.

A.

On appeal of the district court’s grant of a motion to sup-

press, we review the court’s findings of fact for clear error

and its legal conclusions de novo. United States v. Jones, 356

F.3d 529, 533 (4th Cir. 2004).

B.

The Fourth Amendment protects the "right of the people to

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

unreasonable searches and seizures[.]" U.S. Const. amend IV.

When evidence is discovered as a result of a Fourth Amend-

ment violation, it is, generally speaking, subject to suppres-

sion under the exclusionary rule. United States v. Andrews,

577 F.3d 231, 235 (4th Cir. 2009). Not all evidence discov-

ered as a result of a Fourth Amendment violation, though, is

"fruit of the poisonous tree" and necessarily inadmissible at

trial. Evidence derived from an illegal search may be admissi-

ble depending upon "whether, granting establishment of the

primary illegality the evidence to which the instant objection

is made has been come at by exploitation of that illegality, or

instead by means sufficiently distinguishable to be purged of

the primary taint." Wong Sun v. United States, 371 U.S. 471,

488 (1963) (quotation marks and citation omitted).

Thus, where there is sufficient attenuation between the

unlawful search and the acquisition of evidence, the "taint" of

that unlawful search is purged. To determine whether the

derivative evidence has been purged of the taint of the unlaw-

UNITED STATES v. GAINES 7

ful search, we consider several factors, including: (1) the

amount of time between the illegal action and the acquisition

of the evidence; (2) the presence of intervening circum-

stances; and (3) the purpose and flagrancy of the official mis-

conduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). The

question presented in this case is whether Gaines’ commission

of a crime after discovery of the gun by police, but before its

seizure, is an intervening circumstance sufficient to purge the

taint of the admitted illegal search. Under the facts of this

case, we conclude that it is not such an intervening circum-

stance.4

In Sprinkle, cited extensively by the parties, we analyzed

similar (but not identical) facts and articulated what we

described as "an exception to the exclusionary rule of ‘fruit of

the poisonous tree’ doctrine." 106 F.3d at 619. In that case,

police conducted an unlawful stop of a car in which Sprinkle

was a passenger. Id. at 616. Sprinkle stepped out of the car,

and officers began to conduct a pat down of his person. Id.

Before any evidence was discovered in the pat down, Sprinkle

pushed the officer away and took flight. Id. After running a

short distance, Sprinkle pulled a handgun from his pants, con-

tinued to run, and eventually fired a shot at the pursuing offi-

cer. Id. Shortly thereafter, he was apprehended and the gun

was seized. Id.

Facing charges for being a felon in possession of a firearm,

Sprinkle sought suppression of the weapon. The district court

granted Sprinkle’s motion to suppress the firearm, and the

Government appealed. We reversed the district court, holding

4

Because we conclude there is no intervening circumstance, it is unnec-

essary to evaluate the other Brown factors. Were we to do so, however,

it is clear that the very short time between the unlawful search and the dis-

covery of the evidence does not tend to dissipate the taint. Moreover,

while the district court made no findings regarding the purpose and fla-

grancy of the official misconduct, we see nothing in the record tending to

show that the officers’ conduct militates in favor of attenuation of the

taint.

8 UNITED STATES v. GAINES

that "[i]f a suspect’s response to an illegal stop is itself a new,

distinct crime, then the police constitutionally may arrest the

suspect for that crime." Id. at 619 (internal quotation marks,

citation, and alteration omitted). In finding the exclusionary

rule inapplicable, we explained that "[b]ecause the arrest for

the new, distinct crime is lawful, evidence seized in a search

incident to that lawful arrest is admissible." Id.

In Sprinkle, we recognized the "strong policy reason for

holding that a new and distinct crime, even if triggered by an

illegal stop, is a sufficient intervening event to provide inde-

pendent grounds for arrest." Id. "[A] contrary rule would vir-

tually immunize a defendant from prosecution for all crimes

he might commit that have a sufficient causal connection to

the police misconduct." Id. (quoting United States v. Bailey,

691 F.2d 1009, 1017 (11th Cir. 1982)).

The Government argues in this case that, pursuant to Sprin-

kle, Gaines’ own illegal actions purged the taint of the unlaw-

ful traffic stop. Gaines, on the other hand, emphasizes the

Government’s repeated concession in the district court that

the firearm was discovered by the officers before any unlaw-

ful activity was committed by Gaines. Accordingly, in

Gaines’ view, the discovery of the gun cannot be attenuated

from the unlawful stop.

