United States v. Akridge ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Akridge No. 01-6294
ELECTRONIC CITATION: 2003 FED App. 0351P (6th Cir.)File Name: 03a0351p.06 Chattanooga, Tennessee, for Appellant. Gary Humble,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
Tennessee, for Appellee. ON BRIEF: Rita C. LaLumia,
UNITED STATES COURT OF APPEALS FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Chattanooga, Tennessee, for Appellant.
FOR THE SIXTH CIRCUIT Gary Humble, ASSISTANT UNITED STATES
_________________ ATTORNEY, Chattanooga, Tennessee, for Appellee.
UNITED STATES OF AMERICA , X KATZ, D. J., delivered the opinion of the court, in which
Plaintiff-Appellee, - ROGERS, J., joined. MOORE, J. (pp. 25-31), delivered a
- separate dissenting opinion.
- No. 01-6294
v. - _________________
>
, OPINION
STEPHEN D. AKRIDGE, -
Defendant-Appellant. - _________________
N KATZ, District Judge. Defendant-Appellant Stephen D.
Appeal from the United States District Court Akridge appeals from his convictions for possessing crack
for the Eastern District of Tennessee at Chattanooga. cocaine with the intent to distribute, conspiring to possess
No. 00-00081—Curtis L. Collier, District Judge. crack cocaine with the intent to distribute, possessing a
firearm in furtherance of a drug trafficking offense, and
Argued: April 29, 2003 possessing a firearm after having been convicted of a felony.
Akridge’s contention on appeal is that the district court
Decided and Filed: October 2, 2003 should have suppressed the pre-trial statements and trial
testimony of Akridge’s alleged co-conspirators, Kevin Ellison
Before: MOORE and ROGERS, Circuit Judges; KATZ, and Tiffany Stewart, as the fruits of an illegal search. The
District Judge.* Government argues that the testimony was admissible under
either the “inevitable discovery” or “attenuation” exceptions
_________________ to the exclusionary rule. For the following reasons, we
AFFIRM the district court’s denial of Akridge’s suppression
COUNSEL motion.
ARGUED: Rita C. LaLumia, FEDERAL DEFENDER I. BACKGROUND
SERVICES OF EASTERN TENNESSEE, INC.,
On January 25, 1999 Chattanooga police officers obtained
a warrant to search Kelvin Ellison’s residence, pursuant to
which officers recovered marijuana and firearms. At the time,
*
The Honorable David A. Katz, United States District Judge for the Ellison was a convicted felon and the matter was referred to
Northern District of Ohio, sitting by designation.
1
No. 01-6294 United States v. Akridge 3 4 United States v. Akridge No. 01-6294
Special Agent Cordell Malone at the Bureau of Alcohol, which she pled guilty to a charge of aiding and abetting
Tobacco and Firearms (“ATF”), who in turn presented the Ellison and Akridge in drug trafficking. On October 3, 2000
case to the United States Attorney’s Office for prosecution. the Government reached a plea agreement with Ellison.
In the early morning of May 2, 2000, Chattanooga police On January 22, 2001 the district court granted Akridge’s
officers received an anonymous telephone tip reporting that September 11, 2000 motion to suppress evidence seized
the residents of 824 Arlington Avenue were selling drugs. In during the May 2000 search of his apartment, as well as his
response to the complaint, officers conducted a “knock and subsequent statement given on June 19, 2000.2 Thereafter,
talk” at the residence, which was shared by Akridge and his on April 9, 2001 Akridge filed a motion to enlarge the scope
roommates Kevin Ellison and Tiffany Stewart. During a of the district court’s prior suppression order to encompass all
search of the apartment, officers found marijuana, cocaine, previous and future testimony of co-defendants Ellison and
and three loaded semi-automatic pistols.1 At the time of the Stewart, reasoning that the testimony was a direct result of the
search, Ellison was still under federal investigation in relation May 2000 illegal search. It is this motion that is at issue on
to the January 1999 charges. appeal.
Following the search an officer suggested that the three The district court conducted a hearing on the motion on
residents decide who would accept the blame for the April 30, 2001. By agreement of the parties, the court did not
contraband, and allegedly indicated that he would see that the hear testimony but rather relied on the factual findings from
other two residents would not be charged. As a result, the earlier suppression hearing, plus three new affidavits from
Stewart was taken to jail and Akridge and Ellison were left at Stewart, Ellison, and ATF Agent Malone. After review of the
the apartment. Stewart apparently was later released on her record, the district court denied Akridge’s motion and on
own recognizance. May 7, 2001 Akridge proceeded to trial.
On June 19, 2000 ATF officials interviewed Akridge, At trial Ellison and Stewart testified on behalf of the
Ellison, and Stewart regarding the May 2000 search of their prosecution. The Government also presented the testimony
residence. All three admitted to selling crack cocaine and of Akridge’s neighbor and Akridge’s aunt,3 as well as a tape
marijuana, and Akridge allegedly further admitted to firearms
possession and selling drugs from the Arlington Avenue
residence, although he denies making such a confession.
Akridge, Stewart, and Ellison subsequently were arrested
on June 20, 2000 for drug trafficking and firearms possession.
On June 27, 2000 Stewart executed a plea agreement, not
entered of record with the Court until January 5, 2001, in 2
The district court determined that the C hattanooga police officers’
method of obtaining consent to search warranted exclusion of not only the
physical evidence seized in the May 2000 search, b ut also A kridge’s
subsequent June 19 confession.
1
As discussed further infra, the officers conducted the search 3
pursuant to the residents’ consent, which the district court ultimately Akridge’s aunt and neighbor both testified that they had purchased
determined was coerced. drugs from Akridge.
No. 01-6294 United States v. Akridge 5 6 United States v. Akridge No. 01-6294
of an incriminatory phone call made from the Hamilton Akridge timely filed a notice of appeal on September 21,
County jail by Akridge to his girlfriend.4 2001 and asserts that the exclusionary rule requires
suppression of the statements and trial testimony of Ellison
Ellison testified at trial that he had known Akridge for and Stewart.
approximately fifteen years and had lived with him from
October 1999 until June 2000. According to Ellison, he and II. DISCUSSION
Akridge supported themselves during this period by selling
crack cocaine and marijuana. Ellison also testified about A. Standard of Review
Akridge’s possession and use of firearms.
