United States v. Cordero-Rosario

United States Court of Appeals
For the First Circuit
No. 14-1007
UNITED STATES OF AMERICA,
Appellee,
v.
HILTON ALEXIS CORDERO-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpi, U.S. District Judge]
Before
Howard, Lipez, and Barron,
Circuit Judges.
José L. Nieto-Mingo, with whom Nieto Law Offices, José A.
Pagán, and Pagán Law Offices were on brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.
May 4, 2015
BARRON, Circuit Judge. This appeal concerns a district
court's decision to deny a sweeping motion to suppress evidence in
a federal child pornography prosecution. The defendant contends
that all of the evidence that he seeks to suppress may be traced to
two allegedly unconstitutional searches that the Puerto Rico police
carried out before he was even under suspicion on the federal
charges.
The defendant seeks first to suppress any evidence that
was acquired in those two searches. And we agree that, under the
established precedent of the Supreme Court and our Circuit, the
searches carried out by the Puerto Rico police did violate the
Fourth Amendment and that any evidence that the government wishes
to use that was acquired only from those searches must be
suppressed.
The more difficult issue concerns the defendant's attempt
to suppress the evidence that federal agents later acquired after
receiving the consent of the defendant's then-wife to examine
certain electronic devices taken from her and the defendant's home.
The defendant contends that this evidence also must be suppressed
because the federal agents initiated their investigation -- and
thus carried out the consent-based examinations -- only after the
Puerto Rico police supplied a tip that was premised solely on
information the Puerto Rico police acquired from the two prior
unlawful searches.
-2-
We have previously held that the taint from a prior
unconstitutional search may render evidence obtained from a
subsequent consent-based search illegal "fruits of the poisonous
tree" that must be suppressed. See United States v. Navedo–Colón,
996 F.2d 1337, 1338-39 (1st Cir. 1993). Unfortunately, however,
the record in this appeal contains little that would help us decide
whether such suppression is required here. The District Court made
no factual findings on the relationship between the searches the
Puerto Rico police conducted and the subsequent federal
investigation, which resulted in federal authorities obtaining the
consent of the defendant's then-wife. Instead, the District Court
ruled -- erroneously -- that the two searches the Puerto Rico
police carried out did not violate the Fourth Amendment. For that
reason, the District Court had no occasion to address whether those
unlawful searches taint the evidence federal authorities later
acquired pursuant to the consent the defendant's then-wife
provided.
The parties do appear to ask us to resolve this issue on
the basis of the record before us, notwithstanding its undeveloped
state. But because the issue is so fact dependent, we vacate and
remand so that the District Court may hold an evidentiary hearing
to determine whether the Puerto Rico police's prior searches so
tainted the evidence the federal agents later obtained pursuant to
the consent that the defendant's then-wife supplied that such
-3-
evidence must be suppressed. If the District Court determines
suppression is required, then the District Court also must
determine what specific evidence in fact must be suppressed in
consequence.
I.
On February 4, 2011, Agent Noel Ramos-Ortíz, an officer
in the Carolina Sexual Crimes Division of the Puerto Rico State
Police, filed an affidavit with the Puerto Rico Court of First
Instance. Agent Ramos filed the affidavit in support of his
request for a warrant to search the apartment of Hilton
Cordero-Rosario, the defendant in this case.1
The affidavit explained that Cordero was under
investigation for having committed lewd acts with a minor, in
violation of Puerto Rico law. See P.R. Laws Ann. tit. 33,
§ 4772(a). A Puerto Rico magistrate judge issued the warrant the
same day Agent Ramos submitted it, and Agent Ramos then conducted
a search of Cordero's apartment later that day. During that
search, the police seized a desktop computer and other electronic
equipment.
1
We glean the facts as best we can from the sparse record
before us and note that the defendant's motion to suppress and the
parties' appellate briefing purport to provide some factual insight
on the surrounding events. We emphasize, however, that under the
circumstances of this case the District Court should feel free to
explore fully the historical facts as it deems necessary.
-4-
Three weeks later, on February 25, 2011, and in
connection with the same criminal investigation, Agent Ramos filed
a second affidavit with the Court of First Instance. Agent Ramos
again sought a warrant to search Cordero's apartment. A magistrate
judge issued a warrant following this second request, and a search
of Cordero's apartment ensued on February 26, 2011. The police
conducted this second search in the presence of Cordero's
then-wife, D.M.C., but not Cordero himself. The police seized
various electronic devices not taken in the first search.
Following these searches, Agent Ramos's team determined
that the seized materials, including the desktop computer obtained
on February 4, contained images believed to be child pornography.