We agree with Gaines that a proper reading of Sprinkle

does not support the Government’s position. In that case, the

contested evidence (the firearm) was only discovered after the

defendant engaged in illegal activity subsequent to an earlier

unlawful stop. See id. at 619 ("[w]hen Sprinkle drew and fired

his gun at the officer, he committed a new crime that was dis-

tinct from any crime he might have been suspected of at the

time of the initial stop."). The illegal act in Sprinkle broke the

causal chain between the unlawful stop and the discovery of

the firearm. By contrast, in this case, the causal chain remains

intact. Gaines’ subsequent criminal conduct cannot constitute

UNITED STATES v. GAINES 9

an intervening event because it took place after the discovery

of the firearm.

The Government, however, places much emphasis on our

statement in Sprinkle that "[b]ecause the arrest for the new,

distinct crime is lawful, evidence seized in a search incident

to that lawful arrest is admissible." Id. at 619. Because the

firearm was not physically seized until after Gaines struck the

officers, the Government argues, it may be admitted as prop-

erly seized pursuant to a lawful arrest.

This argument, though, fails to account for the fact that the

gun was discovered prior to Gaines’ acts of assault. Although

the Government would have us hold that the seizure of the

firearm, rather than its discovery by police, is the critical act

for assessing whether an intervening event has taken place,

that position lacks support in law. In fact, other than the afore-

mentioned language in Sprinkle, the Government has not cited

any case for the proposition that the seizure of the evidence

is legally more significant than the discovery of the evidence

when the two acts do not coincide.

Rather, the language found in the caselaw seems to support

Gaines’ position that, for purposes of the attenuation doctrine,

the discovery of the evidence is the relevant event. See, e.g.,

Wong Sun, 371 U.S. at 487 (describing an exception to the

exclusionary rule where "the connection between the lawless

conduct of the police and the discovery of the challenged evi-

dence has become so attenuated as to dissipate the taint")

(emphasis added) (internal quotation marks and citation omit-

ted); United States v. Clark, 891 F.2d 501, 505 (4th Cir. 1989)

("evidence challenged on a suppression motion will not be

excluded unless a causal relationship exists between that par-

ticular [Fourth Amendment] violation and the discovery of the

evidence sought to be excluded") (emphasis added) (citing

Wong Sun, 371 U.S. at 487); United States v. Reed, 349 F.3d

457, 464 (7th Cir. 2003) ("The type of intervening events that

serve to attenuate [police] misconduct are those that sever the

10 UNITED STATES v. GAINES

causal connection between the illegal arrest and the discovery

of the evidence.") (emphasis added).

The Supreme Court has recognized the increased privacy

interest attaching to protection from unlawful searches as

compared to unlawful seizures.

A seizure affects only the person’s possessory inter-

ests; a search affects a person’s privacy interests.

Recognizing the generally less intrusive nature of a

seizure, the Court has frequently approved warrant-

less seizures of property, on the basis of probable

cause, for the time necessary to secure a warrant,

where a warrantless search was either held to be or

likely would have been held impermissible.

Segura v. United States, 468 U.S. 796, 806 (1984) (internal

citations omitted).

Accordingly, we have little difficulty concluding that

where, as here, the discovery of the challenged evidence fol-

lows an unlawful search, but precedes an independent crimi-

nal act on the part of the defendant, that criminal act is not an

intervening event for the purpose of determining whether the

"taint" of the unlawful police action is purged.

Finally, we note that our holding finds support in two

recently decided cases from other courts of appeals. In United

States v. Camacho, 661 F.3d 718 (1st Cir. 2011), the First Cir-

cuit found suppression was warranted in a factual situation

similar to that presented here. In that case, police officers

unlawfully detained Camacho as one officer "tapped" Cama-

cho’s waist with an open hand, felt a gun, and yelled "gun."