We review the district court’s ruling on Akridge’s
Stewart, Ellison’s girlfriend, lived with Ellison and Akridge suppression motion under a mixed standard of review. See
and testified about her role in distributing drugs for Akridge United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003).
and Ellison. Stewart also testified about Akridge’s possession We reverse the district court’s findings of fact only if they are
and use of firearms. clearly erroneous, but review de novo the district court’s legal
conclusions. United States v. Hurst, 228 F.3d 751, 756 (6th
The jury returned guilty verdicts on Counts 1, 4, 5, and 6, Cir. 2000). Where, as here, the district court has denied a
which respectively charged Akridge with conspiracy to motion to suppress, we review the evidence in a light most
distribute in excess of fifty grams of cocaine base in violation favorable to the Government. See United States v. Harris,
of 21 U.S.C. § 846, possession with the intent to distribute 255 F.3d 288, 291 (6th Cir. 2001) (citing United States v.
cocaine base in violation of 21 U.S.C. § 841(a)(1), possession Garza, 10 F.3d 1241, 1245 (6th Cir. 1993)).
of a 9mm semi-automatic pistol in furtherance of drug
trafficking crimes for the period October 1999 to May 2, 2000 B. Exclusionary Rule
in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in
possession of a 9mm semi-automatic pistol on or about The exclusionary rule generally bars the admissibility at
December 31, 1999 in violation of 18 U.S.C. § 922(g)(1). trial of tangible evidence, as well as verbal statements,
acquired through unconstitutional means. See Wong Sun v.
A pre-sentence report was prepared, to which Akridge United States, 371 U.S. 471, 485 (1963). The rule excludes
objected in part because the report included information from admissibility “not only primary evidence obtained as a
predicated upon statements made by Ellison and Stewart. The direct result of an illegal search or seizure, Weeks v. United
district court ultimately sentenced Akridge to 360 months on States, 232 U.S. 383 (1914), but also evidence later
Counts 1 and 4 to run concurrently with 120 months on discovered and found to be derivative of an illegality or ‘fruit
Count 6. The district court further sentenced Akridge to 300 of the poisonous tree.’” Segura v. United States, 468 U.S.
months on Count 5 to be served consecutively, resulting in a 796, 804 (1984) (quoting Nardone v. United States, 308 U.S.
total of 660 months imprisonment. 338, 341 (1939)); see also Murray v. United States, 487 U.S.
533, 536-37 (1988) (“[T]he exclusionary rule also prohibits
the introduction of derivative evidence, both tangible and
4 testimonial, that is the product of the primary evidence, or
As characterized by the Government, during this phone call Akridge
criticized Ellison’s cooperation with the Government and complained that that is otherwise acquired as an indirect result of the unlawful
Ellison was disclosing everything that Akridge had done since he was search, up to the point at which the connection with the
release d from the penitentiary.
No. 01-6294 United States v. Akridge 7 8 United States v. Akridge No. 01-6294
unlawful search becomes ‘so attenuated as to dissipate the discovery doctrine, with its distinct requirements, is in reality
taint’”). “The suppression or exclusionary rule is a judicially an extrapolation from the independent source doctrine: Since
prescribed remedial measure and as ‘with any remedial the tainted evidence would be admissible if in fact discovered
device, the application of the rule has been restricted to those through an independent source, it should be admissible if it
areas where its remedial objectives are thought most inevitably would have been discovered.”).
efficaciously served.’” Segura, 468 U.S. at 804 (quoting
United States v. Calandra, 414 U.S. 338, 348 (1974)). Beyond developing the two foregoing exceptions to the
exclusionary rule, the Supreme Court has further delineated
As explained in Segura: standards applicable to the suppression of live witness
testimony, see United States v. Ceccolini, 435 U.S. 268Evidence obtained as a direct result of an (1977), which some courts have come to apply under the
unconstitutional search or seizure is plainly subject to rubric of the “attenuation doctrine.” See, e.g., United States
exclusion. The question to be resolved when it is v. McKinnon, 92 F.3d 244 (4th Cir. 1996); United States v.
claimed that evidence subsequently obtained is “tainted” Dickson, 64 F.3d 409 (8th Cir. 1995); United States v.
or is “fruit” of a prior illegality is whether the challenged Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990). Under
evidence was Ceccolini, “a witness’ testimony may be admitted even when
“‘come at by exploitation of [the initial] his identity was discovered in an unconstitutional search.”
illegality or instead by means sufficiently United States v. Leon, 468 U.S. 897, 911 (1984); see also
distinguishable to be purged of the primary Ceccolini, 435 U.S. at 275-78 (concluding that “since the cost
taint.’” of excluding live-witness testimony often will be greater, a
It has been well established for more than 60 years that closer, more direct link between the illegality and that kind of
evidence is not to be excluded if the connection between testimony is required”).
the illegal police conduct and the discovery and seizure
of the evidence is “so attenuated as to dissipate the taint,” In the instant action, the district court determined that under
Nardone v. United States, supra, at 341. It is not to be both Ceccolini and the inevitable discovery doctrine, the
excluded, for example, if police had an “independent exclusionary rule did not require exclusion of Ellison’s and
source” for discovery of the evidence[.] Stewart’s testimony. On appeal, Akridge asserts that neither
of these doctrines is applicable to save the testimony from
Segura, 468 U.S. at 804-05 (internal citation omitted). exclusion. Upon review, we find that the district court
properly denied Akridge’s motion.
Like many legal principles, the exclusionary rule is subject
to numerous exceptions that diminish its scope. In addition C. District Court’s Findings
to developing the independent source doctrine, not at issue in
the instant action, the Supreme Court has also endorsed the In the enlargement motion, Akridge moved to suppress
inevitable discovery doctrine, see Nix v. Williams, 467 U.S. “any and all statements given, [and] previous testimony or
431 (1984), under which the exclusionary rule is inapplicable, future testimony of co-defendants Kelvin L. Ellison and
even if the initial search and arrest were unlawful, as to Tiffany Stewart . . . [as] directly derived as a result of an
evidence that inevitably would have been discovered by illegal search.” J.A. at 118. In support of the motion,
lawful means. Murray, 487 U.S. at 539 (“The inevitable Akridge argued that “the witnesses were discovered as the
No. 01-6294 United States v. Akridge 9 10 United States v. Akridge No. 01-6294
direct result of the illegal search of the apartment[;] [t]he the court determined that the majority of the factors weighed
presence and identity of the witnesses and their relationship against exclusion. After balancing the cost of suppression
to the defendant was not previously known to the police, and against the deterrence effect of exclusion, the court denied
would not have been discovered in the absence of the illegal Akridge’s motion to extend the scope of its prior suppression
search[; and] [t]he witnesses provided statement [sic] ruling.
regarding crimes which would not have been discovered
absent the illegal search and consequent prosecution.” J.A. at Although the district court relied primarily on the inevitable
124. discovery doctrine, we first address the district court’s
Ceccolini analysis because we find that it more clearly applies
In ruling on Akridge’s suppression motion, the district to the instant action. Because we determine that the Ceccolini
court articulated two separate bases for denying the motion. factors weigh against exclusion as to both Stewart and
Relying on the fact that Ellison was already under federal Ellison, we affirm the district court’s ruling on that basis and
investigation for drug trafficking and firearms possession, the do not reach the merits of the district court’s “inevitable
district court first determined that the trial testimony of discovery” determination.