Puerto Rico police informed federal law enforcement officials in
Puerto Rico of what they had found.2
More than a month later, on April 11, 2011, after the
Puerto Rico police had informed federal authorities about the
images the Puerto Rico police had found, federal agents approached
D.M.C. and apparently asked for her assistance in their
investigation of her husband for federal child pornography
violations. D.M.C. consented to the federal agents' examination of
the family's desktop computer, which at that time was apparently
2
It is not clear, however, precisely how or when the Puerto
Rico police provided this information to federal authorities,
precisely who from the Puerto Rico police did so, or precisely what
was discussed.
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still in the custody of the Puerto Rico police. D.M.C. also agreed
to turn over other digital media in the home. Cordero was not
present during this meeting between federal agents and his then-
wife.
On the basis of the consent D.M.C. gave, federal law
enforcement agents on May 2, 2011, performed their own forensic
examination of the desktop computer. That examination revealed a
number of sexually explicit photographs of a minor female. The
minor depicted in these photographs was not the same minor female
whose complaint of lewd acts had precipitated the initial searches
of Cordero's apartment The government conducted interviews with
the minor who appeared in these images on May 12, 2011.
Then, on December 7, 2011, a federal grand jury in Puerto
Rico indicted the defendant for twenty counts of production of
child pornography (in violation of 18 U.S.C. § 2251(a)) and two
counts of possession of child pornography (in violation of 18
U.S.C. § 2252(a)(4)(B)). Cordero entered a plea of not guilty on
December 22, 2011. The grand jury then issued a superseding
indictment that alleged, in substance, the same charges.
Cordero did not immediately enter a plea under the
superseding indictment. Instead, on June 25, 2012, Cordero filed
a motion to suppress. In that motion, Cordero sought to suppress
"all the evidence that was obtained as a result of the execution of
both" the February 4 and February 25 search warrants, as well as
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the evidence that the federal agents had obtained pursuant to
D.M.C.'s consent to the examination of the desktop computer and the
other materials that she turned over to the federal agents.
According to Cordero's motion, the warrant affidavits
filed with the Puerto Rico Court of First Instance failed to
establish the probable cause necessary to support the two searches
of his apartment on February 4 and February 26, respectively.
Cordero also argued that these unlawful searches -- by leading to
the discovery of the images that initiated the federal child
pornography investigation -- required that all the evidence that
federal law enforcement later obtained be suppressed as "fruit of
the poisonous tree."
The District Court denied Cordero's motion to suppress.
In doing so, the District Court did not wait for the government's
response to Cordero's motion. Nor did the District Court hold an
evidentiary hearing, as Cordero had requested. Instead, the
District Court based its suppression ruling solely on the February
4 and February 25 affidavits. According to the District Court:
Agent Ramos-Ortiz's application for search warrant states
he is investigating a complaint regarding lewd and
lascivious acts committed against minor P.C.M., who
herself provided the information about the pornographic
material in the defendant's computer. While possession
of pornography in and of itself, may not be a state or
federal crime, here, the possession pertains to an
investigation of a sexual crime against a minor. The
fact that the application for a search warrant is not
drafted as elaborately as an FBI application does not do
away with probable cause.
-7-
Cordero and the government then reached a plea agreement.
Cordero pled guilty only to one of the two possession counts. That
count was based on the material found on the hard drive of the
desktop computer that the Puerto Rico police had seized on February
4 and that the federal authorities had later examined (with
D.M.C.'s consent) after their April 11 interview with D.M.C. In
return for Cordero's plea, the government agreed to allow Cordero
to reserve the right to appeal the District Court's decision
denying the motion to suppress.
Cordero now invokes that right. He contends that the
District Court erred not only in denying his suppression motion
outright, but also in not holding an evidentiary hearing on the
suppression issue.
II.
We begin with Cordero's most straightforward challenge,
in which he seeks to suppress the evidence that the Puerto Rico
police seized in the February 4 and February 26 searches. Cordero
contends that the affidavits the police presented in support of the
warrant requests were so lacking in the necessary indicia of
probable cause that no reasonable magistrate judge could have
issued a warrant based on those affidavits.
The government disagrees with Cordero, arguing that the
warrant affidavits were sufficient. But the government goes on to
argue that, even if the two warrant affidavits were insufficient,
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the District Court was still correct not to suppress this evidence.
And that is because, the government argues, the Puerto Rico police
acted in good faith in relying on the issued warrants, and, in any
event, the seized material would inevitably have been discovered
through independent lawful means. We start with the threshold
issue: whether the searches were conducted without probable cause.
A.
Under the Fourth Amendment, a law enforcement officer's
application for a search warrant must "demonstrate probable cause
to believe that . . . a crime has been committed," which is known
as the "commission" element of the required probable cause showing.
