United States v. Thomas Glen Hill

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17005 ELEVENTH CIRCUIT
JULY 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00375-CR-1-WSD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS GLEN HILL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 23, 2009)
Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Thomas Glen Hill appeals his conviction for receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2). Hill argues that the district
court erred in denying his motions to suppress evidence unlawfully seized from his
residence. Specifically, Hill claims that police officers unlawfully entered his
residence based on information from firefighters responding to a residential fire at
his home who observed child pornographic images on his computer. Additionally,
Hill argues that his arrest was not supported by probable cause and, therefore, his
post-arrest statements, given almost four hours after he was arrested, should have
also been suppressed as fruit of the poisonous tree.
I.
A ruling on a motion to suppress presents “a mixed question of law and
fact.” United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008) (quoting United
States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003)). We accept the district
court’s factual findings unless they are clearly erroneous, construing all facts in the
light most favorable to the prevailing party below. Id. The district court’s
application of the law to the facts is reviewed de novo. Id.The Fourth Amendment “protects the citizen against invasion of privacy.”
United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977). “[T]he Fourth
Amendment has drawn a firm line at the entrance to the house. Absent exigent
circumstances, that threshold may not reasonably be crossed without a warrant.”
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Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639(1980); see also United States v. McGough, 412 F.3d 1232, 1237 (11th Cir. 2005)
(holding that searches and seizures inside a home without a warrant are
presumptively unreasonable). The salvage procedure used by the firefighters here
clearly qualifies as a search within the Fourth Amendment, even if not conducted
by law enforcement officers. United States v. Parr, 716 F.2d 796, 811 (11th Cir.
1983) (“salvage and overhaul” involved looking for spot fires to insure all are
extinguished, for information revealing the identity of the owner, and for
salvageable valuables in order to protect them).
A warrantless search of a home may be justified, however, “where both
probable cause and exigent circumstances exist.” United States v. Davis, 313 F.3d
1300, 1302 (11th Cir. 2002). The exception applies only if the police reasonably
believe that an emergency situation justified warrantless action. United States v.
Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002). The government bears the
burden of proving an exception to the warrant requirement. Id.A burning residence clearly presents an exigent circumstance, and
firefighters are charged with extinguishing the fire, protecting valuables from fire,
and also determining the cause of the fire. Parr, 716 F.2d at 811-12. The Supreme
Court “imposed the warrant requirement on all searches undertaken to investigate
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the cause of the fire, excepting only those where the officials ‘remain in a building
for a reasonable time to investigate the cause of a blaze after it is extinguished.’”
Id. at 812 (quoting Michigan v. Tyler, 436 U.S. 499, 510, 98 S. Ct. 1942, 1950, 56
L. Ed. 2d 486 (1978)). Searches conducted after the initial entry must be within
the scope of the exigency justifying the original warrantless entry to extinguish the
fire, which serves two interests, (1) preventing fires and (2) discovering evidence
of criminal activity related to the cause of the fire. Id. at 812, 813 n.19 (noting
that, in Tyler, a reasonable time was a “few hours,” and primarily focusing on the
purpose, rather than the temporal connection, between the subsequent warrantless
searches and the initial exigency).
Consequently, although we have held that, once one official has intruded a
citizen’s residence legally, additional officials may also enter, even though the
exigent circumstances justifying the initial entry no longer exist, see United States
v. Schuster, 684 F.2d 744, 748 (11th Cir. 1982), the subsequent entries must be
within the scope of the initial entry. Parr, 716 F.2d at 813. Where subsequent
searches exceed the scope of the exigency, a warrant must be obtained. Id.; see
also Brand, 556 F.2d at 1317 n. 9 (holding that an officer entering a home under
the exigent circumstances exception may not search the premises beyond the scope
justified by the emergency without obtaining a warrant). While validly on the
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property in response to an emergency situation, officers are authorized to seize any
evidence found in plain view. See Holloway, 290 F.3d at 1340.
However, if evidence is seized after an illegal search, it should be suppressed
as the “fruit of the poisonous tree.” Davis, 313 F.3d at 1302-03 (citation omitted).
“Although its purpose is to prevent lawless conduct by law enforcement officials,
the exclusionary rule is not to be ‘interpreted to proscribe the use of illegally seized
evidence in all proceedings or against all persons.’” Parker v. Allen, 565 F.3d
1258, 1290 (11th Cir. 2009) (quoting Brown v. Illinois, 422 U.S. 590, 600, 95 S.
Ct. 2254, 2260, 45 L. Ed. 2d 416 (1975)). In determining whether evidence is
“fruit of the poisonous tree” and, therefore, must be excluded, the relevant question
is whether the evidence was obtained “by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.” United
States v. Delancy, 502 F.3d 1297, 1309 (11th Cir. 2007) (quoting Wong Sun v.
United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963)). The
government may “purge the taint” by establishing that the evidence in question
was seized pursuant to an independent source. Davis, 313 F.3d at 1303. Under the
“independent source” doctrine, the challenged evidence is admissible if it was
obtained from a lawful source, independent of the illegal conduct, provided that the
law enforcement officer’s decision to seek the warrant was not prompted by the
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information gained during the illegal search. United States v. Chaves, 169 F.3d
687, 692-93 (11th Cir. 1999).