Ellison and Stewart inevitably would have been discovered.
The court reasoned that the investigation of Ellison would D. Ceccolini
have revealed his relationship to Akridge and Stewart, and in
light of Ellison’s averment that the prior firearms charge In Wong Sun, the Supreme Court indicated that “the
heavily influenced his decisions with respect to the instant policies underlying the exclusionary rule [do not] invite any
action, the court determined that the exclusionary rule did not logical distinction between physical and verbal evidence.”
apply to Ellison’s testimony. As to Stewart, the court 371 U.S. at 486. In Ceccolini, the Court addressed the
reasoned that the Government would have elicited testimony concept of attenuation in the context of verbal evidence,
from Stewart, notwithstanding the May 2000 search, due to ultimately rejecting the foregoing pronouncement from Wong
Stewart’s relationship with Ellison and her willingness to Sun. In so doing, the Court reasoned that “the issue [of
enter her plea, even before the district judge had ruled on attenuation] cannot be decided on the basis of causation in the
whether to adopt the magistrate’s recommendation to logical sense alone, but necessarily includes other elements as
suppress the evidence of the May 2000 search. well.” Ceccolini, 435 U.S. at 274. Thus, the Court expressly
rejected the conclusion that “if the road were uninterrupted,
As an alternative basis for its ruling, the district court its length was immaterial.” Id. at 275.
determined that the Ceccolini factors weighed against
exclusion. In general, the court reasoned that due to Ellison’s Based on Ceccolini, it is now clear “that the exclusionary
investigation, law enforcement most likely already knew of rule does not invariably bar the testimony of a witness whose
Akridge’s relationship to Ellison. The court was further identity is revealed to the authorities as the result of an illegal
persuaded by the timing of Ellison’s and Stewart’s pleas vis- search.” Unites States v. Reyes, 157 F.3d 949, 954 (2d Cir.
a-vis the May 2000 search and the magistrate’s 1998). Instead, exclusion is dependent upon the degree of
recommendation to grant Akridge’s initial suppression attenuation between the illegal search and the testimony.
motion. Although the court found that some of the Ceccolini Relying upon the attenuation principle announced in Nardone
factors weighed in favor of exclusion, particularly as to v. United States, 308 U.S. 338 (1939), and expounded upon
Stewart since she was previously unknown to investigators, in Wong Sun, the Ceccolini Court weighed a number of
No. 01-6294 United States v. Akridge 11 12 United States v. Akridge No. 01-6294
considerations, including that (1) “the testimony given by the manner of the initial questioning of the witness; whether the
witness was an act of her own free will in no way coerced or witness himself was a defendant; whether the illegally-seized
even induced by official authority,” (2) “substantial periods evidence was used in questioning the witness; the time
of time elapsed between the time of the illegal search and the between the illegal search and initial contact with the witness;
initial contact with the witness . . . and between the latter and whether investigators knew of the relationship, if any,
the testimony at trial,” and (3) the identity of the witness and between the witness and the defendant prior to the illegal
her relationship with the defendant “were well known to those search; and whether the police conducted the illegal search
investigating the case.” Ceccolini, 435 U.S. at 279. The intending to find evidence implicating the defendant.6 See
Court ultimately concluded that “application of the Ceccolini, 435 U.S. 279-80; see also United States v. Hughes,
exclusionary rule in this situation could not have the slightest 279 F.3d 86, 89-90 (1st Cir. 2002); United States v.
deterrent effect.” Id. at 280. McKinnon, 92 F.3d 244, 247-48 (4th Cir. 1996); United
States v. Schaefer, 691 F.2d 639, 644 (3d Cir. 1982); United
We find no published opinions in this Circuit applying States v. Leonardi, 623 F.2d 746, 752 (2d Cir. 1980).
Ceccolini in the context of exclusionary determinations
relating to witness testimony.5 Therefore, we first begin by With this framework in mind, we turn to the parties’
setting forth the relevant factors for consideration in our contentions.
analysis. After reviewing Ceccolini and surveying our sister
circuits’ application of its holding, we find it appropriate to E. Identity of the Parties
consider to following factors in making our determination:
Akridge appears to make two primary contentions on
(a) the degree of free will exercised by the witnesses; appeal: first, that were it not for the illegal search, Stewart’s
(b) the role of the illegality in obtaining the testimony; existence, and the relationship of the parties to one another,
(c) the time elapsed between the illegal behavior, the would not have been discovered, and second, even if the
decision to cooperate, and the actual testimony at trial; identities and the parties were known or would have become
and (d) the purpose and flagrancy of the officials’ known, it does not necessarily follow that Ellison and Stewart
misconduct. would have offered incriminating statements and trial
testimony against Akridge were it not for the illegal May
Relevant to the foregoing factors, a court might further 2000 search.
consider: the stated willingness of the witness to testify; the
presence of intervening circumstances; the time, place, and As to the former assertion, Akridge’s arguments focus
primarily on Stewart. Akridge argues that unlike Ellison,
Stewart was not known to investigators prior to the illegal
5 search, and although Stewart lived with Ellison, “that fact
W e find only one case in this Circuit, albeit an unpublished opinion, alone does not demonstrates [sic] that she or her testimony
applying Ceccolini in the co ntext of a supp ression determinatio n with would have been inevitably discovered but for the illegal
respect to witness testimony. See Un ited States v. M illis, 89 F.3d 836,
1996 U.S. App. LEXIS (6th Cir. June 19, 1996) (rejecting defendant’s
argume nts for exclusion, reasoning that the fact that the co-defendant
witness “initiated his cooperation with authorities on his own initiative, 6
several days after the arrest” dem onstrated an indep endent willingness to This list of factors is neither exclusive nor exhaustive, and clearly
testify that dissipated the taint of the original stop). not all factors may be relevant to eve ry situation.