United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999); see also
United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999). In
addition, the application must "demonstrate probable cause to
believe that . . . enumerated evidence of the offense will be found
at the place to be searched," which is known as the "nexus"
element. Feliz, 182 F.3d at 86; see also Vigeant, 176 F.3d at 569.
Here, the defendant's challenge focuses on the nexus
element. In determining whether this element is satisfied, "[t]he
task of the issuing magistrate is . . . to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in
a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983).
-9-
With respect to how strong that showing must be, "the facts
presented to the magistrate need only 'warrant a reasonable man of
caution' to believe that evidence of a crime will be found."
Feliz, 182 F.3d at 86 (quoting Texas v. Brown, 460 U.S. 730, 742
(1983) (plurality opinion)). In conducting our review, moreover,
"we give significant deference to the magistrate judge's initial
evaluation, reversing only if we see no 'substantial basis' for
concluding that probable cause existed." United States v. Ribeiro,
397 F.3d 43, 48 (1st Cir. 2005) (quoting Feliz, 182 F.3d at 86).
To determine whether there was a substantial basis for
finding a nexus, it is important to identify at the outset the
crime under investigation. As the government rightly points out,
Cordero was not under investigation for federal offenses involving
the possession or production of child pornography at the time the
affidavits were filed. He was instead under investigation for
committing lewd acts against a minor in violation of Puerto Rico
law. Thus, the question that matters with respect to the adequacy
of the two affidavits is not (as Cordero at times contends in his
briefs) whether the affidavits supported a search for evidence of
the federal child pornography offense -- which the affidavits did
not purport to show. The question is whether the affidavits
provided a "'substantial basis' for concluding that probable cause
existed" that evidence of the crime of lewd and lascivious acts
under Puerto Rico law would be found. Id. Even with our focus
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trained solely on that question, however, we conclude that neither
affidavit provides enough supporting information on that issue.
Agent Ramos filed the first affidavit in support of a
search warrant in the case against Cordero on February 4, 2011.
That affidavit stated:
That on February 4, 2011, I was assigned the
complaint 2011-8-316-00841, on lewd actions.
I understand and conclude from the investigation
carried out by me in this case and in accordance with the
interview of the injured party P.C.M., minor, that in
apartment 2704 of Jardines de Parque Escorial in
Carolina, Puerto Rico, there is a desktop computer in
which there is pornographic material . . . .
According to the government, "because agents were . . .
investigat[ing] . . . accusations of lewd and lascivious acts
against a minor, there was a fair probability that any pornographic
material found in Cordero-Rosario's computer would constitute
evidence of a crime." Appellee Br. 18. Thus, the government
contends, the affidavit did all that it needed to do.
We do not agree. Cordero was not being investigated for
possession of illegal pornography. He was being investigated for
committing certain lewd acts. The affidavit, however, supplies no
basis for connecting the pornography that was the object of the
search to that particular offense, which, in its nature, does not
necessarily involve the use of pornography at all. In this regard,
the affidavit does not state at any point that the alleged lewd and
lascivious acts were carried out in a manner that involved the use
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of pornography, which is on its own legal to possess. In fact, the
affidavit says nothing at all about why the existence of otherwise
lawful pornography on a home desktop computer would be relevant to
this particular criminal investigation. Nor does the affidavit
state or even intimate that the "pornographic material" in question
involved the injured minor, or any minor at all. Cf. United States
v. Joubert, 778 F.3d 247, 253 (1st Cir. 2015) (upholding a search
based on an affidavit that more closely tied the evidence sought to
the alleged offense). And the government asks us, in assessing the
sufficiency of the predicate for both warrants, to look only within
their four corners and those of the attached affidavits.3
As the government conceded at argument, moreover, the
affidavit also does not state a fact that the District Court seems
to have assumed: that the minor who is alleged to have been the
victim of the crime told the police about the "pornographic
material" on the computer. Such a statement in the affidavit would
perhaps permit an inference that pornography had been used by the
defendant in the minor's presence in such a way as to be connected
3
After oral argument, the government filed a 28(j) letter
attaching two Puerto Rico court decisions examining the validity of
the warrant affidavits at issue in this case. The letter reports
that the decisions reference material beyond the face of the
affidavits in finding them supported by probable cause. We decline
to consider these belatedly offered materials, which the government
did not discuss or even reference before oral argument in this
case. See United States v. Barbour, 393 F.3d 82, 94 (1st Cir.
2004) (new issues ordinarily cannot be raised in 28(j) letters).
-12-
to the offense.4 But, again, the affidavit does not provide even
that much of a link between the evidence identified and the crime
being investigated. Instead, the affidavit simply states that
Agent Ramos's belief about what would be found in Cordero's
apartment is "in accordance with" his interview with the minor.