Id. at 722. A brief struggle ensued, after which Camacho was

arrested and the gun seized by police. Id. The First Circuit

concluded that Camacho’s struggle with police did not attenu-

ate the taint caused by his illegal seizure. The court noted that,

despite the fact that the gun was seized after a lawful search

UNITED STATES v. GAINES 11

incident to Camacho’s arrest, "[t]he gun at issue here was not

discovered in [such a search]. . . . Officer Sousa conducted the

frisk-the search that first discovered the gun-before Camacho

shoved him and before Camacho was arrested." Id. at 730

(emphasis in original). Thus, the court was able to conclude

that "Camacho’s ‘intervening’ crimes were not, in fact, inter-

vening and thus could not purge the taint of the prior illegal

stop." Id. at 731.

Similarly, in United States v. Beauchamp, 659 F.3d 560

(6th Cir. 2011), the Sixth Circuit held that evidence that was

discovered during an unlawful search was subject to suppres-

sion, notwithstanding the fact that the defendant then

attempted to flee and was arrested before the evidence was

actually seized. There, officers conducted a Terry5 stop of a

defendant that the court of appeals later determined lacked

reasonable suspicion and was thus unlawful. 659 F.3d at 571.

The police searched Beauchamp and discovered $1300 in

cash and a plastic baggie containing narcotics before

Beauchamp began to struggle and attempt to flee. Id. at 574.

In reversing the district court’s denial of Beauchamp’s

motion to suppress, the Sixth Circuit found dispositive the

fact that the police discovered the evidence before the subse-

quent illegal action (the attempted flight). Id. The court con-

cluded that "Beauchamp’s brief struggle cannot serve as an

intervening circumstance because it does not come between

the illegal seizure [of Beauchamp] and the discovery of the

evidence; there is no break in the chain." Id.

Just as in Camacho and Beauchamp, there was no interven-

ing circumstance in this case to sever the causal connection

between the unlawful search and the discovery of the evi-

dence. Police discovered the firearm on Gaines’ person before

his commission of another crime. Consistent with those cases,

and with Sprinkle, we hold that Gaines’ act of assault did not

5

Terry v. Ohio, 392 U.S. 1 (1968).

12 UNITED STATES v. GAINES

purge the taint of the unlawful stop, and the district court

properly granted the motion to suppress.

III.

For the aforementioned reasons, we affirm the order of the

district court granting Gaines’ motion to suppress.

AFFIRMED

NIEMEYER, Circuit Judge, dissenting:

After police illegally stopped a Ford Crown Victoria, in

which Travis Gaines was a passenger, one officer patted

Gaines down for safety concerns. When the officer felt what

he believed was a gun, he yelled to his fellow officers, "gun."

At that point, Gaines assaulted the officers in an effort to flee,

elbowing one in the face and slugging another. After the offi-

cers arrested Gaines, pushing his torso into the open trunk of

the vehicle, the gun fell from Gaines’ waistband onto the floor

of the trunk, and the officers seized it as evidence in this case.

The majority orders that the gun be suppressed because the

officers "discovered" the gun before Gaines committed his

independent criminal act of assault, and, therefore the assault

did not purge the taint of the unlawful stop. As the majority

states, "We have little difficulty concluding that where, as

here, the discovery of the challenged evidence follows an

unlawful search, but precedes an independent criminal act on

the part of the defendant, that criminal act is not an interven-

ing event for purposes of determining whether the ‘taint of the

unlawful police action is purged.’" (Emphasis added). The

majority emphasizes that the discovery of the gun and the

simple sequence of events determines the issue. This analysis,

however, fails to apply the relevant test for determining

whether the tainted discovery of the gun tainted the gun’s

later seizure.

UNITED STATES v. GAINES 13

I submit that the discovery of the gun in this case is an

irrelevant fact. The only relevant question is whether knowl-

edge of the existence of the gun gained by its discovery was

"exploited" to enable the officers to seize the gun after the

assault. See Wong Sun v. United States, 371 U.S. 471, 487-88

(1963) (explaining that the taint of illegal officer conduct

applies to seizure only if the seizure exploited the illegal con-

duct).

In the record of this case, there is absolutely no evidence

that the "discovery" of the gun was exploited to seize it. Even

though the "discovery" of the gun was "tainted" as part of the

illegal stop, that fact was inconsequential to the gun’s later

seizure. The gun fell out of Gaines’ waistband onto the floor

of the car’s trunk while officers were lawfully arresting

Gaines for assault, and the officers simply picked the gun up

after they completed the lawful arrest. The officers did not use

the information of the gun’s presence either to arrest Gaines

or to seize the gun. Rather, while arresting Gaines for assault-

ing police officers, the gun fell out of his waistband on its

own accord while officers were handcuffing him, and, when

officers saw it on the floor of the car’s trunk, they picked it

up and retained it as evidence to prosecute Gaines with a vio-

lation of 18 U.S.C. § 922(g)(1).

