U.S. v. Villalba-Alvarado

• Decision Date: 10 October 2003
• Docket Number: No. 02-3101.,02-3101.
• Citation: 345 F.3d 1007
• Parties: United States of America, Plaintiff-Appellant, v. Angel Benito Villalba-Alvarado, a/k/a Benito Angel Alvara Villalba, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

345 F.3d 1007

United States of America, Plaintiff-Appellant, v. Angel Benito Villalba-Alvarado, a/k/a Benito Angel Alvara Villalba, Defendant-Appellee.

No. 02-3101.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2003.

Filed: October 10, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc December 12, 2003.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Judge Morris Sheppard Arnold, Judge Bye, and Judge Smith would grant the petition for rehearing en banc.

Judge Murphy did not participate in the consideration or decision of this matter.

Lisa A. Biersay, argued, Asst. U.S. Atty., Minneapolis, MN, for appellant.

Jeffrey C. DeGree, argued, Roseville, MN, for appellee.

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Plaintiff-Appellant the United States of America appeals the suppression of physical evidence derived from a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as well as the suppression of Defendant-Appellee Angel Benito Villalba-Alvarado's later, post-warning/post-waiver statements also derived from the earlier Miranda violation. We reverse. The post-waiver statements were voluntary and are admissible notwithstanding the earlier Miranda violation. United States v. Fellers, 285 F.3d 721, 724 (8th Cir.2002), cert. granted, ___ U.S. ___, 123 S.Ct. 1480, 155 L.Ed.2d 224 (March 10, 2003) (citing Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)). Further, we join the Third and Fourth Circuits to hold that a Miranda violation does not demand the suppression of derivative physical evidence if the non-Mirandized statement was voluntary.

I.

After conducting controlled drug buys with pre-recorded currency, officers obtained a search warrant covering Defendant's car, home, and person. Defendant does not challenge the validity of the warrant. To execute the warrant, a team of officers approached Defendant's home. Other officers recognized Defendant in his car on a nearby street, stopped him, handcuffed him, and brought him to the home. Without the provision of a Miranda warning, Defendant voluntarily confessed to officers in the home the locations of (1) a hidden panel in a built-in dresser that concealed approximately one-half pound of cocaine and a scale, and (2) a coat hanging in a closet with $3,360 in its pocket, $700 of which comprised pre-recorded currency from the controlled buys.¹

The team searched Defendant's home for an additional forty-five minutes after finding the drugs, scale, and currency in the locations identified by Defendant, but found no other evidence. The lead officer described the usual procedure for executing search warrants of similar scope. Under this described procedure, teams would start their examination in the center of each room and work outwardly, examining everything from floor to ceiling. Next, officers would expand their search with follow-up passes through each room by different officers. Finally, if these steps failed to reveal evidence, dogs would be used. In an apparent attempt to demonstrate that Defendant's hidden panel was typical of hiding places encountered in prior drug searches, and therefore, that the hidden panel inevitably would have been discovered, the lead officer claimed that he previously had found evidence in very unusual places. When the United States Attorney asked the officer to list examples of such places, however, the presiding magistrate judge granted Defendant's relevancy objection and prevented the officer from answering. Finally, there was no evidence to suggest that the hidden panel was detectable upon observation, that officers suspected the existence of the hidden panel, or that the built-in dresser otherwise displayed characteristics that would have aroused officer suspicion.

The team's lead officer claimed that a drug dog happened to be available in the general vicinity of the home. The dog, however, was not part of the search team, and the team did not employ the dog in light of the assistance provided by Defendant. Further, the lead officer could not identify the names of the drug dog or its controlling officer. There also was testimony that the use of drug dogs is a normal component of searches where drugs are suspected but not discovered. Although the lead officer described in general the role of dogs in the execution of drug-related search warrants, he did not state specifically that he would have used the dog in this particular case if his team's search had failed to produce results.

After the search, officers took Defendant to the police station where he was given a Miranda warning in Spanish. Through a translator, he waived his rights and proceeded to re-describe the location where the drugs were found. He also identified his California-based drug supplier. Police recorded these post-waiver statements.

Defendant moved for suppression of the drugs, scale, and currency as well as suppression of the statements made in his home and the later, post-warning/post-waiver statements made at the police station. The United States argued that the physical evidence need not be suppressed as the fruit of a Fifth Amendment Miranda violation, that the physical evidence inevitably would have been discovered, and that the subsequent Miranda warning and Defendant's waiver of rights at the police station made any post-waiver statements admissible because the warning and waiver served to cleanse any taint that might have lingered from the original Miranda violation.

After a suppression hearing, the magistrate judge recommended: (1) suppression of the drugs and scale based on the conceded Miranda violation and the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); (2) admission of the currency under the doctrine of inevitable discovery; and (3) suppression of Defendant's post-waiver statement at the police station as further fruit of the original poisonous tree. The district court adopted most of the magistrate judge's report, but admitted a portion of the post-warning statement that was not related to the location of the drugs and scale (i.e., suppressed the drugs and scale but admitted the currency and all but the first ten minutes of the post-warning statement that Defendant made in the police station). The United States appeals.

II.

We address the admissibility of Defendant's post-waiver statement first. The Supreme Court addressed this issue in Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, namely, "whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant." Id. at 303, 105 S.Ct. 1285. The Court noted that arguments in favor of extending the fruit of the poisonous tree doctrine into the Miranda setting to suppress a later, voluntary, post-waiver/post-warning statement necessarily rested on the belief that the initial violation placed an irreparable degree of psychological compulsion upon a Defendant, who, by having "let the cat out of the bag," could not thereafter make a truly voluntary statement concerning the same subject matter. Id. at 302, 105 S.Ct. 1285. The Court, while noting this argument, rejected any extension of the fruits doctrine under this "cat out of the bag" theory and held that the pre-Miranda standard of voluntariness governed the admissibility of subsequent, warned statements:

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Elstad, 470 U.S. at 309, 105 S.Ct. 1285.²

En route to reaching the conclusion that a subsequent, warned statement was to be judged under the pre-Miranda standard of voluntariness rather than suppressed as fruit of the poisonous tree, the Court restated its general position that the exclusionary rule and the fruits doctrine apply differently to Miranda violations under the Fifth Amendment than to unreasonable searches under the Fourth Amendment. Elstad, 470 U.S. at 304-307, 105 S.Ct. 1285 (quoting Brown v. Illinois, 422 U.S. 590, 601, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) for the proposition that "[t]he exclusionary rule, ... when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth," and noting that metaphors such as fruit of the poisonous tree and cat out of the bag "should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment.").

The Court continued this explanation by noting the fact that it had already established exceptions to the application of the exclusionary rule in the context of Fifth Amendment violations. In particular, the Court noted various permissible uses even of an initial, voluntary, unwarned statement obtained in violation of Miranda. Elstad 470 U.S. at 307, 105 S.Ct. 1285 (noting the admissibility of initial, voluntary, unwarned statements for the purpose of impeachment and cross-examination). The Court also noted that in Michigan v. Tucker, 417 U.S. 433, 445, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), it refused to extend the fruits...