But an investigating officer's otherwise unsupported assertion that
evidence of criminal activity will turn up at a given place could
be "in accordance with" an interview even if the interviewee said
nothing at all about the material that the officer asserts to be
evidence of an offense.
The February 4 affidavit thus predicates its
representations about what would be found in Cordero's apartment --
and its relation to the criminal offense under investigation --
solely on Agent Ramos's assertion that, due to his "investigation,"
he is of the view that such material would be there and that it
would constitute "evidence of the offense." And while Agent Ramos
does relay that his investigation included his interview with the
"injured party," he offers no other supporting facts or details
about what he learned from that interview, and thus none that draw
the link between the object of the search -- the home computer
containing pornographic material -- and the offense itself.
4
But perhaps not. Even with such a direct statement about
what the minor had said, the affidavit would still not set forth
any facts directly to the effect that the pornography had in fact
been used in the crime.
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The affidavit, in other words, was conclusory as to all
the key points concerning nexus. And such a conclusory affidavit
is plainly not sufficient to establish the necessary probable
cause. Gates, 462 U.S. at 239 (noting that issuing a warrant
supported by "mere conclusory statement that gives the magistrate
virtually no basis at all for making a judgment regarding probable
cause" would be contrary to rights secured by the Fourth
Amendment); Spinelli v. United States, 393 U.S. 410, 418 (1969)
("[A] simple assertion of police suspicion is not itself a
sufficient basis for a magistrate's finding of probable cause."),
abrogated on other grounds by Gates, 462 U.S. 213; Nathanson v.
United States, 290 U.S. 41, 44-47 (1933) (affiant's statement that
"he has cause to suspect and does believe that" liquor illegally
brought into the United States was located on certain premises was
insufficient to support a finding of probable cause necessary for
the issuance of warrant); Vigeant, 176 F.3d at 569 (warrant
affidavit that contained "conclusory statements of the affiant
that," though they "might otherwise have helped create probable
cause," were "entirely without factual support" failed to support
probable cause).
The affidavit relating to the second search warrant is
even less detailed. This affidavit is thus even less capable of
establishing the needed probable cause.
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Filed on February 25, 2011, the second affidavit stated
only as follows:
That as part of the investigation of complaint
2011-8-316-00841, on lewd actions and pornography, on
February 4, 2011, I carried out a Search Warrant, issued
by the Honorable Judge Madeline Vega, against the
residence located in apartment 2704 of the complex
Jardines del Parque Escorial, in Carolina, where I seized
a grey desk top computer tower with clear lid on one of
its sides, brand Gigabyte, serial number
24ZFS-CA1ATS-01R.
Continuing the course of this investigation, we
understand that there is important evidence in said
residence that was not obtained in the first search,
whereby we very respectfully request this Honorable Court
to issue a Search and/or Seizure Warrant against the
above-captioned residence indicated in the caption and in
the content of this Sworn Statement, in all its
dependencies and/or inside levels, in search of [various
digital devices].
Other than informing the magistrate judge that Cordero
was under investigation and that Cordero's apartment had previously
been searched, this affidavit provided only the bare assertion that
"important evidence" would be found in the stated location. And
the affidavit made that assertion without identifying any
foundation for that belief or offering any clue as to what the
"important evidence" might be.
In other words, the affidavit told the magistrate judge
nothing more than that there was an ongoing investigation of the
person whose premises were to be searched, that the premises had
been searched before, and that the police believed something of
importance would be found if the place were searched again. The
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authority we have already cited, establishing that conclusory
assertions in an affidavit from law enforcement cannot supply the
kind of probable cause needed to secure a warrant, suffices to
demonstrate the constitutional inadequacy of this second warrant
affidavit as well.
B.
The government responds that, "even assuming arguendo
that the evidence was seized pursuant to an invalid warrant," the
police still acted in good faith in relying on the warrants the
Puerto Rico magistrate judge had issued. Appellee Br. 20-21.
Under this "good faith" exception to the exclusionary rule -- the
applicability of which we review de novo,5 see United States v.
McMullin, 568 F.3d 1, 5 (1st Cir. 2009) -- the evidence from an
illegal search need not be suppressed if the police officer who
conducted the search "acted in objectively reasonable reliance on
a search warrant, issued by a neutral and detached Magistrate, that
later was determined to be invalid." Arizona v. Evans, 514 U.S. 1,
11 (1995); see also United States v. Leon, 468 U.S. 897, 919-20
(1984) ("[W]here the officer's conduct is objectively reasonable,
'excluding the evidence will not further the ends of the
exclusionary rule in any appreciable way'" (quoting Stone v.