No. 01-6294 United States v. Akridge 13 14 United States v. Akridge No. 01-6294
search on May 2, 2000.” Appellant’s Br. at 16-17, 23. not for the subsequent illegal search, this argument ignores
Akridge further argues that “[b]ut for the May 2 search, the fact that the identities of Ellison and Stewart and their
[Stewart’s] relationship to Akridge may not have been status as occupants of the apartment whose consent was
discovered.” Appellant’s Br. at 25. needed prior to search, were made known to the police
officers prior to any asserted illegality. 7 Notwithstanding the
In addressing these contentions, we find crucial the time fact that the parties have not specifically addressed whether
line relating to events surrounding the May 2000 search. the witnesses’ identities, as opposed to their testimony, are
According to Appellant’s own recitation of facts, upon arrival separately suppressible, we find that the Government’s
at the 824 Arlington Avenue residence, Chattanooga police knowledge of the existence of Akridge, Ellison, and Stewart
officers Darrell Turner and Anthony Sutton knocked at the and their relationship to one another as roommates, arises
door, spoke with Akridge, and requested consent to search. from no illegality and thus does not implicate the
In response to this request, Akridge announced that he would exclusionary rule.8
first have to speak with Ellison and Stewart because their
names were on the apartment lease. Akridge then went inside F. Testimony
the apartment and asked Ellison and Stewart to step outside
to speak with officers. Akridge and Ellison apparently Regarding the actual statements and trial testimony offered
proceeded outside to the yard to speak with the officers, while by Ellison and Stewart, Akridge appears to contest on appeal
Stewart remained in the apartment doorway. During the
ensuing conversation, all three residents gave verbal consent
to search the apartment. However, such consent was 7
purportedly based on false representations by Turner that he In reasoning that police knew of the link between Stewart, Ellison,
and Akridge only via the illegal search, the dissent ignores the timeline
had specific information regarding two kilograms of cocaine which we have gone to lengths to set forth. As noted supra, prior to the
in the residence and that “the Feds were around the corner and illegal entry, Akridge informed officers that he need ed to talk to his
. . . had a search warrant.” room mates, Ellison and Stewart, and asked them to step outside. A t this
point in the sequence of events, even if officers had walked away from the
Based on the foregoing, it is clear that at the moment scene without illegally entering the apartm ent, they would have known of
Stewart and Ellison and would have known that they were all living
Akridge opened the door and identified himself as an together in an apartment from which drugs allegedly were being sold.
occupant of the apartment and further identified his
roommates as Ellison and Stewart, his identity and a 8
Even assuming som e illegality, Akridge’s “but for” argument fails.
relationship to Stewart and Ellison were established, Under Ceccolini, the mere fact that an illegality is a “but for” cause of
independent of the illegal search. Chattanooga police officers disputed testimony is insufficient to warrant exclusion. See Ceccolini,
were legitimately responding to an anonymous tip regarding 435 U.S. at 276 (“Eve n in situations where the exclusionary rule is plainly
drug sales originating from Akridge’s apartment, and there is applicable, we have declined to adopt a ‘per se or “but for” rule’ that
would make inadmissible any evidence, whether tangible or live-witness
no assertion that the apartment’s occupants were lured or testimony, which somehow came to light through a chain of causation that
otherwise illegally compelled outside the apartment to discuss began with an illegal arrest.”).
the issue of consent to search. As to the discovery of the parties’ relationship to one another as drug
dealers, as opp osed to merely roo mmates, this information came to light
Although Akridge argues strenuously that his connection to not only through the evidence found at the apartment, but also from
Stewart and Ellison would have remained unknown were it statements made by the parties during questioning and at trial. We
address Akridge’s ob jections to these statements infra.
No. 01-6294 United States v. Akridge 15 16 United States v. Akridge No. 01-6294
the statements made during the course of three separate June questioning, and the subsequent plea agreements and
events, i.e., the June 19 interviews, the preparation of trial testimony.11 These factors are discussed further herein.
Ellison’s and Stewart’s affidavits used to oppose Akridge’s
enlargement motion,9 and the trial testimony offered by With respect to the purpose and flagrancy of the police
Ellison and Stewart. The chain of causation Akridge attempts misconduct, Akridge asserts that the sole purpose of the
to establish is that the May 2000 search led to the June May 2 search was to uncover evidence of drugs. Certainly, a
interviews during which certain statements were made, clear intent to uncover illegality though illegal means would
resulting in the parties’ arrests, leading to Ellison’s and seem to weigh in favor of suppression. However, we note
Stewart’s plea agreements, which in turn required Ellison’s that the police were not specifically in search of the particular
and Stewart’s cooperation in future investigations and evidence sought to be suppressed in this case, i.e., witness
prosecutions,10 thus resulting in Ellison and Stewart testifying testimony.12 Instead, officers were responding to a complaint
for the prosecution at Akridge’s trial. about drug trafficking from Akridge’s apartment. Moreover,
while the case for suppression is clearer for any tangible
Akridge’s general argument is that every statement made evidence seized during the search, the Supreme Court has
after the May 2000 search is tainted and thus should be instructed that “since the cost of excluding live-witness
suppressed. Akridge further argues that the affidavits and testimony often will be greater, a closer, more direct link
testimony “do not reflect what the respective position of each between the illegality and that kind of testimony is required.”
witness would have been the instant before the illegal May 2 Ceccolini, 435 U.S. at 278.
search.” Appellant’s Reply at 6. Akridge therefore reasons
that the Government cannot establish that the incriminating As to the role that any illegal fruits from the May 2000
information about Akridge contained in the affidavits and search played in obtaining Stewart’s and Ellison’s testimony,
testimony would have been inevitably discovered.
11
As to the factors set forth above, we find most dispositive W e do not find as critical the time elapsed between trial and
the degree of free will exercised by Ellison and Stewart, as original contact with the witnesses in this case, for while a year elapsed
well as the temporal attenuation between the May search, the between trial and the May 200 0 search, Stewart and Ellison were
obligated as part of their plea agreements to assist in the G overnment’s
investigation and prosecution of others. Therefore, as of the entry date of
their plea agreements, Ellison and Stewart were essentially bound by their
pleas to offer testimony at Akridge’s trial. Nonetheless, we note that
app roxim ately eight months transpired between the search and actual
entry of Stew art’s plea and five months between the search and Ellison’s
plea.
9 12
These affidavits set forth Ellison’s and Stewart’s reasons for As noted in Ceccolini, the analysis might differ “where the search
entering into plea agre ements. was cond ucted by the p olice for the spe cific purpose of discovering
10
potential witnesses.” Ceccolini, 435 U.S. at 277 n.4. The Court noted
Ellison’s plea agreement is part of the record on appeal and clearly that there was “not the slightest evidence to suggest that [the officer]
contains a cooperation provision. Stewart’s plea agreement is not entered the shop . . . with the intent of finding tangible evidence bearing
included in the jo int appendix, but the Government does not dispute the on an illicit gambling operation, much less any suggestion that he entered
assertion that pursuant to her plea, Stewart was obligated to provide trial the shop and se arche d with the intent o f finding a w illing witness to testify
testimony against Akridge. against respondent.” Id. at 279-80.
