U.S. v. Akridge

• Decision Date: 02 October 2003
• Docket Number: No. 01-6294.,01-6294.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen D. AKRIDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

346 F.3d 618

UNITED STATES of America, Plaintiff-Appellee, v. Stephen D. AKRIDGE, Defendant-Appellant.

No. 01-6294.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2003.

Decided and Filed: October 2, 2003 Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED: Rita C. LaLumia, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant.

Gary Humble, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.

ON BRIEF: Rita C. LaLumia, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant.

Before: MOORE and ROGERS, Circuit Judges; KATZ, District Judge.^*

KATZ, D. J., delivered the opinion of the court, in which ROGERS, J., joined. MOORE, J. (pp. 633-637), delivered a separate dissenting opinion.

OPINION

KATZ, District Judge.

Defendant-Appellant Stephen D. Akridge appeals from his convictions for possessing crack cocaine with the intent to distribute, conspiring to possess crack cocaine with the intent to distribute, possessing a firearm in furtherance of a drug trafficking offense, and possessing a firearm after having been convicted of a felony. Akridge's contention on appeal is that the district court should have suppressed the pre-trial statements and trial testimony of Akridge's alleged co-conspirators, Kevin Ellison and Tiffany Stewart, as the fruits of an illegal search. The 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 motion.

I. BACKGROUND

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, Ellison was a convicted felon and the matter was referred to Special Agent Cordell Malone at the Bureau of Alcohol, Tobacco and Firearms ("ATF"), who in turn presented the case to the United States Attorney's Office for prosecution.

In the early morning of May 2, 2000, Chattanooga police officers received an anonymous telephone tip reporting that the residents of 824 Arlington Avenue were selling drugs. In response to the complaint, officers conducted a "knock and talk" at the residence, which was shared by Akridge and his roommates Kevin Ellison and Tiffany Stewart. During a search of the apartment, officers found marijuana, cocaine, and three loaded semi-automatic pistols.¹ At the time of the search, Ellison was still under federal investigation in relation to the January 1999 charges.

Following the search an officer suggested that the three residents decide who would accept the blame for the contraband, and allegedly indicated that he would see that the other two residents would not be charged. As a result, Stewart was taken to jail and Akridge and Ellison were left at the apartment. Stewart apparently was later released on her own recognizance.

On June 19, 2000 ATF officials interviewed Akridge, Ellison, and Stewart regarding the May 2000 search of their residence. All three admitted to selling crack cocaine and 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 which she pled guilty to a charge of aiding and abetting Ellison and Akridge in drug trafficking. On October 3, 2000 the Government reached a plea agreement with Ellison.

On January 22, 2001 the district court granted Akridge's September 11, 2000 motion to suppress evidence seized during the May 2000 search of his apartment, as well as his subsequent statement given on June 19, 2000.² Thereafter, on April 9, 2001 Akridge filed a motion to enlarge the scope of the district court's prior suppression order to encompass all previous and future testimony of co-defendants Ellison and Stewart, reasoning that the testimony was a direct result of the May 2000 illegal search. It is this motion that is at issue on appeal.

The district court conducted a hearing on the motion on April 30, 2001. By agreement of the parties, the court did not hear testimony but rather relied on the factual findings from the earlier suppression hearing, plus three new affidavits from Stewart, Ellison, and ATF Agent Malone. After review of the record, the district court denied Akridge's motion and on May 7, 2001 Akridge proceeded to trial.

At trial Ellison and Stewart testified on behalf of the prosecution. The Government also presented the testimony of Akridge's neighbor and Akridge's aunt,³ as well as a tape of an incriminatory phone call made from the Hamilton County jail by Akridge to his girlfriend.⁴

Ellison testified at trial that he had known Akridge for approximately fifteen years and had lived with him from October 1999 until June 2000. According to Ellison, he and Akridge supported themselves during this period by selling crack cocaine and marijuana. Ellison also testified about Akridge's possession and use of firearms.

Stewart, Ellison's girlfriend, lived with Ellison and Akridge and testified about her role in distributing drugs for Akridge and Ellison. Stewart also testified about Akridge's possession and use of firearms.

The jury returned guilty verdicts on Counts 1, 4, 5, and 6, which respectively charged Akridge with conspiracy to distribute in excess of fifty grams of cocaine base in violation of 21 U.S.C. § 846, possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), possession of a 9mm semi-automatic pistol in furtherance of drug trafficking crimes for the period October 1999 to May 2, 2000 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 December 31, 1999 in violation of 18 U.S.C. § 922(g)(1).

A pre-sentence report was prepared, to which Akridge objected in part because the report included information predicated upon statements made by Ellison and Stewart. The district court ultimately sentenced Akridge to 360 months on Counts 1 and 4 to run concurrently with 120 months on Count 6. The district court further sentenced Akridge to 300 months on Count 5 to be served consecutively, resulting in a total of 660 months imprisonment.

Akridge timely filed a notice of appeal on September 21, 2001 and asserts that the exclusionary rule requires suppression of the statements and trial testimony of Ellison and Stewart.

II. DISCUSSION

A. Standard of Review

We review the district court's ruling on Akridge's suppression motion under a mixed standard of review. See United States v. Galloway, 316 F.3d 624, 628 (6th Cir.2003). We reverse the district court's findings of fact only if they are clearly erroneous, but review de novo the district court's legal conclusions. United States v. Hurst, 228 F.3d 751, 756 (6th Cir.2000). Where, as here, the district court has denied a motion to suppress, we review the evidence in a light most favorable to the Government. See United States v. Harris, 255 F.3d 288, 291 (6th Cir.2001) (citing United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993)).

B. Exclusionary Rule

The exclusionary rule generally bars the admissibility at trial of tangible evidence, as well as verbal statements, acquired through unconstitutional means. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The rule excludes from admissibility "not only primary evidence obtained as a direct result of an illegal search or seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but also evidence later discovered and found to be derivative of an illegality or `fruit of the poisonous tree.'" Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)); see also Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ("[T]he exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes `so attenuated as to dissipate the taint'"). "The suppression or exclusionary rule is a judicially prescribed remedial measure and as `with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.'" Segura, 468 U.S. at 804, 104 S.Ct. 3380 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)).

As explained in Segura:

Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. The question to be resolved when it is claimed that evidence subsequently obtained is "tainted" or is "fruit" of a prior illegality is whether the challenged evidence was

"`come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"

It has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is "so attenuated as to dissipate the taint," Nardone v. United States, supra, at 341, 60 S.Ct. 266. It is not to be excluded, for example, if police had an "independent source" for discovery of the evidence[.]

Segura, 468 U.S. at 804-05, 104 S.Ct. 3380 (internal citation omitted).

Like many legal principles, the exclusionary...