Powell, 428 U.S. 465, 539-40 (1976) (White, J., dissenting))).
5
Because it found both warrants supported by probable cause,
the District Court did not reach the issue of whether the good
faith doctrine applied.
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Here, however, Agent Ramos was relying on warrants that
were constitutionally inadequate because of his own failure to
provide the facts in the affidavits that could have supported their
issuance. And, again, the government does not ask us to look
outside the four corners of the warrants and the attached
affidavits. We thus do not see how, on this record, the good faith
doctrine may permit an exception to the exclusionary rule.
From all that we can tell, Agent Ramos sought the warrant
solely on the basis of his own conclusory assertions. And those
assertions, we add, do not even assert a nexus between the object
of the search and the crime under investigation, let alone provide
enough facts to establish probable cause to believe such a nexus
existed. In such circumstances, the police cannot be said to be
acting reasonably in then relying on a warrant that reflects those
very same glaring deficiencies. See Leon, 468 U.S. at 899 ("Nor
would an officer manifest objective good faith in relying on a
warrant based on an affidavit so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable."); United States v. Owens, 167 F.3d 739, 745 (1st
Cir. 1999) (similar). And that is especially so when the
deficiencies arise from the failure of the agent conducting the
search to provide the required supporting information in the
affidavit. See 1 Wayne R. LaFave, Search And Seizure: A Treatise
On The Fourth Amendment § 1.3(f), at 91 (5th ed. 2012) (Leon does
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"not allow law enforcement authorities to rely on an error of their
own making" (citation omitted)); see also United States v.
Fuccillo, 808 F.2d 173, 178 (1st Cir. 1987) ("good faith" exception
not applicable where police "were reckless in not including in the
affidavit information which was known or easily accessible to
them"). The good faith exception to the exclusionary rule thus
does not apply in this case.
C.
That brings us to the government's final argument for why
the evidence obtained in the searches conducted by the Puerto Rico
police should not be suppressed. Under the so-called inevitable
discovery doctrine, the exclusionary rule does not bar the use of
unlawfully obtained evidence in "any case in which the prosecution
can show by a preponderance of the evidence that the government
would have discovered the challenged evidence even had the
constitutional violation to which the defendant objects never
occurred." United States v. Scott, 270 F.3d 30, 42 (1st Cir.
2001).
The government argues it was inevitable that law
enforcement eventually would lawfully have discovered the images of
child pornography found on Cordero's home computer. To make this
argument, the government contends that the police would have
inevitably discovered the material at issue in this case "in
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searching the computer located in [Cordero]'s home." Appellee Br.
19.
That may well be true -- if, that is, the Puerto Rico
police or the federal agents would have possessed the computer at
all. But with regard to why it was inevitable that, even absent
the Puerto Rico police's unconstitutional searches, the computer
would have been acquired, the government makes no argument. Yet it
is that explanation that the government must supply if it wishes to
rely on the inevitable discovery doctrine here, as it is the
computer that was obtained on the basis of an insufficiently
supported warrant.
This case is therefore distinguishable from United States
v. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), on which the
government relies for its inevitable discovery argument. In
Crespo-Ríos, it was "not disputed" that there existed probable
cause to support the search of the defendant's computer. 645 F.3d
at 42-43. Here, by contrast, the warrants on which the Puerto Rico
police relied in acquiring the computer were legally deficient.
Accordingly, we have no basis for concluding that the government
can meet its burden of satisfying the inevitable discovery test.
See United States v. Infante-Ruiz, 13 F.3d 498, 503 (1st Cir. 1994)
(rejecting an inevitable discovery argument where the government
had not shown that, absent the Fourth Amendment violation, "the
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officer could have taken 'legitimate custody'" of the vehicle in
which the evidence was found).
D.
As a result of the foregoing analysis, we hold that the
Puerto Rico police's February 4 and February 26 searches were
undertaken in violation of the Fourth Amendment and that no
exception to the exclusionary rule applies to evidence that was
obtained only during those two searches. Much of the evidence
against Cordero, however, including the evidence specifically
described in his conditional plea agreement, was found in a
"subsequent forensic examination" after federal agents became
involved in the case. We thus must consider whether the federal
agents' investigatory efforts provide a separate basis for the use
of such evidence against Cordero. And that brings us to Cordero's
final contention.
III.
In seeking to suppress all of the evidence that the
federal agents obtained pursuant to the examination of the home
computer and the other electronic devices that his then-wife
permitted the authorities to examine, Cordero offers two distinct
arguments. We now consider those arguments in turn.6
6
In challenging the effectiveness of D.M.C.'s consent for
purposes of introducing the evidence to which it led, Cordero does
not contest in this appeal that D.M.C.'s consent was voluntary.