No. 01-6294 United States v. Akridge 17 18 United States v. Akridge No. 01-6294
we find it beyond dispute that the threat of prosecution played Akridge emphasizes that it was not until after the June
some role in their decision to submit to questioning in June, arrest that Ellison made the “final decision” to plead guilty
as well as their ultimate decisions to enter into plea and “turn his life around.” However, in the affidavit
agreements. Even though the Government asserts that no presented at the second suppression hearing, Ellison states
references were made during questioning to the evidence that the reason for his decision was that he was facing
seized during the May search, this assertion loses some exposure to enhanced sentencing as a career criminal under
significance in light of the fact that Stewart and Ellison were 18 U.S.C. § 924(e) due to the January 1999 firearms charge
co-defendants, Stewart had been taken into custody, and both and that this charge was “a major factor” in his decision to
parties knew, even if evidence was not referenced during enter a plea. Ellison also explained that he knew he had been
questioning, that they were facing prosecution. Nonetheless, a poor role model for his son by getting caught up in selling
despite the foregoing circumstances, we find that temporal drugs and wanted to serve his time to “be a good example for
attenuation, as well as the degree of free will exercised by [his] son.” Ellison’s affidavit further reflects that in deciding
Ellison and Stewart, weigh in favor of affirming the district to cooperate, Ellison knew that he would have to disclose
court’s decision to deny Akridge’s suppression motion. Akridge’s and Stewart’s involvement with guns and drugs,
but having made the decision to cooperate, he “could not do
1. Ellison it half way.” Based on this decision, Ellison testified
favorably for Akridge at the suppression hearing but offered
Regarding the June 19 interview, on that day officers testimony against Akridge at trial.
returned to the Arlington Avenue residence to further
question Stewart. Akridge and Ellison initially indicated that Although Ellison’s direct relationship with Akridge may
Stewart was not at home, but eventually went inside the not have been revealed until May 2000, it is undisputed that
residence to summon Stewart. Affidavits indicate that a Ellison was facing prosecution as a career offender. While
crowd was gathering outside the apartment, so the officers Ellison appeared for questioning at the Government’s behest,
thought it would be safer to conduct the questioning at the he did so voluntarily and without coercion.13 It was several
police station and requested that Akridge, Ellison, and months thereafter, in October, that Ellison entered into a plea
Stewart all come in for questioning. As recounted by agreement, an agreement that required Ellison’s cooperation
Akridge, Agent Malone “invited Akridge and Ellison to meet with future investigations and resulted in Ellison’s trial
with officers at the police station to discuss the May 2 search testimony against Akridge.
of their apartment and Stewart’s arrest. The three cooperated
and admitted to selling crack cocaine and marijuana.” We find that the foregoing supports the conclusion that
Appellant’s Br. at 10. Ellison’s cooperation and trial testimony resulted from an
Per police procedure, Akridge, Stewart, and Ellison were
handcuffed during transport to the police station, but were not 13
Though, as noted by the district court, Ellison and Stewart “were
handcuffed during their interviews. All three parties signed picked up and interviewed by law enforcement, rather than coming
a waiver of rights, admitted to various drug and weapons forward wholly on their own,” J.A . at 165 , and while Ellison, Stewart, and
related incidents, and ultimately were arrested. Akridge were handcuffed during transport to the police station, the
officers made clear that none of the parties were under arrest. The
hand cuffs were removed at the station, and upon arrival all three executed
a waiver of rights prior to issuing stateme nts and confessions.
No. 01-6294 United States v. Akridge 19 20 United States v. Akridge No. 01-6294
exercise of Ellison’s free will, and was the “product of Based on the foregoing, and in light of (1) the
detached reflection and a desire to be cooperative.” Government’s prior knowledge of Ellison and his criminal
Ceccolini, 435 U.S. at 277. Admittedly, this is not as clear a background;15 (2) the six week lapse between the illegal
case as in Ceccolini, in which the witness was not a putative search and the June questioning and arrest; (3) the additional
defendant, and Akridge asserts that due to their impending nearly four month lapse between the arrest and Ellison’s
prosecutions, Ellison and Stewart were faced with a Hobson’s decision to cooperate; (4) Ellison’s stated willingness to
choice that cannot fairly be regarded as a product of their free testify, particularly his cited reasons for deciding to turn his
wills. However, Ceccolini instructs: life around; and (5) the significant impact of Ellison’s
Another factor which not only is relevant in
determining the usefulness of the exclusionary rule in a defendant witness would be permitted to testify where the co-defendant’s
particular context, but also seems to us to differentiate identity was initially discovered by an illegal search. T he dissent’s
the testimony of all live witnesses–even putative position would invariably preclude the testimony of all such co-
defendants–from the exclusion of the typical defendants that have ente red plea agreements, merely by virtue of the
documentary evidence, is that such exclusion would benefit received and the witnesses’ status as co -defendants. Notably, this
is the pre cise ou tcome exp ressly reje cted b y Ceccolini, i.e., the perpetual
perpetually disable a witness from testifying about disablement of witnesses, even co-d efendants, from testifying. Post-
relevant and material facts, regardless of how unrelated Ceccolini, courts have c onsisten tly rejected the notion that Cecco lini
such testimony might be to the purpose of the originally applies only to the disinterested, non-p arty, civic minded witness and have
illegal search or the evidence discovered thereby. Rules instead applied the case to co-defendants’ testimony under various factual
which disqualify knowledgeable witnesses from circumstances. E.g., Un ited States v. P adilla, 960 F.2d 854 , 863 n.7 (9th
testifying at trial are, in the word of Professor Cir. 19 92), rev’d on other grounds, 508 U.S. 77 (1993) (“This court has
never adopted a per se rule limiting Ceccolini to ‘good citizen’ witnesses
McCormick, “serious obstructions to the ascertainment who testify ‘out of a se nse of civic duty’”); United States v. Leonardi, 623
of truth”’ accordingly, “[f]or a century the course of legal F.2d 746, 752 (2d Cir. 1980) (deeming admissible testimony of
evolution has been in the direction of sweeping away coconspirator “confronted with the fruits of the illegal search at the time
these obstructions.” C. McCormick, Law of Evidence his cooperation was first solicited[,]” though witness was facing
§ 71 (1954). [* * *] For many of these same reasons, substantial jail time for another crime, testified pursuant to a plea bargain,
and viewed by court as likely testifying out of self-interest); United States
the Court has also held admissible at trial testimony of a v. Brookins, 614 F.2d 10 37, 1043 (5th Cir. 1980) (testimony partially
witness whose identity was disclosed by the defendant’s induced by a grant of immunity); United States v. Stevens, 612 F.2d 1226,
statement given after inadequate Miranda warnings. 1229-30 (10th Cir. 1979) (deeming admissible testimony from
Michigan v. Tucker, 417 U.S. 433, 450-451 (1974). coconspirator who testified pursuant to plea bargain, reasoning that
witness “was entitled to raise the defense of the illegality of the wiretaps
Ceccolini, 435 U.S. at 277-78.14 and the inadmissibility of evidence resulting therefrom in the case against
him[,] [b]ut he offered to testify; his statement declared this decision was
in part motivated by a desire ‘to change his life-style and stay out of
trouble.’”).
