Confessions after Illegal Search Should be Suppressed if Influenced by Underlying Illegality, Violation of Forth Amendment
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
There are primarily two types of unlawful confessions: custodial confessions obtained in violation of the Fifth Amendment and confessions obtained as products of an illegal search in violation of the Fourth Amendment. The Ninth Circuit Court of Appeals had a recent opportunity in United States v. Shetler to address the latter.
Scott Raymond Shetler was a meth addict/dealer in Pomona, California in September 2009. His drug activities became so obvious that his daughter Jamie anonymously tipped off the Pomona Police Department that her father was using and manufacturing methamphetamine in his residence. Acting on this tip, three police officers arrived at the Shetler residence at 8:00 p.m. on September 22. They noticed a garage door was wide open and one officer detected a “chemical odor” coming from the garage. Standing outside, the three officers saw numerous boxes, motorcycle parts and other equipment in the garage. A partition wall concealed the back portion of the garage from frontal view. The Ninth Circuit explained what happened next:
“The officers entered the garage and conducted visual sweep to determine if there was an in-operation methamphetamine lab or a person behind the partition wall. They did not find anyone inside the garage or any evidence that methamphetamine was being cooked. The officers did, however, observe the following items in plain view behind the partition wall: a can of acetone, a duffel bag containing several plastic and glass beakers, and a jug that appeared to contain red phosphorus, a chemical that the officers knew to be related to the production of methamphetamine.
“At approximately 8:15 p.m., the officers left the garage and knocked on the front door of the house. Shetler exited the house from a side door and approached the officers, who handcuffed and detained him. By this point, several additional police officers had arrived. The police then called into the house to Shetler’s girlfriend, Cynthia Marohn, and her daughter, both of whom lived with Shetler. Marohn and her daughter stepped outside, and several officers immediately entered the residence and conducted a sweep. After completing this search of the house, several officers stayed inside the house, near the front door and in view of Marohn, who remained outside. At 8:5 p.m., while officers were still inside the residence, Marohn signed a consent form that authorized the police to enter the premises and search for ‘methamphetamine, methamphetamine cooking and packaging material, [and] weapons.’”
And this is where things got constitutionally sticky. The Pomona police had commenced the search of Shetler’s residence as well as the garage when DEA agents arrived at 9:00 p.m., and donned in protective garb, they took control of the situation with a more thorough search of the residence. The DEA search was more productive. By midnight, the federal agents “had uncovered a number of items associated with methamphetamine production, including acetone, iodine and iodine pellets, hydriatic acid, muriatic acid, Drano, Heet, flasks with residue, empty bottles of lighter fluid, a water bottle with white residue, a yellow bi-layered liquid, a red powder they suspected to be ground up pseudoephedrine, and a hot plate. Inside the house, the police recovered a number of firearms, along with additional items consistent with methamphetamine use.”
While these protracted state and federal searches were being conducted, Shetler was detained outside the residence but in view of the searches. A DEA agent at 1:30 a.m. approached Shetler and read him his Miranda rights. Shetler promptly confessed to manufacturing methamphetamine in his garage. Shetler was then taken to the Pomona Police Department where he was detained for two days at which time a DEA agent arrived and took custody of him. Shetler was once again read his Miranda rights. The agent then escorted Shetler to his residence where he was questioned by the agent about a weapon not discovered in the earlier searches. Shetler told the agent the “handgun” was concealed in a tool box located in the back of the garage. Shetler signed a consent form authorizing the agent to enter the garage and retrieve the weapon. Shetler was then escorted to the DEA office.
Three hours after the DEA had taken custody of Shetler at the Pomona Police Department, Shetler was once again read his Miranda rights. This time four DEA agents interrogated Shetler who made “multiple statements regarding his methamphetamine use and production, along with statements regarding the firearms and ammunition in his possession.” Significantly, Shetler had not had any contact with an attorney before making these statements, even though he had been in continuous detention since his arrest.