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A.
Cordero's first argument is that his then-wife's consent
did not suffice to permit the federal authorities' search because
the federal authorities neither sought nor received consent from
Cordero himself. In making this argument, Cordero recognizes that
D.M.C., as his wife at the time, "possesse[d] common authority over
[their] . . . effects" and was thus capable of consenting to a
search of such items. See Georgia v. Randolph, 547 U.S. 103, 108
(2006) (quoting United States v. Matlock, 415 U.S. 164, 170
(1974)). In general, "when the prosecution seeks to justify a
warrantless search by proof of voluntary consent, it is not limited
to proof that consent was given by the defendant." Matlock, 415
U.S. at 171. Instead, "the consent of one who possesses common
authority over premises or effects" generally "is valid as against
the absent, nonconsenting person with whom that authority is
shared." Id.; see also id. at 169-77 (allowing admission of
evidence found in a diaper bag in a bedroom closet following a
search conducted pursuant to the consent of one with common
authority over the bedroom).
This rule follows because, as the Supreme Court has
explained, common authority "rests . . . on mutual use of the
property by persons generally having joint access or control for
most purposes." Id. at 171 n.7. In consequence, it is "reasonable
to recognize that any of the co-inhabitants has the right to permit
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the inspection in his own right and that the others have assumed
the risk that one of their number might permit the common area to
be searched." Id.
But Cordero contends that even though D.M.C. apparently
had "common authority" over the computer and other electronic
devices that the federal authorities examined, his then-wife's
consent still could not substitute for his own because he "was free
on bail and available at that time." Appellant Br. 48. Cordero
thus argues that the evidence the federal authorities obtained
pursuant to D.M.C.'s consent must be suppressed because, on the
facts of this case, her consent was no substitute for his.
But this is not the law. Under Georgia v. Randolph, "if
a potential defendant with self-interest in objecting is in fact at
the door and objects, the co-tenant's permission does not suffice
for a reasonable search." 547 U.S. at 121. By contrast, "the
potential objector, nearby but not invited to take part in the
threshold colloquy, loses out." Id.
Cordero does argue that federal agents, by going directly
to D.M.C. when he was not present, effectively did an end run
around Randolph. That is because, Cordero implies, the federal
agents knew that he would have refused to give consent if asked,
and thus they avoided asking.
But the Supreme Court made clear in Randolph that even if
a defendant were nearby and available to give consent, the
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authorities were entitled to seek out the consent of his wife, as
she had common authority. See id. at 121-22. And further, the
Supreme Court made clear after Randolph that law enforcement
authorities may pursue this same approach even when the nearby
potential objector has previously declined to give consent. See
Fernandez v. California, 134 S. Ct. 1126, 1133-34 (2014) (noting
that Justice Breyer provided the "decisive" fifth vote for the
majority in Randolph, and stressing that the Court's opinion in
Randolph "went to great lengths to make clear that its holding was
limited to situations in which the objecting occupant is present");
see also Randolph, 547 U.S. at 126 (Breyer, J., concurring) ("The
Court's opinion does not apply where the objector is not present
'and object[ing].'" (quoting Randolph, 547 U.S. at 121 (majority
opinion))). Thus, Cordero's mere availability -- and asserted
inclination to object to a search if asked -- provides no basis for
not giving effect to his then-wife's actual consent.
B.
Cordero's second ground for arguing that the evidence
obtained pursuant to D.M.C.'s consent must be suppressed has more
force. According to Cordero, the federal government sought to
obtain his then-wife's consent only due to a tip from Puerto Rico
police that was itself the result of the Puerto Rico police's prior
unlawful searches. Cordero thus contends that the evidence federal
authorities obtained pursuant to the consent-based examinations was
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necessarily "tainted" by the earlier unlawful searches that the
Puerto Rico police conducted. And, for that reason, Cordero
argues, all such evidence must be suppressed as illegal "fruits" of
those prior unconstitutional searches.
In general, "[t]he indirect fruits of an illegal search
or arrest should be suppressed when they bear a sufficiently close
relationship to the underlying illegality." United States v.
Camacho, 661 F.3d 718, 729 (1st Cir. 2011) (quoting New York v.
Harris, 495 U.S. 14, 19 (1990)). By contrast, "[s]uppression is
not appropriate . . . if 'the connection between the illegal police
conduct and the discovery and seizure of the evidence is so
attenuated as to dissipate the taint.'" Id. (quoting Segura v.
United States, 468 U.S. 796, 805 (1984)).
"The notion of the 'dissipation of the taint' attempts to
mark the point at which the detrimental consequences of illegal
police action become so attenuated that the deterrent effect of the
exclusionary rule no longer justifies its cost." Brown v.