Since the warrant affidavit contains hearsay, it is necessary to evaluate if the
affidavit presented sufficient facts which allow the magistrate to determine
independently whether probable cause existed. A warrant affidavit may be based
on hearsay information, so long as the magistrate was informed of (1) the
underlying circumstances that the informant relied on to conclude that some
criminal activity was taking, or had taken, place, and (2) some facts that
established the probable credibility of the informant or the reliability of his
information. United States v. Martin, 615 F.2d 318, 323 (5th Cir. 1980).
Additionally, the warrant affidavit must demonstrate: (1) a connection between the
defendant and the location to be searched; (2) a link between the location and
criminal activity; and (3) the informant’s veracity and basis of knowledge. United
States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002); see also United States v.
Brundidge,170 F.3d 1350, 1352-53 (11th Cir. 1999) (holding that “veracity” and
“basis of knowledge” are considered in the totality of the circumstances analysis
and “a deficiency in one may be compensated for . . . by a strong showing as to the
other”) (citation omitted).
Here, it is undisputed that firefighters and police officers entered Hill’s
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home without a warrant. Hill does not dispute that the initial entries into his home
by firefighters were lawful, as they were responding to an emergency. Even if we
assume, arguendo, that subsequent entries in the interim were illegal because there
was no exigent circumstance to justify these entries and they exceeded the scope of
the initial entry, a lawful search was later conducted pursuant to a valid search
warrant. Although the search warrant was based on hearsay, the hearsay was based
on the personal and reliable observations of firefighters who, while lawfully in
Hill’s residence, observed the child pornographic images in plain view. The
magistrate was informed of the underlying circumstances that firefighters relied on
to conclude that some criminal activity was taking, or had taken, place.
Consequently, we conclude that the warrant affidavit established probable cause
that a search would uncover evidence of a crime, and there is nothing in the record
that suggests that the police officers sought the warrant because of what they saw
during any unauthorized entry into Hill’s home. Accordingly, we hold that the
district court properly denied Hill’s motion to suppress physical evidence.
II.
“[T]he Fourth Amendment permits warrantless arrests in public places
where an officer has probable cause to believe that a felony has occurred.” United
States v. Goddard, 312 F.3d 1360, 1362-63 (11th Cir. 2002) (quotation omitted).
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Probable cause exists when “the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.” United States v.
Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005) (quotation omitted). “For probable
cause to exist, an arrest must be objectively reasonable based on the totality of the
circumstances.” United States v. Street, 472 F.3d 1298, 1305 (11th Cir. 2006)
(quotation and ellipsis omitted). As such, the officer’s own subjective opinions or
beliefs about probable cause are irrelevant. Id. “Because sufficient probability,
not certainty, is the touchstone of reasonableness under the Fourth Amendment,
probable cause itself is a doctrine of reasonable probability and not certainty."
Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997) (addressing a federal
habeas petition filed pursuant to 28 U.S.C. § 2254) (internal quotations and citation
omitted).
In determining whether statements are tainted by a prior violation of
constitutional rights, we ask whether, “granting establishment of the primary
illegality, the [statements] . . . [were derived] by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint.”
United States v. Lopez-Garcia, 565 F.3d 1306, 1315 (11th Cir. 2009) (citation
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omitted). “This inquiry is fact-sensitive, and no single fact is decisive.” Id.However, we have listed three non-exclusive factors to guide the inquiry into
whether a defendant’s statements were tainted by his illegal arrest: “[1] the
temporal proximity of the seizure and the consent, [2] the presence of intervening
circumstances, and, particularly, [3] the purpose and flagrancy of the official
misconduct.” Id. (citation omitted).
Here, the record evidence demonstrates that probable cause for Hill’s arrest
was established prior to the warrantless entry of his home by law enforcement
officers, as the firefighter’s information was “reasonably trustworthy” and would
have caused a “prudent person” to believe that Hill was committing a felony.
Based on the eyewitness information provided by the firefighter and the
unlikelihood that he would have lied about observing child pornography, the
arresting officer had sufficient reason to believe that Hill had committed a crime.
Even if we assume, arguendo, that Hill’s arrest was tainted by the officer’s
arguably illegal entry into Hill’s home in the interim, which led to the officer’s
plain view observation of child pornography, we nevertheless conclude that Hill’s
statements were too removed from the arrest to have suffered any taint. First, the
temporal proximity between Hill’s confession and his arrest was limited, as he
provided statements to detectives almost four hours after being arrested. Second,
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different law enforcement officers conducted Hill’s arrest and questioning. Third,
there is no evidence of any flagrant behavior during Hill’s interrogation or that he
was coerced, intimidated, or tricked in any way. Moreover, police officers read
Hill his Miranda1 rights, he indicated that he understood them, and he validly
waived them before providing incriminating statements. Thus, even if the
underlying arrest violated Hill’s Fourth Amendment rights, there is no basis for
concluding that the allegedly illegal arrest tainted the statements he provided to law
enforcement officers regarding his possession of child pornography. Accordingly,
we affirm Hill’s conviction.
AFFIRMED.
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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