Shetler was subsequently indicted for maintaining a “drug-involved premises” and “knowingly possessing a firearm in furtherance of a drug trafficking crime.”
Prior to trial Shetler moved to suppress: 1) the initial searches of his house/garage; 2) the subsequent search for the firearm; and 3) all the statements made on the night of arrest and during subsequent interrogation with DEA agents. The trial court issued a mixed ruling: it found the initial search of the garage was justified because of “exigent circumstances” but the initial sweep of the house did not fall within any of the “exceptions applicable to the garage, and was therefore illegal.” The evidence thus removed from the garage was inadmissible.
Further, the trial court found that Marohn’s “consent” to search was “tainted” because the police sought and obtained it after they were inside the house and had completed their illegal search. Because the Marohn consent was deemed invalid, the court ruled all subsequent searches of the residence were illegal and any evidence seized during those searches (including the firearm seized by the DEA agent) had to be suppressed. The trial court, however, found the statements Shetler made to the DEA agents on the night of his arrest and during the subsequent office interrogation were admissible because they were “’sufficiently the product of the initial legal search of the garage’.”
Shetler was convicted, almost assuredly because of the confessions given to the DEA agents. He appealed to the Ninth Circuit, contending that all the statements he made post-arrest to the DEA agents should have been suppressed under the Fourth Amendment’s exclusionary rule—a rule that prohibits the prosecution from using any evidence at trial which is obtained through an illegal search. However, this rule is narrow. The U.S. Supreme Court has long held, and reinforced its position just last year in Davis v. United States, that the rule itself is not a “personal constitutional right” but rather serves “the underlying personal right to be free from unreasonable searches and seizures.” The rule was established, and continues to be maintained, as a deterrent to law enforcement violations of the Fourth Amendment’s bar against unlawful searches.
Any evidence, both direct and indirect, obtained during an unlawful search is known as “fruit of the poisonous tree.” The Ninth Circuit in Shetler pointed to Supreme Court’s precedents that not only is direct evidence—statements or physical evidence—but indirect evidence as well come under the umbrella of the exclusionary rule if they “’bear a sufficiently close relationship to the underlying illegality.’” Specifically, the appeals court referred to its own en banc ruling in United States v. Crawford that “it is well established that the Fourth Amendment’s exclusionary rule applies to statements and evidence obtained as a product of illegal searches.”
The first issue question before the Ninth Circuit then was whether Shetler’s confessions were “fruit of the poisonous tree.” The Government did not challenge the trial court’s finding; that the initial search of Shetler’s garage was legal but that all subsequent searches were not because they were conducted without a warrant, without a valid consent, and without any justifiable extenuating circumstances. The question before the court was whether, assuming Shetler’s confessions were “fruit of the poisonous tree,” the confessions were “so attenuated from the searches that suppression was not warranted.” This legal analysis is required by the Supreme Court, as held in New York v. Harris, and it is the Government’s burden to show that any confession was not obtained illegally, as the Court held in Brown v. Illinois.