Illinois, 422 U.S. 590, 609 (1975) (Powell, J. concurring); see
also Segura, 468 U.S. at 804 (explaining that the exclusionary rule
"'extends as well to the indirect as the direct products' of
unconstitutional conduct" (quoting Wong Sun v. United States, 371
U.S. 471, 484 (1963))). In a similar vein, the Supreme Court has
suggested that the key inquiry in cases seeking to suppress the
indirect fruits of prior illegal law enforcement conduct concerns
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"whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint." Wong Sun, 371
U.S. at 488 (quoting John MacArthur Maguire, Evidence of Guilt 221
(1959)).
The classic case presenting this type of issue arises
after a defendant seeks to suppress his confession on the ground
that he made it following some prior unlawful search or seizure.
See, e.g., Harris, 495 U.S. at 16-17 (defendant made an inculpatory
statement at a police station after the police had violated the
Fourth Amendment by entering the defendant's home without a warrant
and without his consent); Brown, 422 U.S. at 592 (defendant made
inculpatory statements after being arrested without probable cause
or warrant). And, in such a case, a number of considerations are
ordinarily relevant to the taint inquiry -- namely, (1) the time
that elapsed between the underlying illegality and the later
acquisition of the evidence at issue; (2) the presence or absence
of intervening circumstances between those points in time; and (3)
the purpose and flagrancy of the official misconduct in question.
Brown, 422 U.S. at 603-04; accord Camacho, 661 F.3d at 729.
In our case, the federal authorities obtained the digital
evidence against Cordero following the consent of his then-wife to
examine various electronic devices taken from his home. According
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to the government, the fact that the federal agents' examination of
the electronic devices was premised on the then-wife's voluntary
consent effectively immunizes from suppression the evidence they
obtained as a result.
We disagree. In United States v. Navedo–Colón, we held
that courts must determine whether the causal link between a prior
unlawful search and consent (voluntary though it may have been) to
a subsequent search is so tight that the evidence acquired pursuant
to that consent must be suppressed.7 996 F.2d at 1339. Indeed, we
emphasized the importance of determining whether the prior
illegality "significantly influenced" or "played a significant
role" in the subsequent consent. Navedo-Colón, 996 F.2d at 1339;
see also United States v. Maldonado-Espinosa, 968 F.2d 101, 103-04
7
That holding is in accordance with the views of nearly all
the other Circuits. See, e.g., United States v. Murphy, 703 F.3d
182, 190 (2d Cir. 2012); United States v. Hill, 649 F.3d 258, 268-
70 (4th Cir. 2011); United States v. Meece, 580 F.3d 616, 619-20
(7th Cir. 2009); United States v. Alvarez-Manzo, 570 F.3d 1070,
1077 (8th Cir. 2009); United States v. Jaquez, 421 F.3d 338, 341-42
(5th Cir. 2005); United States v. Washington, 387 F.3d 1060, 1072-
73 & n.12 (9th Cir. 2004); United States v. Chanthasouxat, 342 F.3d
1271, 1280-81 (11th Cir. 2003). And, so far as we are aware, even
the Tenth Circuit -- which previously had decided that
"'voluntariness' for Fourth Amendment consent satisfies the Wong
Sun standards," United States v. Carson, 793 F.2d 1141, 1150 (10th
Cir. 1986) -- now analyzes this issue as we do. See United States
v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994) (noting
that Carson misstated the law of that Circuit, and "reiterat[ing]
that not only must the government show that consent is voluntary in
fact, but it must also demonstrate a break in the causal connection
between the illegality and the consent"); see also, e.g., United
States v. Fox, 600 F.3d 1253, 1257 (10th Cir. 2010) (relying on and
applying Melendez-Garcia's framework for analyzing this issue).
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(1st Cir. 1992); United States v. Race, 529 F.2d 12, 15 (1st Cir.
1976). Of course, here, unlike in Navedo–Colón, the defendant is
seeking to suppress evidence obtained pursuant to consent supplied
not by himself but by a third party -- namely, the defendant's
then-wife, D.M.C. See Navedo-Colón, 996 F.2d at 1338. But the
fact that the prior unlawful searches by the Puerto Rico police led
the federal authorities to a third party who then consented does
not in and of itself show that the taint and exploitation concern
simply disappears from view, as our decision in United States v.
Finucan, 708 F.2d 838 (1st Cir. 1983), shows.