14
Empha sizing the benefit gained by S tewart and E llison, i.e., 15
reduced sentences in exchange for their cooperation, and their status as W e also find it of note that not only Ellison, but also Akridge, were
co-defendants, the dissent discounts any p ossibility that the witnesses already known drug dealers. Ellison was under investigation and about
could have entered plea agreements and offered testimony aga inst to be prosecuted in connection with the 1999 search. Akridge was a prior
Akridge of their own free will. However, under the rationale espoused by offender and the affidavit testimony of Agent Malone reflects that he had
the dissent, it is difficult to imagine any scenario under which a co- been receiving up dates on Akridge’s criminal activities.
No. 01-6294 United States v. Akridge 21 22 United States v. Akridge No. 01-6294
impending prosecution and eligibility for a career offender May 2, 2000 but did not wish to do so due to a desire to
enhancement relating to the January 1999 charges, we find cooperate and tell the truth. Despite a potentially favorable
that the connection between the illegal search and the suppression ruling, Stewart still decided to enter a guilty plea
testimony is sufficiently attenuated. See United States v. instead of challenging the evidence against her. Had
Leonardi, 623 F.2d 746 (2d Cir. 1980) (finding it likely that Stewart’s motivation been solely to avoid prosecution, she
the witness’ decision to cooperate was based on the strong could have waited for a suppression ruling. Instead, Stewart
possibility of substantial jail time in relation to committing a entered her plea without challenging the admissibility of the
crime separate from that at issue on appeal). In making this evidence against her.
determination, we find instructive Wong Sun, in which Wong
Sun’s arrest was deemed illegal due to lack of probable cause As to the earlier statements made on June 19, we note that
or reasonable grounds. Nonetheless, the Court regarded this unlike Akridge and Ellison, Stewart had been previously in
antecedent illegality to be of no evidentiary consequence, custody in relation to the events about which she was being
because Wong Sun had been arraigned, released on his own questioned. However, neither Stewart nor Ellison were
recognizance, and had returned voluntarily several days later “continuously detained and questioned by the police” until
for interrogation, during which he made the contested giving their statements mere hours after the illegality. United
statement. The Court determined that based on the foregoing, States v. Ienco, 182 F.3d 517, 531 (7th Cir. 1999).16 Instead,
“the connection between the arrest and the statement had
‘become so attenuated as to dissipate the taint.’” Wong Sun,
371 U.S. at 491 (quoting Nardone, 308 U.S. at 341). 16
Citing United States v. Ienco, 182 F.3d 51 7 (7th Cir. 1999), the
dissent posits that “other circuits have unflinchingly rejected the
2. Stewart majo rity’s positio n.” However, Ienco does not stand in contradiction to
our holding and is clearly distinguishable, in that the contested witness’
As to Stewart, Akridge argues that “[e]ven if a relationship statements “were made at 4:15 a.m. after he had been in custody and
questioned at the police station for almost eleven hours.” Ienco, 182 F.3d
had been discovered, Stewart would have had no incentive to at 530. The witness was not “Mirandized,” nor did he have an attorney
offer testimony against Akridge absent the arrest stemming present during questioning. And, as stressed by that court, the
from the May 2 search.” Appellant’s Br. at 25-26. Akridge “subsequent confession and trial testimony were made after Judge Duff
further submits that “[i]t is illogical to assume that it was an denied the motion to suppress.” Id. Faced with what the court
exercise in free will that caused [Stewart] to plead guilty and characterized as “the choice between testifying against Ie nco . . . or going
to trial where tainted and incriminating evidence wo uld be used against
cooperate when all evidence against her could have been him, Iovine chose to testify.” Id. Here, the parties sub mitted to
suppressed.” Appellant’s Br. at 18. We draw the opposite questioning after executing waivers, entered pleas well-after the initial
conclusion. illegality, and did so in the face of a po tentially favorable suppression
ruling.
As with Ellison, Stewart voluntarily returned to the station United States v. Pa dilla, 960 F.2d 854 (9th C ir. 199 2), rev’d on other
for questioning. Notably, Stewart entered her guilty plea on grounds, 508 U.S. 77 (1993), also cited by the dissent as repudiating our
free will analysis, is similarly distinguishable. In Padilla, the discovery
January 5, 2001, after the magistrate recommended that the of drugs and the questioning of the testifying party “were virtually
court grant Akridge’s motion to suppress all physical simultaneous events,” “the identities of the defendants would not have
evidence seized, as well as Akridge’s statement, in relation to been know n without the seizure and sub sequent questioning,” and there
the May 2000 search. Via affidavit Stewart averred that she was “no indication that the informant would have come forward o f his
knew she could attempt to suppress the firearms seized on own accord.” Padilla, 960 F.2d at 863. As noted supra, the plea
agreements here were entered months after the illegal search, the
No. 01-6294 United States v. Akridge 23 24 United States v. Akridge No. 01-6294
after her initial arrest in May, Stewart was released and was distinguishable from the illegal search as to be purged from
voluntarily questioned six weeks later in June. As with the primary taint. See Wong Sun, 371 U.S. at 487-88.
Ellison, we find instructive Wong Sun, in which the Court
determined that a matter of days was sufficient to purge the III. CONCLUSION
taint of the illegality, and conclude that the connection
between the illegal search and Stewart’s subsequent Based on the foregoing, we AFFIRM the judgment of the
statements was “so attenuated as to dissipate the taint.” district court.
In so ruling, we are mindful of the Supreme Court’s
repeated admonition that the exclusionary rule is not a per se
rule; rather, the rule is to be applied only in those instances
where exclusion would result in the appropriate deterrent
effect.
“[W]e have declined to adopt a ‘per se or “but for” rule’
that would make inadmissible any evidence, whether
tangible or live-witness testimony, which somehow came
to light through a chain of causation that began with an
illegal arrest.” United States v. Ceccolini, 435 U.S. 268,
276 (1978). Rather, in this context, we have stated that
“[t]he penalties visited upon the Government, and in
turn upon the public, because its officers have violated
the law must bear some relation to the purposes which
the law is to serve.” Id., at 279.
New York v. Harris, 495 U.S. 14, 17 (1990). We are also
mindful of the Court’s admonition that “[t]he exclusionary
rule should be invoked with greater reluctance where the
claim is based on a causal relationship between a
constitutional violation and the discovery of a live witness
than when a similar claim is advanced to support suppression
of an inanimate object.” Ceccolini, 435 U.S. at 275. In this
case, we determine that the statements and trial testimony of
Ellison and Stewart were procured through means sufficiently
existence and identities of Stewart and Ellison were made known prior to
the illegal search, and the re cord is completely d evoid of any evidence to
justify the dissent’s supp osition that the affidavits were executed under
threat of revocation of the plea agree ments.
No. 01-6294 United States v. Akridge 25 26 United States v. Akridge No. 01-6294
______________ surveillance. One year after surveillance ended, a local police
officer, Ronald Biro, spent his break casually talking with his
DISSENT friend Lois Hennessey, who was working at the shop. During
______________ the conversation, Biro picked up an envelope lying on the
drawer of the cash register and discovered that it contained
KAREN NELSON MOORE, Circuit Judge, dissenting. On money and policy slips. Without telling Hennessey what he
May 2, 2000, police officers approached an apartment where had seen, he asked her to whom the envelope belonged.
the defendant Stephen Akridge was living together with Hennessey explained that it belonged to the defendant, Ralph
Kevin Ellison and Tiffany Stewart. The police flatly and Ceccolini. Biro mentioned this to another local detective,
repeatedly lied to Akridge to persuade him to let them search who passed it along to the FBI. Four months later, the FBI
the apartment, rendering the search undisputedly interviewed Hennessey at her home and asked for information
unconstitutional. In the illegal search, the police seized regarding Ceccolini; the FBI did not mention the earlier
significant quantities of crack and marijuana, as well as incident with Biro at the flower shop. Hennessey, who was
several firearms. On June 20, 2000, Ellison, Stewart, and studying police science in college, was eager to help. She
Akridge were arrested and charged. One week later, on June related to the FBI the events that had occurred during her visit
27, 2000, Stewart entered into a plea agreement with the with Biro. When Ceccolini denied before a grand jury that he
government. Akridge and Ellison both moved to suppress the knew anything about any gambling operations, the
search. While their motion was pending, however, Ellison government had Hennessey testify in Ceccolini’s resulting
entered into a plea agreement with the government in October trial for perjury. The question in the case was whether
of 2000, waiving the suppression issue and leaving Akridge Hennessey’s testimony was admissible, despite the fact that
to litigate it on his own. Eventually, on January 22, 2001, the it was clearly, though remotely, derived from an admittedly
district court ordered the physical fruits of the search illegal search — Biro’s improper seizure of the envelope and
suppressed. Without this physical evidence being directly discussion with Hennessey.
admissible, the prosecution used Ellison and Stewart to
establish its existence indirectly, through testimony. On the The Supreme Court held that Hennessey’s later testimony
basis of their testimony, Akridge was convicted. was sufficiently attenuated from the initial illegal search as to
be admissible on the basis of five considerations. Most
The majority concludes that Ellison’s and Stewart’s significant to the Court was the fact that Hennessey’s decision
testimony was admissible against Akridge, in spite of the fact to talk to the police (and later to testify) was not due to any
that it was the fruit of the illegal search. It argues that their leverage the police had over her by virtue of the illegal search.
testimony was sufficiently “attenuated” from the illegal The Court stressed that “the illegality which led to the
search as to fall within the exception to the fruit-of-the- discovery of the witness very often will not play any
poisonous-tree doctrine under United States v. Ceccolini, 435 meaningful part in the witness’ willingness to testify.” Id. at
U.S. 268 (1978). After analysis, I must disagree. 277. This was true in Hennessey’s case; her testimony, the
Court held, was “in no way coerced or even induced by
Any discussion of the “attenuation” doctrine must begin official authority as a result of Biro’s discovery of the policy
with an analysis of Ceccolini itself. In Ceccolini, the FBI was slips.” Id. at 279. The Court also emphasized, to a lesser
investigating suspected gambling operations in New York. degree, four other factors. First, the gambling slips were not
The defendant’s flower shop was one of the places under used in questioning Hennessey. Second, four months passed
No. 01-6294 United States v. Akridge 27 28 United States v. Akridge No. 01-6294
between the illegal search and any subsequent contact with therefore seems impossible to say that Ellison and Stewart
Hennessey, and over a year passed between the latter and were “in no way coerced or even induced by official authority
Ceccolini’s trial. Third, the police knew of Hennessey’s as a result of [the illegal search].”2 Such a statement ignores
relationship with Ceccolini before the illegal search. And the mutual consideration usually exchanged in plea
lastly, there was no evidence that Biro conducted this illegal agreements: the defendants receive lesser sentences and, in
search in the attempt to find incriminating evidence. See return, they testify for the prosecution.
United States v. McKinnon, 92 F.3d 244, 247 (4th Cir. 1996)
(using these factors), cert. denied, 519 U.S. 1099 (1997); Somehow, the majority refuses to acknowledge these basic
United States v. Ienco, 182 F.3d 517, 530 (7th Cir. 1999) facts, pointing to Ellison’s and Stewart’s affidavits. These
(same). affidavits state that Ellison’s and Stewart’s decisions to testify
against Akridge were voluntary, that they wanted to turn their
Consideration of the Ceccolini factors in this case can lead lives around and tell the truth. Of course, there is a gentle
to only one conclusion — that the testimonial evidence in this irony in these affidavits — namely that the government
case must be suppressed. The first factor, the issue of free presumably required Ellison and Stewart to sign these
will, is the most fatal to the prosecution’s case. The majority affidavits under threat of revoking their plea agreements. But
argues that Ellison’s and Stewart’s testimony was not a even assuming that Ellison and Stewart were cooperating in
product of any governmental coercion or inducement, but was part because they wished to tell the truth, it is clear that they
a product of their own volition. I completely disagree. only wished to tell the truth to avoid the effects of the
Ellison and Stewart had just been found with large quantities incriminating and illegal search. No one argues the
of drugs and several firearms; the statutory sentencing ceiling implausible thesis that Ellison and Stewart would have told
for the charges in their initial indictments was life in prison. the truth had they never been found by the police in the illegal
The government offered Ellison and Stewart the following search.
options in the form of a plea bargain: Testify against Akridge
and receive a lighter sentence, or litigate the suppression issue
and risk a significantly increased prison sentence. Ellison and
Stewart chose the former. Although it is impossible to
discern from the record just how much of a lighter sentence arrangement with the government.
Ellison and Stewart received by virtue of their cooperation, it
is clear that their sentences were significantly reduced.1 It 2
Because Stewart was unknown as a suspected criminal to the police
until the illegal search, all of the charges against her were based on
evidence discovered in the illegal search. And although the police had
1
found firearms and marijuana in another of Ellison’s residences over a
Under their plea agreements, Stewart received a 12-month sentence year earlier, Ellison was also charged with several additional crimes as a
while Ellison (who had a more extensive criminal history and was result of the illegal search. As is explained below, it is therefore clear that
convicted of several additional charges) received a 115-month sentence. the illegal search itself induced (if no t coerced) both Ellison and Stewart
In contrast, Akridge received a 660-month sentence. Given the fact that into entering a p lea agreement with the government.