I would conclude that the gun should not be suppressed and

that the government should be allowed to use the gun as evi-

dence in its prosecution of Gaines for violation of § 922(g)(1).

I would accordingly reverse the district court’s suppression

order.

I

In the early afternoon of January 26, 2010, three Baltimore

police officers pulled over a Ford Crown Victoria based on

their observations of a cracked windshield. In the Crown Vic-

toria were three individuals, two women in the front seats and

Gaines in the back seat. As the officers approached the vehi-

14 UNITED STATES v. GAINES

cle, Officer Shetterly observed Gaines rising up out of his

seat, "reaching in between the two seats," and making a

"shoving motion in his front waistband area." While the other

officers were conferring with the driver to examine her

license and vehicle registration and to obtain permission to

search the vehicle, Officer Shetterly ordered Gaines to exit the

vehicle. As Gaines exited, he placed his hand on the front of

his waistband, a movement that Officer Shetterly found was

consistent with a "gun check" by an armed individual. For

safety concerns, Shetterly patted Gaines down and felt the

trigger guard and butt of what he thought was a gun. When

he yelled "gun" to alert his fellow officers, Gaines hit Officer

Shetterly in the face with his elbow, forcing the officer to step

backwards. As Gaines attempted to flee, moving in the direc-

tion of Officer Schneider, he started reaching to his waistband

and, at the same time, punched Officer Schneider in the face.

At that point, Officer Shetterly observed what he suspected

was a silver gun with a black handle. Officers Shetterly and

Schneider then wrestled Gaines into the trunk of the vehicle,

which the driver had opened, and held his right arm to prevent

him from pulling out the gun with his right hand. As the offi-

cers completed handcuffing Gaines and removed him from

the trunk, the gun fell out of Gaines’ waistband and onto the

floor of the trunk. The officers then seized the gun and held

it as evidence.

Gaines was charged with violating 18 U.S.C. § 922(g)(1)

(prohibiting a felon from possessing a firearm), and, during a

hearing on Gaines’ motion to suppress the gun, all three offi-

cers testified that they had seen the crack in the windshield of

the Crown Victoria, which had formed the basis of the traffic

stop. After the district court observed photographs of the

crack, it rejected the officers’ testimony that the crack could

have been seen, and it found, "as a factual matter, that the

officers could not have seen the very slight crack in the lower

right portion of the Crown Victoria’s windshield." Accord-

ingly, it concluded that the traffic stop was not supported by

reasonable suspicion and therefore was unconstitutional. The

UNITED STATES v. GAINES 15

court also found, however, that Gaines’ suspicious actions in

the vehicle and when exiting the vehicle justified Officer

Shetterly’s pat down of Gaines. Ultimately, the court ordered

that the gun be suppressed because it was "discovered as a

direct result of the illegal traffic stop," and rejected the gov-

ernment’s argument that Gaines’ lawful arrest for assaulting

the police officers purged the taint of the illegal stop so that

the gun was legally seized as part of a lawful arrest.

From the district court’s order suppressing the gun, the

government appealed.

II

The applicable jurisprudence is well established. The

Fourth Amendment protects citizens against "unreasonable

searches and seizures," and the judicially created exclusionary

rule is a "supplement" that serves to enforce those Fourth

Amendment protections. Davis v. United States, 131 S. Ct.

2419, 2423 (2011). The exclusionary rule is "a deterrent sanc-

tion that bars the prosecution from introducing evidence

obtained by way of a Fourth Amendment violation." Id.

(emphasis added). But the rule "applies only where it results

in appreciable deterrence," and the Supreme Court "ha[s]

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

quotation marks omitted). "The principal cost of applying the

[exclusionary] rule is, of course, letting guilty and possible

dangerous defendants go free—something that ‘offends basic

concepts of the criminal justice system,’" id. (quoting United

States v. Leon, 468 U.S. 897, 908 (1984)), and the application

of the rule is only proper "where its deterrence benefits out-

weigh its substantial social costs," Hudson v. Michigan, 547

U.S. 586, 594 (2006) (quoting Penn. Bd. of Prob. & Parole

v. Scott, 524 U.S. 357, 363 (1998)) (internal quotation marks

omitted).