There, the defendants -- a bookkeeper at a used car
dealership and the dealership's owner, respectively -- sought to
suppress (among other things) evidence obtained from interviews the
authorities conducted with other car dealers. Finucan, 708 F.2d at
840-41. Those interviews took place only after the authorities
conducted a previous unlawful search of one of the defendants'
homes. Id. at 841-43. In arguing against the suppression of the
evidence obtained from the interviews, the government claimed that
the Supreme Court's decision in United States v. Ceccolini, 435
U.S. 268 (1978), "precludes suppression of documentary evidence
later acquired from the dealer interviews," because "the Court in
Ceccolini declined to treat a witness's voluntary testimony as
derivative of an illegal search or seizure." Finucan, 708 F.2d at
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843; see also Ceccolini, 435 U.S. at 277-88. But we rejected that
contention.
We explained that Ceccolini "stress[ed] our adversary
system's preference for live testimony," a factor not presented by
a case seeking "not rejection of live testimony but rather
suppression of documents obtained from third parties." Finucan,
708 F.2d at 843; see also United States v. Hughes, 279 F.3d 86, 89
(1st Cir. 2002) (explaining that the Supreme Court "has been
especially reluctant to suppress . . . fruits where they are not
objects or documents but live witnesses who could testify
voluntarily and cast light on a range of issues"). And thus, we
explained, although "the intervening role of third parties should
be considered in determining whether documentary evidence was
discovered independently of an illegal search or seizure, it is but
one of the factors to be weighed."8 Finucan, 708 F.2d at 843-44
(citation omitted).
8
Although we did not make the point in Finucan, even
Ceccolini declined to accept the government's invitation to adopt
what amounted to "a per se rule that the testimony of a live
witness should not be excluded at trial no matter how close and
proximate the connection between it and a violation of the Fourth
Amendment." Ceccolini, 435 U.S. at 274-75. The Court instead
explained that although in some cases "the illegality which led to
the discovery" of the third party who agreed to testify at the
defendant's trial may "not play any meaningful part in the witness'
willingness" to appear, that might not always be the case. Id. at
277. Ceccolini thus examined what role the illegal searches that
had been conducted by the local police in that case played in
leading the federal authorities to the witness whose testimony the
defendant sought to exclude. See id. at 273-80.
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Among the factors we deemed relevant to the suppression
issue in Finucan was whether, "[a]bsent the illegal search, the
investigators [would] have known the identity of all of the third
parties [or] what to ask them." Id. at 844. In that regard, we
considered whether "the government anticipated that the illegal
search would help lead it to the other dealers and documents," and
whether "the third parties would have come forward on their own had
the investigators not sought them out." Id.
With this precedent in place, the success of Cordero's
suppression motion turns on whether the evidence obtained pursuant
to D.M.C.'s voluntary consent was tainted by the prior unlawful
searches by the Puerto Rico police. But that inquiry, as we have
previously said, is necessarily highly fact dependent and
"amorphous." Hughes, 279 F.3d at 89. The relevant considerations
might include the ones we focused on in Finucan, as well as the
three factors Brown articulated, which courts have applied in cases
involving motions to suppress allegedly tainted evidence acquired
pursuant to third parties granting consent to searches. See, e.g.,
United States v. Hill, 649 F.3d 258, 267-68 (4th Cir. 2011); see
also State v. Lane, 726 N.W.2d 371, 380-92 (Iowa 2007) (discussing
numerous considerations in addition to the Brown factors in fruit
of the poisonous tree case involving third-party consent).
Balancing these factors will illuminate the extent of attenuation
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in this case, and, along with it, the deterrence value of excluding
evidence derived from D.M.C.'s consent.
Because the inquiry "require[s] the particular
circumstances of [the] case to drive the analysis," Lane, 726
N.W.2d at 383, we decline to undertake it now. The District Court
never considered any of the relevant factors -- or made findings
with respect to them -- for the simple reason that it held that the
searches by the Puerto Rico police did not violate the Fourth
Amendment. Thus, we lack sufficient information to determine
whether D.M.C.'s consent was obtained by exploitation of the
underlying illegality. As those are facts that may be discernible
in an evidentiary hearing, we thus vacate and remand so the
District Court in the first instance may consider the factors that
Brown and Finucan identify.
IV.
For the foregoing reasons, we vacate the District Court's
suppression ruling. On remand, if the District Court should find
that the Puerto Rico police's unlawful searches did not taint the
federal authorities' consent-based search, then the District Court
must decide which, if any, of the government's evidence stemmed
solely from the Puerto Rico police's searches. If, however, the
District Court should decide the taint issue in Cordero's favor,
then the District Court must decide which, if any, evidence the
government seeks to introduce must be suppressed in consequence of
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that tainted relationship. But given that those are issues about
which we lack sufficient facts to determine, the District Court
should only decide them following an evidentiary hearing on the
matter.
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