Akrid ge had roughly the sam e role in the alleged offenses as Ellison and W hile the majo rity emphasizes that the bare identities of Stewart and
Stewa rt, and received a sentence fifty times more severe than Stewart (and Ellison became known to the police before the unlawful search took place,
five times more severe than Ellison, who had roughly the same criminal the difference between knowing the identity of Akridge’s roommates and
history as Akridge), it seems beyond dispute that Ellison and Stewart both being able to charge them with crimes resulting in years in prison is, to
received a significant reduction in prison time by entering into a plea say the least, significant.
No. 01-6294 United States v. Akridge 29 30 United States v. Akridge No. 01-6294
Of course, Ellison’s and Stewart’s decision to plea bargain I find it unsurprising that other circuits have unflinchingly
was “voluntary” in the sense that they did choose to plea rejected the majority’s position.4
bargain over their other alternatives. But that does not make
their decision “voluntary” within the meaning of Ceccolini, Although I believe this consideration so tilts in favor of the
under which we must differentiate between witnesses who defendant that the “attenuation” doctrine is no longer
testified of their own volition and those that testified because applicable, considerations of the other Ceccolini factors also
of inducement or coercion on the part of the government.3 Cf. support suppression. First, in Ceccolini, “both the identity of
United States v. Ramirez-Sandoval, 872 F.2d 1392, 1397 (9th
Cir. 1989) (noting that the key inquiry is whether the
“witnesses would have come forward of their own volition to 4
inform officials”). In Ceccolini, the witness was a civic- In a case similar to the case at bar, the Seventh Circ uit held that a
minded citizen, “not a putative defendant,” Ceccolini, 435 putative defendant’s decisio n to enter into a plea agreement that required
him to testify against his codefendant was not “free” bec ause his only
U.S. at 275, who studied police science and was eager to help options were “testifying against [his codefendant] for a lighter sentence
the government. The government offered no benefit in return or going to trial where tainted and incriminating evidence would be used
for her testimony, and threatened no detriment if she failed to against him.” United States v. Ienco, 182 F.3d 51 7, 530 (7th Cir. 1999).
provide it. Because her testimony was “in no way coerced or This could not be a free choice, the court stressed, as “his actions appear
even induced by official authority as a result of [the illegal dictated by his own precarious legal situation–a circumstance forged by
the illegal arrest and search.” Id.search],” id. at 279, her subsequent testimony was considered Similarly, in Un ited States v. P adilla, 960 F.2d 854 (9th Cir. 1992),
attenuated. In contrast, the witnesses here were putative rev’d on other grounds, 508 U.S. 77 (1 993 ), Luis Arciniega had been
defendants, clearly induced (if not coerced) into testifying illegally stopped and found with hundreds of pounds of cocaine in his car.
under the Damocles-like threat of additional years (or Arciniega confessed that he was a drug m ule and led the police to the
decades, in Ellison’s case) in prison. To say that these heads of the criminal enterprise, including Xavier Padilla. At Pad illa’s
trial, the governm ent argued that Arc iniega’s testimony was sufficiently
defendants acted “freely” is to strip all the meaning that the attenuated from the illegal stop. The N inth Circuit flatly rejected the
Supreme Court has attached to this phrase. Short of gove rnment’s argument that Arciniega was testifying of his own free will,
government agents forcing Stewart and Ellison to testify by recognizing “the heavy weight upon a man’s shoulders who has just been
threats of physical violence, I can think of no situation that arrested with hundreds of pounds of drugs in the car he was driving.” Id.would involve less free will than the one here. Accordingly, at 862.
W hile the majority attempts to distinguish Padilla and Ienco by
asserting that the timing of the witnesses’ co ope ration is key in
3
determining their free w ill, it cannot p oint to any similar case where the
The majo rity claims tha t the position ad vocated here wo uld lead to testimony of coconspirato rs under threa t of pro secutio n based primarily
a per se rule that was rejected by Ceccolini and its progeny. T his or exclusively on evidence seized in an illegal search has been held to be
assertion fails to take account of the particular circumstances that make sufficiently attenuated. T hat Stewart and Ellison surrendered more
this case so clearly one in which the taint of illegality has not been quickly to prosecutorial pressure than their cognates in Padilla and Ienco
attenuated. In no case cited by the majo rity where the taint has been held does not serve to demonstrate their free will, but perhaps even more
to be attenuated has the government’s case against a testifying potential clearly the ir lack of it.
codefendant been so wholly and entirely a product of the illegal behavior. One commentator, noting the practice of the federal courts generally,
The position advocated here does not amo unt to a per se rule, but instead remarked that when it “appear[s] that the witness has been pressured and
a reco gnition that when the free will of a witness has be en so obviously that the pressure is a consequence of the prior Fourth Amendment
affected by the discovery of adverse evidence in an illegal search, it will violation . . . a finding of attenuation is unlikely to be justified.” Wayne
take an extremely strong showing in the other factors to shift the balance R. LaFave, 5 Search And Seizure: A Treatise On The Fourth Amendment
towards attenuation. § 11.4 (3d ed . 1996).
No. 01-6294 United States v. Akridge 31
Hennessey and her relationship with the [defendant] were
well known to those investigating the case” before the illegal
search. Ceccolini, 435 U.S. at 279. Here, it was the opposite;
while the police may have known about Ellison and Akridge
separately, nothing even suggested that the two were linked
until the police found them together in the illegal search —
and the police did not even know Stewart existed at all.
Second, in Ceccolini, the police never mentioned the earlier
search in their subsequent interview with Hennessey and
never referred to the illegally seized evidence. Id. at 272(noting that the investigator “did not specifically refer to the
incident involving Officer Biro”). Here, Officer Cordell
Malone seems to acknowledge that he brought up the initial
illegal search with Ellison and Stewart, only testifying that he
refrained from asking them leading questions about it.
Finally, in Ceccolini, Biro entered the flower shop simply to
talk with his friend and inadvertently noticed something he
never should have seen. Although the search was
unconstitutional, it was not done intentionally to find
evidence of criminal wrongdoing; there was “not the slightest
evidence to suggest that Biro entered the shop or picked up
the envelope with the intent of finding tangible evidence
bearing on an illicit gambling operation.” Id. at 279-80. In
this case, the search was designed to obtain evidence against
the defendant — a point so obvious that the government does
not bother to dispute it.
In conclusion, all of the Ceccolini factors point toward
suppression of Ellison’s and Stewart’s testimony. With
Akridge’s conviction, the prosecution has successfully
managed to escape with the fruits of its poisonous search.
What the government could not admit directly because of its
flagrant constitutional violations, it has slipped through the
back door. I respectfully dissent.