16 UNITED STATES v. GAINES

To be subject to the exclusionary rule, evidence need not

be obtained only during the course of the Fourth Amendment

violation. Wong Sun, 371 U.S. at 487-88. In Wong Sun, the

Supreme Court held that evidence that is the "fruit" of an

unconstitutional search or seizure must also be suppressed. Id.

at 484. Allowing the introduction of evidence indirectly

acquired as a result of illegal police conduct would undermine

the deterrence of the exclusionary rule entirely by giving offi-

cers an incentive to stop and search citizens illegally. See

Brown v. Illinois, 422 U.S. 590, 602 (1975).

The inquiry into what evidence constitutes "fruit" of illegal

conduct and must therefore be suppressed is not a simple but-

for causation determination. The Court in Wong Sun set forth

the proper standard:

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 ille-

gality, the evidence to which instant objection is

made has been come at by exploitation of that ille-

gality or instead by means sufficiently distinguish-

able to be purged of the primary taint.

Id. at 487-88 (emphasis added); see also Brown, 422 U.S. at

601-05; United States v. Najjar, 300 F.3d 466, 477 (4th Cir.

2002) (recognizing that whether a confession was obtained by

the exploitation of an illegal arrest is to be determined by the

application of several factors, including "the presence of inter-

vening circumstances"). Thus, the governing test for deter-

mining whether illegal conduct by police officers taints a

seizure of evidence following an intervening lawful arrest is

whether the police "exploited" the illegal conduct in order to

obtain the evidence. See Brown, 422 U.S. at 603.

We applied these principles in United States v. Sprinkle,

106 F.3d 613 (4th Cir. 1997), a case factually similar to that

UNITED STATES v. GAINES 17

before us, which, I submit, governs the disposition of this

case. In Sprinkle, as in this case, the court determined that the

officers’ original stop and seizure of the defendant had been

unlawful. Id. at 617-19. After the illegal stop, as an officer

began to pat the defendant down, the defendant pushed the

officer away and fled, pulling out a handgun and firing shots

at the pursuing officer as he did so. Id. at 616. The officer

arrested the defendant and seized the firearm, which was in

plain view at the time, and the defendant was charged with

violation of 18 U.S.C. § 922(g)(1). In rejecting the defen-

dant’s challenge to the admissibility of the seized gun as the

fruit of an illegal stop, we stated:

If a suspect’s response to an illegal stop is itself a

new distinct crime, then the police constitutionally

may arrest the suspect for that crime. There is a

strong policy reason for holding that a new and dis-

tinct crime, even if triggered by an illegal stop, is a

sufficient intervening event to provide independent

grounds for arrest. . . . [A] contrary rule would virtu-

ally immunize a defendant from prosecution for all

crimes he might commit that have a sufficient causal

connection to the police misconduct. Because the

arrest for the new, distinct crime is lawful, evidence

seized in a search incident to that lawful arrest is

admissible.

Sprinkle, 106 F.3d at 619 (emphasis added) (internal quota-

tion marks and citations omitted).

As in Sprinkle, Gaines’ "response" to the pat down in this

case was to commit the "new and distinct crime" of assault.

See Barnhard v. State, 587 A.2d 561, 565 (Md. Ct. Spec.

App. 1991) (no right to resist an unlawful Terry stop), aff’d,

602 A.2d 701 (Md. 1992). Even though the assault was "trig-

gered by" the illegal stop, the assault itself was a "sufficient

intervening event to provide independent grounds for arrest."

Thus, in the language of Sprinkle, "Because the arrest for the

18 UNITED STATES v. GAINES

new, distinct crime [of assault] is lawful, evidence seized in

a search incident to that lawful arrest is admissible." 106 F.3d

at 619.

The majority declines to apply Sprinkle, concluding that

because, unlike in Sprinkle, the gun in this case was "discov-

ered" before Gaines assaulted the officers, the gun’s subse-

quent seizure in connection with the lawful arrest was

somehow tainted. The majority fails, however, to explain why

"discovery" of the gun before the assault has any constitu-

tional relevance. The proper and only inquiry must be whether

the officers obtained the gun from Gaines by "exploitation of

the illegal conduct." Had the majority conducted this analysis,

it would have no reason to reject the application of Sprinkle.

The officers in this case obtained the gun that formed the

basis of Gaines’ § 922(g)(1) charge as a result of his lawful

arrest, as the gun fell out of Gaines’ waistband after he had

been handcuffed for assaulting the officer. The officers sim-

ply picked the gun up after it fell from Gaines’ waistband.

There is absolutely no indication in the record that the arrest

or the subsequent seizure of the gun was in any way the result

of the government’s discovery of the gun, much less an "ex-

ploitation" of its discovery before the assault. Indeed, the gov-

ernment would not need to introduce any evidence of the

original "discovery" of the gun or their prior knowledge of the

gun in proving the illegal possession crime.

In furtherance of its holding that evidence of the gun’s dis-

covery is relevant, the majority pieces together fragments of

language from three other cases that use the word "discov-

ery." See ante, at 9-10. But each of those cases dealt with the

suppression of a confession, for which the "discovery" and the

"seizure" of the evidence were indistinguishable. Moreover, a

closer look at the cases reveals that they provide no support

for the majority’s conclusion that an officer’s discovery of a

gun before an intervening crime and subsequent lawful arrest

renders all action after the arrest tainted. Indeed, in selecting

UNITED STATES v. GAINES 19

its quotes from these cases, the majority ignores language

from them, as well as other similar cases, stating the proper

rule that the police cannot use evidence that they obtain by the

exploitation of unconstitutional conduct. See Brown, 422 U.S.

at 603 (inquiring "whether the confession [wa]s obtained by

exploitation of an illegal arrest" (emphasis added)); United

States v. Seidman, 156 F.3d 542, 548 (4th Cir. 1998) ("If the

government has committed a constitutional violation, how-

ever, evidence obtained as a result of the violation cannot be

used unless the connection between the unlawful conduct and

the acquisition of the evidence has become so attenuated as to

dissipate the taint" (emphasis added) (internal quotation

marks omitted)); United States v. Clark, 891 F.2d 501, 505

(4th Cir. 1989) ("[T]he evidence gained as a result of [a

Fourth Amendment] intrusion may . . . be ruled inadmissible"

(emphasis added)); id. ("Exclusion depends, in part, on

whether the evidence was obtained as a result of that viola-

tion" (emphasis added)); United States v. Reed, 349 F.3d 457,

464 (7th Cir. 2003) ("A confession obtained . . . must be

excluded from evidence" (emphasis added)).

The proper analysis, as mandated by the relevant Fourth

Amendment principles, is straightforward. The officers here

stopped the Crown Victoria and seized Gaines illegally inas-

much as they stopped the vehicle without reasonable suspi-

cion. Nonetheless, as the district court found, Officer

Shetterly was justified in frisking Gaines after the stop

because of Gaines’ suspicious movements in the car and the

need to protect himself and his fellow officers. During the

course of Officer Shetterly’s pat down of Gaines, the officer

discovered the presence of a gun in Gaines’ waistband and,

because it was discovered during the course of an illegal stop,

this discovery was tainted as the fruit of the illegal stop. Had

Gaines been arrested at that point, before he committed the

assaults on the officers, the evidence regarding the gun would

obviously have to be excluded as the product of the illegal

traffic stop. Similarly, if Gaines had successfully fled after

Officer Shetterly felt the gun and the officers thereafter

20 UNITED STATES v. GAINES

obtained a search warrant based upon the tainted discovery of

the gun, the results of that search warrant would be excluded

as the fruits of the illegal stop. But the assaults on Officers

Shetterly and Schneider were new, voluntary criminal acts by

Gaines that authorized the officers lawfully to arrest Gaines

for the new, intervening conduct. In connection with the arrest

and, without any exploitation of the information about the

gun’s existence gained from the tainted pat down, the gun fell

from Gaines’ waistband into plain view. At that point, the

officers seized the gun in connection with the lawful arrest,

and therefore it can lawfully be offered at trial.