The trial court accepted the Government’s argument that Shetler’s confessions were the product of the initial legal garage search because the police had “probable cause” to make that search. The Ninth Circuit was not persuaded by this reasoning, pointing out that while probable cause is generally “dispositive” in determining whether a confession obtained during an illegal detention is admissible at trial, this analysis does not apply to confessions obtained from illegal searches. In finding Shetler’s confessions were illegal, the appeals court had to resolve the two “additional relevant considerations” that distinguishes an illegal search confession from an illegal detention confession:
“The first additional consideration in an illegal search case is that the interrogating officers may confront the suspect, either physically or verbally, with the evidence that has been illegally obtained … The government has not brought forth evidence to refute the likelihood that the DEA agents, in eliciting statements from Shetler when questioning him regarding his drug use and manufacture, utilized evidence illegally seized from Shetler’s home and garage. A question such as ‘did you manufacture methamphetamine in your garage?’ might not confront Shetler with illegally seized evidence; a question such as ‘did you manufacture methamphetamine using iodine and iodine pellets, hydriatic acid, muriatic acid, Drano, Heet, flasks, empty bottles of lighter fluid, a water bottle with white residue, a yellow bi-layered liquid, ground up pseudoephedrine, and a hot plate, all of which we found in your garage?’ certainly would…
“A second, related, consideration in an illegal search case such as this is that the answers the suspect gives to officials questioning him may be influenced by his knowledge that the officials had already seized certain evidence. ‘Confronting a suspect with illegally seized evidence tends to induce a confession by demonstrating the futility of remaining silent.’ … The government has produced no evidence to demonstrate that the answers Shetler gave to the government officials’ questions were not induced or influenced by the illegal search; indeed, there is every reason to believe that they were. Nothing in the record suggests that Shetler was aware of the initial, legal search of his garage; he came out of a side door of his house shortly after the officers had already completed their initial sweep. There is, on the other hand, irrefutable evidence that while detained outside his home for more than five hours he witnessed multiple illegal searches of his house and garage, including a set of lengthy searches, using protective clothing and masks, of the garage which he knew contained extensive materials associated with methamphetamine production. Witnessing government officials conducting these extensive searches that uncovered numerous items indicative of methamphetamine production could certainly have led Shetler to make the inculpatory statements he made to the DEA agents …”
The Ninth Circuit next turned its attention to the Government’s burden to show that if Shetler’s confessions were the product of the illegal searches, they were nonetheless lawful because they were sufficiently attenuated from the Government’s illegal conduct. There are three factors a reviewing court must consider in determining whether statements are “sufficiently attenuated” to the underlying illegality: 1) temporal proximity of the search to the confession; 3) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct.
With respect to the first factor, the Ninth Circuit said “although the 36 hours that passed between the illegal search and Shetler’s confession at the DEA office is a relatively long time, the temporal proximity factor does not weigh in the government’s favor. The relevant question for attenuation purposes is whether this passage of time would have in any way dissipated Shetler’s perception that the searches had produced evidence such that his remaining silent would be useless, or decreased the extent to which the government’s confronting Shetler with the illegally seized evidence induced his statements.”
Likewise, the appeals court found that “no intervening circumstances” broke the “casual chain between the searches and the confession.” The court pointed to the fact that during the intervening period, Shetler was in continuous detention during which he did speak with an attorney. “Although Shetler did receive Miranda warnings on at least three occasions after the illegal searches and before his confession in the DEA office,” the Ninth Circuit observed, “such warnings are insufficient to ‘purge the taint of a temporally proximate prior illegal’ act.”
Finally, relative to the third factor, the purpose and flagrancy of the illegal search, the Ninth Circuit said that a “statement is more likely to be tainted if there is evidence that the illegal conduct that produced it involved ‘either purposeful extraction of evidence or flagrant illegality.’” While the Government tried to justify the illegal search of Shetler’s residence as “a protective sweep,” this position was soundly rejected by both the trial court and the appeals court. The appeals court noted that the police never left the residence after their so-called “protective sweep” and, in fact, stayed in a room near the residence’s entryway for along as 25 minutes. “They did so,” the Ninth Circuit said, “before asking for Marohn’s consent to enter and search the residence, and that some officers remained inside the house while others obtained her (tainted) consent, constituted flagrant misconduct.”
Thus, while the reviewing courts must consider a wide range of factors in determining the legality of both a detention confession and an illegal search confession, the significant difference is “probable cause.” If the police have probable cause to arrest, or detain, and give the accused his Miranda warnings, any statements made by the accused are considered knowingly and intelligently made. Not so with an illegal search confession as has been discussed here. If a court finds an illegal search it must consider “additional relevant considerations” to determine if the “fruit” of the illegal search influenced the confession.
Some defense attorneys make the mistake of trying to suppress an illegal search confession with detention confession rules of law. Challenges to illegal search confessions must not only be finely tailored to the facts and circumstances of the search/seizure, they must be based on Fourth Amendment jurisprudence, not Fifth Amendment which controls detention confessions.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization