United States v. Powner ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11219
Non-Argument Calendar
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D.C. Docket No. 2:09-cr-00075-JES-SPC-8
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
ROBERT POWNER,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 11, 2012)
Before MARCUS, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Robert Powner appeals his conviction for conspiracy to possess with intent
to distribute Oxycodone, Methadone, and Alprazolam in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C) and 846.
On July 28, 2009, the Lee County Sheriff’s Office in Florida conducted a
search of a residence where Powner was present. The district court determined
that much of the search was unlawful, and therefore suppressed the statements of
multiple witnesses made at the time of the search, as well as all tangible items
seized during the search. However, the district court refused to suppress either the
subsequent post-arrest statements of Powner or the trial testimony of his co-
defendants. The court found that the statements and testimony were sufficiently
attenuated from the taint of the illegally seized evidence, so that they did not
constitute fruits of an illegal search. On appeal, Powner argues that the district
court should have suppressed both his post-arrest statements and the trial
testimony of his co-defendants as the fruits of an illegal search.
A district court ruling on a motion to suppress raises mixed questions of law
and fact. United States v. Ramirez-Chilel, 289 F.3d 744, 748–49 (11th Cir. 2002).
We review the findings of fact for clear error, and the application of law to those
facts de novo. United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006).
Under the Fourth Amendment, evidence derived from information that was
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obtained by unconstitutional means can be suppressed as “fruit of the poisonous
tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963).
The exclusionary rule, however, does not bar the admission of this type of
evidence in all criminal proceedings. The Supreme Court has held that “evidence
seized during the course of an unlawful search and . . . evidence derived therefrom
(the fruits of the unlawful search)” can be admitted in grand jury proceedings.
United States v. Calandra, 414 U.S. 338, 354, 94 S. Ct. 613, 623 (1974). The
Court has also held that live-witness testimony may be sufficiently attenuated from
the primary violation such that suppression of that testimony is not warranted,
based on a number of factors. See United States v. Ceccolini, 435 U.S. 268,
278–79, 98 S. Ct. 1054, 1061 (1978). These factors include whether the testimony
was coerced or induced; whether the tainted evidence itself was used to obtain that
testimony; the amount of time that elapsed since the illegal search and the
testimony; and whether the testimony can be logically traced back to the tainted
evidence. See id. at 279–80, 98 S. Ct. at 1062.
Here, we agree with the district court that the post-arrest statements of
Powner and the testimony of his co-defendants were sufficiently attenuated from
the unlawful search and seizure. The thrust of Powner’s argument is that the
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government used evidence illegally seized during the July 28, 2009 search1 to
obtain indictments against him and his co-defendants Bergin, Martinez and
Hamilton. The government then used these criminal charges to obtain post-arrest
statements from Powner, as well as guilty pleas and trial testimony from his co-
defendants. Therefore, according to Powner, his post-arrest statements and the
testimony from his co-defendants should have been suppressed as fruits of the
poisonous tree.
However, Powner does not contest the validity of the indictments
themselves. Indeed, Calandra’s holding that unlawfully seized evidence may be
submitted to a grand jury to obtain an indictment would bar such an argument.
See 414 U.S. at 354, 94 S. Ct. at 623. And given the validity of the indictments,
we cannot accept Powner’s contention that the statements and testimony extracted
by using those otherwise valid indictments are somehow fundamentally tainted.
See Jones v. Cannon, 174 F.3d 1271, 1287 (11th Cir. 1999) (stating that grand jury
indictment “broke the chain of causation” for claim based on alleged false arrest).
We agree with Powner that Calandra does not necessarily cleanse all
potential taint if illegally seized evidence is used outside the context of a grand
1
During the July 28, 2009 search, police recovered ledgers listing the names of
individuals involved in the distribution and sale of prescription drugs, including Powner’s co-
defendants.
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jury proceeding. In other words, the Ceccolini factors may still apply to exclude
statements or testimony obtained directly through illegally seized evidence,
despite the fact that the evidence was also used to obtain an indictment in a grand
jury proceeding. However, Powner has not alleged that the illegally seized
evidence was used to coerce his post-arrest statements or his co-defendants’ trial
testimony, except insofar as it was used to obtain the indictments. He asserts that
the police used illegally seized evidence in questioning Ms. Bergin on July 28,
2009, the night of the primary violation. However, the district court already
suppressed Ms. Bergin’s statements from this interrogation. Powner also claims
that when the police questioned Ms. Hamilton at the time of her arrest,
“[i]nformation obtained from the illegal search was known to and used by” the
police. However, Powner neither argues that information gleaned from this
interrogation was admitted at trial, nor in any way substantiates this conclusory
allegation. Similarly, Powner’s assertion that when the police questioned him
after his arrest on September 28, 2009, they “had at their disposal all of the
illegally seized evidence,” falls short of demonstrating that the police actually
used that tainted evidence to coerce Powner’s post-arrest statements. Therefore,
we decline to hold that Ceccolini bars the admission of either Powner’s statements
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or the trial testimony of his co-defendants.2
We therefore agree with the district court that the indictments and guilty
pleas were intervening events that sufficiently attenuated the evidentiary taint
from the initial Fourth Amendment violations.
AFFIRMED.
2
As to the trial testimony of co-defendant Martinez, Powner argues that her testimony
was coerced through the indictment against her. As we explained above, neither the use of
illegally seized evidence to obtain an indictment, nor the subsequent use of that valid indictment
can be the sole basis for finding evidentiary taint in light of Calandra.
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