III

The majority’s holding also loses sight of the deterrence

principles applicable to the exclusionary rule. "The ‘sole pur-

pose’ of the exclusionary rule ‘is to deter future Fourth

Amendment violations.’" United States v. Edwards, ___ F.3d

___, 2011 WL 6825360, at *7 (4th Cir. Dec. 29, 2011) (quot-

ing Davis, 131 S. Ct. at 2426). The requirement for finding an

exploitation of the illegal conduct originates in the rationale

for the exclusionary rule itself. The very purpose of determin-

ing when the causal chain between police illegality and the

eventual seizure of evidence has been broken "is to mark the

point of diminishing returns of the deterrence principle inher-

ent in the exclusionary rule." United States v. Ienco, 182 F.3d

517, 526 (7th Cir. 1999). The exclusion of tainted evidence

reduces the incentive for officers to violate the Fourth

Amendment, but officers have little incentive to stop people

hoping they will commit a new crime so as to justify a subse-

quent arrest and search. As one court has recognized, "Police

do not detain people hoping that they will commit new crimes

in their presence; that is not a promising investigative tech-

nique, when illegal detention exposes the police to awards of

damages." United States v. Pryor, 32 F.3d 1192, 1196 (7th

Cir. 1994). Thus, "it is critical that courts wrestling with ‘fruit

of the poisonous tree’ issues keep that fundamental [deter-

rence] notion in mind, for when it is lost sight of the results

UNITED STATES v. GAINES 21

can be most unfortunate." Ienco, 182 F.3d at 526 (internal

quotation marks omitted) (brackets in original omitted). Yet,

that is precisely what has happened here—the majority has

lost sight of the purposes for which the exclusionary rule

extends to fruits of illegal police conduct and thus reached an

unfortunate result.

Moreover, the rule announced by the majority today will

lead to absurd results. If an officer sees or, in the majority’s

language, "discovers" a bag of white powder on the front seat

of a car during an illegal Terry stop, that powder could never

be introduced at a trial for possession, no matter what inter-

vening acts occurred, because, under the majority’s reasoning,

the "discovery" is complete and there can be no intervening

circumstances. See ante, at 7 & n.4. In a similar vein, under

the rule announced today, if the officer in Sprinkle had

touched the gun prior to the defendant’s fleeing and shooting

at the officer, the defendant could not have been charged with

possession of a firearm. Why such a touch would be constitu-

tionally significant in light of the principles behind the exclu-

sionary rule is never explained by the majority.

To be sure, in this case Officer Shetterly’s discovery of the

gun in Gaines’ waistband was the fruit of the illegal Terry

stop, and under the governing principles, that discovery could

not be exploited by the officers to obtain evidence to use

against Gaines at trial. But the facts of this case demonstrate

that no such exploitation occurred. Gaines attacked two police

officers, tried to pull a gun out of his waistband to attack them

further, and struggled to resist the lawful arrest. As part of

that struggle, the gun that he was reaching for fell out of his

waistband onto the floor of the vehicle trunk, in plain view of

the officers. Only at that point did the officers seize the gun,

and in doing so, they did not rely on their previous knowledge

of the gun gained by the tainted pat down, when the existence

of the gun was "discovered."

Allowing Gaines to benefit from this new rule suppressing

the gun imposes "substantial social costs," while offering no

22 UNITED STATES v. GAINES

additional deterrence to police officers. See Hudson, 547 U.S.

at 591. Further, the majority’s new extension of the exclusion-

ary rule to all evidence physically discovered after an illegal

stop, without regard to any intervening events that may pro-

vide independent grounds for the actual seizure of the evi-

dence, creates minimal, if any, additional deterrence for

officers contemplating an illegal Terry stop. Such a holding

fails to accommodate the Supreme Court’s clear guidance that

"[s]uppression of evidence . . . has always been our last resort,

not our first impulse." Hudson, 547 U.S. at 591.

In short, the only unconstitutional conduct at issue in this

case is the officers’ illegal Terry stop, and the majority has

failed to prove any nexus, other than but-for causation,

between that conduct and the ultimate seizure of the gun.

After Gaines assaulted the police officers, the officers law-

fully arrested him, and in connection with that arrest, they

seized the firearm that fell from Gaines’ waistband. Gaines

should now be tried for violating § 922(g)(1).

Accordingly, I respectfully dissent from the majority’s

decision effectively letting Gaines go free.